Sustainable Development andEnvironment Governances

Adhyayan Publishers & DistributorsNew Delhi (INDIA)

EditorProf. Partha Pratim Sengupta

Co-EditorBhupal Bhattachrya

Sustainable Development andEnvironment Governances

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© AuthorsIst Edition 2018ISBN 978-81-8435-581-9

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Sustainable Development and Environment Governances

Contents

1. Sustainable Development and Environment Governances 1

2. The Famous Movements & Outcomes For The ProtectionOf Environment In India And Abroad- A STUDY 10

3. Ethos of Environment protection in India: A Constitutional andJudicial approach 24

4. Promoting Sustainable Rural Development in Assam throughRural Tourism: Opportunities and Constraints 36

5. Factors Influencing Farm Size Decision of Farmers forSustainable 49

6. Environmental Laws in India- an Analysis 73

7. Biotechnology Prospects and Concern: Genetically ModifiedOrganism Controversies in India from Legal and GovernancePerspective 87

8. Locating Timber Trade in International Trade: A Conspectusof WTO Regime 126

9. Women as Guardians of Environment, Sustainable Developmentand the Role of Media 148

10. Environmental governance for sustainable development:prospect and scope towards delivering environmentaljustice 163

11. “Ramification of Human Rights against Industrial accidentsregarding Environmental Laws” 184

12. Indian Constitution & Judiciary on EnvironmentalProtection 197

13. Ethos of Environment protection in India: A Constitutionaland Judicial approach 217

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14. Relative Eclectic Alusions About the EnvironmentalRefugee 229

15. Sustainable Approach on Habitats for Wild Animals: Indianand International Perspectives 245

16. Sustainable Management of Natural Resources Development:Need for an Inclusive Society 264

17. Human rights and climate change 295

18. Environment Impact Assessment – Appraisal and Efficacy ofNational Green Tribunal Act, 2010 309

19. Famous Doctrines of Environemntal Law and CaseLaws 323

20. Birds Eye View of National Green Tribuanl and its FunctionalEthos 338

21. National Green Tribunal: A Road Towards EnvironmentalJustice? 353

22. The Canopy of NGT and The Protection of Biodiversity: ANexus 366

23. Statistical analysis of climatic variables in two ground basedmeteorological stations of Assam (India) 411

24. Article-21-Human Rights on Enviromental Laws 424

25. Renewable Energy and its Future Role in India a CriticalAnalysis 433

26. Overview of Human Rights and Sustaninable Development inNational and International Perspectives 446

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1SUSTAINABLE DEVELOPMENT ANDENVIRONMENTAL GOVERNANCES

Prof. Dr. Mrinal S. Raste1

HISTORICAL DEVELOPMENT AND ANCIENT INDIANPRACTICES

History is the blueprint of future development in true sense.History gives us the correct knowledge of understanding what iswhat and gives us the ability to differentiate between good andbad, right and wrong or correct and incorrect. It also guides us toachieve a better future.

In India, Hindu dharma has from its very inception consideredenvironment for sustenance the life in the earth and in protectingthe interest of the future generations. Hindu Dharma believes onsome logics and various Hindu sages in time to time formulatedvarious guidelines and codes in maintaining the relationship ofhuman being with the nature. Cleanliness and to have compassiontowards the forests and living natural resources found prominencein its various codes interlinking it with the duties of human being.Violation of such duty was also considered as punishable offence.Cremation of dead bodies and proper sanitation are considered asprimary acts under the Hindu system and non- observance of suchwas considered as punishable offence2.

There is a perfect balance between sustainable developmentand Ancient Indian Jurisprudence. The entire concept of livingwas based on the harmonious coexistence of human with the nature.“Ma hinsyah sarvabhutani” is a lesson of the Rig Veda, meaning,‘Do not harm anything’.

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Natural resources were respected to the extent that they werepersonified as God’s part and being worshipped. Almost all thehigher Gods of the Rig Veda are personifications of naturalphenomena, such as the sun, dawn, fire, wind and rain. Religionhas traditionally been remained the guiding force of the behaviourof the people in ancient India. The forces of any province or statewere also guided by the religious principles. Hindus, of ancientIndia, largely followed the Hindu religion or as it is also known‘Sanatan Dharma’, which means religion which is in sustainedsince perpetuity. The most important principles of this SanatanDharma are that of tolerance and pluralism. These concepts arethe very essence of Hinduism and are frequently expressed throughthe diversity of Hindu practice.

The use of Water has always been considered a pious andincluded in every kind of pujas and Yajnas. Scientifically and tomaintain hygienic condition water is needed for every activitiesand in ancient Hindu system it was included in the dharma as aform of purity. In Rig Veda water has been considered as form ofGod (Varuna) in every form including rivers, oceans, ayurvedictreatments and medicinal values.

Padmapura states that any person who has engaged into killingcreatures, polluting the conditions of environment, water bodiesor destroys gardens will surely go to hell3.

Hinduism categorises the universe as one family by acceptingdivinity in all beings, living and non-living. From the smallestorganism to the biggest living beings or creature as well the human,are considered manifestations of God. Mankind carries a specialresponsibility, to protect and develop the environment, as it isbelieved to be the most spiritually evolved being and having thecapacity to not only tolerate, but honour the underlying equalityof all beings.

Old Hindu writings like Vedas, Puranas, Upanishads, and otherscriptures had given strong importance on the various aspects ofenvironment including trees, animals and their immense need andsignificance to the people. The Rig Veda had specifically mentionedthe potentialities of natural environment and given strong emphasisin controlling the degradation of climatic conditions, betterconditions of environment for healthy living. In Atharva Vedaplants and trees have found special importance and werepositioned to the place of God and goddesses. Yajur VedaEmphasized that the relationship with nature and the animals

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should not be that of dominion and subjugation but of mutual respectand kindness.

Living beings including various animals and trees and plantswere either treated or linked with Gods and Goddesses and a dutywas given to all the human beingto strive for preserving the samefor generations to come. Religious belief extended to that extendwhere misusing of natural resources were inter-linked withsupernatural powers in checking the huge utilisation ofenvironmental resources. Ashokathe great emperor of MauryanDynasty had also attempted to extend the similar concept inprotecting the conditions of environment. He accordingly hadenacted numerous laws and policies for preservation andprotection of the environmenmtal conditions of India. Same policieswere aslo adopted by Mughal rulers during the medieval period inIndia. British Government had extended further in contributingmostly in conservation, protection and up-gradation of theecological system of India through enacting several new andupdated laws, rules and policies.

The genesis of concern for environmental protection in India,can be traced back to the 20th century when people protestedagainst the commercialization of forest resources during theBritish colonial period. The subtle nature of the environmentaround us reminds us of the gifts it has presented to us. We owenature for everything she’s given .us and it’s protection is our primeresponsibility. The onus has been passed upon to the succeedinggenerations and our environment needs to be protected from thecruel doings of man and mankind.

The ancient texts tell us that our Indian society paid moreattention to the protection of the environment which was eventhousand years earlier then arranging the first internationalconference on environment protection was held. It was the dharmaof each individual in the society, which actually guided those peopleto protect the Nature, and the way is to make the nature theelement of worship. The importance of the nature in ancient Indiansociety can be understood as in Manusmriti where we can finddifferent kinds of punishments for causing injury to plants.Kautilya is said to have gone a step further and determinedpunishments on the basis of the importance of a particular part ofa tree.

In the words of Sivaya Subhramanyam swami “let’s worship

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the earth”. We the human being survive because of the abundanceof environment and when the abundance would be withdrawn, wecannot continue to survive. Generation after generation throughsacrifice our ancestors have protected the environment for us andit is also our responsibility too to strive towards protecting themother environment. Famous Hindu philosophy thinker swamiDayanand Saraswati observed that all the flora and faunas of theearth are mutual inter-dependent upon another in continuing thelife cycle in the earth and we human being had treated all of themwith high compassions from ancient days considering that theresources of the nature are not absolutely meant for theconsumption of human being.

The biggest problem ever of this era, the world is facing todayis the environment pollution. Guided by the inherent humanpsychology to hunt for better enjoyment and limitless fortune withbetter well-being is approaching towards adopting unguidedexploitation of environmental resources in reducing nature’scapacity de-stabilizing the balance of the resources of the planet.The voracious appetite of human for resources and the desires toconquer the nature has put the human in collision with theenvironment. The uncontrolled demand for exploration withintention for adoption of modern technological advancementimposes strong pressure on the state of equilibrium of theenvironment.

The inter-relationship and inter-dependency between humanbeings and the environment has existed for quite long. In moderndays the need and proper initiative has been started only after theStockholm Conference, of 1972. Importance of having goodconditions of environment was known to Indian culture throughvarious religious practices during ancient India. In the early stagesof human development in India, it has been considered that theenvironment is more superior to human being who can dominatethe conditions of human being and accordingly various religiouspractices included worshipping of various aspects of environmentas for instance trees, forest, animals, mountains, water bodies etc.All aspects of environment have got a special place in the reverencein Hindu theology.

MEANING AND CONCEPT OF ENVIRONMENT:The environment is the combination if all those present on

the planet, the environment is a space of interaction, relationship

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and contact between agencies with or without life among thosewho develop constant changes brought about by external agentsthat interrupt and modify internal environment and agents thatreact to the exerted changes.

The term environment has derived its origin from the Frenchproposition ‘Environner’ which means surroundings and includesall the conditions which includes water, soil, and living things whichaffects biotic and abiotic conditions of life in the earth.

Biotic elements are living organisms whereas abiotic elementsare all those elements which affect living organisms. The Bioticelements are all living organisms like plants, animals and humanbeings and abiotic elements are water, soil, air, land and ozoneetc. . It would be impossible to survive without elements. The abioticelements should be in proper condition and balance each otherotherwise it would destroy the environment gradually andeventually whole mankind.

Environment comprises of natural, cultural, and social valuesexisting at a particular time. It influences life of a human beingand its upcoming generations to come in many ways. Blacklaw’sdictionary defines environment as the milieu in which an organismlives. It includes the sum of all of its surroundings which includesthe natural forces and other living things.

CONCEPT OF SUSTAINABLE DEVELOPMENT:The concept of ‘Sustainable Development’ is not a new concept.

The word sustainable Development was for the first time used byNorweigan Prime Minister in her report which is popularly knownas Brundtland commission Report in 1987.The simple meaning ofSustainable Development is balanced development or growth andresources of the environment to be sustained for generationswithout creating situation where are next generation are unableto meet their own needs.4 This doctrine found prominence in theRio Declaration on Environment and Development,1992, inrecognizing the inter-relationship between human rights and theprotection of environmental conditions. The Principle 10 of theEarth Summit emphasizes that “Environmental issues are besthandled with the participation of all concerned citizens at therelevant level. At the national level each individual shall haveappropriate access to information concerning the environment thatis held by the public authorities, including information onhazardous materials and activities in their communities and the

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opportunity to participate in decision making processes.”

Environmental resources are the resources of the nation, andaccordingly the responsibility to protect it lies on everyperson.Indian Judiciary has played an important role inmaintaining sustainable development. The Supreme Court of Indiaand various other High Courts of Indian States, in time to timethrough establishing various principles on the Doctrine ofSustainable Development passed judgments stressing on thepreservation of environmental resources, natural environmentessential to maintain healthy flora and fauna of the planet.

THE CHALLENGES TO THE SUSTAINABLEDEVELOPMENT:

Our ignorance and greed of using our natural resources hasgiven rise to our major downfall wrapped in the name“POLLUTION”. The term Pollution is derived from the Latin word“polluere” meaning to contaminate. It can be defined as anysubstance that harms or contaminates the natural environmentand causes harmful effects. Pollutants are the components ofpollution. They are waste materials that pollute air, water or soil.There are four basic types of pollution namely:

Involving in various kinds of hazardous activities by humanbeing is damaging the environmental resources and depleting theresources of the nature earth. For instance acid rainswhich havebecome one of the greatest menace of modern days is posing harmto the people, animals and crops etc. in large scale. Presence oftoxic chemical elements in air causes deadly diseases to all theliving being. But this pollution is increasing and spreading all overday by day everywhere. Most dangerous thing is global warmingabout which everyone is aware about. But no one is interested todo something about it.

Former 44th U.S. President, Barrack Obama in 2013 hasstated that “…For the sake of our children and our future, we mustdo more to combat climate change. Yes, it’s true that no singleevent makes a trend. But the fact is, the 12 hottest years on recordhave all come in the last 15. Heat waves, droughts, wildfires, andfloods—all are now more frequent and intense. We can choose tobelieve that Superstorm Sandy, and the most severe drought indecades, and the worst wildfires some states have ever seen wereall just a freak coincidence. Or we can choose to believe in theoverwhelming judgment of science—and act before it’s too late...”

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INTERNATIONAL CONVENTIONS AND TREATIESIndia being a developing nation is under numerous obligations

since it has signed several treaties and international agreementsto resolve the environmental issues.India in time to time has signednumbers of international agreements, treaties and conventionsrelated to the protection of the environment, which includesStockholm Declaration, 1972; Convention on International Tradein Endangered species of Wild flora and fauna (CITES) 1973; Viennaconvention for the protection of ozone layer (1985); Basel conventionon Trans boundary movement of hazardous wastes, 1989; EarthSummit, 1992 etc.

HUMAN RIGHTS AND ENVIRONMENT:Life and Environment are always co-related in many ways.

The life existence on this planet depends on the relationshipbetween ecosystem and environment. Human beings are in facthas become the prime concernin affecting the balance of sustainabledevelopment.

Humans have the ability to transform its surroundings, if usedin a proper way and with respect to the ways of nature, can bringto all communities the opportunity to enhance the quality of life.Wrongly applied the same power can do incalculable harm tohuman beings and also it’s environment. Natural resources arefundamental for our living and also much important then money.They are the base for our survival.

Human Rights and Sustainable development are not some verydistant terms. It can easily be inferred that with the provision ofhuman rights it is necessary to sustain the environment.Humansare dependent on the environment for various reasons and thus itbecomes imperative that necessary measures should be placed inorder for the present and the future generation to live their livesto the maximum extent without being burdened with the stress oftheir survival at stake. Life and Environment: Life, culture,livelihood and society are fundamental building blocks of humanexistence – hence their maintenance and enhancement is afundamental human right. Destruction and loss of environment istherefore, a violation and can even leads to the violation of humanrights – directly by undermining the above aspects of humanexistence, or indirectly by leading to other human rights violations,for example through social conflicts, disruption and even war.Conversely, human rights violations of such kinds cause

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environmental loss, for instance, displacement by social war cancause environmental damage in areas of relocation; or breakdownin sustainable common property management. Several hundredmillion people have been increasingly forced to live much belowthe minimum levels which is required for a decent human livingand existence, deprived of adequate water, clothing, food, shelter,health, education and sanitation because of unsustainable form ofdevelopment.

This world deserves better and we ought to do better to keepit from harm’s way. Starting with individuals to keep their personalenvironment clean will result in our entire surroundings beingfree of any pollutants. What’s lost can’t be retrieved but we canprevent any further damage.

Environmental deterioration eventually endanger life ofpresent and future generations. Therefore, the right to life hasbeen used in a well manner in India. It includes the right to surviveas a species, quality of life, the right to live with dignity, right togood environment and the right to livelihood. In India, these rightshave been implicitly recognized as constitutional rights. The rightto healthy environment has been incorporated, directly orindirectly, into the judgments of the court. Thus it is clear thatarticle 21 has a multidimensional interpretation. Any arbitraryand fanciful act on the part of any state, exploiting the life orpersonal liberty would be against Article 21 of the Indianconstitution.

FAMOUS DOCTRINES OF ENVIRONMENTAL LAWRight to wholesome environment is a fundamental right

protected under Article 21 of the Constitution of India andaccordingly various doctrines have in time to time evolved, few ofwhich includes:

1. Sustainable Development

2. Precautionary Principle

3. Polluter pay Principle

4. Public Trust Doctrine

5. Principle of Absolute Liability

JUDICIAL RECOGNITIONS:The formulation and recognition of various doctrines and

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strategies signify a judicial awareness on the need for reconciliationof the developmental, socio-economic, and ecological conflicts inthe present day in Indian society. Man must live and he must livewell, in a healthy and safe atmosphere – this has been the judicialdictum and its entire efforts have been directed towards achievingan environment where the resources of the planet can be sustained.It has, therefore, evolved diverse principles such as absoluteliability, and public trust doctrine to preserve the humanenvironment and to uphold man‘s right to live in a wholesomeenvironment.

The Indian Judiciary has always played a vibrant role inpronouncing various of its judgments, more significantly in theclosure of hazardous industries, shifting of the place of industrialoperation and the imposition of criminal responsibility on directors,for their failure in taking necessary anti-pollution measures. Thecourt has also directed the payment of compensation to victims ofenvironmental calamities. It has clearly specified that there canbe no compromise with environmental preservation; it has to bedone to ensure the survival of the coming generations and to givethem a life with human dignity.

The problem of environmental justice cannot be solved onlyby giving the opportunity to access the court for seeking justice,and requires that the judicial pronouncements should be enforcedeffectively through responsive enforcement machinery.

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2The Famous Movements & Outcomes For The

Protection Of Environment In India And Abroad-A STUDY

Teresa Jijo

IntroductionEnvironment opens its gates to a myriad of meanings. Even

though it may serve the most basic of the basic purposes, it holds adifferent essence to each living thing existing on the face of theplanet.The blessings that this environment provides are plentiful.It not only provides recourse to food availability, but serves toevery possible need to sustain living existence. In the light of this,there was seen a shift in the interests and intentions of humans.

As it is rightly argued, handiness of too many good thingswelcomes selfish deeds.Men began to ponder upon these thoughtsand acted upon them, some of which have had even longer impactthat what might have been claimed.Thus took shape a series ofevents that made its way into history books forever. Here, the massavailability of abundance of natural resources all around and notas many motives to capture them all,led humans to assumeeverything was to be just their own. Therefore, the problem ofprotection of environment is as as old as the evolution of homosapiens on this planet. With the advent of science and technology,coupled with the increasing world population, came tremendouschanges in the human environment. These changes upset the eco-laws of nature, thereby shaking the balance of human life. Ittherefore became a must to regulate human behaviour and socialtransactions with new laws, designed to suit the changing

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conditions and values.

If one were to talk about the mother of all the factorscontributing to the same, it can be dated back to the time theindustrial revolution came about. The origins of the environmentalmovement lay in response to increasing levels of smoke pollutionin the atmosphere during this Revolution. The emergence of greatfactories and the concomitant immense growth in coalconsumption, gave rise to an unprecedented level of air pollutionin industrial centers.

The BirthIn order to get to the birth of these ‘environmental movements’

as they are coined today, one needs to get a hold of what a socialmovement serves.

“Social movements are a kind of concerted action groups thatlast longer and are more integrated than mobs, masses, and crowds.Group consciousness, that is, a sense of belonging and of solidarityamong the members of a group, is essential for a social movement,although empirically it occurs in various degrees. Thisconsciousness is generated through active participation and mayassume various socio-psychological characteristics. By thiscriterion social movements are distinguished from ‘Social trends’,which are often referred to and famously knows as movementsand are the result of similar but uncoordinated actions of manyindividuals for example.”

Thus, social movement as has been seen since the beginning ofactions taken by humans, led to the formation of certain definitionswhich are now world renowned. Some of them as rightly statedinclude-

“A social movement is an organized attempt by a number ofpeople united by a shared belief to effect or resist changes in theexisting social order by non-institutionalized means. The ultimateobjective of a social movement is what its members see as thebetterment of society”

On the other hand, InternationalEncyclopaedia of SocialSciences defines social movements as “Socially shared demandsfor change in some aspect of the social order”.

According to Diani “Social movements are a network ofinformal interactions between individuals and organizations thatengage in collective action on the basis of a shared identity..

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Organizations..formal, informal, institutionalized or non-institutionalized can only be considered to bepartof a movement ifthey are networked to other organizations that engage in collectiveaction on similar issues”

These definitions given by popular sociologists further explainthe worth of what is now known as ‘environmental movements’

- Environmental movement is a type of “social movement thatinvolves an array of individuals, groups and coalitions thatperceivea common interest in environmental protection and actto bring about changes in environmental policies and practices”

Tong, Yanki points out that environmental movements are notonly but, also an example of social movements. What is evidentfrom the above definitions, is the cumulative relation between thefollowing three words-

In order to achieve‘Social order’,an adherence to ‘commoninterest’ is necessary to ultimately bring forth a unified ‘CollectiveAction’. This collective process of interpretation, attribution, andsocial construction gives meaning and value to collective action.By bringing shared meanings and definitions to their situation,people in a societywho feel aggrieved about some aspect of theirlives can easily become more optimistic that, by acting collectivelyand consciously, they can redress their problem.

Realising the needThe rising human greed led to numerous instances of

destruction of environment. If one were to look at the movementsthat have taken birth briefly, they would notice the majorcomponent of these movements to be an outrage overmisapplication and lack of planning by officials who were entrustedto safeguard the masses in the first place. Mere hunger for growthand shining in the eyes of the populace under the pretext ofdevelopment seemed to be the need of the hour as opposed toprotecting the environment which began to fast deplete.Deforestation for the sake of development, pollution of waterbodies by untreated chemical disposals by upcoming companies,creation of dams in unsuitable locations and endangering tens andthousands of species were, inter aliathe major causes of an uproaramong the people.

A major part of the environment now being subjected to thewhims and fancies of human intentions led to environment-loving

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people to come together. These individuals, driven by theircollective action for the sake of their common interest to safeguardtheir immediate surroundings(as in the case of dams), formulatedways by which their voices fell on the right ears, in the most directsense.

Changing TrendsThese collective actions adhering to the love, for the blessing

that environment is, paved way to what can be seen as an outburstagainst the oppressors. As opposed to the earlier times whenpeople were not as responsive and did not seem to care much aboutthe damage caused by fellow humans in the earlier centuries, therewas seen a radical shift in the actions by men and women alike. Tomark its beginning, these dated back to the 1700s with the famousBishnoi Movement. As popular as they arose to be, ‘conservationmovement’ (as was coined eventually) can be seen taking its placeeven as recent as the 21st century as well.

Thus, there have been several attempts to curb the harmfuland horrendous effects of human influence. One of the most commonmeasures taken around the world is that of starting what this studyaims to understand- the birth and growth of movements which isregarded as a peaceful yet effective manner to convey a message.These movements amplified the voice of the hundreds andthousands who stood in solidarity to protect the environment beforethe destructive forces of the industrialists and the government insome cases.

The changing trends can be best seen in the transformationthese movements have had gone through over the years. The samewill be expanded under the subsequent subheadings.

Environmental movements- The Indian Touch.The genesis of concern for environmental protection in India,

can be traced back to the 20th century when people protestedagainst the commercialization of forest resources during theBritish colonial period and the period following that.During thecolonial period, all the movements were suppressed by theauthoritarian British regime except the movement in Kumaun andGarhwal, due to its strategic importance as a border region.Similarly, the democratic regime of India suppressed manymovements in the early post independence era. However, startingin the mid-1970s, environmental movements began to achieve some

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success, when these movements were supported by various nationaland international human rights groups, nongovernmentalorganizations (NGOs), and activists.

However, It was only in the 1970s a coherent and relativelyorganized awareness of the ecological impact of the then state-monolithic development process beganto develop, to grow into afull- fledged understanding of the limited nature of naturalresources and to prevent the further depletion of natural resources.The factors that were responsible for the success of theenvironmental movements in the late 1970s and 1980s have notproduced as much success in the more recent era of liberalization.The rising nexus and collaboration between the state andmultinational corporations have led to the suppression of morerecent environmental movements and those that have beensuccessful have received strong support from opposition politicalparties.

Thus, the famous movements for the environmental protec-tion in India include the following.-

1. The beginning of it all- The Bishnoi Movement.This movement dated back to the 1700s and has been

fundamental in giving the subsequent movements the precedentto base their actions upon. It took place in Khejarli, in the Marwarregion of the state of Rajasthan. The prime purpose behind thismovement was to save the sacred trees from being cut down by theking’s soldiers in order to build a new palace.

What it was all about: Amrita Devi, a female villager could notbear to witness the destruction of both her faith and the village’ssacred trees. She attempted to top the men by hugging the treesso as to obstruct them from moving forward and executing whatthey intended to. However,her head was severed. Seeing theirmother lay down her life for the trees, her daughters clung to them.Their heads were severed too. Agitated by the happenings, theneighbouring village folk clung to the trees, as the massacrecontinued. More than 300 people were killed for non-obeisanceand for trying to protect the trees.

Effect:. The king who came to know about these events andrushed to the village and apologized, ordering the soldiers to ceaselogging operations. He apologized to the Bishnoi community,ordered to stop felling the trees and hunting of wild animals in

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Bishnoi areas and punished those who transgressed his orders.This sacrifice not only inspired movement that was born two 2centuries later, also famously known as the “ChipkoAndoloan” bySunder Lal Bahuguna, but also the Government of India in theform of “Amrita Devi BishnoiSmrithiParyavaran Award” forcontributing to environment conservation. The most importanteffect tis movement has was that of influencing and encouragingpeople all around in order to make them realise the ill-impacts ofmen’s mere greed.

Aftermath: The Bishnois are now considered as the firstenvironmentalists of India. They are born nature lovers. They have,for centuries, married eco-conservation with their faith, making itone of the most ecologically relevant orders of today. Reverencefor nature and all forms of life is what makes them a true ‘BISHNOI’.The Bishnoisare considered to be one of the first organizedproponents of eco-conservation, wildlife protection, and greenliving. With their ideals steeped in basic 29 religious tenets, theBishnois and Bishnoism are very relevant to our evolving world.They are rightfully called the first environmentalists of India. Theyhave given more to nature in comparison to what the entire countrywould have contributed so far. In spite of living in the arid desertregions for centuries they have been following the dictates of theirreligious principles. A cursory look at their lifestyle is a veryhumbling experience.

If not for the Bishnois and their reverence for nature, thepopular incident of killing of the Black Buck and he Chunkara bycertain Bollywood actors, would have never made it to theheadlines. The nation took notice of this erstwhile peace lovingtribal community that challenged the reigning stars and ensuredthat they were thrown behind the bars. With this news, the nationnot only came to know about the two unique endangered animalsbut also about the protagonists for nature – the Bishnois.

2. The Chipko Movement.The Chipko is one of the world renowned environmental

movements of India. It focused the world attention on theenvironmental problems of the Alaknanda catchment area in themid Western Himalayas. Chipko movement, launched to protectthe Himalayan forests from destruction, and has its roots in thepre-independence days. Many struggles were organized to protestagainst the colonial forest policy during the early decades of the

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twentieth century. The main demand of the people in theseprotests was that the benefits of the forests, especially the right tofodder, should go to local people”

It took place in the year 1973 in Chamoli district and later atTehri-Garhwal district of Uttarakhand.

What it was all about:Mr. Bahuguna enlightened the villagersby conveying the importance of trees in the environment - whichchecks the erosion of soil, cause rains and provides pure air. Thewomen of Advani village of Tehri-Garhwal tied the sacred threadaround trunks of trees and they hugged the trees, hence it wascalled ‘Chipko Movement’ or ‘hug the tree movement’. The maindemand of the people in these protests was that the benefits of theforests, especially the right to fodder, be given directly to the localpeople.

Effects: The Chipko movement gathered momentum in 1978when the women faced police firings and other tortures. The thenstate Chief Minister, Hemwati Nandan Bahuguna set up acommittee to look into the matter, which eventually ruled in favorof the villagers. This became a turning point in the history of eco-development struggles in the region and around the world.

Aftermath: The first and he foremost thing about Chipko isthat it was unique. It was representative of a wide spectrum ofnatural resource conflicts in the 1970s and 1980s — conflicts overforests, fish, and pasture, conflicts about the sitting of large dams,conflicts about the social and environmental impacts of unregulatedmining. In all these cases, the pressures of urban and industrialdevelopment had deprived local communities of access to theresources necessary to their own livelihood. Peasants saw theirforests being diverted by the state for commercial exploitation;pastorialists saw their grazing grounds taken over by factories andengineering colleges; artisanal fisherfolk saw themselves beingsqueezed out by large trawlers.

The sheer and determined persistence of these protests forcedthe government into making some concessions. When Indira Gandhireturned to power, in 1980, a Department of Environment wasestablished at the Centre, becoming a full-fledged Ministry a fewyears later. New laws to control pollution and to protect naturalforests were enacted. There was even talk of restoring communitysystems of water and forest management.

Meanwhile, journalists and scholars had begun more

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systematically studying the impact of environmental degradationon social life across India. The pioneering reportage of AnilAgarwal, Darryl D’ Monte, Kalpana Sharma, Usha Rai, NageshHegde and others played a critical role in making the citizenrymore aware of these problems. Scientists such as Madhav Gadgiland A.K.N. Reddy began working out sustainable patterns of forestand energy use.

Through these varied efforts, the environmentalism of the poorbegan to enter school and college syllabus. Textbooks nowmentioned the Chipko and Narmada movements. Universitydepartments ran courses on environmental sociology andenvironmental history. Specialist journals devoted to these subjectswere now printed and read. Elements of an environmentalconsciousness had, finally, begun to permeate the middle class.

3. Save Silent Valley MovementThe Save Silent Valley movement is a source of inspiration for

many later anti-dam movements in the country. Back in the ’80s itled to the scrapping of a hydro plant and to the declaration of theNilgiri Biosphere Reserve.It took place in the year 1978- the periodoften considered to be one where environmental movements weretaking it best course and took place in Silent Valley, an evergreentropical forest in the Palakkad district of Kerala, India.

What it was all about: Silent Valley in Kerala has a rich 89 sq.km biological treasure drove in the vast expanse of tropical virginforests on the green rolling hills. In 1980s, a 200 MW hydroelectricdam on the crystal clear river Kunthipuzha under the Kundremukhproject was to come up. The proposed project was not ecologicallyviable, as it would drown a chunk of the valuable rainforest of thevalley and threaten the life of a host of endangered species of bothflora and fauna. The plan for construction of the dam, announcedalready in 1973, attracted attention of environmentalists not onlyin Kerala state but also all over the globe. Romulus Whitaker,founder of the Madras Snake Park and the Madras Crocodile Bank,was probably the first person to draw public attention to the smalland remote area.

The poet-activist Sugathakumari as well played an importantrole in the Silent Valley protest and her poem “MarathinuStuthi”(Ode to a Tree) became a symbol for the protest from theintellectual community and was the opening song/prayer of mostof the “Save the Silent Valley” campaign meetings. People were

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concerned about the fact that the construction of dam will submergevast amount of land and will severely destroy the rich ecologicalflora and fauna of that region. People expressed their concern andit triggered a wave of protests through the different mode of protestall across the state.

Effects:The Kerala People’s Science Movement (Kerala SastraSahityaParishad) is a network of rural school teachers and localcitizens that promotes environmental scientific projects in thevillages. The movement acknowledged the obvious economic needsof the people of Malabar but concluded that the Silent Valley Projectwould make only a marginal contribution to regional development.Therefore, the group opposed the project with a campaign thatbrought into sharp focus the ecological consequences, specificallythe possibility of extinction of species that had evolved overmillions of years. The movement began to challenge the idea thatenergy generated by the dam would benefit the rural people ofKerala. Most of the energy from the project was to be exported toindustrialized areas of Kerala and surrounding states. Themovement asserted that the local environment would be disruptedwith benefits going to Trivandrum, the state capital.

May environmentalists, scientists, concern people and commonpeople also joined the demonstration. The protest from the Keralastate was further intensified when people from all over the countryjoined the protest. Soon it became India’s major and perhaps thefirst environmental movement with a far reaching consequence.

In 1978 Indira Gandhi, Prime Minister of India, approved theproject, with the condition that the state government enactlegislation ensuring the necessary safeguards. Also that year theIUCN (Ashkhabad, USSR, 1978) passed a resolution recommendingprotection of lion-tailed macaques in Silent Valley and Kalakkadand the controversy heated up. In 1979 the Government of Keralapassed legislation regarding the Silent Valley Protection Area(Protection of Ecological balance Act of 1979) and issued anotification declaring the exclusion of the hydroelectric projectarea from the proposed national park. In January 1981, bowing tounrelenting public pressure, Indira Gandhi declared that SilentValley will be protected. Early in 1983, Prof. Menon’s Committeesubmitted its report. After a careful study of the Menon report,the Prime Minister of India decided to abandon the Project. . InJune 1983 the Center re-examined the issue through a commissionchaired by Prof. M.G.K. Menon. In November 1983 the Silent Valley

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Hydroelectric Project was called off. In 1985, Prime Minister RajivGandhi formally inaugurated the Silent Valley National Park. .

Aftermath: On September 1, 1986 Silent Valley National Parkwas designated as the core area of the Nilgiri Biosphere Reserve.The area is now considered as ‘hot spot’.The ‘Save Silent Valley’movement was a grand success for all time environmentalmovement in India. Beside this, it is a source of inspiration forsimilar agitations. The ‘Narmada BachaoAndolan’ and the ‘TehriDam’ protests were highly motivated by that raw emotionsportrayed via this campaign to save the environment.

Environmental Movements: The International way.

Human concern about the environment in the internationalscenario has a long history. From the first efforts to conserve naturalresources, to the beginning of protests against air pollution, orcampaigns against nuclear testing, environmental activism hasemerged at various times, for various reasons and in various forms.The intensity and the will driven by these movements have beenwell inspired by the first movements in India. They not onlyreminded them of the ill effects of the continuation of these actionsbut also the need of the hour, i.e to speak up, be loud, and be heard.With the increase in ecological crisis, there has been acorresponding increase in the awareness and concern about it allover the world. This has, in turn, led to widespread protestmovements by aggrieved communities and concerned citizens.

Bhopal gas tragedy in 1984, nuclear disaster at Chernobyl(Russia) in 1986, Alaskan oil spill from Exxon Valdez tanker in1989, and the Gulf War in the early 1990s are some examples ofhazardous and undesirable happenings that led to ecological crisisin the human history.Late 20th century (the early 1970s) concernabout the impact of human activities on the environment hasresulted in new social, political and ecological movement and thegrowing salience of so-called ‘green issue’.

It has given rise to a steady growth of environmental-ecologicalmovement all over the world, including India. These movementshave been put under the category of ‘new social movements’ becausethey were not class-based and do not raise any economic issue likeearlier agrarian or industrial movements. Such movements werea resurgence of an interest of the people in their naturalenvironment.

In the early decades of the last century, a conservation

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movement grew up to conserve such rapidly depleting naturalresources as forests. More recently efforts to protect various birdsand animals in danger of extinction by human predators led to theenactment of concerned laws in many countries.Thesedevelopments have boosted the formation of many environmentalprotection and preservation organizations, such as ‘GreenNetwork’ or the ‘Greenpeace’ or ‘Friends of the Earth’ (1969)throughout the world, including India.

Environmental activists represent the planet against theinterests of corporations and human greed, all in an attempt topreserve our natural world for future generations. Tactics varyfrom radical to judicial, yet they share many of the same goals anddreams.For every new coal plant, for every new species facingextinction, and for every newly polluted stream, there is a victoryof equal importance.

The first conference on human environment initiated by UNOwas held at Stockholm in 1972. It paved the way for the studies onthe condition of the environment and its effects on human beings.It expressed serious concern to protect and improve theenvironment for present and the future generations.

This list compiles the most significant progress made by theenvironment and conservation movements-

1. Sumatran Elephant Sanctuary Expansion.What it was all about: The conflict between humans and

critically endangered Sumatran elephants in Indonesia has beengoing on for decades, with the elephants on the losing end of thebattle. The villagers and farmers don’t kill them for food. They doit to keep their homes and crops safe. The grim result is the killingcombined with shrinking elephant habitat contributes to an 80%population loss since the 1930s, according to the IUCN Red List ofThreatened Species.In Riau Province alone, where the highestnumber of elephants on the island was recorded in the 1980s, thepopulation decreased from 1,342 in 1984 to 201 in 2007. The majorcontributor to this conflict is the fight over land. Elephant habitatis lowland, non-mountainous, relatively flat landscape below analtitude of 300 meters. That kind of land also makes great farmland,which is why humans have cut down the rainforest and plantedcrops.

Individual small farms may not seem like a big encroachmentonto elephant habitat, but when that’s combined with the forest

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loss from large companies cutting down hundreds of hectares offorest for palm oil and pulp and paper plantations, it results in theelephants running out of land.

Effect: After hearing from the ‘World Wildlife Fund’ and 38,000concerned people around the world, the Indonesian governmentagreed to more than double the size of the TessoNilo National Park,a sanctuary for the extremely endangered Sumatran elephant.

Aftermath: When created in 2004 the park was only 94,000acres, but by the end of the year 2008, it expanded to 213,000 acres.Experts estimate that only around 2,500 Sumatran elephantsremain, making this park vital to their survival.

2. Incandescent Light Bulb BansWhat it was all about: Traditional incandescent cost around 1/

3 as much as standard compact fluorescent lightbulbs (CFLs). Butthe CFLs last longer and use less energy while illuminated.Incandescent filament light bulbs use up to five times as muchenergy as standard CFLs.

Advocates claim that replacing the worst-performing lampswith today’s best available technology will reduce domestic energyconsumption for lighting by 60 percent; equivalent to preventing30 million tons of CO2 pollution every year. The move would helpEU member states meet their proposed emissions reductions of20% by 2020, targets that may currently be in question because ofthe lingering economic crisis.

Effect:Greenpeace’s “Ban the Bulb” campaign succeeded inArgentina this March when the country adopted an incandescentlight-bulb ban.

Aftermath: Greenpeace(the organisation behind the initiative)has been urging several other countries to ban the incandescentlight bulbs. As in the case of India as well, Greenpeace has launchedits movement. By banning such bulbs, India can cut its carbondioxide emissions by 5.5 million tonne. “This is a simple, quick anddurable step and can lead to four per cent cut in India’s carbondioxide emissions’- as claimed by a spokesperson for theorganisation in its India campaign.

ComparisonsThe growth of movements for the protection of the

environments in the west have differed from its easterncounterparts.

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The environmental movement itself has changed characterover time. It used to be a protest movement at the fringes of Westernsocieties, but now it has become part of the mainstream. One signof this is that it is now often second nature for people to do thingsin their personal households like recycling to help protect theenvironment.

When the movements began in the 1970s as a protestmovement, most of its members saw themselves as outsiders whoneeded to fight the status quo and political elites. In a way, newdata point to a success story as more and more members of theenvironmental movement are elected to office and a large numberof people in the U.S. and elsewhere share the broad goal ofenvironmental protection.

In the Western world, the best examples of the mainstreamcharacter of the movement are found in Western Europe, where aGreen Party has flourished in most countries with parliamentarysystems,. They even can be found governing major democracies,like Germany. However, in the United States, the two-party systemhas slowed the expansion of the environmental movement amongthe politically elite.

Americans still have increased their environmentallyconscious behaviours, and a poll conducted by The New York Times,Stanford University and the nonpartisan environmental researchgroup Resources for the Future found that half of Republicanssupported government action to curb global warming.

Current ScenarioOne of the most fundamental and beaming environmental issue

that is present today is the issue of climate change. This particulartopic cannot be marked and as a baby of the west or the east. But itis one that belongs to the whole world together.

The climate movement, though considered to be a rather recentphenomenon, has its roots and beginnings since a rather long time.It is a subset of the broader environmental movement, but someregard it as a new social movement itself given its scope, strengthand activities.

Climate change must be given due consideration. The currentglobal threat is not terrorism, poverty or illiteracy, but is climatechange. It is very much a product of our ill management and thusmust be given its deserving attention, and prayer.

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SuggestionsThis world deserves better and we ought to do better to keep

it from harm’s way. Starting with individuals to keep their personalenvironment clean will result in our entire surroundings beingfree of any pollutants. The bigger picture is outside our concretejungle. The natural environment will be safer if left alone. It willreplenish with renewable resources with time. What’s lost can’tbe retrieved but we can prevent any further damage

ConclusionThe subtle nature of the environment around us reminds us of

the gifts it has presented to us. We owe nature for everything she’sgiven. us and it’s protection is our prime responsibility. The onushas been passed upon to the succeeding generations and ourenvironment needs to be protected from the cruel doings of manand mankind.

The human civilization has been triumphant in its endeavoursbut the accomplishments have cost us dearly. Not only have wesuccessfully torn apart our basic human cultures, but we haveharmed the environment as well. This began to change in the earlytwentieth century with the Bishnoi movement and since then, wehave seen numerous attempts by people to save the environment.These old school methods are still in practice and one should alwaystake a stand to protect our environment. As they say, charity beginsat home. Home,our safest environment and our world.

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3Ethos of Environment protection in India:

A Constitutional and Judicial approach

“Earth provides enough to satisfy every man’s need but notevery man’s Greed”

Mahatma Gandhi

IntroductionNature is the creator of every living organism including human

beings. Nature has given us everything from food, health, shelter,water, means of livelihood etc but man in its zeal to create moremeans of comfort for itself has undermined the importance ofnature and environment.

The ancient Indian scripts shows us the importance ofenvironment in human life the Bhagwad Gita, Upanishads containsvarious literature showing the relation of nature and human beingand also the responsibility one has towards the nature. Thesephilosophies provided in these ancient texts are also reflected tosome extent in the Constitution of India through its variousprovisions. But even then the problem of environmentaldegradation has reached an alarming stage.

Today protection of environment is one of the key issues inthe policy making process of almost every country. Saving thisEarth from environmental degradation is now of utmost concernto the entire humanity. The world is witnessing a global crisis ofenvironmental degradation. Degradation of environment hasreached such an alarming stage that majority of the countries hadto enter into different treaties and conventions to protect the

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environment. India is also not an exception to this devastatingissue of environmental degradation. The rapid industrializationin India in the recent past has posed a lot of issues concerningenvironmental protection. The parliament of India has enacteddifferent laws to protect the environment in India. TheConstitution of India contains different provisions for theprotection and promotion of environment in India. The Judiciaryas a guardian of the Constitution and its law too has played a pivotalrole in the protection and promotion of safe and healthyenvironment in India. In this chapter an attempt has been made tostudy and analyze the importance of environment and the issue ofenvironment degradation and it affects the society.

Environment and Indian SocietyFrom the time immemorial emphasis was laid on the

maintaining of the purity of nature. As per Hindu philosophy humanbody is composed of five elements (Panch-Tatva), i;e air, water,fire, earth and sky. As such it is believed that human body is createdby nature. Since the advent of mankind our religious scriptureslike Vedas, Puranas, Upanishads and other religious scripturesare full of praise of nature and in this protection of nature andnatural resources are given a place of special reference1.

The relation between man and environment is very muchcomplicated, on one hand man is seen as worshiping nature for allthat it has given us and on the other hand man itself is somewhatresponsible for the deplorable condition of environment. Theculture of Indian society has shown us that man has always heldnature in great respect. Religion plays an important role withinthe social system of this country and the socio religious values’prevailing within the society proves the dominant role of naturewithin the Indian society. Hinduism is a major religion in India.Most of the sacred texts relating to Hindu religion speak aboutthe superior status of nature in relation to human beings. Hinduismshows great respect for the nature.

In hinduism, also known as Sanatana Dharma by itsbelievers, or the Eternal Truth, contains perhaps some of the mostancient religious scriptures known to the human civilization. Thesetexts contain the religious norms, values, duties and principlesfor guidance of a human being which he must follow and observein his daily life. These duties and principles are regarded as asine-qua non for achievement of Moksha in one’s life and looking

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at the various different types of religious norms and dutiesprescribed through these ancient texts one can easily comprehendthat Hinduism shows great respect for the natural world.

There are different and several writings on environmentalmatters contained in all these religious books and that is also quiteevident from the wordings contained in the constitution of Indiareflecting the moral principles prescribed by these religiousprinciples. A few examples of such principles are2:

* “Do not cut trees, because they remove pollution.” (RigVeda,6:48:17)

* “Do not disturb the sky and do not pollute the atmosphere.” (YajurVeda, 5:43)

* Destruction of forests is taken as destruction of the state, andreforestation an act of rebuilding the state and advancing itswelfare. Protection of animals is considered a sacred duty.(Charak Sanhita)

All of this is an enormous source of concepts, principles, valuesand duties which is of deep significance to the study of the futureof humanity and also to make the present generation aware of theirresponsibilities towards nature by educating them on the line ofsuch moral philosophies and principles.

The Bhagwad Gita in Chapter 10 verse 8 speaks about theultimate truth

“Aham Sarvasya prabhavo mattah sarva pravartateIti matva bhajante mam budha bhava-samanvitah”

In the above phrase Lord Krishna Says that “I am the originalgenerating cause of all causes, everything emanates from me;comprehending this spiritually intelligent endowed withdevotional sentiments become devoted unto me”. Thus, everythingthat is found in nature from human beings, animals or trees arecreated by the god himself and one day it will again be devoted tohimself. There is god everywhere and no one is supposed to harmanything created by nature.

Trees and animals find a special place in most of the religioustexts. Some of the trees are considered as holy and are worshipedby many and no harm should be caused to any such trees. It ismentioned in the Padma Purana and Koorma Purana that thetrees like Peepal is believed to be the abode of God and hence they

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are not supposed to be cut down. All this is meant to preserve thevegetatrion. Planting of plants like Tulsi in every house isconsidered to be important and divine3 and offering of prayers infront of it every morning is considered to be an indispensiblepractice of followers of Hindu religion.

Most of the ancient religious texts depict animals as associatedwith the God. Such as Cow as the vehicle of Lord Shiva, Owlassociated with Goddess Saraswati or Lion with Goddess Durga.In this way all these animals were worshiped by man and causingof any harm was seen as an offence.

This intrinsic relationship between man and nature provesthe importance of nature and why it is to be protected. Althoughthere were no codified laws at that time but, perhaps nature wasmore protected than it is today and that is solely because man hadan inherent respect for all the creations of God including NatureItself.

Constitution and EnvironmentBased upon the socio-cultural values the Constitution of India

provided for a comprehensive list of rights promoting andprotecting the environment in India. As discussed in the earlierpart that man and nature had a very interesting relationship inbetween them. In almost every aspect of a man’s life nature playeda very important role mostly because of the religious and culturalphilosophy binding man and nature together

When India became an independent state the need to frame aConstitution for this independent country became a necessity. TheConstitutional makers of that time were well aware of the socio-religious structure of this country and also the need to have acomprehensive list of rights which will ensure that nature stayswell protected.

Preamble:The Constitution starts with the preamble which contains the

objectives and ideals sought to be achieved by the Constitution.The preamble speaks about socialism and social justice; these twoterms refer to a state wherein the welfare of the people getspreference above other issues pertaining to governance of thesociety. Thus, on a broader note the concept of Social welfare willinvariably include a healthier and clean environment for the people.As such, although the preamble does not specifically speak about

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protection of environment but on an interpretation of the preambleone can assume that protection of environment is a basic need toachieve the true purpose of socio-welfare state as stated in thepreamble.

Fundamental RightsThe Constitution of India contains a broad list of fundamental

rights. These fundamental rights ensure that basic human rightsenjoyed by a person are not infringed upon by anybody. Althoughin the list of fundamental rights there is no specific mention of aright relating to environmental protection, but, through theinterpretation of some of the articles of the Constitution the rightto a healthy and clean environment came to be recognized as aFundamental right under the Constitution of India.

The Constitution of India recognizes right to equality as afundamental right. Right to equality ensures protection againstany kind of arbitrary action of the state. Article 14 strikes atarbriteriness in state action and ensures fairness and equality oftreatment. As such if a state action arbitrarily deprives the citizensfrom the right to a healthy environment the same may be declaredas violative of the Constitution. A good example of such a situationis found in Banglore medical trust Vs B.S Muddappa4. In this casethe Apex Court thwarted the attempt to convert a public park siteinto a nursing home5.

During the 80’s the judicial approach towards litigation gonethrough a lot of change. The traditional concept of locus standigave way to public interest litigation which brought a sea changein the entire concept of litigation process relating to protection ofhuman rights of citizens. One of the fascinating developments thattook place was, with respect to Article 21 of the Constitution ofIndia which provides for the right to life and personal liberty. Itwas interpreted by the Apex court in the widest possible terms, soas to include all that which would make life worth living. Right toclean and healthy environment was declared to be a fundamentalright under article 21 of the Constitution of India.

Doctrine of Public Trust: Polluter pays Principle: PrecautionaryPrinciple

The liberal interpretation of life in article 21 has led to thesalutary growth of an environmental jurisprudence in India.Doctrine of public trust and polluter pays principle and theprecautionary principle were developed by the Supreme Court.

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The public trust doctrine rests on the notion that natural resourceslike land, air, waters are meant for general use and cannot belimited only for private use or ownership. These resources are agift of nature and hence, the state as a trustee thereof, is dutybound to protect them6.

The “Precautionary Principle” means that the state governmentand the concerned statutory authorities must anticipate preventand attack causes of environmental degradation. The principle of“Polluter Pays” means that one who carries on a hazardous activityis liable to make good the loss caused to another person by suchactivity7.

In Vellore Citizens Welfare Forum v. UOI8, AIR 1996 SC 2718:It was held that the both precautionary principle and the polluterpays principle are important part of law relating to environmentof the country.

Thus through the interpretation of the fundamental rights theSupreme Court has given a new dimension to the concept ofenvironmental protection in India.

Directive Principles of State PolicyIndia is a socio-welfare state where the fundamental objective

of the government is to secure to all its citizens justice social,economical and political as reflected under the preamble to theconstitution of India and the constitution seeks to achieve the samethrough the directives principles of state policy. The basic objectiveof the Directive principles of state policy under the IndianConstitution is to help building a socio-welfare state and tomaintain a sustainable development of the country. A Healthy andpollution free environment is also one of the key elements of welfarestate. Article 47 provides that the State shall regard the raisingof the level of nutrition and the standard of living of its people andthe improvement of public health as among its primary duties.The improvement of public health also includes the protection andimprovement of environment without which public health cannotbe assured. Article 48 deals with organization of agriculture andanimal husbandry. Article 48 -A of the Constitution obligate thestate to take all necessary measures “for the protection and improvethe environment and to safeguard the forests and wild life of thecountry”9. The directive principles of state policy are declared tofundamental in the governance of the country. The state is requiredto take positive actions for achieving the goals as prescribed under

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the directive principles of state policy. Thus, the directiveprinciples of state policies reflect the age old traditional values ofIndian society aimed at creating a rational, just, equal and fairsociety, where every object of the nature is respected, loved andprotected.

Fundamental DutiesRight and duty are both co related every right corresponds to

a duty when u has a right you must also perform a duty. Pollutionfree environment is a fundamental right of a citizen and that butalso implies that the citizen shall also have a corresponding dutynot to pollute or cause any harm to the environment.10 TheConstitution (Forty-Second Amendment) Act, 1976 added a newpart IV-dealing with “Fundamental Duties” in the Constitution ofIndia11. Article 51-A (g) specially deals with fundamental duty withrespect to environment that: “It shall be the duty of every citizenof India to protect and improve the natural environment includingforests, lakes, rivers and wild life and to have compassion for livingcreatures”. Article 51-A (g) refers to the fundamental duty of everycitizen to protect and improve “natural environment”. But in thepresent days the pollution is caused not only by exploiting the“natural environment” but otherwise also. Nature has given us thegift of pollution free environment. The fundamental duty imposedon every citizen is not only to “protect” the environment from anykind of pollution but also to “improve” the environment quality ifit has been polluted. So it is the duty of every citizen to preservethe environment in the same way as nature has gifted it to all ofus12.

Judiciary and EnvironmentOver the years the judiciary in India has played a very

important role protecting and promoting the natural environmentof India. From the various judgements that were passed by thejudiciary in India, one can very easily understand the role playedby the judiciary in the preservation of nature and protecting itfrom various types of encroachments. In this part some of theimportant judgements of the various courts shall be mentioned tohighlight the role of judiciary in protecting the environment inIndia.

The judiciary in India has on many occasions has held thatright to live is a fundamental right under article 21 of the

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Constitution and it includes the right of enjoyment of pollutionfree water and air for full enjoyment of life13.

In its judgment in the matter of Sunil Kumar Chugh v.Secretary, Ministry of Environment and Forests, New Delhi,The NGT held that open spaces, recreational grounds and adequateparking facilities in buildings had an important bearing on theright to life of people14.

A division bench of Uttarakhand High Court has declared thatrivers Ganga and Yamuna, all their tributaries, streams, everynatural water flowing with flow continuously or intermittently ofthese rivers, as juristic/legal persons/living entities having thestatus of a legal person with all corresponding rights, duties andliabilities of a living person.

The bench opined that there is utmost expediency to give legalstatus as a living person/legal entity to rivers Ganga and Yamunar/w Articles 48-A and 51A (g) of the Constitution15. In this case thecourt has observed that “All the Hindus have deep Astha in riversGanga and Yamuna and they collectively connect with these rivers.Rivers Ganga and Yamuna are central to the existence of half ofIndian population and their health and well being. The rivers haveprovided both physical and spiritual sustenance to all of us fromtime immemorial Rivers Ganga and Yamuna have spiritual andphysical sustenance. They support and assist both the life andnatural resources and health and well-being of the entirecommunity. Rivers Ganga and Yamuna are breathing, living andsustaining communities from mountain to sea”16

In Charanlal Sahu v. Union of India17 the Supreme Court ofIndia held that, in the context of our national dimensions of humanrights, right to life and personal liberty, pollution free air and wateris guaranteed by the Constitution under articles 21, 48–A and 51 –A (g). It shall be the duty of the State to take effective steps toprotect the rights guaranteed under the Constitution.

In A.P. Pollution Control Board (II) v. Prof.M.V.Nayadu18 theSupreme Court stated that the rights to healthy environment andto sustainable development are fundamental human rights implicitin the right to life. The Supreme Court of India was one of the firstCourts to declare the concept of healthy and pollution freeenvironment one of the facet of the concept of “life” under Article21 of the Constitution.

In Subhash Kumar v. Bihar19 the apex court has held that

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enjoyment of pollution free environment is included in the rightto life under Art 21. The court has observed:

“Right to live is a fundamental right under article 21 of theConstitution and it includes the right of enjoyment of pollutionfree water and air for full enjoyment of life. If anything endangersor impairs that quality of life in derogation of laws, a citizen hasright to have recourse to article 32 of the Constitution for removingthe pollution of water or air which may be detrimental to qualityof life20.

In M.C Mehta v Union of India21 which is popularly known asoleum gas leakage case, the Supreme Court once again impliedlycame to recognize the right to live in pollution free environmentas a part of fundamental right to life under article 21 of theConstitution of India.

In MC Mehta v. Union of India held that: “In order for thehuman conduct to be in accordance with the prescription of lawfor the preservation of nature it is necessary that there should beproper awareness about what the law requires. This should bepossible only when adequate steps are taken to make people awareof the indispensable necessity of their conduct being oriented inaccordance with the requirements of law22.

The Andhra Pradesh High Court in T Damodhar Rao v S.OMunicipal Corporation23declared that:

It would be unreasonable to hold that the enjoyment of lifeand its attainment and fulfillment guaranteed by article 21 of theConstitution embraces the protection and preservation of nature’sgift without which life cannot be enjoyed. There can be no reasonwhy practice of violent extinguishment of life alone should beregarded as violative of article 21 of the Constitution. The slowpoisoning by the polluted atmosphere caused by environmentalpollution and exploitation should be regarded as amounting toviolation of article 21 of the Constitution of India24.

In Enkay Plastics Pvt. Ltd. Vs. Union of India (UOI) and others25

the High Court upheld the order of the Delhi Pollution ControlCommittee for closure of certain polluting industries, and heldthat the direction for closing down the industry which are creatingair pollution in residential areas as valid.

Thus, it can be seen that the higher courts in India have playeda significant role in the protection and preservation of environment.The courts by playing a role of activist have made considerable

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changes in the field of environmental protection. The right toenvironment has been elevated to the status of a fundamental rightby the courts in India and thereby tried to ensure that this right isnot violated by anyone under any circumstances.

Conclusion and Suggestions:Nature is the creator and reservoir of all natural resources on

which we all are dependent. The preservation, protection andproper utilization is the primary duty of all of us. Human beingscannot survive without oxygen and for purity of oxygen we needtrees. We all are aware of these facts the government has alsotaken initiatives to make people aware of these situations but stillthe problem og environmental degradation is a persistent problemin India. The people need to understand their duties andresponsibilities towards nature. There may be different reasonsfor the problem of environmental degradation in India and onesuch reason is:

(i) Moral degradation has to some extent has contributed to thisproblem of environmental crisis. Mans urge for more, his greedfor wealth and means of comfort resulted in the destruction ofNature. other aspects will include

(ii) (ii) Rapid industrialization and urbanization is another factorfor environment degradation

(iii) (iii)Lack of proper planning and coordination of variousgovernmental departments in various developmentalactivities. May be if we can create a proper environment andnot just educatethem but actually making them realize withpractical exposure about the importance of nature them maybe we will be able to deal with the problem of environmentaldegradation. Further on the part of the government Creatinga single authority having representation from various depttsuch as urban planning, environment and forest, health andsanitation, PWD, power and electricity, and leading NGO’s andconcerned local authority etc for clearing developmentalprojects will definitely play a positive role in balancingdevelopment and environmental protection.

Thus, we need a proper vision for the future course of actionfor safeguarding the environment. Indian legal system is a basketfull of laws and we have enough laws relating to different aspectsof environmental protection but even then we have not been able

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to deal with the situation as we would have liked it to be. There isa serious need of introspection of our self that where we are lacking.Is it the government, the people, the laws or the enforcementmachinery or all who is responsible for such a situation? In theanswer to this question lies the faith of our future generations.

Lastly in the words of Ross Perot:“The activist is not the man who says the river isdirty.The activist is the man who cleans up the river”.

References:

1. Judge C.G.Weeramantry at the inaugural meeting of the WorldFuture Council held in Hamburg on 9 -13 May 2007, publishedin Asian Tribune by World institute of Asian studies.

2. Singh K.R, Environmental law, University book house pvt ltd,Jaipur, 2011, p22

3. Upadhyay.R.J.J, Environmental law, Central law agency,2010,Allahabad

4. (1991) 4 SCC 54

5. Supra ft n 3

6. Jain, M.P, Indian Constitutional law (2008) Lexis NexisButterworths wadhwa,pp 1137-1139

7. Ibid

8. AIR 1996 SC 2718

9. http://pib.nic.in/newsite/PrintRelease.aspx?relid=105411accessed on 08.11.17 at 9:06 p.m

10. shodhganga.inflibnet.ac. in/bitstream/10603/76685/9/09_chapter%202.pdf accessed on 08.11.2017 at 8:39p.m

11. Sec 11 of the Constitution (Forty-Second Amendment) Act, 1976w.e.f 3.1.1977.

12. P.S. Jaswal and Nishtha Jaswal, Environmental Law, 45(Allahabad Law Agency: Haryana, 3rd Edn. 2009, Reprint 2012).

13. A.I.R 1991 SC 420

14. Down to Earth, Friday 13th November 2015

35

15. Mohd Salim vs State of Uttrakhand and others WP (PIL) No126 of 2014, accessed at Livelaw.in on 25th October 2017.

16. ibid

17. (1990) 1 SCC 613

18. (2001) 2 SCC 62 at 70-71

19. Jain, M.P, Indian Constitutional law (2008) Lexis NexisButterworths wadhwa, P 1138 (1991) SCC 598

20. ibid

21. AIR 1987 SC 1086; See also AIR 1987 SC 965

22. AIR 1992SC 362

23. AIR 1987 AP 191

24. Upadhyay.R.J.J, Environmental law, Central law agency,2010,Allahabad, p.50

25. 2000(56)DRJ828

36

4Promoting Sustainable Rural Development inAssam through Rural Tourism: Opportunities

and Constraints

Ashifuddin Ahmed Saikia, Dr. Chandan Goswami

IntroductionRural tourism has been recognized as an important tourism

segmentthat facilitates sustainable livelihood in rural areas in mostcountries.Rural tourism means tourism in rural and thecountryside regions.It provides opportunities of livelihoodto therural communities and offers an opportunity tothe tourists to spendtheir holidays in such areas. It promotes sustainable ruraldevelopment and help preserve the rural culture andtraditions.Rural Tourism in Assam is now growing due to increasedgovernment efforts and the presence of beautiful and culturallyrich villages. There is enormous potential for the state to furtherdevelop this concept of tourism in the light of the opportunitiesand the benefits.In spite of various undesirable issues,rural tourismhas been acknowledged in many areas.The state is trying to makerural tourism animportant contributor to the economy andsustainable development of the rural populace. But there is still along way to go before rural tourism can be integrated intomainstream tourism.Proper management and realistic planningwith soundnlegislation and greater involvement by localcommunities can lead to good results and thus, help to improvenot only Assam’s economy but also ensure sustainabilityin the ruraltourism sector.

The issue of sustainability or sustainable development has

37

received great importance in various areas and is also beginningto dominate in the tourism sector. Pachoni (2017) regardssustainability as related to the socio-economic, environmental andcultural dimensions of tourism growth. UNESCO describessustainable tourism as “tourism that respects both local peopleand the traveller, cultural heritage and the environment. It seeksto provide people with an exciting and educational holiday that isalso of benefit to the people of the host country”1.It is importantfor all touristic activities to be sustainable. Like nature basedtourism, ecotourism, cultural or heritage tourism, the concept ofsustainability applies to rural tourism also. Rural tourism has beenrecognized as an important tool for sustainable livelihood of therural peoplein most countries (Hazarika 2016).

Rural tourism is a distinct segment of the tourism industrywhere one can experience the lifestyle, culture and traditionof thepeople at rural areas. It brings socio-economic benefits to the ruralhouseholds and also enables the tourists to interact with the localsfor a more enriching experience (Khound 2013; Nagaraju &Chandrashekara 2014; Bouchon 2016; Hazarika 2016). Rural tourismhas multiple dimensions and includes areas such as agricultural,cultural, nature based and adventuretourism and eco-tourism.Itprovides tourism products and leisure opportunities at ruralsettings. Therefore, according to Pakurar and Olah (2008), ruraltourism can be integrated with the elements of other tourismsegments.

Bhattacharjee(2014) opines that rural tourism is traveltovillageareas for holiday purpose. It provides opportunities of livelihoodto the rural communities and offers an opportunity tothe touriststo spend their holidays in a rural environment. Khound (2013)defined rural tourism as a country experience involving variousactivities and attractions of non-urban areas. He regardedthe socio-economic development of the rural regions as the main objectiveof the concept of rural tourism.Like many countries, in India also,it is a popular form of tourism and attract many tourists. The ideaof rural tourism was first highlighted and discussed in the NationalTourism Policy of 2002 (Biswas 2017). Kerala and Rajasthan werefew of the states to adopt this concept early in India(Bandyopadhyay 2003).

Rural tourism involves activities that directly relate to theresources of rural areas and can contribute significantly to ruraleconomy and help develop rural standards.It promotes rural

38

development and help preserve the rural culture and traditions(Ionela, Constantin & Dogaru 2015). In Europe, tourism has beenaddressing social and economic problems in the rural areas,primarily where traditional agrarian industries are declining(Sharpley 2002).

The rural tourism includes depiction of the traditional villagelife and involves agriculture traditional attires, arts and crafts,folk culture etc. One can come to such place and learn andunderstand traditional Indian society. The typical characteristicsof rural tourism are; it is experience based and is basically innatural settings, rural areas are less populated, it incorporatesseasonal local events and aims to preserve the rural culturalheritage and traditions (Khound 2013; Biswas 2017).

Under the scheme of rural tourism, the Indian governmentwill give thrust onpromoting tourism in villages.Effort will be madeto identify important regions for developing and supportingsustainable rural tourism. Eligible activities for assistance wouldbe improving the environment, hygiene, infrastructure etc. Underthis scheme,maximum Rs.50 lakhs will be sanctioned. 153 projectshave been sanctioned till now for rural tourism by the Ministry ofTourism in 28 States/Union Territoriesincluding 36 rural siteswhere UNDP2 has extended assistance for capacity building(Ministry of Tourism, India).

Rural tourism in AssamAssam is one of the Seven Sister States of Northeast India. It

is mostly an agro-based economy.However, tourism is akey economic activity of the state. The state is famous for itswildlife, important religious and historical sites and also for itsfolk culture. The state is also endowed with diverse and attractiverural cultural heritage.

The essence of Assam’s ethnicity and culture lies in its villages.Many cottages and huts have been established with basic amenitiesfor tourists where local cuisine, music, dance, hands-on farming,interaction with locals, homestays, visits to temples, wildlife safarisetc. are part of the tour packages (Assam Tourism). Following isthe list of Rural Tourism Sites in Assam and their USPs as on31.3.11 (Ministry of Tourism, India):

Durgapur (Golaghat District) - Bamboo Craftand Cuisine

39

Dehing-Patakai Kshetra (Tinsukia District) - Culture andEcotourism

Sualkuchi (Kamrup District) - Patta and MogaSilk weaving

Asharikandi Village (Dhubri District) - Terracota Craft

Dehing-Patakai Kshetra in Assam is a commissioned ruraltourism site of the Ministry of Rural Tourism as on 30.06.2011.However, the state is also promoting Majuli and Mayong as ruraltourism destinations and places like Merbeel and Namphake inDibrugarh, Emthong in Tinsukia etc.

As per the state Economic Policy for 2016-17, The AssamTourism Department will also be emphasising on infrastructuredevelopment of Rural Tourism and employment generation forrural women, to showcase rural tourism products, lifestyle, culture,handicrafts etc., as well as for unique visitor experience (AssamEconomic Policy 2016-17).

A scheme called ‘Aamaar Aalohi’ (Our Guest) - Rural HomestayScheme 2017-18, framed by the State Tourism Department, will beimplemented by Assam Tourism Development Corporation (ATDC)with an aim to promote rural homestay facilities in Assam and tocreate self-employment opportunities for educated youths in ruraland semi-urban areas of tourism potential and importance (AssamTourism). The scheme will be implemented withan estimated Rs16.29 crore. The first phase for the year 2017-18 will constitutesetting up of 200 home-stays,out of which, the highest of 40 will bein Golaghat district, followed by 25 in Barpeta. Majuli, Morigaonand Haflong-Umrangsu each will get 20 home-stays while Sonitpurwill get 15 and Jorhat, Sivasagar, Dibrugarh, Tinsukia, Hajo-Sualkuchi and Darrang will get 10 each3.

Rs. 3 crore has been allocated by the Finance minister of Assam,Himanta Biswa Sarma, has for this scheme.Hehas offeredexemptionfrom luxury tax to hotels and lodges and the ruralhomestays4.Also, ATDC has signed a MoU with Rightstay, analternate accommodation marketplace by MakeMyTrip, to promotethe concept of homestay in Assam5.

Under the initiative, the tourists will get a chance to stay inrural homes, experience the unique village life, its culture, enjoylocal events, try local cuisines or buy ethnic goods etc. The schemewill not only provide standardaccommodation services near the

40

tourist locations, it would also help in empowering the localcommunities by creating tourism related jobs. The aim is to providefor conservation of naturaland cultural heritage, environmentalwelfares for the rural households, to enhance the cultural valuesand promote sustainabilityin tourism growth in rural Assam.

Hunar Se Rojgar Tak is another Programme of the Ministry ofTourism initiated in 2009 with the objective ofprovide the youthbetween the ages of 18 to 28 years with necessary skills in thisfield for employment. In Assam, a training program was conductedby ATDC 2012-13 on driving skill along with training on etiquettewherein 90 youths were trained in three batches collaborating withthe Institute of Hotel Management (IHM), Guwahatiandcertainselected driving schools from Kamrup (Metro) andDibrugarh.

Opportunities and Benefits of Rural TourismWorking opportunities in rural areas are very few and less

diversified. Most of the rural people are farmers or involved inallied activities which do not offer much income. Large family size,lower than average income and conditions of poverty are few majordifficultiesfaced by the rural Assamese people. Tourism can createemployment for the rural people and rise in the general incomefor rural people by giving them a source of additional earningsalongside their traditional farm and non-farmactivities.It helps topotentially minimisethe movement of people from rural to theurban areas in search of jobs.

Rural tourism helps the rural communities in revival of ruralculture and tradition and handicrafts of the villages and creatingan identity for themselves. Rural tourism could give a boost to thelocal music and arts as well as connect the urban and rural peopleby providing a platform for mutual learning and thus, encouragessocial interaction and better cultural understanding among peoplewho often live in relatively remote locations. In Assam, it will fostersocial and economic development of rural areas which will furtherpromote the upliftment of the rural economy as well as people’slife style, their folk culture and customs of people residing in andaround the villages.

Rural tourism offers many opportunities and benefits forsustainable growth of the state.Some of its positive impacts thatAssam can secure are highlighted below –

Creation of employment:Cash flows from tourism activities

41

can help retention of jobs in services such as transport,hospitality etc. as well as creation of new jobs. Countless jobshave been created and supported due to the growth of tourismin rural areas(Nagaraju et al. 2014; Ionela et. al. 2015; Wangand Lalrinawma 2016).

Rise in business opportunities and income level: Tourismhas promoted new business opportunities in rural areas andhas led to increased level of earnings(Pakurar et al. 2008).Investment opportunities in hospitality, recreation, food andretail sectors or handicraft and handlooms etc. is rising asdemand for such services are high in tourist areas. Throughtourism local small businessman will be benefited.

Curb migration of rural people to urban places: Due toinadequate earning opportunities, the village youths migrateto urban centres for better prospects. Rural development willmotivate the people to find tourism related employmentopportunities in their own villages instead of moving out(Pakurar et al. 2008; Ionela et. al. 2015).

Promotion of handicraft, handlooms and othermarkets:Tourism has also been promoting the handloom andhandicraft sector as well as other economic activities(Nagarajuet al. 2014). Due to tourist influx, the market for agriculture,handicrafts and other products will develop in rural areas andfarmers and artisans can develop a direct contact with thecustomers. Silk products, bamboo and craft products etc. haveseen considerable sale due to tourist inflows.Arts and craftsfestivals are being used as a marketing strategy to attract andencourage more visitors.

Safeguarding culture and heritage at rural areas:Ruraltourism plays a very important role in promoting andpreserving the rural culture and heritage. Tourism will createa sense of identity and pride for the place and its culturalheritage among the local people. Also, fairs and festivals helpsto attract more visitors and promote a better culturalunderstanding among people(Nagaraju et al., 2014; Ionela et.al. 2015; Lai, Saunders and Grimstad 2017).

Conservation of environment: Through tourism,the peoplein the rural areas will gain an understanding to appreciate,develop and preserve the natural environment, biodiversity

42

and historical monuments of their locality (Nagaraju et al. 2014;Wang and Lalrinawma2016; Lai et al.2017). Also, tourismrevenues can provide for proper sanitation, roads, electricity,village paving, sewage disposal system etc. Also, constantpressure from the tourism and other government authoritiesensures maintenance and conservation of the rural landscapes.

Apart from the above, there are also other benefits of ruraltourism like development of other services like provision ofeducation, healthcare etc., improvement of the public utilityservices like water, gas, electricity etc. and enhancement in thestandard of livingamong the rural people.Rural tourism also offersopportunities for social and cultural exchanges and inflow ofresources from urban to rural. Further, due to development of therural areas, the land values will rise, community awareness andparticipation will increase and investors will be encouraged toestablish business in those areas which will generate further jobs.

Rural Tourism in Assam is now growing due to increasedgovernment efforts and the presence of beautiful and culturallyrich villages. Mayong village, popularly known as the land of blackmagic and located around 35 kms from Guwahati, is home to manywizards and witch doctors. It is a tourist and archaeologicallocation that can be marketed as an important rural and culturaltourism destination. Similarly, Majuli, the world’s largest riverisland, is famous for its cultural and religious heritage but it alsohas significant rural charm. There is a hugeand prospective marketfor rural tourism in Majuli,particularlyin case of foreign tourists(Hazarika 2016) and the state government has proposed to establisha three-star resort thereto attract tourists6.Other places in AssamlikeSivasagar, Hajo, Tejpur, Jorhat,Nagaon,Marigaon, Tinisukia,Golaghat, Karbi Anglong, Mongoldoi, Barpeta, Sarthebari, Sonapur,Sualkuchi etc. has enormous untapped potentialities for ruraltourism.

There is scope for developing ethnic tourist circuits in variousplaces. Also, rural tourism can be given a boost by focusing onimproving destination image which will involve improving thehospitality and accommodation facilities. It will include traditionalcottages with basic amenities, boating, river cruises, fishing, naturewalks, interaction with villagers, chance to experience daily livesof the local people, and also to explore local delicacies, and otherproducts which are locally procured. More camping sites,recreational parks, museums, markets, stalls for souvenirs, local

43

handloom and handicrafts can be established to attract tourists ofall sections. Orchid gardens, floriculture, sericulture, bamboo andcane work in rural areas and other aspects which are unique toour culture can be expanded as they are quite attractive to tourists.

Constraints for development of rural tourismStudies reveal that very low proportion of foreign tourists

visiting India come to Assam. The reasons can be many, from lackof infrastructure to absence of guides to insurgency etc. Tourismhas been held back in Assam due to insurgency issues, itsremoteness and negative publicity of the place. Also, tourismactivities in Assam have developed in an unplanned manner. Thisis due to very limited government funding and lack of investmentfrom private sector due to various reasons (Tourism Policy ofAssam, 2016)7.

Funding for long term investments are always in scarcity(OECD 1994; Mili 2012; Khound 2013). Thus, there is a lack oftraining activities and promotional activities in the region whichadversely impacts the ability of the rural peopleto extendualityandsatisfactory experience to the tourists. Lack of awareness andappreciation among local people as well as tourists about ruraltourism products and destinations and the development potentialshas also led to the slow growth of tourism in the rural areas (Mili2012) (Khound 2013). Budget constraints and lack of resources posedifficulties for the village communities to promote or market theirproducts. Transportationis another keyissue as most of the placesare quite far away and remotely located and lack propertransportation facilities (Bordoloi et al.).

Also, lack of proper infrastructure, accommodationfacilitiesand basic necessities like power and water supply as wellas security concerns discourage visitors to visit the region (Mili2012).Lack of co-operation between institutions, Lack of trainedtourist guides and maintenance problems of heritage etc. are butonly few of the constraints for successful implementation of ruraltourism in the State (Khound 2013) (OECD 1994).Issues of safetyand security have always been a serious topic for the State. Thereis no doubt that tourists will not avoid travelling to rural areas incase of safety issues.Also, many schemes have been launched tilldate for the welfare of the people but very few schemes and itsbenefits reach the hands of the actual beneficiaries because ofcorruption at various levels (Bhattacharjee 2014).

44

Apart from that, there is growing concern about the negativeimpacts of tourism. Such negative impacts can have seriousconsequences on the tourism industry itself (Wang and Lalrinawma2016). Briedenhann and Wickens (2004) state that due to increasingweight of reforms and the need for economic progress and creationof employment, the developing nationsnormally undertake randomand ad hoc development activities and fail to give due considerationto the environment and the socio-economic and cultural welfare.Tourism efforts, if not properly planned, can hamper the villagersand the recreational activity developed for tourists may disruptthe rural space, life and culture. The negative effects can be loss ofthe distinctimage and the unique culture and tradition of the ruralcommunity, competition among residents, reduction in traditionaleconomic activities like farming, craft, and loss of naturalenvironment etc. Dependence on tourism may discourage otherproductive activities leading to less career opportunities in suchareas (Ionela et al. 2015). All these negative impact of tourism onthe rural environment and culture may pose a threat to overallsustainable development of rural Assam

Suggestions and ConclusionIn spite of the various undesirable issues associated

withrural tourism, it has been acknowledged in many ruralareas.This is because tourism generates higher income thanagricultural and allied activities and other means of rurallivelihood.However,despite the promisesand benefits attributed to ruraltourism, it has not yet received proper recognition in the State. Aproper plan to identify and develop potential places for ruraltourism in the state is needed. Any sustainable developmentneeds to consider the natural, cultural and social characteristicsof the area. Environmental considerations must be looked afterand adequate facilities and infrastructure should be providedwithin the village.

According to Bouchon and Rawat (2016), it is very importantto maintain quality standards as it not only ensures customersatisfaction and loyalty but also gives competitive advantage. Hestressed on sustainable innovative activities at the community-level and the role of informal, local level cooperation.Bandyopadhyay and Kerstetter (2003) stresses on the need forconducting research to gauge tourists’ attitude and perceptionregarding various rural destinations and their image. He suggesteddevelopment of ethnic tourist circuits to attract the tourists.Laiet

45

al.(2017) suggested the significance of Small tourism firms (STFs)in rural areasto support rural development.The role of GramPanchayats in developing rural tourism needs to be highlighted.Also, the registration procedures of village tourism and farmhousesshall be simplified. More schemes should be launched by thegovernment. More skill development programmes should beinitiated along with the Hunar se Rojgar tak scheme. Efforts shouldbe initiated to generate more awareness among the people and toencourage greater community participation as it has to be acollective effort to meet success.

The Tourism Policy of the State mentions that there is needfor vigorous marketing by the government to uplift the image ofAssam as an attractive tourist destination.In this regard, latesttechnological innovations can be used. Rural Tourism can bepromoted through application of Information and CommunicationTechnologies (ICT). Social media and other online platforms cannot only help in making people aware of various tourism avenuesbut also help in marketing rural tourism as a mainstream tourismactivity.There is need for more communication and collaborationbetween local communities and the government. Briedenhann andWickens (2004) highlighted the importance of good networking foreffective marketing and service delivery. They mentioned thatnetworkingas well as knowingwith whom to network is essentialin this regard.

The state is trying to make rural tourism an importantcontributor to the economy and sustainable development of therural populace. But there is still a long way to go before ruraltourism can be successfully integrated into mainstreamtourism.The government needs to adopt a pro-poor tourismapproach with an overriding goal to benefit the poor. Thegovernment needs to streamline and integrate various activitiesinvolved in rural tourism. Proper management and realisticplanning with sound legislation and greater involvement by localcommunities can lead to good results and thus, help to improvenot only Assam’s economy but also sustainable development of therural sector.

Bibliography

Bandyopadhyay, R. and Kerstetter, D. (2003). Indian Students’Perception of Rural West Bengal as a Tourist Destination. InProceedings of the 2003 Northeastern Recreation Research

46

Symposium, April 6-8, 2003, Bolton Landing, New York

Bhattacharjee, B. J. (2003). A Study on Scope for Development ofRural Tourism in Villages of Small Towns with SpecialReference to Karimganj District of Assam. InternationalJournal of Business and Administration Research Review, Vol.1, Issue 6, pages 74-79.

Biswas, A.K. (2017). Impact of Rural Tourism on InclusiveEconomic Growth: Indian Context. In Dixit, S. K., editor,Emerging Paradigms of Hospitality, pages 354-363.ISBN:978-81-928994-2-8, DPS Publishing House.

Bordoloi, A. K. and Kalita, A. (2012). Rural Tourism: An ImportantSector Underpinning Growth and Development of Rural Assam.International Journal of Management Research and Review,Vol. 2, Issue 12, pages 2069-2076

Bouchon, F. and Rawat, K. (2016). Rural Areas of ASEAN andTourism Services, a Field for Innovative Solutions. Procedia -Social and Behavioral Sciences, Vol.224, pages 44-51

Briedenhann, J. and Wickens, E.(2004). Tourism Routes as a Toolfor the Economic Development of Rural Areas - Vibrant Hopeor Impossible Dream.Tourism Management,Vol. 25,pages 71–79

Hazarika, B. (2016). Rural Tourism and Sustainable Livelihoods -A Case Study of Majuli Island of Assam. International Journalof Scientific and Research Publications, Vol. 6, Issue 6, pages343-345

Ionela, G. P., Constantin, B. M. and Dogaru L. D. (2015). Advantagesand Limits for Tourism Development in Rural Area (Case StudyAmpoi and Mure Valleys), Procedia Economics and Finance,Vol. 32, pages 1050 – 1059

Islam, A. (2017). A Peep into Rural Tourism in Assam: One of theWays of Connecting Urban and Rural, Dimorienreview, Vol. 2,Issue 6, pages 53-55 retrieved from http:// www.dimorianreview.com/2015/11/a-peep-into-rural-tourism-in-assamone.html

Khound, J. M. (2013). Constraints and Prospects of Rural TourismDevelopment: An Overview of Tourism in Shyamgaon of Titaborof Jorhat District (Assam), Journal of Tourism and Hospitality

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Management, Vol. 1,Issue 1, pages 27-31

Lai, P. H., Saunders, A. M. and Grimstad, S. (2017). Operating SmallTourism Firms in Rural Destinations: A Social RepresentationsApproach to Examining How Small Tourism Firms Cope withNon-tourism Induced Changes. Tourism Management, Vol. 58,pages 164-174

Mili, N. (2012). Rural Tourism Development: An Overview ofTourism in Tipam Phakey Village of Naharkatia in DibrugarhDistrict, Assam (India), International Journal of Scientific andResearch Publications, Vol. 2, Issue 12, pages 1-3

Nagaraju, L.G. and Chandrashekara, B. (2014).Rural Tourism andRural Development in India, International Journal ofInterdisciplinary and Multidisciplinary Studies (IJIMS), Vol.1, Issue 6, pages 42-48.

Pachoni, P. (2017) Opportunities and Challenges of SustainableTourism in Majuli – A SWOT Analysis. Dimorianreview, Vol.4, Issue 3, pages 38-44 retrieved from http://www.dimorianreview.com/2015/11/a-peep-into-rural-tourism-in-assam-one.html#axzz3qszXnezr

Pakurar, M. And Olah, J. (2008). Definition of Rural Tourism andits Characteristics in the Northern Great Plain Region,AnaleleUniversitatii Din Oradea Fascicula: Ecotoxicologie,Zootehnie Si Tehnologii De IndustrieAlimentara, Vol. 7, Anul7

Sharpley, R. (2002). Rural Tourism and the Challenge of TourismDiversification: The Case of Cyprus, Tourism Management, Vol.23, pages 233-244

Organisation for Economic Co-operation and Development(1994).Tourism Strategies and Rural Development, OCDE/GD(94) 49, 1994, Paris

Wang, G. L.andLalrinawma, H. (2016). Impact of Tourism in RuralVillage Communities: India’s Sustainable Tourism ,International Journal of Business and Management InventionVol. 5, Issue 12, pages 75-81

www.assamtourismonline.com

www.assamtourism.gov.in

48

www.tourism.gov.in

www.tourism india.com

www.incredibleindia.org

(Footnotes)1http://www.unesco.org/education/tlsf/mods/theme_c/mod16.html

2 United Nations Development Programme

3http://indianexpress.com/article/cities/guwahati/assam-set-to-launch-home-stay-scheme-to-tap-rural-t

ourism-4464636/

4http://timesofindia.indiatimes.com/city/guwahati/sarma-proposes-awesome-plans-for-assam-tourism/articleshow/57034536.cms

5http://www.travelnewsdigest.in/?p=37306

6http://timesofindia.indiatimes.com/city/guwahati/sarma-proposes-awesome-plan

s-for-assam-tourism/articleshow/57034536.cms

7http://assamtourism.gov.in/pdf/Draft-Tourism-Policy.pdf

49

5Factors Influencing Farm Size Decision of Farmers

for Sustainable

Haripriya Dutta, Pandit Deendayal Uppdhyay, Dr. Anjan Bhuyan

Factors Influencing Farm Size Decision of Farmers forSustainable

Paddy Cultivation in Assam

IntroductionThe farm management studies of modern time have recognized

that the farmers’ decision either to increase or decrease or to favourno change in their farm size is one of the major agents of structuralchange in an agricultural production system. Hence, identifyingthe factors influencing such decisions and modulating them caneffectively be used in improving the agrarian structure.Highlighting this fact, the present paper seeks to identify thefactors influencing the farmers’ farm size decision by conducting astudy on 300 paddy cultivators of Assam. The present study revealsthat 49.3 percent of the phenomenon of structural change ofagricultural land of the state can be attributable to the farmers’own discretion to change the farm size. The tendency to decide fordecreasing the farm size by the farmers of Assam is not prominent.They will increase their farm size if they are provided withfavourable variables like- input subsidies, capital subsidies,availability of institutions, favourable lease price, family labour,credit facilities and good managerial skill. Otherwise, they willmaintain the original size of the farm land. The farmers are also

50

less likely to decrease their farm size when they are engaged withinstitutions.

The transformation of the economy from feudalism to capitalismhas brought remarkable change to agriculture (Schultz, 1964).Traditionally, farming was a way of life, now it has appeared moreas a business (Lekhi and Singh, 2016). This led the agriculturaleconomists to work more closely with the school of business from1950s onwards (Ruttan, 1969) and to unfurl the farm managementpractice globally. Farm management encompasses the size of farmas one of the major strategic decisions taken by farmers (Johl andKapur, 2000). Farmers’ decision on farm size states basically threetypes of changes to their existing farm land. They are- (a) to increaseor expand, (b) to decrease or contract and (c) to undergo no changeor remain constant with their owned farm size under the influenceof various factors. This decision has serious implications over thesustainability of agriculture as farmers have to decide their size ofoperation under two constraints of sustainability- (a) land is oneof the most limited means of production; and (b)the ownership anddistribution pattern of farmland involves a considerable investmentand production decisions of farmers(Siwach, 2007).

It is desired to have an appropriate allocation of land to a farm,which permits the most efficient use of other means of production,provides full employment to the farm households and allows thefarmers to enjoy reasonable standard of living (Lekhi and Singh,2016). However, the farm size of many of the developing countriesincluding India is gradually decreasing. This has created theproblem of marginalization with a range of uneconomic ventures,which needs proper attention. Controlling the identified factorsinfluencing the farmers’ decision to change their farm size can bean effective strategy to achieve a desired agrarian structure forproduction. However, literatures reveal that the impact of thesefactors is not identical for every region. Therefore, it is importantto identify the factors specific to a particular region.

This paper seeks to identify the factors influencing theaforesaid decision of paddy farmers in Assam. Assam is an agrarianstate from North-East India and endowed with ample riverinealluvium soil of Brahmaputra and Barak Valleys. The state receivesadequate rainfall during monsoon season ranged from 1000 mm tomore than 2000 mm. Also, the temperature is highly adequate forpaddy cultivation in the state. The cultivation of paddy alone covers92.2 percent of the total food grain areas of the state during 2012.

51

The total production of which is 96 percent of total food grainproduction in that year. Today, Assam stands at the eighth positionamong paddy producer states, contributing 9 percent to the totalnational production. Considering the huge potentiality of paddycultivation, the state is included in the flagship program ofBringing Green Revolution to Eastern India (BGREI) of CentralGovernment in the year 2011. However, like many other regions,rapid marginalization (Figure 1) has become apparent in the state.The average farm size of Assam is 1.1 ha. (Agriculture Census 2010-11, India), which may further reduce in near future.

Source: Agriculture Census of India for the data from 1970-71 to 2010-11

Authors Calculation for the predicted value from 2020-21 to 2050-51

1. Farmers’ decision of farm size changeStudies on farm size reveal that farmer’s decision of increasing,

decreasing or keeping the farm size as constant i.e. no change is

Figure 1.1a: Number(in ’000) of Operating land,

Assam

Figure 1.1b: Number(in ’000) of Operating land,

India

Figure 1.2a: Area (in ’000 ha.) of Operating land,

Assam

Figure 1.2b: Area (in ’000 ha.) of Operating land,

India

52

basically his/her response to certain factors. Some of them are-scale of operation, profitability, cost of means of production, landmarket mechanism, state policies, demand for high value productsetc. Macdonald (2011) channelized the theoretical framework foranalyzing farm size into three channels- 1) scale economies anddiseconomies, 2) relative factor price, technology and farm sizeand 3) policies and institutions.

1.1. Scale economies and diseconomiesThe scale economies tend to be negative or neutral in

agriculture where an inverse relationship between productivityand farm size exist. This inverse relationship rooted in thoseagricultural economies where labour intensive agriculture is muchprevailing, wage rate is low and farms are basically managed andoperated by family members. In such farms the supervision cost oflabour remains low. Accordingly, superiority of small farm isestablished over large farms. This in turn reduces or neutralizesthe effect of scale economies on the agricultural production, insteadmanagerial diseconomies are seemed to be prevailed andencourages the growth of small farms. Koester (2004), howeverraise a critical observation in this line of thoughts. According tohim small farms’ superiority due to non existence of scale economyis logically not available. Lower price received form product sold,higher input cost and credit inaccessibility increase the markettransaction cost. These costs supersede the advantages of lowerlabour cost and supervision cost of small farms.

There are many studies available which address the scaleeconomies of agricultural production in relation to optimumallocation of farm size. Macdonald (2011) talked about howmanagerial diseconomies of scale obstruct in deriving technicalscale economies in agriculture. Large farms can mitigatemanagerial diseconomies through innovation for routinizedproduction and reduction in the cost of supervision. This willenhance farm capacity to produce in a larger manner and causethe trend for large farming in an economy. Since 1980s U.S. livestockproduction is getting larger due to technical economies of scale.However, the influence of these scale economies is comparativelyless in crop than in livestock, as per the study. With respect toprecision agriculture, which induces high value capital equipmentcreates scale economy in crop farming. This leads the U.S. farmsto getting larger. Thus, the studies on scale economies in agriculturemainly concentrate on scale advantages due to technological

53

innovation and managerial aspects influencing the agriculturalperformance towards achieving it.

Gorton and Davidova (2004), however found non uniformity incross national optimum farm size due to differential scaleeconomies in different countries. Therefore, region specificdetermination of scale economies is necessary for the allocation ofland optimally.

The nature of average cost curve (ACC) (Kislev and Peterson,1982) is likely to describe the presence of scale economies ordiseconomies in an agrarian economy. However, the costingredients constituting the AC curve should be uniform to eachfarm size. In this respect external scale economies as described byBinswanger et al. (1992) draw the attention. Farms enjoy externaleconomies of scale, when, they experience advantages in terms ofaccess to inputs, credit facilities, capital, services, storage facilities,or marketing and distribution opportunities with the increase ofsize. Cost ingredients to a production function are more likely tovary across the different farm size in a transition (Koester, 2004)and developed economy.

1.2. Response to relative factor price and factor interactionFarmers tend to consider relative factor prices and elasticity

of substitution between labour and capital inputs while decidingon farm size (Macdonald, 2011). Change in relative factor price inagriculture can be explained as a causal effect of economic growth,off farm job opportunity and technology induction.

2.2a. Economic growth: According to Happe (2007), the rise inthe overall income level induces reallocation of resourcesparticularly labour in an economy. For example, the rise inincome level in most of the Asian countries changes the demandpattern from traditional to high value product (Briones et al.2013). It eventually influences factor allocation for production.It suggests that if the growth influences the factor allocationin an economy, then it must influence the farm sizedistribution. Eastwood et al. (2006) supposed that economicdevelopment raises the reservation utility of the farm familieswhich ultimately causes the farm size growth by making capitalrelatively cheaper, accompanied with technological progress.However they do not find a strong association between thechange in GDP and farm size.

54

2.2b. Off-farm opportunity: Off farm opportunity have a sequenceof reciprocal cause and effect with that of the economic growth.This means with the increase of off farm avenues the economygrows which again causes the growth of employability indifferent sectors. More time spent working off-farm means lesstime available for working on the farm for a farm family (Ahearnet al. 2002).In such situation, farmers tend to reduce their farmsize. In many discussions, off-farm employment is brought outas a savior of small and marginal farming in one hand and thecause for extinction of the same on the other (Happe, 2007).For example, South-West Germany as mentioned byBuchenrieder et al. (2007) is a country where farmers use tokeep their farm small. These farms are very persistent due tothe support of non-farm activities. However, instances are foundwhere small and marginal farmers tend to exit as and whenthey are availed with more productive non – agricultural job(Bhalla 1988, Goetz and Debertin, 2001; Happe, 2007). Off farmemployability have vital impact on the labour cost of agriculture.Macdonald told that during middle of 20th century, opportunitycost of farm family member continued to grow because of thenon-farm occupation and cost of capital declined relative tolabour due to increased productivity of the machinery producingindustries. Consequently, the labourers who abandonagriculture for high value off-farm opportunity are replacedby relatively low priced capital. This may cause smallholderseither to decide for expanding their operation to mitigate highlabour cost (Hayami et al. 1985) or leaving agriculture. Betteroff-farm opportunity tends to reduce land rents and causesincrease in equilibrium farm size (Eastwood et al. 2007). Inother word, development of off farm labour market significantlyinfluences the farmers to their farm size by adjusting in landrental market (Deininger and Jin, 2005).

2.2c. Technology induction: Modern technology has remarkableimpact over land rent and prices (David and Otsuka,1994).Eastwood et al. (2006) described how change in the land rentunder neutral, labour augmenting and land augmentingtechnological advancement can affect the farm size as below-

55

Source: Eastwood et al. (2006)

Farms of different sizes use different level of technology(Chavas, 2001). Generally adoption of modern technology inducethe farmers to increases the farm size (Sunding and Zilberman,2000). This is because, the farmers like to spread the higher fixedcost, incurred at the time of purchasing capital equipment overhigher level of output (Ahearn et al. 2004). However, choice ofadopting technology, type of technology is again drasticallydependent on managerial ability of the farmers (Happe, 2007).Therefore, managerial skill draws a considerable attention in thisline of study. Factor prices especially labour and capital is subjectto the influence of policy implementation of the state. This maysubsequently influence the farmer to take decision on their farmsize.

2.3. Response to policies and institutions

2.3a.Response to policies: Farm level policies are one of themajor reasons why farm size differs across the countries(Adampoulos and Restuccia, 2011; Bartiloni and Viaggi, 2013).

Technology Effects on farm size

Neutral (i) Raises land rent and reduces farm size

(ii) An advance that is matched by an

equiproportional rise in reservation utility

leaves farm size unchanged

Labour

augmenting

(i) Raises land rent and raises (lowers) farm size if

the elasticity of the substitution land and labour

is lower(higher)

(ii) An advance that is matched by an

equiproportional rise in reservation utility

raises farm size

Land

augmenting

(i) Attracts more family to farm a fixed total land

area, raises land rent and reduces farm size

56

Some policies of the government are formulated specificallyto control over farm size distribution and are often obligatory(like- land ceiling act). Farmers are bound to follow the policynorms with or without their intention to do so. On the otherhand, certain policies are there, which can directly or indirectlyregulate the determinants or drive the factors and generatedynamic influence (Happe and Kellermann, 2007) on farmersto respond accordingly. Thus, farmers’ response to such typesof policies constitutes a major cause in shaping a particularfarm size pattern of a country. It is worth mentioning that theintervention of states through policy implication may notalways intend to influence the farm size, but is formulated toimpact on technical process of farming (Eastwood et al. 2007).For instance, In India, due to Mahatma Gandhi National RuralEmployment Guarantee Act (MGNREGA), the labour scarcityhas increased in many states (like- Andhra Pradesh); which inturn made the farmers to shift farming toward capital incentiveagriculture (Gladson, 2008).This in turn causes farmers torespond accordingly. Input subsidies scheme and taxationpolicy of the government are more likely to influence the scaleeconomies as such subsidies are directly related to thereduction of production cost. But on the contrary to this notion,Sumer (2014) found that farm size in U.S. is growing in boththe situations of with or without subsidies.

Experts opine that policies to be adopted should be size neutral.If we consider the matter in context of India, we wonder whetherthis statement has relevance for the country or not as the countryis increasingly cumulating the number of smallholders in theagricultural communities. Indian agricultural policy environmentmostly concerns the small and marginal holders. Land ceiling,redistribution, Bhoodan, preferential right of purchase etc. areparticularly design for marginal and landless farmers. Now a day,agricultural subsidy, subsidized credit etc also favouring the growthof smallholdings in the country. The so called Fischler reform inEuropean Union has far-reaching potential effects on changes inthe relative prices of agricultural products, capital and landmarkets, price volatility etc.( Corsi and Salvioni, 2012). Ahearn etal. (2002), revealed that public Research and Development andextension, public investments, government transfer paymentsunder commodity payments are positively associated with farmsize. This gives a hint that the farmers may plausibly invest a part

57

of the commodity payments to expand their farm size.

2.3b. Response to the institution: The institutional frameworkof agriculture basically intends to promote and developagricultural base of the country. However their impact on farmsize cannot be disregarded. The government is held responsiblefor macroeconomic policies (both national and international)related to agriculture. Besides, the land administrationauthorities directly or indirectly control the land market byintervening the land allocation, land tenure system and others.Likewise, institutions relating with the agricultural researchcontributes newer and productive technology and methodologyto agriculture. It brings changes to the traditional agrarianstructure of the country. The expansion of financial institutionand formal credit market provides requisite capital to thefarmers at the right time and at reasonable cost. All these causeconsiderable increase in profit, changes in the productionprocedures, product portfolio and agri-market scenario. Onthe backdrop of previous discussions it is clear that, with suchchanges in the agrarian structure, the change in farm sizebecomes an inevitable phenomenon.

2.4. Response to Land market interventionAn active land market is desirable for efficient allocation of

resources (Kevane, 1996). However, land sales market is subjectedto certain restriction to operate rigorously and therefore ofteninefficient. The sentiment and strong attachment, the sense ofeconomic independence in owning land, low price for land in ruralarea (FAO), chronic imperfections in credit markets (Binswangerand Rosenzweig, 1986) etc are major causes why no one will bewilling to sale their land. On the other hand, sometimes purchaseof land becomes difficult even if there is supply of land in themarket. Such situation arises when the price of land rises due toits various importance like-collateral securities and exceeds thepresent value of future agricultural profits that accrue to land.Under such inefficient market, it is difficult for the intendedhouseholds to liquidate their land asset in one hand; andprospective buyer of land also cannot buy land in order to bringtheir income comparable to the income from off-farm sector(Kimura et al. 2005) on the other. In such case land rental market(Otsuka, 2006) or leasing (FAO) more likely to operate successfullyin an agrarian economy. Yet, researchers found that the owner-

58

cultivated lands are more productive than those undersharecropping tenancy (Shaban, 1987). This implies that land rentalmarket can only partially fulfill the prime objective of land marketfor the efficient allocation of land resources.

While studying on land rental market, Deininger and Jin(2005) revealed that efficient farmers are more likely to rent inland, on the contrary, the inefficient farmers generally rent outtheir land. This implies that farmers’ decision to land rent in orout is dependent on their ability to farm profitably andproductively. However, land transaction cost, off farmemployability, shape of profit function, tenure security drasticallyaffects the land rental market (Kimura et al. 2005). Rent controlmechanism of the government also restricts the functioning of suchmarket. It was major reason for persistent small scale productionand part time farming in post war Japan (Hayami, 1988; Otsuka,1992).

3. Methodology For the purpose of the present study adopts the methodology

developed by Bartolini and Viaggi (2013) with some modifications.Their study considered the stated future intention of the farmerson the change their farm size. However, the stated intention offarmers does not always match with their real practice due tocertain other uninvestigated factors in the environment. Therefore,the stated current affairs/practice by the farmers i.e. currentpractice of increasing, decreasing or keeping the farm size constantis considered instead of their intention to do so. A multinomialLogit Model is used to identify the factors influencing the currentpractice of their choices under the influence select variables.

3.1 The Multinomial Logit ModelThe multinomial logistic regression model is the best known

model for analyzing polytomous data. The specification of theModel is given below-

Let J be the representative of the number of discrete categoriesof dependent variable for the Multinomial Logit Model, where Je”2.Z is considered as random variable Z that can take on any one of Jpossible values, which are independent of each other. Vector ncontains elements ni which represent the number of observations

in population i, and such that , the total sample size.

59

The design matrix of independent variables X remains thesame. It contains N rows and K +1 columns where K is the numberof independent variables and the first element of each row,xi0 = 1,the intercept. Let â be a matrix with K + 1 rows and J -1 columns,such that each element âkj contains the parameter estimate for thek-th covariate and the j-th value of the dependent variable.

The linear component is equated to the log of the odds of a j-thobservation compared to the j-th observation. J-th category isconsidered to be the omitted or baseline category, where logits ofthe first J-1 categories are constructed with the baseline categoryin the denominator.

푗 = 1,2, … … … , 퐽 − 1 ………………………………….....………..….(a)

Solving for , we have

휋푖푗 =푒 ∑ 푥푖푘훽푘푗

퐾푘=0

1 + ∑ 푒∑ 푥푖푘훽푘푗 퐾푘=0

퐽−1푗=1

J < 퐽

휋푖퐽 =1

1 + ∑ 푒∑ 푥푖푘훽푘푗 퐾푘=0

퐽−1푗=1

……......……………………………….(b)

ML Estimation of the Model: Bhoumik (2015) suggest MLestimator as the better approach, which continues with original(ungrouped) data set. The details of the estimator is givenbelow-

The joint probability density function for the dependent variable yfollowing a multinomial distribution with J levels is given by-

푓(푦/훽) = [푛푖 !

∏ 푦푖푗 !퐽푗=1

푁

푖=1

. 휋푖푗 푦 푖푗퐽

푗=1

] …………………..………………...(c)

Since it is indented to maximize eq. 4.3 with respect to â, thefactorial terms that do not contain any of the terms can be

LOG(휋푖푗휋푖퐽

) = 퐿표푔 휋푖푗

1 − ∑ 휋푖푗퐽−1푗−1

= 푥푖푘훽푘푗

퐾

푘=0

, 푖 = 1,2, … … . . ,푁

60

treated as constants. Thus the kernel of the log likelihoodfunction for multinomial logistic regression model is-

퐿(훽 ∖ 푦)− 휋푖푗 푦 푖푗퐽

푗=1

푁

푖=1……………………………………............…(d)

Replacing the Jth terms in eq 4.4, we get

휋푖푗 푦푖푗퐽

푗=1

푁

푖=1

. 휋푖퐽푛푖−∑ 푦 푖푗

퐽−1푗=1

= 휋푖푗 푦 푖푗퐽

푗=1

푁

푖=1

.휋푖퐽푛푖

∏ 휋푖퐽푦 푖푗퐽−1

푗=1

= 휋푖푗 푦 푖푗퐽

푗=1

푁

푖=1

.휋푖퐽푛푖

∏ 휋푖퐽푦 푖푗퐽−1

푗=1

……………………………………..…….(e)

Since, , the sum in the exponent in thedenominator of the last term becomes a product over the first J-1terms of j. Continue by grouping together the terms that are raisedto the power for each j up tp J-1

…………………………………………………………………….(f)

Now, substitute for using eq. 4.1 and eq. 4.2

…………………………………….(g)

푎푥+푦 = 푎푥푎푦

푦푖푗

(휋푖푗휋푖퐽

)푦 푖푗 휋푖퐽푛푖

퐽

푗=1

푁

푖=1

푒∑ 푥푖푘 훽푘푗퐾푘

푦 푖푗.

1

1 + ∑ 푒∑ 푥푖푘훽푘푗퐾푘=0퐽−1

푗=1

푛푖퐽

푗=1

푁

푖=1

푒푦푖푗 ∑ 푥 푖푘훽푘푗퐾푘=0

퐽

푗=1

푁

푖=1

. 1 + 푒∑ 푥푖푘훽푘푗퐾푘=0

퐽−1

푗=1

−푛 푖

61

Now, natural log of eq. 4.7 gives the log likelihood function forthe multinomial logistic regression model as-

……………………(h)

To find the value for â, which maximizes eq. 4.8, the Newton-Raphson method is used. This method involves calculation of firstand second order derivatives of log likelihood function as-

………………………………………………..……………….(i)

The number of equations for equation (i) is (J-1).(K+1), whichis set equal to zero to solve . Though â is a matrix technically, itcan be considered as a column vector, by appending each of theadditional column below the first. In this way, the matrix of thesecond partial derivatives as a square matrix of order (J-1).(K+1)can also be formed. For each the eq. 4.9 is differentiated withrespect to every other . The general form of this matrix is expressedas-

………………………………………(j)

It is noted that the derivatives of the numerator and denominatordiffer depending on whether or not = j

= j

= j ………………………………………(k)

Thus, when = j, the partial derivative in eq. 4.10 becomes-

푙(훽) = 푦푖푗 푥푖푘훽푘푗

퐾

푘=0

퐽−1

푗=1

푁

푖=1− 푛푖 푙표푔 1 + 푒∑ 푥푖푘훽푘푗퐾

푘=0

퐽−1

푗=1

휕푙(훽)휕훽푘푗

= 푦푖푗푥푖푘 − 푛푖 .1

1 + ∑ 푒∑ 푥푖푘 훽푘푗퐾푘=0퐽−1

푗=1

.휕

휕훽푘푗1 + 푒∑ 푥 푖푘훽푘푗

퐾푘=0

퐽−1

푗=1

푁

푖=1

= 푦푖푗 푥푖푘 − 푛푖 .1

1 + ∑ 푒∑ 푥푖푘훽푘푗퐾푘=0퐽−1

푗=1

.푁

푖=1

푒∑ 푥푖푘훽푘푗퐾푘=0 .

휕휕훽푘푗

푥푖푘훽푘푗

퐾

푘=0

= 푦푖푗 푥푖푘 − 푛푖 .1

1 + ∑ 푒∑ 푥푖푘훽푘푗퐾푘=0퐽−1

푗=1

.푁

푖=1

푒∑ 푥 푖푘 훽푘푗퐾푘=0 . 푥푖푘

= 푦푖푗 푥푖푘 − 푛푖휋푖푗 푥푖푘푁

푖=1

62

……………………………………………….…..(l)

And when = j, they are-

…………………………………….(m)

Now, the expression of the matrix of second partial derivatives forthe multinomial logistic regression model is given as-

= j

j …………………………………………………(n)

The three possible decisions on farm size can be either in formof increase, decrease or no change, which constitute thepolytomous dependent variable for the study. Let it be representedby FSD, where FSDin (=1), FSDde(=2) and FSDno(=0) signifyincrease, decrease or no change to farm size. Following is thefunctional relationship of the model to be tested in the study, whereFSD is explained through variables of state interventions (SI),government interventions (GI), farm and farmers’ traits (FT) asbelow-

——————————————(i)

The logit representation of the model is as follow-

————————————————(ii)

Where, Z is the fn of explanatory variables.

3.2. Data and Descriptive StatisticsThe study is based on primary data collected 300 paddy

cultivating farmers of Assam. For proper representation, 50farmers from six districts, one from each six agro-climatic zones ofAssam are taken (Table 3.2a). The data are collected for the year2015-16 through multistage Random Sampling.

63

Table 3.2a.: Distribution of samples

Table 3.2b. shows descriptive statistics of variables. The threealternative farm size decisions of the farmer is used as thedependent variables for the model as- (a) farmers that underwentno change to their existing farm land, (b) farmers that increasedtheir farm size by lease in land and (c) farmers that decreasedtheir farm size by lease out land. In case of farmers who underwentboth lease in and lease out, the aggregate land size is taken intoaccount to determine the alternative.

Agro-Climatic Zones Districts Respondents

North Bank Plain Zone Sonitpur 50

Upper Brahmaputra Valley Zone Golaghat 50

Central Brahmaputra Valley Zone Nagaon 50

Lower Brahmaputra ValleyZone Kamrup (R) 50

Barak ValleyZone Cachar 50

Hill Zone Karbi Anglong 50

Total 300

64

Table 3.2b.: The descriptive statistics of variables

Source: Authors’ Calculation

Variables N Obs. Min. Max. Mean Std.

Dev.

Total Sample farmers 300 300 1 6 3.50 1.71

I. Dependent variable

Farm Size Decision 300 300 0 2 0.65 0.70

No Change=0 143 - - - -

Increase=1 119 - - - -

Decrease=2 39 - - - -

Explanatory Variables

State interventions

Input Subsidy (Dummy ; Yes=1, No=0)

300

300

0

1

0.36

0.48

Capital Subsidy (Dummy ; Yes=1,

No=0)

300

299

0

1

0.23

0.41

Both Input and Capital Subsidy

(Dummy ; Yes=1, No=0)

300

300

0

1

0.14

0.35

Institutional engagement score 300 300 0.00 0.70 0.34 0.18

Training (Dummy ; Yes=1, No=0) 300 281 0 1 0.45 0.50

Market interventions

Lease price 300 299 0.00 43729 4888 8931

Farm to total working hours of the

farm household

300

299

0.00

1.84

0.57

0.27

Institutional Credit (Dummy ; Yes=1,

No=0)

300

295

0

1

0.34

0.47

Farm and farmer’s traits

Profit per hectare (In INR) 300 300 -

631654

382260 12635 78510

Owned land (In hectare) 300 300 0.00 11.37 1.2650 1.42560

Capital Investment (In INR) 300 299 0.00 2064433 59012 174285

Rate of Fragmentation (Ratio) 300 299 0.00 0.83 0.35 0.29

Managerial Skill Score 300 300 0.69 4.64 2.0310 .85711

Farmers’ perception on Mechanization

Score

300

300

0.20

1.00

0.67

0.26

Farm to Total Income of the

households

300 300 0.00 3.86 0.51 0.45

Farming experience (Dummy ; Yes=1,

No=0)

300

297

0

1

0.87

0.34

Valid N (list wise) 300 277 - - - -

65

All the explanatory variables are broadly categorized into threechannels as- (a) state intervention, (b) Market interventions and(c) Farm and Farmers’ traits. The influence of state interventionon farmers’ decision is observed by five sub-variables. Out of themthe variable of input subsidy, capital subsidy, both input and capitalsubsidy and training are used dummy variables. 10 differentinstitution such as- farmers’ club (Pather Parisalona Somitee),cooperatives, job cards under MGNREGA etc. are taken as proxiesto calculate institutional engagement scores, engagement withwhich gives the score of 1 to the respondents. The minimum scoreobtained is 0 percent and maximum score is 70 percent. Stateinterventions through land reforms are purposefully excluded fromthe study as it is a direct channel to control the structural change.The influence of market interventions is measured byrepresentative proxy variables including lease price of land perhectare, households’ working hour ratio (hours spent on farmactivities: total working hours available with the farm family) andinstitutional credit facility (dummy variable). The last channelinfluencing farmers’ decision is the traits of the farm and the farmerhim/herself. Profit per hectare, portion of owned land, capitalinvestment and rate of fragmentation represent the farmcharacteristics. The rate of fragmentation is calculated by usingSimpson Index (Lutruffe 2013) as-

Where, a = area of plot or parcel and i= 1,2,3,……n numbers ofparcels.

The managerial skill score of the farmers is calculated by takinghis/her skill of planning, accounting, collecting information,marketing and commutating. The scores of managerial skill rangebetween 0.69 to 4.64. The perception of farmers on the use ofmachine and modern technology is measured by asking them tostate their agreement to five statements. Agreement of which allotsthe farmer with score 1. The ratio of farm income to total incomeof the farm household is ranged from 0 to 3.86 times. Farmingexperience of the farmers is used as dummy variable in the study,representing engagement in farm activities from childhood as 1.

4. Findings and DiscussionTable 4 presents the findings of the estimated model. Out of

300 sample farmers 277 farmers are valid for the model. The model

푆퐼 =∑푎푖2

(∑푎푖)2

66

fitting is significant at 95 percent confidence level. However,Pearson test for goodness of fit is 0.018 (< 0.05) and hence the modelis not adequately fit. The Nagelkerke value of Pseudo R-Squaregives that the variable under the model can explain only 49.3percent of the dependent variable. This implies that there are somevariables other than the farmers’ own choice of changing farm sizeare also operational over structural change of agricultural land.

Table 4: Results of estimation for farm sizedecision of farmers

Categories Variables Increase =1 Decrease =2

‘No Change’ = 0 as reference category

State

interventions

Input Subsidy (Dummy)

With=1 0c 0c

Without=0 -1.601

(19.68)*

0.718

(2.05)

Capital Subsidy (Dummy)

With=1 0c 0c

Without=0 -1.508

(0.22)**

-1.330

(0.26)

Both Input and Capital

Subsidy (Dummy)

With=1 0c 0c

Without=0 -2.980

(0.20)*

1.461

(4.30)

Institutional engagement

score

2.664

(14.35)*

-3.151

(0.04)**

Training (Dummy)

With=1 0c 0c

Without=0 0.100

(1.12)

-0.446

(0.64)

Market

interventions

Lease price 0.000

(1.00)*

0.000

(1.00)

Farm to total working hours of

the farm household

1.358

(3.89)**

0.737

(1.00)

Institutional Credit (Dummy )

With=1 0c 0c

Without=0 -0.622

(0.54)***

0.666

(1.95)

67

The present paper only focuses on the factors that influencethe farmers to change the farm size in a capitalistic mode ofproduction. There are certain other variables like socio-politico-economic situation of the state, the land reform policies of the state,taxation policies etc. are kept outside of the study. Thus, it can besaid that farmers as the decision makers on their operational farmsize can undergo the structural change of agricultural land up to49.3 percent, which can be said to be substantial.

Out of the three decision alternatives, no change is taken asreference category to understand the farmers’ response in termsof increase or decrease their farm size under the given variables.The findings from the model is explain as under-

4.1. Farmers response to state interventionsThe percentage of farmers enjoying input subsidies, capital

subsidies and both is 38.6, 24.2 and 15.5 respectively. The farmers

Farm and

farmer’s

characteristics

Profit per hectare (In INR) 0.000

(1.00)

0.000

(1.00)

Owned land (In hectare) -.072

(0.93)

0.126

(1.14)

Capital Investment (In INR) .000

(1.00)

0.000

(1.00)

Rate of Fragmentation (Ratio) 1.789

(5.99)*

0.414

(1.51)

Managerial Skill Score 1.150

(3.16)*

0.246

(1.28)

Farmers’ perception on

Mechanization Score

-0.553

(0.58)

0.673

(1.96)

Farm to Total Income of the

households

.500

(1.65)

-0.126

(0.88)

Farming experience (Dummy)

With=1 0c 0c

Without=0 -13.090

(0.00)

-0.301

(0.74)

Constant 7.87 -2.09

Pseudo R-Square (Nagelkerke) 0.493

Likelihood Chi-Square 152.29*

Goodness of fit (Pearson) 587.67**

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of Assam use to avail input subsidies basically for seeds, fertilizerand vermicompost. There is no significant decrease in farm sizewith or without such subsidies. But, without input subsidies,farmers have decided not to increase their farm land by 1.6 timesas compared to their no change state. Likewise, farmers of Assamenjoy the capital subsidies mostly for buying tractor, powertiller,spray machine and weeder. In case of such subsidy also, farmers’decision to decrease their land has not been affected significantly.However, such decision not to increase their farm land is influenced1.5 times higher than their decision to undergo no change withoutcapital subsidies. In a situation of without input as well as capitalsubsidies, the farmers have decided not to increase their farm size2.98 times higher at 99 percent confidence level.

Farmers’ institutional engagement positively influences theirdecision to increase the farm size 2.66 times more than theirdecision to remain unchanged. On the other hand it has reducedthe farmers’ response to decrease the farm size by 3.15 times ascompared to their no change state.

The Ministry of Agriculture, Government of Assam has takena range of training programmes for the farmers. Among the farmersin the present study, 44.8 percent are trained under different suchprogrammes. However, this variable does not significantlyinfluence the farmers’ decision to either increase or decrease theirfarm land.

4.2. Farmers response to market interventionsThe three variables under the study- lease price, farm to total

working hours of the farm household and institutional credit areused as proxies to the three markets namely lease market, labourmarket and credit market of agriculture. The existence of firsttwo variables has significantly influenced the farmers’ decision toincrease their farm size at 99 and 95 percent confidence levelrespectively. 35.7 percent of the respondents have access toinstitutional credit. Although the absence of this variable does notinfluence the farmers to decrease their land; yet the absence ofthe same necessarily has influenced the farmers not to increasetheir operational land by 0.62 times higher at 90 percent confidencelevel.

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4.3. Farm and farmers traits on farm size decisionThe farm traits including profit per hectare, owned land (in

hectare) and capital investment are found less influential for thefarmers’ decision to change their farm size. However, rate offragmentation positively influences the farmers to increase thefarm size, which is significant at 99 confidence level. This findingcontradicts the findings of other literatures of this line.

Farmers with higher managerial skill score are 1.15 time morelikely to increase their area of farming rather than deciding toremain static. However, the other farmers’ traits like- farmers’perception on mechanization, farm income to total income ratioand farming experience do not significantly influence the farmers’decision to undergo change in their farm size.

4.4. Marginal effect of the explanatory variablesComputation of marginal effects of the categorical explanatory

variables including input subsidy, capital subsidy, both input andcapital subsidies, training, institutional credit and farmingexperiences show how the predicted probability changes with thechange of binary independent variable from 0 to 1. On the otherhand, institutional engagement score, lease price, farm to totalworking hours of the farm household, profit per hectare, ownedland, capital investment, rate of fragmentation, managerial skillscore, farmers’ perception on mechanization score and farmers’perception on mechanization score are the continuous variablesmeasure the instantaneous rate of change. These rates of changeindicate the one unit change in the variables will increase theprobability of increasing or decreasing the farm size by the farmers.This study attempts to rank these explanatory variables in termsof their respective marginal effect values. On the basis of thesevalues, input subsidy followed by the institutional engagementscore, rate of fragmentation and managerial skill of the farmersare most important variables influencing the farmers’ decision toincrease the farm size rather than choosing to remain static. Thehigher marginal effect value of the explanatory variables onfarmers’ decision to decrease farm size are- both input and capitalsubsidy, farm to total working hours of the farm household, inputsubsidy, farmers’ perception on mechanization score farmers’perception on mechanization score and institutional credit.

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Table 4.4: Calculation of marginal effects forestimated logit model

Source: Authors’ calculation

5. Concluding remarkIn this paper, the factors influencing the farmers’ decision on

farm size change are analyzed for paddy cultivators in Assam. Thestudy has been conducted specifically on the paddy farmers ofAssam considering the huge potentials of such cultivation inAssam. The stated current practice of farmers either to increaseor decrease or remain with no change is a good proxy to describethe farm management as an important channel or agent responsiblefor structural changes of agricultural land. The present studyreveals that 49.3 percent of the phenomenon of structural changeof agricultural land of the state can be attributable to the farmers’own discretion to change the farm size. Hence, it can be concludedthat any adverse change of agricultural structure in the state canbe substantially controlled by modulating the identified factorsinfluencing the farm size decision of the farmers. This study

Categories Variables Marginal

Effects

Increase =1

Marginal Effects

Decrease =2

State interventions Input Subsidy (Dummy) 2.70 0.71

Capital Subsidy (Dummy) -1.36 -1.32

Both Input and Capital Subsidy (Dummy) -1.45 1.45

Institutional engagement score 2.41 -3.14

Training (Dummy) 0.09 -0.44

Market interventions Lease price 0.00 0.00

Farm to total working hours of the farm

household

1.23 0.73

Institutional Credit (Dummy ) -0.56 0.66

Farm and farmer’s

characteristics

Profit per hectare (In INR) 0.00 0.00

Owned land (In hectare) -0.07 0.13

Capital Investment (In INR) 0.00 0.00

Rate of Fragmentation (Ratio) 1.62 0.41

Managerial Skill Score 1.04 0.24

Farmers’ perception on Mechanization

Score

-0.50 0.67

Farm to Total Income of the households 0.45 -0.13

Farming experience (Dummy) -11.85 -0.30

71

highlights that under the given explanatory variables the farmersare more likely to decide either to increase or remain no changewith their respective farm size. This implies that the tendency todecide for decreasing the farm size by the farmers of Assam is notprominent. They will increase their farm size if they are providedwith favourable variables like- input subsidies, capital subsidies,availability of institutions, favourable lease price, family labour,credit facilities and good managerial skill or otherwise will remainstatic with their own farm land. On the other hand the farmersare less likely to decrease their farm size when they are engagedwith institutions like – Pather Parisalona Somitee, cooperatives,MGNREGA etc.

Sustainable land use is a policy concern worldwide.Highlighting the strength of the studied decision by the farmerson shaping an agrarian structure, this study suggests a way toreallocate the available farm land of Assam. This will bring a systemof choice based entry and exit policy to the agrarian system of thestate without hampering the interest of the farmers. This studyprovides the grounds to undergo further analysis on the trend ofchange in the farmers’ decision over the time and across thedifferent spatial level.

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6ENVIRONMENTAL LAWS IN INDIA – AN

ANALYSIS

-Mrs. Momina Zahan1

“Earth provides enough to satisfy every man’s needs, but notevery man’s greed.”

-Mahatma Gandhi

Introduction:Uncontrolled human – environment interaction has resulted

in unsustainable development of the society leading to degradationof the environment. Land, water and air is increasingly pollutedand forest cover is reduced due to short term profitability. Toprotect the environment, the government of India has passed anumber of legislations including the Wildlife (Protection) Act, 1972;the Forest (Conservation) Act, 1980; Environment Protection Act,1986; etc. In spite of a large number of legislations protecting everyaspect of environment, viz. land, air, water, forest, etc. the statusof environment degradation does not seem to improve. Thus, thispaper aims to look at different laws protecting the environmentand their provisions critically so that a better understanding cantake place and it enables us to device a better working mechanismfor the protection of the environment and prevent furtherdegradation.

Gandhi has very rightly stated that there is enough on earthto meet the basic requirement of everyone but not enough to satisfy

76

the greed. And human beings have imbalanced the environmentwhile trying to satisfy their hunger for excess. Environment, ingeneral, comprises of everything that surrounds us and theinterdependence amongst themselves. The French word ‘Environ’meaning ‘to encompasse or surround’, gives us the English word‘Environment’ and Jacob Van Erkul, a biologist in early 1900, isbelieved to have been the pioneer behind the introduction to thesubject. Whatever may be the history behind the development ofthe term but it must be kept in mind that uncontrolled human –environment interaction has resulted in unsustainabledevelopment of the society leading to degradation of thisenvironment. Land, water and air, the basic necessities of life, areincreasingly polluted and forest cover is reduced due to the ideaof short term profitability of man. Man has always borrowed fromnature and in return has deposited wastes and pollutants in ituntil he has realised it that he is putting the future generation atstake. Environmental degradation affects living system andnational progress by affecting life, economic activities and naturalresources. Since environmental degradation is a theme of concernthese days, awareness of the laws relating to environment playsan important role in safeguarding the environment. To protect theenvironment, the government of India has passed a number oflegislations including the Wildlife (Protection) Act, 1972; the Forest(Conservation) Act, 1980; Environment Protection Act, 1986; etc.These laws provide us the mechanism for better management ofthe environment and its resources. In spite of the large number oflegislations protecting every aspect of environment, viz. land, air,water, forest, etc., the status of environment degradation does notseem to improve. Thus, this paper aims to look at different lawsprotecting the environment and their provisions critically so thata better understanding can take place and it enables us to device abetter working mechanism for the protection and conservation ofthe environment and prevent further degradation. The first partof the paper will see how the Constitution of India aims to protectand improve the environment followed by the overview of differentActs chronologically, so that it gives a better understanding of thedevelopmental scenario of the Environmental awareness of thelegislators and the world at large.

Background of Environmental Policy in India:Indian culture shows nature worshipping during ancient times.

In Yajnavalkya Smriti, it has been mentioned that cutting of trees

77

and forests were punishable offence.2 Even Arthashastra byKautilya, which dated back to 321 – 300 B.C., has mentioned aboutenvironmental management and prescribed different punishmentsfor destroying forests, killing animals and causing pollution.3 Butafter the British invasion, the environmental and forest laws weredrafted under British administration. However, those policieswere merely regulatory in nature, managing the reserve forests,national parks, etc. as there was no environmental degradation atthat time to warrant provisions like present day. Moreover, Indianforests started degrading during British times, when Indian treeswere mostly used for British ship building industry. When theBritish rulers, in and around 19th century, felt that Indian forestsneed to be maintained well to cater to their needs for longer times,they formed the Imperial Forest Departments to manage theforests. The very task of the British Forest Department wasexploration of forest resources, demarcation of reserves, protectionof forests from fire and increasing the forest resources by growingmore trees. Besides the forest management, the Britishgovernment also concentrated upon different areas like waterpollution, air pollution and wildlife. The Shore Nuisance (Bombay& Kolaba) Act, 1853, the Elephants Preservation Act, 1879, theWild Birds & Animals Protection Act, 1912, the Forest Act, 1927etc. were some of such legislations drafted by British governmentfor the management of environment. Although these laws werelegislated by the Colonial rulers, more with the object of generatingrevenue and less with the idea of environment protection, yet itmust be accepted as the first step towards environmentalconservation. After independence, India had the first Forest Policyof 1952 and drafted many laws like Wildlife (Protection) Act, 1972,Water (Prevention & Control of Pollution) Act, 1974, Environment(Protection) Act, 1980, Air (Prevention & Control of Pollution) Act,1974, Biological Diversity Act, 2003, etc. for the protection andimprovement of environment.

Indian Constitution & Environment:The Constitution of India contains specific provisions related

to environment and judicial interpretations have strengthenedthose provisions. However, prior to 42nd Amendment, it was Clauseb of Article 39 in which it was provided that state shall direct itspolicies towards securing that the ownership and control of thematerial resources of the community are managed best to servethe common good and under Article 38 of the Constitution, the

78

State is under obligation to ensure that people can avail unpollutedand clean environment, as India is a welfare state. Even Article21 of the Indian Constitution that provided right to life andpersonal liberty was widely interpreted by various judicialdecisions to include right to clean environment and healthy living.Further in the Constitutional Amendment of 1976, DirectivePrinciples and Fundamental Duties were amended to includeArticle 48A and Clause (g) of Article 51A respectively. TheConstitution of India has entrusted the duty upon the State toprotect and improve the environment, including forests and wildlifeunder Article 48A. And Article 51A (g) has imposed a fundamentalduty upon every citizen to conserve the natural environment andprevent its degradation and to have compassion for animals. Withregard to these provisions (Article 48A and Article 51A (g)), theMadras HC has held that “the phrase ‘protect and improve’ impliesthat it appears to contemplate certain affirmative governmentalaction to improve the quality of the environment and not just topreserve in its degraded form”4. The Supreme Court observed that“the Directive Principles (viz. Art. 39 (b), 47 and 48A) individuallyand collectively impose a duty on a State to create conditions toimprove the general health level in the country and to protect andimprove the natural environment”5

Besides the Directive Principles and Fundamental Duties inthe Constitution of India, the apex court of India felt in K. M.Chinnappa vs. Union of India6 that the environmental laws arethe instrument to protect and improve the environment and controlor prevent any act or omission polluting the environment. Withthe ideologies provided in Directive Principles and FundamentalRights, the judiciary has directed closure of many industries andfactory units which seemed to create environmental hazards.7 Alsoseeing the importance of the environment, the legislative powerwith regard to the subjects of ‘forests’ and ‘protection of wildlife’was moved to Concurrent List (List III) from State List (List II).State, being under the duty to protect and conserve theenvironment, government of India has passed a number oflegislative frameworks safeguarding the various components ofthe environment, viz. land, air, water, forest, wildlife, etc. underArticle 246 and Article 249. As a result of Article 253, theParliament can make new laws to implement internationalobligations and decisions taken in international conferences andthus the Acts like The Biological Diversity Act, 2003, the

79

Environmental (Protection) Act, 1986, the Air (Prevention andControl of Pollution) Act, 1981, etc. have taken shape.

The Wildlife (Protection) Act, 1972:This Act was enacted by the Parliament to prevent illegal

wildlife trading in India on the requests from states where suchaction was very prominent.88 Shanthakumar, S., Introduction toEnvironmental Law, Second Edition, LexisNexis, pp. 281 – 283.

The Central govt. is required, under this Act, to appointDirector of Wildlife Preservation and Assistant Director of WildlifePreservation for proper implementation of the Act. The State govt.may constitute Wildlife Advisory Board so that it can advise theState govt., from time to time, with policy formulation anddeclaration of areas as sanctuaries, national parks, etc. Sec. 9 ofthe Act prohibits hunting of animals specified in the Schedules ofthe Act and anyone who contravenes this provisions shall bepunished with a term extendable to three years or with fine up toRs. 25, 000/- or with both. If a person hunts in a sanctuary ornational parks with respect to any animals specified in Schedule Ishall be punished with a term not less than 1 year but can beextended to 6 years along with fine not less than Rs. 5000/-. Sec.17A – H9 protects specified plants by prohibiting picking, uprooting,damaging of specified plants from any forest land or anygovernment specified area. Whoever contravenes these provisionsshall be punished either with a term extendable to three years orwith fine up to Rs. 25, 000/- or with both. The State govt. may bynotification declare any reserved areas as Sanctuaries, Nationalparks, etc. for the protection and propagation of wild life underthe Act under Sec. 18 and 35. Even the Central Govt. can declareany areas under its control as Sanctuaries and National Parks.Sec. 50 empowers Director with power to search, arrest and detainanyone who violates the provisions of this Act. Sec. 58 A – I10

penalises for illegal hunting and trade by forfeiting the illegallyacquired property.

Water (Prevention and Control of Pollution) Act, 1974:This is the first law passed with the objective of preventing

and controlling of water pollution. The law is supposed to ensurethat no domestic or industrial effluents be discharged in rivers,lakes, etc. without necessary treatment. The Act establishes CentralPollution Control Board (CPCB) under Sec. 3 and State PollutionControl Board (SPCB) under Sec. 4, in Centre and at State, as

80

enforcement machinery. The functions of Central Pollution ControlBoard and State Pollution Control Board are provided in Sec. 16and 17 respectively. The Central government is empowered todirect the CPCB in respect of the functions by the CPCB underSec. 18 and the State government is empowered to direct the SPCBunder Sec. 19. The CPCB is empowered to direct the SPCB inwriting and such directions are binding upon the SPCB. UnderSec. 33 A, both CPCB and SPCB can issue directions for ‘closure,prohibition or regulation of any industry or operation’11 whichpollutes the water in the area within its jurisdiction. The Actprescribes stringent penalty of 6 – 7 yrs imprisonment, besidesdirecting for closure of the unit, for knowingly polluting the waterof river or streams with poisonous or noxious or polluting matter.

The Forest (Conservation) Act, 1980Forest is an important component of environment which

purifies the air around us by clearing the harmful gaseouspollutants, like CO2, CO, etc. and replenishing O2 back toatmosphere. It is the forest that maintains the water balance onearth and serves as habitat to many living organisms. Thus, it isimportant that the earth must be covered by one-third of forest forthe survival of the earth and healthy living of human beings andanimals. But forests, being provider of timbers and other resourcesfor economic development, they were being deforestedunsustainably with short term goals. The United NationsConference on Human Environment, Stockholm in 1972 made Indialegislate the Forest Conservation Act, 1980 amended in 1988, toprevent large scale deforestation. Besides, the National ForestPolicy, 1988 and Forest (conservation) Rules, 2003 were legislated,which empowered the State to govern the Indian forests. SinceForest falls in List III, the legislative and administrative powersregarding them are shared by both state and the centre. It is theMinistry of Environment and Forest in the centre that looks afterconservation, afforestation, controlling of pollution, increasing theforest cover, etc. and it is assisted by state forest departments.

There are certain problems under this Act which fails thelegislative intention. The legislative intention behind this Act wasto increase the forest cover through social forestry and maintainthe present forest cover. But the continuous state interventionboth in the private and state property has somehow failed it.Although there are definitions and classifications of forests on paperbut when it comes to certain trees, the distinction between

81

individual property and forest belonging to state is not found inreality. For example, in the Forest (Conservation) Act, the term‘forest’ is said to be not applicable to the plantations grown in theprivate lands, except notified private forests. However, cutting oftrees even in the private plantations shall be governed by therespective State Acts and Rules. Also the State regulation, in statelike Kerala, empowers the forest officials to prosecute privateindividual tree planters for felling trees in private property.12

According to Frederic Bastiat, the state takes away a part of themoney earned by the private individual when he cut a tree in hisprivate property as deterrence for felling trees even though thatfelling of tree was necessary. But the same act is justified whengovernment cut trees for developmental purpose. This seems tobe hypocrite and bias legislation and it does not help in increasingthe forest cover in any way. Whatever measures are taken toprevent illegal deforestation and to increase forest coverage seemsto prove futile, as neither the illegal felling of trees is beingcontrolled nor the forest coverage being increased in the last 30years.

Air (Prevention and Control of Pollution) Act, 1981:Air plays an important role in the living system and pollution

of this air has resulted in the global warming and many healthhazards like respiratory diseases, asthma, etc. This Act was draftedto implement the decisions of UN Conference on HumanEnvironment held at Stockholm in 1972. “Air Pollution’ is definedin Sec 2(b) of the Act as the presence of any air pollutant in theatmosphere and Sec. 2(a) defines as any unwanted substancepresent in the atmosphere, including noise, in such amount as maybe injurious to health of living beings. Like Water Act, Sec. 3 & 4 ofthis Act constitutes Central Pollution Control Board (CPCB) andState Pollution Control Board (SPCB) at centre and state level forthe prevention and control of air pollution respectively. Sec. 16and 17 enumerates various functions of the CPCB and SPCBrespectively. Further Sec.18 and 19 empowers the Central and StateGovt. to give directions to CPCB and SPCB for the implementationof the Act. As per this provision, the apex court issued time-boundorder for the supply of CNG fuel and phasing out diesel buses tolessen the degree air pollution in Delhi. Sec. 21 – 24 empowers theSPCB with various powers like power to entry and inspection,power to take remedial action to mitigate the air pollution, etc.Sec. 31A empowers CPCB and SPCB to provide direction in writing

82

to any official, person or any authority to closure, prohibit orregulate any industry or operation within its jurisdiction. Sec. 37 -39 prescribes the penalty for various offences under this Act andthe penalty for person who fails to comply with the directions givenby Pollution Control Boards, he shall be punished withimprisonment for a term not less than 1.5 yrs and which may extendto 6 years with fine. In case the failure of the person continues, thefine shall be Rs. 5000/- per day for the tenure for which his failurecontinues.

Environment (Protection) Act, 1986:This Act was enacted as a part of implementation process of

Stockholm Declaration, 1972 as India was one of the signatory.The Environment (Protection) Act, 1986 is an enactment whichhas strengthened the Central Government by providingcomprehensive control of environmental pollution by the industrialand related activity of man. The Act has got four chapters andChapter I as usual deals with preliminary aspects includingdefinitions. Sec. 2(a) defines ‘environment’ in an inclusive waystating that it ‘includes water, air and land and the inter-relationship which exists among and between water, air and landand any living creatures’. The definition of ‘environment pollution’fails to address many factors like traffic, slums and congestion andthus there were no controlling measures. The definition of‘environmental pollutants’ is inadequate and thus the legislatorshave added the phrase ‘including noise’ in Clause (b) of Sec. 6(2)realising their shortfall. Sec. 3 empowers the central govt. to takeall such measures for the purpose of protecting and improving thequality of environment by taking enlisted measures for controllingenvironmental pollution. Other powers of Central govt. requiredunder the Act for proper implementation of the Act are providedin various provisions after Sec.4 like Power to order closure of anyindustry or operation (Sec.5), Power to enter and search anypremise (Sec 10), Power to take samples (Sec 11), etc. This Actimposes various duties upon individuals under Sec. 7 – 9 to complywith procedural safeguards while handling hazardous substancesand prohibit discharging of pollutants into the environment. Sec.15 prescribes punishments for contravention of the provision ofthe Environment Protection Act, Rules, Orders and Directions andthe defaulter shall be punished with a term which may extend to 5years or with fine which may extend to Rs. 1 lakh or with both.

While drafting some of the definitions, like environmental

83

pollutants, hazardous substances, etc. the legislators have shownlack of understanding of modern concepts of environmentalpollution. As a result, the Act is supplemented by a number ofRules for protection and conservation of the EnvironmentProtection Act like Environment (Protection) Rules, 1986;Hazardous Waste (Management & Handling) Rules, 1989; Bio-medical wastes (Management & Handling) Rules, 1998; NoisePollution (Regulation & Control) Rules, 2000; Ozone DepletingSubstances (Regulation & Control) Rules, 2000; Municipal SolidWastes (Management & Handling) Rules, 2000, etc. Although thiswas the first piece of law with heavy penalties like 5 yearsimprisonment and a fine up to 1 lakh but this does not seem towork too well as the guilty go scot free due to one or the otherloopholes present in the legislation. Thus it has been consideredjust a ‘paper tiger’ which aims at pacifying the feelings of theenvironment lovers and it is a lawyer’s paradise.

The Biological Diversity Act, 2002:India, being signatory of the United Nations Convention on

Biological Diversity, Rio de Janerio in 1992, enacted the BiologicalDiversity Act in 2002. This Act aims at conservation of the biologicaldiversity of India, sustainable use of its components, and equitablesharing of benefits arising out of the biological resources. Sec. 2(b)of the Act defines ‘biological biological diversity’ as the variabilityamong living organisms from all sources and ecological complexesof which they part. The Act empowers Central govt. to constitutea National Biodiversity Authority to regulate biological resourcesand for fair and equitable benefit sharing under Sec. 8. Thefunctions and powers of the National Diversity Authority areenlisted in Sec. 18. Even the State govt. is empowered to establishState Biodiversity Boards under Sec. 22 for regulating the biologicalresources and for sustainable use of its components. The Actempowers under Sec. 37, the State govt. to demarcate area whichare rich in biodiversity, as ‘Biodiversity Heritage Site’ by notifyingin official gazette. Sec. 55 prescribes punishments for contraventionof provisions of this Act and whoever contravenes Sec. 3 or Sec. 4or Sec. 6 shall be punished with imprisonment for a termextendable to 5 years or with fines up to Rs.10 lakhs. Whoevercontravene or attempts to contravene the provision of Sec. 7 orany order made under Sec 24 (2) shall be pushed with a termextendable to 3 years or with fine up to Rs. 5 lakhs. The penaltyfor contravention of Directions or Orders of Central or State govt.

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fine up to Rs 1 lakh and for consecutive offence, the fine may beextended to Rs. 2 lakhs per day for the period during which thedefault continues (Sec. 57).

Problems & Suggestions:There is no dearth of legislations related to environment in

India but the reason behind the ineffective enforcement machineryis the people failing to comply with existing law and also officialsfailing their duty to enforce. Most of the time, failure to comply bythe citizens takes place due to lack of knowledge and awareness ofthe environmental laws. Defaulters or Polluters, who tends to bearless margin of profit, may try to frustrate the monitoring andsanctioning mechanism. They may use their vast resources to seethat the court cases are lengthy so that no penalty is imposed uponthe defaulters, which is at times frustrating for the prosecutingagencies.

Regarding the working of the Forest (Conservation) Act,1980, there is no evidence of increasing forest cover in India. Evensocial forestry is not being able to increase the forest cover. Thestate intervention, provided by the Forest (Conservation) Act, hasneither led to decrease of illegal felling of trees nor led to increasein forest coverage as per expectation. This is due to the reasonthat the legislators have failed to account for the increasing demandfor timber in the country. With ever increasing population anddevelopmental requirement, the demand for timber is alsoincreasing which is ultimately accounted by illegal felling of treesor smuggling result in the decrease of forest cover. Thus, toconserve forest and increase forest coverage, state interventionmust be reduced and private commercial forestry must be allowedso that individual can freely produce and sell commercial timbers.Like developed countries, individuals must be given tax – benefitswho want to maintain private commercial forestry, so that morepeople comes forward for commercial forestry. This would resultin increase coverage of forest in India and also in the maintenanceof the forest preventing illegal felling of trees and smuggling.

The Air Act, 198113, too, is not functioning up to the mark asit is evident from the ever increasing air pollution in India. Theliability system under the Act seems insufficient to meet thepresent scenario of air pollution. The Act empowers the CPCBand SPCB to order closure of the defaulting industries but thisdoes not seem to be a worthy step to take, as the closure of the

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defaulting units may definitely check the immediate source ofpollution, yet it would not repair the damages already caused tothe environment nor compensate the suffering of the peopleaffected. Moreover, these directions would require a strongcoordination amongst various departments so that the directionsof closures can be carried out smoothly. Similar problems arisewith the Water Act14 too as the provisions are similar in nature.

While considering the working ability of the Environment(Protection) Act, 1986, it is observed that the reason for thefailure of the legislation to reach its viable levels is due toinadequacies in the official implementation. Also it is observedthat the legislators have not taken into consideration the incredibleadvancement of laboratory and testing technology while draftingvarious provisions of the Act. Thus the Act seems to be protectingthe guilty rather than the environment e.g. Sec. 16 and 17 allowsthe offenders to go scot-free on proof of lack of knowledge or duediligence, Sec. 24 provides that the offender would be punishedonly under the other Act, where that offence is also an offenceunder any other Act, etc. The presence of such provisions altogetherdilutes the effect of the legislation.

Besides the litigations for any kind of enforcement takes avery long time in India to reach the final verdict. And during thependency of the suit, the defaulter can continue to pollute theenvironment unless a stay order is issued by the court preventingfurther pollution. Low conviction rate also contributes to failureof the enforcement mechanism in the environmental law. Aboveall, we must not forget that the immediate causes of environmentaldegradation are unrestricted growth of population, use ofinefficient technology and over utilisation choices, and poverty,resulting to changes in relations between people and environment,and unplanned urban development. Thus, we have to take care ofthese conditions so that the environmental laws can beimplemented well as the laws alone cannot be made responsiblefor any implementation failure.

Conclusion:Although there is a host of environmental laws in India aimed

at its protection and conservation of ecological balance, theenvironment has never been considered in totality while draftingthe laws which resulted in a number of Rules to supplement theparent laws. The success of any policy depends upon effective

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enforcement mechanism, which in turn depends upon changes inattitude and behaviour of citizens. Thus, creating awareness aboutthe environmental issues amongst citizens is important so thateveryone can contribute towards the prevention and improvementof environment. The mental attitude of the people must be changed,breaking the past mode of thinking, so that everyone around usdoes not feel burdensome to protect and improve the environment.Also it is worth noting that the working of majority of theenvironmental laws do not meet most of our expectations due toinadequacies in their implementation.15 The inadequacies ofimplementation are due to weak enforcement mechanism andmyopic view of the legislators while framing the piece oflegislations. Thus, what we need, at present, is effective andefficient enforcement machinery and people’s awareness ratherthan any other environmental laws.16 So far the Indian Judiciaryhas played a very important and creative role while dealing withmany public interest litigations against failing industries althoughat most times, the disposal of cases are a bit slow. Lastly, we mustunderstand the fact that people’s participation is utmost necessaryto supplement the Govt. policies, especially when the problem ofenvironmental degradation has become big, as small contributionsfrom our part can result in big changes some days.

Reference:

1. Air (Prevention & Control of Pollution) Act, 1981

2. Biological Diversity Act, 2003

3. Constitution of India, 1950

4. Environment (Protection) Act, 1986

5. Forest (Conservation) Act, 1980

6. Water (Prevention & Control of Pollution) Act, 1974

7. The Wildlife (Protection) Act, 1972

8. Analysis of Existing Environmental Instruments in India,December 2009, United Nations Development Programme,Administrative Staff College of India, Hyderabad.

9. Armin Rosencranz & Videh Upadhyay, Some Suggestionsand Recommendations towards a Model State Pollution ControlBoard (SPCB) in India, 2011, Vol.1 Environmental Law &

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Practice Review, pp. 104 – 125.

10. D. Dhanuraj & Rahul V. Kumar, A Critical Assessment ofForest Legislations in India, 2014, Centre for Public PolicyResearch.

11. K. Jayakumar, Environment Protection Act: A CriticalOverview, Cochin University Law Review, pp. 33 – 39.

12. Ranjit Singh, Legal Control of Noise Pollution in India: ACritical Evaluation, April, 2016, Vol. 3(4), International Journalof Research in Humanities & Social Sciences, pp. 34 – 35.

13. Shanthakumar, S., Introduction to Environmental Law,Second Edition, LexisNexis.

14. Syed Ussain Saheb, et.al., Environment and their LegalIssues in India, October, 2012, Vol. 1(3), International ResearchJournal of Environmental Sciences, pp. 44 – 51.

15. Agarwal, V. K., Environmental Laws in India: Challenges forEnforcement, 2005, Bulletin of the National Institute of Ecology,accessed online from < http://dl4a.org/uploads/pdf/environmental%20law.pdf> on 14th Oct’ 2017.

16. Ghosh, Shibani, Reforming the Liability Regime for AirPollution in India, December, 2015, Centre for policy Research,accessed online from < http://www.cprindia.org/research/papers/reforming-liability-regime-air-pollution-india> on 19th

October’ 2017

17. Singhar, A. Samanth, Laws for Protection of Wildlife in India:Need for Awareness towards Implementation and Effectiveness,Indian Forester, October, 2002, accessed from <http://wgbis.ces. iisc.ernet . in/b iodiversity /sahyadri_enews/newsletter/issue2/elephant-pdf-file/128_10_6.pdf> on 25 th

Nov’2017.

18. Sinha, Govind Narayan, A Comparative Study of theEnvironmental Laws in India and the UK with Special referenceto their Enforcement, accessed online from <http://etheses.bham.ac.uk/220/> on 26th Oct’ 2017

(Footnotes)1 The author is an Assistant Professor in Jamnalal Bajaj School of

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Legal Studies, Banasthali University, Tonk (Rajasthan). Shehas done her LL.M. from University of Aberdeen (U.K.) inCriminal Justice Administration and she is interested in lawsrelated to environment, women and children.

2 Shanthakumar, S., Introduction to Environmental Law, SecondEdition, LexisNexis, pp. 73 – 76.

3 Ibid.4 M. K. Janardhanam v. District Commissioner, Tiruvallu,2003 1-L-W 262

5 M. C. Mehta v. Union of India, (2002) 4 SCC 356.

6 AIR 2003 SC 724

7 Rural Litigation & Entitlment Kendra v. State of U.P. (1985) 2SCC 431 (closed stone quarries); M.C. Mehta v. UoI, (1986) 2SCC176 (closed industry manufacturing hazardous & lethalchemicals & gases); M.C. Mehta v. UoI, (1996) 4SCC 750 (shifted 168 hazardous industries in Delhi);

9 Inserted by the 1991 Amendment for the protection of specifiedplants.

10 Inserted by the 2002 Amendment for forfeiture of property.

11 Sec. 33A of Water (Prevention & Control of Pollution) Act, 1974

12 Sukumaran v. State of Kerala, 2010 (1) KLT 546

13 Air (Prevention & Control of Pollution) Act, 1981

14 Water (Prevention & Control of Pollution) Act, 1974

15 Jayakumar, K., Environment Protection Act: A Critical Overview,Cochin University Law Review, pp. 33 – 39.

16 Agarwal, V. K., Environmental Laws in India : Challenges forEnforcement, 2005, Bulletin of the National Institute ofEcology, accessed online from <http://dl4a.org/uploads/pdf/environmental%20law.pdf>on 14th Oct’ 2017.

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7Biotechnology Prospects and Concern: Genetically

Modified Organism Controversies in India fromLegal and Governance Perspective

Ms.Nanda Pardhey1

IntroductionGreen biotechnology has been a boon to the society if it is

implemented with proper rules and regulation in a Country.Genetically modifies crops and foods are being grown in India on alarger scale today as compared decade ago. India is usingbiotechnology for its crops and food products but we can’t findstrong rules and regulation or specific law for governing theconcern of GM crops and food products. As compared to thedeveloped countries which has strong legislation for GM crops andfood products across the globe we are lacking behind in this frontand even the documentation of the same is not been taken by thegoverning bodies which lacks efficiency in this arena. Greenbiotechnology is modern and is being benefiting to the society atlarge and has been exploited well around the world in regulatedmanner or by informing to the general public at large as they arebeing made fully aware for the same by the government by followingspecific procedure and laws. India is quite behind other countrieswhen it comesto rule and regulation of such GMOs which raisesmany regulatory concerns and controversies associated with GMcrops and food.

Green Biotechnology is one of the most developing andfavourable technology which is applied to improve the nutritionalvalue of crops and food products by improving, modifying quality,

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quantity and production of crops and food products which indirectlygives boost to the economy also. Green biotechnology deals withapplication of biological techniques in plants and crops, where thisplants and crops are genetic modified by using DNA techniques.Genetically modified organism (GMO) in which genome has beenaltered by using the technique of genetic engineering through DNAcontains one or more genes not normally found there in that speciesof plants or crops. Genetically modified organism are also calledas ‘Transgenic’ and in this process of transgenesis,genes fromdifferent species are inserted using the technique of horizontalgene transfer. Genetically modified crops contains a gene(s) whichare artificially inserted in the plants or crops as a substitute of theplant acquiring it through cross pollination/breeding resulting intoa plant which are considered as ‘Genetically modified’. Thesetechniques have opened diverse and promising prospects inGenetically Modified Organism across the globe. This modernbiotechnology deals with genetic engineering of plants, crops andfood which is nothing but green technology which applied toagricultural processes, producing herbicide-tolerant crops andseeds for harvesting in the farm, some of the examples aresoyabeans, Bt corn, Bt Cotton, beta-carotene enhanced rice (goldenrice or brown rice) and various disease resistant fruits likeHepatitis B Vaccine in Banana, Squash, Papaya etc.

Modern Science and technology has worked for the progressof the human being and improve the quality of life by applying thisscientific knowledge which is passed on by using geneticengineering which has beneficial traits of one organism is beingmanipulated and transferred to other organism to get desired traitsin crops. Today green biotechnology had grounded well in variousdeveloped countries as well as in developing countries improvingagricultural farming methods which were traditional but today’snew technology improve , add nutrients or remove the unwanteddefects from the food grains or crops. The Scientific communityand industry leaders are quite enthusiastic about the benefits ofbiotechnology for agriculture and consumable food sector,especially in terms of increased yield, resistance to diseases, pests,and weeds, increased food production, enhanced nutrition’s andenvironmental protection2. Biotechnology is boon as it helped usto resolve the food requirement of the huge increasing populationacross the world and food is considered as the basic requirementfor the living of a human being which can be guaranteed by GMOs.

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GMOs is well-thought-out scientific technology which has providedGM crops and food products which are having higher level ofproteins, vitamins, nutritional values when compared with thetraditional food products or crops. GM crops are of high quality,quantity has enhanced nutritional value, safe from insects and haslong term preservation quality in it which could not be found intraditional crops and they used to perish fast. Some commongenetically modified corps and food are corn, tomato, potatoes,beets, sprouts, alfalfa, soyabeans, canola oil, rice, wheat, meat,poultry, processed foods etc.

Biotechnology is being utilized and commercialized by thebiotech industries all over the world and they believe thattechnology can solve the major issues of food crisis of the worldand they claim that GMO helps to increase the yield of the cropsas compared to conventional method of harvesting and farming.Many Research and development are taking place in this area andscientists are working with full rigor in various private and publicsectors, governmental institutions and Universities are alsoactively taking keen interest in developing this technology. Thistechnology of GMOs is taken as a set of tools to resolve variousdeficiencies in crops and food products. Biotechnology has revivedthe Indian agricultural sector and conventional method ofcultivation far behind in this regard. GM crops were rapidlyaccepted and adopted and commercialized from 1996 across theworld. The first commercially grown genetically modified wholefood crop was a tomato called ‘Flavrsavr’, which was modified toripen without softening by Calgene, later subsidiary of Monsanto3.

GM crops are commercially grown by 8 developed and 19developing countries on 175.2 million hectares (mha) area4. Despitebeing grown for more than 15 years, there are questions andconcerns about the economic, environmental and health impactsof GM crops5. Due to the mix concerns about GM crops whichhampers the Research and Development of such crops and foodproducts in India and other developing countries. For example,India, which has 91% of its cotton area under GM varieties, andallocates substantial resources to agricultural biotechnology, isgiving mixed signals on the regulation and use of other GM crops6.

Genetically Modified crops and product prospects andadvantages

Advance biotechnology and scientific techniques has been aboon to crossbreed plants, crops and processed food products by

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using micro-organisms to improve, enhance quality, quantity ofGM crops. The people who are involved in this process of researchand development of GM crops and food products are confident andenthusiastic about the benefits of GMO. By using biotechnology astool for better life to the consumers and they believe that it has anabundant prospect on agriculture and consumable food products.GMO’s are believed to produce increased yields; this seeds areresistance to diseases, pest and weeds which are responsible forthe destruction of crops. GM crops are the revolution which hasincreased the food production and also enhance the nutritionalvalues and also benefiting the environment as use of pesticidesand insecticides has reduced. GMcrops have certain pros whichcan be beneficial in agricultural process is stated below:

Firstly it is eco-friendly as less use of pesticides, fertilizersand water consumption.

Secondly this technic is panacea of all problems related to worldhunger7 as it enhance production and lower the cost of food. Ifwe go through the World Bank which has stated that around500 million people are living in absolute poverty and around15 million children die of hunger8.

The World Health Organization (WHO) estimates that one-third of the world is well-fed, one-third is under-fed and one-third is starving9, one in twelve people worldwide ismalnourished, including the 160 million children under theage of five years10.

The Indian subcontinent has nearly half the world’s hungrypeople whereas 40% approximately is from Africa and rest ofAsia together and the remaining hungry people are found inLatin America and other parts of the world11. GMO crops canbe considered as revolution in the food industry if implementwith rules and regulation.

Thirdly GM crops have potential to grown in areas which aredrought prone and salty area or the area which has scantyrainfall. Modern biotechnology is a powerful technology andfurther research in this direction can lead in the enhancementin crops and offers the opportunity to develop salt, droughtand heat tolerant crops varieties and other benefits12.

Fourthly genetically modified crops are faster and cheaper tothe consumer as they get different variety to purchase in the

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market.

Fifthly scientist believe that GM foods are more nutritious,tasting better and last longer as the application of suchtechnique has enhance the taste, colour, consistency of foodsand crops, good quality, increased the yield, preservation,provides health benefits and also lower the cost of food. Thistechnique has slow down the process of spoilage of fruits whichperish during the transportation. GM fruits can ripen longeron the plant in the course of transit to the consumer still theyhave durable and reasonable shelf life and the other benefit isthat it reduces the spoilage due to long durability of these cropsand foods.

For example tomato was the first GM food product which doesnot perish early and has long lastinglife as there is delay inripening, more red in colour as compared to traditional tomatoes;another best example is rice (golden rice and brown rice) whichhave additional nutritional value and also good for diabeticpatients. A case study by Kathage and Qaim (2012) in India showedthat adoption of insect-resistant Bt cotton resulted in a 50 percentincrease in profit per hectare and an 18 percent increase inexpenditures13.

Sixthly around the world many people are dependent ongenetically modified foods for medicines, e.g. insulin derivedsuch food for diabetic people14.

Lastly genetically modified crops and food products are safeand healthy for consumption.Paarlberg (2010) surveys evidencefrom the British Medical Association, French Academies ofScience, Organization for Economic Co-operation andDevelopment, and the UN Food and Agriculture Organizationin asserting that “GM foods and crops currently on the markethave brought no documented new risks either to human healthor to the environment15. A 2008 review published by the RoyalSociety of Medicine noted that GM foods have been eaten bymillions of people worldwide for over 15 years, with no reportsof ill effects16. In 2004 report from the US National Academiesof Science stated: “To date, no adverse health effects attributedto genetic engineering have been documented in the humanpopulation”17. If we go through the surveys and reports then itis evident that at present there is no risk in GM food and crops.And the total success of future genetically engineered plant

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technologies, however, depends on legal regimes and safetyregulations.

Biotechnology encompasses in itself a wide range of proceduresfor genetically modified process and product with that it has otherallied areas which can have unbeatable future for cominggeneration.This green biotechnology can be designed in such amanner that transgenic plants and crops grown under specificenvironmental conditions with or without presence of chemicalsand fertilizers, but again it is a debateable issue with concernssurrounded around it. It is the need of the time to take advantageof the advance biotechnology to resolve the food crisis which existin the world and can be utilize in larger interest of the populationto provide them adequate food to the rapidly growing population.GMOs are the need of the time to deal with food crises in Indiawhen implemented with proper guidelines and regulatorymechanism. First transgenic crop species was introduce in 1995,since then transgenic have developed and gone up to 24, out of 66principal crops cultivated thought-out the world, scientists areactively engaged in transgenic development in 57 crop species18.It is expected that by 2020-25 world will have transgenic in mostimportant world species19.India is also not behind the leadingcountries where transgenic crops are extensively grown especiallyBt Cotton.

Genetically modified crops and food relating concerns anddisadvantage

GMOs are controversial from its inception till date because ofvarious debates on social, ethical, legal and environmental issueswhich are directly associated with GM crops and food productsand also to human, environment and ecosystem. Many debates areput forth against GM crops and food like they are hazardous toecosystem and health of human being and animals, hampering therights of the poor farmers, directly affects flora and fauna wherethey are exposed to these genetically modified organisms. Some ofthe concerns and disadvantages of GM crops is a discussed below-

Firstly the GM crops and food products are not labelled inIndia, government need to take initiative in this regard forlabeling of GMOs, so that the consumers are well informedabout the crops and food product and can make choice to buyor not to buy.

Secondly the manufacturer of such GM crops, Seeds and food

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products do not provide complete information about geneticallymodified ingredient and the manufacturer are reluctant toprovide information whether their products and crops aregenetically modified because of the presumptions of theconsumer, as the general public without going into detailsbelieve on rumours which are connected with GMOs. Themanufacturer fear that if the consumer are informed they willnot buy GM crops and product which will be economic loss tothem.

Thirdly GM crops have the danger of Gene pollination. Thetraditional varieties are getting contaminated through escapeof gene through pollen momentwhich affects traditionalvarieties adjacent to the GM field. These contaminations takesplace because of pollen moment, wind and rain water whichcan easily travel from one field to another field which cannotbe controlled; hence contamination takes place endangeringthe traditional local varieties with GMO genes resulting inthe loss of traditional varieties farmers.

For Example, Mexican corn which originates in Mexico whichholds the paramount variety and considered as part of biodiversityof corn species around the world for its wild and cultivated species,few years back its being reported that wild corn varieties locatedin certain areas of Mexico hasbeen contaminated by GM genesbecause of gene pollination.

Fourthly, some of the genetically modified crops and foodproducts are considered harmful to the people who consumethem as they may have allergenic effect on the body. Eventhere are chances of evolution of new virus from the largeproduction of GMOs.GM crops which are in existence are virusresistant plant may adapt the genes with time and furthertheycan increase viruses to grow stronger or even can giverise to new variants that can infect plants and crops. If welook the life cycle of a virus which is of a short span whichrapidly inculcate the process of viral mutation.

Fifthly it is presumed that more use of genetically modifiedcrops and food product the more adverse effect on theenvironment and ecosystem. It also can produce ecological sideeffects.

Sixthly GM crops and food products are transgenic, that raises

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various risk as eating foreign DNA which may have adverseeffect which alarms various issues and global debates whichgo against GMOs.

The state of affairs of GMOs in India is not at par as comparedto other countries which has strict rules and guidelines for theselling of GM crops and food product, some countries have madelabeling of GM crops and products mandatory whereas some havelegislation governing them. The consumers in those countries areaware of GM crops and food products and are labelled whichprovide a free choice to the consumer as they are well informedabout the same. In this scenario we exactly don’t know whetherthere are the real issues associated with GM crops and foodproducts like health, environment, endanger to biodiversity etc.The regulating bodies should provide with a middle path to resolveall this issues where we can take advantage of benefit of the modernbiotechnology with minimum loss to resolve major problem of foodcrises.

Jurisprudential Facet of modernbiotechnologyModern green biotechnology has considered as the boon by

the scientist and the people who are involve in Research andDevelopment of this facet which can solve the issues of food crisisacross the globe by growing the nutritional standards of the GMcrops and food products. Since very beginning of the advancementin this area had laid to various debates and arguments againstthis technology on various ethical principles which goes intorounds to find a lawful path to solve this issues and find asustainable answer to such ethical and social principles which goesagainst this green biotechnology. Utilitarian principle put forthby Bentham can help us to find some answer to these debates andaccording to his utilitarian principle which says “Maximum SocialWelfare” and “respect for rights”. GMOs can be useful as a socialtool and will be benefiting to the general public as it can solve theproblem of hunger of those millions of people who dies every yearbecause of hunger and poverty as they can’t afford the food. GMOscan be utilized as a mechanism to maximum social welfare of peopleby providing them food for their livelihood and survival. Eachindividual has a right to survival and all has equal right for lifeand that right we need to respect by providing them basic needs oflife. On humanitarian grounds all have equal right to life and thatcan be respected only by giving them the basic needs of life andfood is one of them which should be made available to them.

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Utilitarianism states that, “the greatest good for the greatestnumber”. The principle of maximum social good asserts that if aproduct does no harm, and produces some desirable social outcome,it is ethically acceptable(perhaps even mandatory).20 We can saythat genetically modified crops and food products can be answertothe issue of food crisis and curb death of those millions of peoplewho die due to starvation across the globe. GM crops and foodproducts can be helpful to feed the huge population which is rapidlyincreasing day by day, if we go by the traditional method ofharvesting then it is not possible to deal with this colossal concernof food crisis. Genetically modified crops provides high yield tothe farmers and on the other hand consumer are also benefited asthe crops and food will be available at a reasonable rate which willbe feasible to them. There is a huge demand in the market for thefood but there is no abundant supply due to which there are rise isthe rate of the food and crops resulting in the high cost of foodgrains and food product which increases the cost of living increasesdue to which people has to suffer.

According to Dworkin’s Rights principle which says, “Rightsare trumps against other socially desirable goods or goals”. If wego by this principle it can be said that he placed individual rightsof people at a higher place and people have rights which cannot bedenied to them by anybody. Every person has a right to get foodfor survival which is his basic right and it need to be provided tohim without which he will not survive and his rights will have noexistence. It is enshrined in various International Conventionswhich saysevery person has right to life and a person will be deniedhis right to life when he is not provided with food. The rights thatwe all talk about will be in existence only when we provide food tothose millions of people who die every year due to hunger andstarvation. To some extent modern biotechnology can add a valueto traditional harvesting and give good yield, equality, quantity,and nutritional values to the crops and food products. We need toharmonize the modern biotechnology with the traditionalharvesting so that all has access to equal right and all are fruitbearer during this process. Hegelian view is that a private propertyright are essential for the individual for his satisfaction of somefundamental human needs and equal access to food is a fundamentalright of each and every one, which is universal in nature and thatcannot be denied.

The theory of Social engineering which is propounded by

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Roscoe Pound can also be interpreted here, where he has talkedabout the interest of persons which need to be recognised, protectedand enforced by the instrument of law. All peoplehave an interestin their life which is recognised across world and are protected bylaw at different level by rules and regulation. He stated that,“Maximum satisfaction of wants with minimum friction”, if we goby this principle laid down by Roscoe Pound then we can say thatbiotechnology can be an answer to the issue of food crises and wantsneed to be satisfied with minimum loss by using GM crops andfood products. So far there are no evident clear risks available ofgenetically modified crops or food products, but there are certainconcerns associated with GMOs which need to be resolved by usinga proper mechanism. If maximum people needs are being satisfiedby using this technology which can be helpful to solve food crises,can benefit farmers and also to the consumers then we should takeadvantage of the same for larger benefit of the society. Geneticallymodified crops and food products have certain concerns and risksare associated with it but then we need to apply the principle ofsustainable development and have to apply precautionary principleto tackle this issue.An element of natural property theory is one,which treats all of nature as a heritage to be shared equally by allhuman beings21. Justice Burger’s majority opinion for the U.S.Supreme Court decision in Diamond V. Chakrabarty appeals tosuch a view implicitly, holding that Chakrabarty deserved a patentfor his bacterium because it was his own handwork, and not “amanifestation of nature, free to all men and reserved exclusivelyto none”22. The Supreme Court of United States held that, agenetically engineered bacterium qualifies as patentable subjectmatter under general federal patent law. This case is an epoch sofar as the patenting of life forms is concerned. Prior to this casepatenting of plants, animals and micro-organism was not possibleas they were considered ‘product of nature’23. But Chakrabartydecision changed the whole scenario; human made geneticallyengineered bacterium was patented. Certain varieties ofBioengineered organisms also qualify to get protection under PlantVariety Protection Act which safe guards the interest of farmers.Theory of Property which is laid down by John Locke states thatany individual who has invented something innovative and noveland which is the outcome to his intellect, that person should getthe labour for his work. The proposition that a person who laboursupon resources that are either not owned or held in common has anatural property right to the fruits of his or her efforts, and that

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the State has a duty to respect and enforce that natural right: theraw material is deemed to be held in common and the labourcontributes to the value of finished products24.Genetically modifiedcrops are the outcome of research and development of crops foryears by companies who invest lots of money in this process andwhen they are successful they take a patent for it. Patent lawprotect their invention for next twenty years so that they haveexclusive rights over that product or process and earn out of it.Genetically modified grains are protected by taking patent over itbut which also have a number of apprehensions that this rightsare infringed by the farmers and we can see cases filed forinfringement of such patent against farmers for violation of theirexclusive rights which sometimes genuine and many times callousin nature by the multinational companies to exploit the poorfarmers. The State has to make a mechanism to deal with suchissues with proper rules and framework when such clashes do takeplace.

The prospect theory given by Edmund Kitch offers a moreelaborate analysis on patent and calls it as “Prospect theory” ofpatent protection post invention. According to this theory, thepatent system promotes efficiency in the allocation of resources tothe development of existing inventions by awarding exclusive,publicly recorded ownership in new technological prospects shortlyafter their discovery25. If this is done the owner will get a rightover his invention for a limited period, whereas others will get toknow the invention through specification whichsubsequently opensfor others for further research purpose for improvement ofinvention.This kind of technique will increase the efficiency of thepatented invention.

In the economics terms we need to find a fine balance betweenthe need and rights of people when we are tackling GM foodproducts and crops. We need to find a rationale wherein we cancounterbalance needs V. exclusive right on GMOs. We have to drawa fine line wherein we also have to take into consideration that ifexclusive rights are not given for a limited period to the inventorthan it will create a hurdle in the research and development andthe technology will not flourish and develop. Scientist and themultinational companies won’t invest a huge amount on suchresearch and development. The legal instrument has to harmonize

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this conflicting interest in the larger welfare of the society.

Genetically Modified Crops and food products in IndiaIndia is a country which has adopted the new modern

technology for advancement in each and every sector whether it isScientific Technology, Agriculture, Health, Food, Environment etc.India has ventured in the entire sector to be at par with otherdeveloping countries and developed countries. From the verybeginning when GM crops were first introduced India was part ofthe biotechnology and also quickly adopted following thecommercialization of the same since the year 1996. It is observedthat there has been rapid growth of genetically modified cottonvarieties in India ever since 2002 onwards, and in 2009 84000 km(square) of GM cotton was harvested in India26. By 2010 GM cropswere annually planted across 140 Million hectares in 29 countriesand 60 % of total cotton area27. Around 9.4 million hectares of GMcotton was planted in India in 201028.Genetically engineered seedis relatively easy to adopt as it only requires the substitution ofone seed for another, while richer farmers may have been earlyadopters of these technology (Crost, Shankar, Bennett, and Morse2007), near 100 percent adoption of Bt cotton in many regions ofIndia29. A case study by Kathage and Qaim (2012) in India showedthat adoption of insect-resistant Bt cotton resulted in a 50 percentincrease in profit per hectare and an 18 percent increase inexpenditures30.Currently, India has the world’s fourth largest GMcrop acreage on the strength of Bt cotton, the only GM crop allowedin the country31.Bt cotton, with the trade name ‘Bollgard-I’,developed by Mahyco-Monsanto Biotech Ltd (associated with theAmerican multinational corporation Monsanto) is geneticallyengineered with the Bacillus Thuringiensis (Bt) protein that istoxic to the bollworm complex of pests32. The Bollgard-I with asingle Bt gene was followed in 2006 by ‘Bollgard-II’ with two Btgenes. By 2013, 1167 number of Bt cotton hybrids were introducedin the Indian market with regulatory approval33. From a low initialuptake in 2002, Bt cotton has spread to over 93% of the cotton areaby 2012 covering 11.2 million hectares34. After touching 12.85million hectares in 2014-15, cotton area subsequently declined inIndia to around 10.5 million hectares by 2016-17 mainly due topest attacks (whitefly, pink bollworm etc.)35.

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Table: State wise behaviour of cotton area production andproductivity of cotton from 2011-12 to 2015-1636.

Cotton is an International crop grown by about 80 countriesacross the world and on an average, cotton is planted in an area of329.49 lakh hectares wherein India is at top with 1st rank bycontribution of 33.23% in total area of the world, China is at 2nd

position by contributing 16.02% and the countries of USA, Pakistan,Uzbekistan and Brazil rank 3rd, 4th, 5th& 6th by contribution of 11.27%,9.01%, 4.06% & 3.09% respectively37. After analysing the statisticof Bt Cotton which was commercialized for cultivation in Indiaever since the time of its release in 2002, this Bt cotton has emergedas an actual substitute to the tradition cotton varieties which wereharvested in India prior to 2002 which has also showed a rapidgrowth of adaptation by the farmers in India. This Bt cotton slowlyand gradually adopted in whole country, which improve the yieldof cotton but also the increase in the income of the farmers whoharvested Bt Cotton. Bt cotton has played a vivacious role inincreasing the production of cotton and making it a top producerof cotton across the world.

Today in India there are around 21 new varieties of GM corpswhich are approved for field trials by the government such as rice,wheat, maize, corn, cauliflower, cabbage, potato, groundnut,sorghum, brinjal and cotton38. GM crops are combative in natureand lots of controversies are going on in the country due to

State Yield in Kg/hectare

11-12 12-13 13-14 14-15 15-16 Average.

Andhra Pradesh 443 521 495 588 613 510

Gujarat 689 603 685 644 606 646

Haryana 703 692 730 603 381 620

Karnataka 368 440 481 449 430 437

Madhya Pradesh 482 615 572 544 652 569

Maharashtra 297 314 358 284 289 309

Odisha 542 571 410 535 544 519

Punjab 698 708 750 648 226 630

Rajasthan 483 529 557 533 501 519

Tamil Nadu 575 664 456 624 442 553

Telangana New State Established w.e.f. 02.06.2014 377 370 374

Others 3104 374 479 494 340 998

All India 491 486 510 462 432 476

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opposition from activists and farmers. They are of the view thatGM Crops are dangerous for the environment and has health riskto the people who consume them whereas counter view ofsupporters who argue that GM crops has high yield which isbeneficial to tackle the hunger issues in the country and it has thepotential to bring down the prices of the food and commodities.GMcrops and their acceptance in a new report has revealed a sharpsurge in the area under GM crops to 185.1 million hectares, in2016, indicating a 110-fold jump in the adoption rate over 21years39.A report by the International Service for the Acquisition ofAgri-biotech Applications (ISAAA) named, ‘Global Status ofCommercialized Biotech/GM Crops: 2016,’ stated that GM Cropcultivation has touched a new peak showcasing the 110-foldincrease in adoption rate of biotech/GM crops globally from 1.7million hectares in 1996 to 185.1 million hectares in 201640.According to the news reports India has adopted geneticallymodified crops at a fast pace in the year 2016 and brought about aturning point for GM Crops in India. If we look back the case of Btbrinjal in 2010 which was strongly opposed by the farmers andgeneral public was not commercially released in India, whereas in2016 GM mustard is being commercially released. In case of ArunaRodrigues41, in which consented order passed, the court held it inits decision primarily and substantially with reference to Minutes,directing that there should be Technical Expert Committee andthe Committee directed to submit its interim report within a periodto Court.Prior to releasing GM mustard in India completed theprocess of inviting public comments on the biosafety of GM mustardand also seek permission before environmental release of transgenicmustard which is being developed by the Centre for GeneticManipulation of Crop Plants of the University of Delhi42.All thebiosafety reports, the biology of the crop and other literature aresupposed to be made available in thepublic domain, as has alsobeen reiterated by the Supreme Court (SC) in one of its interimorders in a PublicInterest Litigation on GM crops, being heard bythe SC since 2005, apart from CIC (Central InformationCommission) Orders43. However, despite reports that BRL-II trialshave been completed, no information on GM mustard has been putout on the websites maintained by the regulators andsummary ofsome 130 pages was put in public domain for review whereas accessto full dossier of about 4000 pages was practically not availablebecause for that, one had to physically go to the Delhi office ofGEAC and see it there only during a short window of time44. It is

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observed that even at the Delhi office of GEAC no photocopying orphotography was allowed and one has to take a glance of the samein few minutes which is not possible to analysis 4000 pages. Allthe documents relating to GM should have access in public domainfor the observation and analysis of public. No doubt to some extentplanting of GM crops has increased the overall income of farmersand helped in curbing the hunger issue at global level but we needto balance technology with the needs of farmers. “Biotechnology isone of the tools necessary in helping farmers grow more food onless land,” said ISAAA Global Coordinator Randy Hautea45. Yestechnology is beneficial but when it is not regulated it createsconflicts, controversies and unacceptability by general public.

Governance of GMOs in India and impact of InternationalConventions

GM crops are growing amply in India and more varieties arebeing developed by companies and agricultural universities whichare put forth for field testing, release in the environment so thatthey can be commercialized for the purpose of economic growth aswell as for the benefits of farmers. Prior to release GM are beingsurrounded by various concerns expressed by general public aboutpotential risk involved with it, its health hazards on human aswell as the environment, ecosystem and biodiversity. This processof genetic modification of crops raises various issues which arebased on biosafety, bioethics, social, ethical and legal concerns forgeneral public, consumers, experts from the industries etc.Genetically modified is governed in India by various governingbodies but we do not have a specific legislation for GMOs like othercountries.

Regulatory bodies governing GM crops and food products inIndia discussed below-

Genetically modified organisms are dealt by the Ministry ofEnvironment & Forests, Government of India (GOI) which hasnotified the rules for the manufacture, use/import/export andstorage of hazardous microorganisms/genetically engineeredorganisms or cells, (Rules 1989)46and under EnvironmentalProtection Act (1986). Rule 1989 only deals with the handling,import, export of the GMOs and LMOs but there is no rule andregulation for GMOs specifically, the Rules further also mentionsvarious regulatory authorities who will be responsible for approvalof GMOs. The Environment protection also governs GMOs but no

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mention of GMOs in it but altogether deal with environmentprotection at various levels.There are various CompetentAuthorities, who regulate Research, Product Development andCommercialization activities of GMOs in India which are workingin this behalf, but these bodies are not able to tackle the issues ofGMOs and we can see the failure of these bodies while dealingwith GMOs.

Recombinant DNA Advisory Committee (IXDAC), thiscommittee function in Department of Biotechnology (DBT) and ithas to review development of biotechnology at National andInternational Level. They have to provide with regulation,recommendation which is suitable and appropriate for safetyfromtime to time.Review Committee on Genetic Manipulation(RCGM)is examined by the Department of Biotechnology, GOI.The committee has to continuously monitor the issues which areconnected with safety aspect of on-going research projects ofgenetically engineered organisms and activities concerninggenetically engineered organisms/hazardous microorganisms. Thecommittees work is to monitor into all on-going projects comprisinggenetic manipulation and controlled field trials in India. Furtherto safeguard by providing adequate precautionary measures andcontainment surroundings which are laid down in the guidelinesneed to be followed from time to time.It isalso authorizedto laydown restriction or prohibition on production, sale, importationand use of GMO as per Rule 198947.

Institutional Biosafety Committee (IBSC) is involved inresearch and production activities associated to GMOs in allorganization in India. Its function areparticularized in the“Recombinant DNA Safety Guidelines, 1990” and “Revisedguidelines for research in transgenic plants & guidelines fortoxicity and allergenicity evaluation of transgenic seeds, plantsand plant parts, 1998”which are dispensed by the DBT. Researchinstitutions having microorganisms/genetically engineeredorganisms shall prepare a assistance of the IBSC an up-to-dateon-site emergency plan according to the manuals/guidelines of theRCGM and make available copies to the District Level Committee/State Biotechnology Co-ordinating Committee and the GeneticEngineering Approval Committee48.Genetic Engineering ApprovalCommittee (GEAC) worked under serviced by Ministry ofEnvironment and Forest and is responsible for the approval ofactivities involving large scale use of GMOs and products thereof

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in research and industrial production from environmental angle.GEAC also approves proposals relating to the release of geneticallymodified /hazardous organisms and products in to the environmentincluding experiment Field trials49.

India is Signatory to International Conventions, one of whichis Convention on Biological Diversity50 (CBD) whichrecognizes thatrelease of GMOs (referred to in the CBD as ‘living modifiedorganisms’ or LMOs) may perhaps have adversarial effects on thebiological conservation and sustainable ecosystem and use ofbiological diversity.The signatory countries were expected toestablish and maintain all means to regulate, manage riskassociated with GMOs which may have adverse environmentaleffect and to take into consideration the risksconnected to humanhealth.According to the precautionary approach of the RioDeclarationwhich is in Principle 1551 on Environment andDevelopment, the aim of the Protocol was to setupmechanismwherein step by step procedure of safe transfer, handling and useof GMOs and LMOs which may have adversarial effect on biologicaland environmental conservation and sustainable use of biologicaldiversity, keeping in mind the various ins and outs risks associatedwith GMOs and LMOs to human health, and speciallyconcentratingon transboundary movements of such GMOs and LMOs.CartagenaProtocol52 was negotiated under the umbrellas of the CBD in 1992,which provides guidelines and rules for safe transferring, handlingand disposing of LMOs or GMOs.Cartagena protocol has two mainfeatures firstly Advance Information Agreement (AIA) whichprovide for a prior assessment of all GMOs by importing countrywho are intending to introduced such GMOs release into theenvironment and secondly Precautionary Approach are beingassimilatedto look into risk/safety evaluation and managementprocedures in several countries predominantly from theperspective of trade in GMOs across the world.After the CBD, in2000 the Protocol also established Biosafety Clearing-House53

(BCH) and Indian cabinet (GOI) approved the proposal of BCH in2001 and subsequently approved the Protocol in 2003; this protocolsimplifies to exchange of information relating to LMOs and alsosupports countries in the execution of the protocol within theirdomain.

The Basel convention54 is an International Treaty which curbsthe issues of transboundary movements of hazardous wastes fromone country to other and their disposal according to the Basel

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convention.This convention aims to diminish the movements ofhazardous wastes between nations during transboundarymovement so as to protect human health, environment andecosystem from theadverse effects of hazardous wastes, specificallyfocusing to avert thetransfer of hazardous waste from developedcountries to less developed countries (LDCs). The first step in thisregard is assessment of risk in which detail categorization of theGMOs and LMOs of the host, donor and gene transfer process,risk identification during the process of transboundary movement,the genetically modified organisms are thoroughly analyzed forrisks associated with it such aspathogenicity, toxicity, allergenicity,teratogenicity etc. During this process in India, each product hadto be studied thoroughly well and assessed in detail on a case bycase basis according to guidelines laid down inRecombinant DNABiosafety Guidelines, 1990, of the DBT, Ministry of Science andTechnology, GOI.Codex Alimentarius Commission55which dealswith international food standard of the Food and AgriculturalOrganization (FAO) and World Health Organization (WTO)isanestablishedbody wherein an Ad-hoc intergovernmental task forceis build up to look into foods which are outcome ofgeneticengineeringand to develop standard guidelines and Suggestionsfor the same. The task of the commission is to identifying andassessing risk of GM, addresses the existing safety apprehensionsassociated with GM foods,the safetyand nutritional properties ofrecentlyinserted substances in the GM food, its influence on dietand food product, probability for any allergenicity, health risk tohuman being due to GM food etc. WTO work is to majorly framerules and regulation for International trade of GM crops and foodsproducts through the two agreements of WTO relating to riskassessment and labeling of GM foods, first is Agreements onSanitary and Phytosanitary Measures56 (SPS)deals with rights aswell as obligations of countries to the agreement, harmonizationbetween countries, assessment of risk, transparency, detailapproval procedures etc., and secondly Technical Barriers toTrade57 (TBT) wherein the countries use to regulate their markets,protect their consumers by informing about the products and alsopreserve their natural resources. This agreement focuses only torisk assessments and labeling issues when it comes to trade ofthis GM food.

The International Treaty on Plant Genetic Resources for Foodand Agriculture (IT PGRFA)58 which is also known as theInternational Seed Treaty, which aims at firstly recognizing the

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enormous contribution of farmers to the diversity of crops thatfeed the world; secondly establishing a global system to providefarmers, plant breeders and scientists access to plant geneticmaterials and lastly ensuring that recipients share benefits theyderive from the use of these genetic materials with the countrieswhere they have been originated59. This treaty also take into accountthe problem of food security, sustainable use of genetic resourcesfor food and agriculture around the world, it identify the farmersrights but subject to the Domestic laws which govern them. Thetreaty obliges States to promote or support, as appropriate,farmers’ and local communities’ efforts to manage and conserveon-farm their plants genetic resources for food and agriculture60.The treaty not only protects farmer’s rights at international levelbut local level so that the contracting parties are protected andpromotes farmers rights in world. So that they get benefits fromthe same which will help them to develop and conserve their geneticresources for the future generation and adopt sustainabledevelopment.

The Biotechnology Regulatory Authority of India Bill61 (BRAI),2013 was presented before Lok Sabha by the Minister for Scienceand Technology, which was considered as the dream legislationfor modern biotechnology and was intended to sets up asindependent authority, to regulate genetically modified organismsand products which are the outcome of these modernbiotechnologies. This bill was intended toregulate the researchrelating to GMOs, transport and import of GMOs, containment ofGM, environmental release of such GMOs/LMOs, manufacture anduse of biotechnology products which are result of such modernbiotechnologies with regulatory approval from the regulatoryauthority, which would have been approved through a scrutinizedgoverning body through multi-level procedure of assessment ofsuch GMOs by scientific experts. Under this bill the function ofthe authority was to look into the field trials for certain organismsor products which was the outcome of genetically engineeredplants, animals which are used in food or any animal clones throughmodern biotechnologies that could be applied in agriculture andfood products for better traits and desired outcome. This bill wasthought to be a good step to resolve the issues and controversiesof GM crops and products but unfortunately this bill lapsed.

Even though India has governing bodies and incorporated thenorms setup by the International Conventions and Treaties, we

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are lagging behind when it comes to regulation of GM crops andfood products.These above governing bodies fail to tackle theissues, challenges and controversies which are directly connectedwith GMOs in India. We need a specific legislation which canresolve and provide strategies to deal with them. The StandingCommittee Report62wherein the Governing Mechanism forTransgenic crops/seeds and Restraint of Trials reports andresponses on various issues relating to transgenic were placed bythe government before the committee, after going through it thecommittee was not convinced with the responses given by theGovernment on various issues associated with GMOs. TheCommittee were not satisfied that ensuring environmental safety,health safety, food and feed safety of the entire Country frominduction of GMOs has been left at the mercy of such a set-up forthese many years63. The Committee had noted that the demarcationof roles and responsibilities between Ministry of Environment andForests (MoEF) and Genetic Engineering Approval Committee(GEAC) seemed to be hazy64. The committee was of the opinionthat GEAC showed deficiency of concerns over the issue of GMOsand they had overlooked towards their role and responsibilitiesas a body who is established to look into all affairs of GeneticEngineered products and the committee was moreinfluencedtowards giving benefit to industries who are into GMOs ratherthan the welfare of general consumer and farmers interest at large.It recommended the Government not to leave such crucial decisionin the hands of GEAC but to come up with a clear-cut policy in thisregard immediately65. The committee was opposed to the viewposed by RCGM when it came to use of markers of antibioticresistance and transmission of genes from GM crops to bacterialiving in the gut of humanbody and did not showed any evidence ofside effect in the last 15 years. The committee felt that the viewwas not appropriate one and committee felt “that there should beno compromise even remotely on human health and environmentby the use of antibiotic resistant maker in GM crops and urged theGovernment that they should formulate a policy without delaykeeping the human health and environment in view66”. IBSCfunction is of supervisory nature and to make sure that researchand development of GM crops and food products is carried in safemanner, with thorough compliance of guidelines which arerigorously followed by everyone whether a company/ organization/Institution dealing with GMOs. IBSC is the place wherein studiesand assessments of GM are taken place and further data is

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generated.

The Committee is of view that when it comes to biosafetyassessment of GM crops is multidisciplinary in nature whichrequires various experts, but the question remained the same as“set of people being involved in development of technologies/products and also in assessment, evaluation and approval67”. TheCommittee was of the view that the Government should makemodifications in the structure and functioning of GEAC and otherregulatory bodies, so as to resolve the contradictorycharactersplayed by same persons in different governing bodies. Thecommittee noted that Government must go through the process ofexamining domestic laws whether they are sufficient to resolvethe potential damage which is mention in Nagoya-Kuala LumpurSupplementary Protocol and the whole process must be completedwithin time frame without loss of time68.The Committee alsoobserved that the long term environment impact assessment andchronic toxicology studies of the effects of transgenic agriculturecrops have not even been attempted till now and the Governmenthad not yet taken a final call on labelling69 of GM crops and foodproducts which may have long term environmental and healtheffects. Initiative must be taken to do surveillance of GM cropsand Food products and training and education must be impartedto the farmer and general public so that they can take timelyprecaution for the same within time frame. They appreciatedgovernment moves regarding post marketing surveillance, healthsafety, food and feed safety of the Cotton seed oil and otherproducts like cotton cake extracted from Bt cotton and the lawsand regulations laid down for production and marketing of productsderived from transgenic materials70. During the response betweenthe committee and the government governing bodies, theGovernment have inter-alia stated that the post release marketingof GM foods or any food in terms of safety aspects is notscientifically feasible71. It was further identified that post marketmonitoring of GM foods of such a huge population who consumesit at different time, amount and ways it becomes difficult to assessand to find out the health effects of such people who had consumesuch GM foods which may be vague and uncertain in nature. Thecommittee felt that there should be mechanism which can collect,monitor and reports the effects of GM consumption which comefrom health centres of different cases involving in GM foodconsumption and study the health effect patterns so that suchconsumption cases timely resolved and remedial action could be

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taken timely.

When it comes to the issues of Conservation of the biodiversitythere is lots of awareness in the people but a proper system mustbe adapted for implementing sustainable development andenvironmental friendly practices while using advance technologiesin agriculture which will preserve the biodiversity and ensuresafety of human health and livestock health which is unfortunatelyyet not initiated72. When it came to the risk assessment of GMcrops, the committee pointed out that “amongst the possibleenvironmental risks that have not been adequately evaluatedinclude risks to local varieties and wild relatives, risk to biologicaldiversity and risk of resistance evolution in brinjal fruit and shootborer” and “desire on expeditious evaluation of these risks andintimation of results thereof”73. The Committee was of the opinionthat when the matter pertains to human health, any amount oftime and money spent on any number of studies and analyses toevaluate the product is justified and mere referring to best globalpractices and internationally laid down norms would not suffice74.The committee further suggested thatthe government should getthe reports on GMOsassessed and scrutinized them thoroughlyfrom the expertise strictly on the basis of scientific merits in thenation’s interest. When talking about Bt. Cotton it was opinedthat it did not resolved the food security of the country, as lots offarmers switched to the use of Bt Cotton cultivation because ofthe misunderstanding about high yield and further potentialbenefits and because of its hype in the market for high yield, lotsof traditional varieties are wiped out of market and on the vergeof extinguishing. The committee suggested that an in-depthinvestigationwhich may be carried out to track the decision makinginvolved in commercial release of Bt. cotton from the initial stage75.

The Committee in Twelfth Report (Fourteenth Lok Sabha),2005 had stress on the need for a single regulatory body and anintegrated food law to obviate the confusion created by themultiplicity of laws76. The Committee was of the view that FoodSafety and Standards Act (FSS) would deal with all issues of foodwhich was enacted in 2006, the mechanism to implement was toomuch delayed and the came to existence in 2008, but could notstart functioning till 2009. Then for next three years did notfunctionbecause of paucity of funds and from 2011 the FSS Actstarted functioning without proper manpower and infrastructureat Central and State Level. Further in 2010, Food Safety and

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Standards Regulation where published so that public commentscould be invited but that too was not finalized nor the database forrisk based food clearance system was not developed, even theLaboratories were not functioning77.The committee recommendedthe government to provide sufficient funds and update them inthis behalf. When it came to the monitoring of the imported foodand food product there was no mechanism to look into themonitoring of the genetically modified food items when actuallyimported in India during the preceding of oral evidence? Thecommittee showed serious concern over the issue of food safetyduring import in the country and also failure of Food Safety andStandards Authority of India (FSSAI) which was dealing andhandling it. GM crops field trials were done in certain States, somestates completely rejected to do it without going into the scientificdetails of the same. The government was of the view that the fieldtrials were entirely based on scientific bases and safe practices,while banning field trials of transgenic should be guided by wellreason scientific decision which is based on existing regulatoryframe work78. The committee was of the strong view that “unlessand until a comprehensive, transparent, effective and professionalregulatory system is in place, there exists no scope for field trialsof transgenic”79.Hence the committee again strongly urges thatthere has to be effective monitoring mechanism which isundertaking field trials of genetically modified/transgenic cropsin India.

Presently in India there is no governing body which can keepa check on GM food and others items or products which aretransgenic whether it is imported or produced here. The committeefeels that it’s the need of the time taking the health safety intoconsideration to make law earliest in this behalf and fix this issue.During this process the committee critically analyzed the evidencefor and against transgenic agriculture crops and had not limitedtheir analysis to pure science but gone further to look into some ofthe most compelling concerns factored of India’s rich biodiversityand agriculture which provide sustenance to almost 70% of therural populace, more than 70% of India’s farmers being small andmarginal farmers forwhom agriculture is not a commercial venture,but a way of life and a means of survival, the irretrievability ofside effects of transgenic crops on the environment, human andanimal health, etc.80 Therefore, the committee was contented withthe response given by the government that present regulatory

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system is not self-sufficient for various reasons mentioned aboveand they should have a full fledge body and mechanism for thegoverning the work of biosafety and bioefficiency of GMOs. Thegovernment in its reply to the committee also accepted that “publicneeds to be informed of every decision”81 and all the proposedchanges which is the need of the time during this controversiesshould be implemented without any further delay. The committeehad severe concerns about small farmers who were solelydependent on agriculture and because of failure of the GM cropsthey suffer, so the government should have some insuranceschemes for such farmers so that they will be getting some reliefunder such schemes. The committee also pointed out that seriousthoughts are required to be given onethical dimensions oftransgenic agricultural crops on the other hand the government iscompletely silent on ethical issues and only focusing on safety andefficiency of genetically modified crops82which will not suffice thepurpose altogether.

The committee throughouttheir course of study, visited farmersand held extensive contacts with farmers andwitnessed that therewas no substantial socio-economic profits accruing to farmersbecause of the introduction of Bt. Cotton varieties which promisedthem high yield but lead them to indebtedness which had growntremendously, as a resultthey were exposed to greater risks ofsurvival. On other handGovernment claimed that farmers incomehave increased on account of cultivation of Bt. cotton which iscontrary to the interaction of committee with the farmers, whichis ample proof to show that the miseries of farmers havecompounded since the time they started cultivating Bt. Cotton83.The committee suggested the Government should appreciate theground reality and not to thrust commercial cultivation of Bt. cottonon farmers84. The committee strongly reiterate their earlierrecommendation that further research and development ontransgenic in agricultural crops should be done only in strictcontainment and field trials should not be undertaken till theGovernment puts in place all regulatory, monitoring, oversight,surveillance and other structures85.It’s high time to take all theabove things into consideration,that India makes majormodifications in the regulation of genetically modified crops andfood products and avoid the risk which may be the outcome of thesame due to the negligence of governing bodies. Since 2012 onwardsgovernment is talking about labeling the GM crops and food

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products but till 2017 we have not seen any initiative in this behalf.Labeling of GM crops and food products is essential taking theconsumer interest into consideration, asconsumers’ has a right toknow about the products and they will be well informed whilemaking their choices. The government has to take into accountsthe ethical and social views of public while making policy which isso far not dealt in India.

Constitutional and other legal provisions for supporting andregulating GM crops and food products

Constitution is the guiding force to the policy makers fromtime to time and all rules and regulation has to be in consonancewith the Constitution of India. Today’s advance science andtechnology is the answer to many questions which can be resolvedby using this technology. Right to life86 is a fundamental right; allhave right to life and livelihood. GM crops and food products canresolve the problem of food crisis because of which millions ofpeople die due to hunger every year. If this biotechnology is utilizedin a proper manner, it can be answer to food crises, malnutritionand also be a source of livelihood for those small/ marginal farmerswho cultivate the transgenic crops in their field. Herein we sawabove many small farmers suffer because of failure of transgeniccrops andthe government need to make a mechanism to assess therisk and inform and educate the farmer the proper use of this cropsaccording to the climatic condition, type of soil, rain structure ofspecific geographical area which can help them from failure of crop.The small farmers are totally depend on the cultivation and whenthey are not being informed about the use of this transgenic seedsthey end up in misery due to failure of crop which lead to farmerssuicide. The farmer need to be educated in this behalf proper modeof harvesting of transgenic crop, we can’t blame the farmers solelyit’s the responsibility of the government to setup a body to workon it as well as the duty of the seller i.e. multinational companiesto educate and aware them from time to time. Right to life is upmostright of any individual and the government has to develop themechanism to preserve and protect the rights of farmers and notjust see the interest of multinational companies. GM seeds arenew to the farmers and the consumers they need to be educatedand information for their proper use may be told to them, thisright of the farmers is enshrined in the constitution “Right toeducation and to public assistance in certain cases”87. Publicassistance in certain cases, we can co-relate with the farmers as

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70% are into farming and it’s directly related to their life andlivelihood where they need to be educated and assistance fromgovernment to create awareness and the proper method of usingtransgenic seeds.

It’s the ‘Duty of the State to raise the level of nutrition and thestandard of living and to improve public health88’, the State is beingcast with a primary duty to raise the level of nutrition of the foodand food products by adding good quality to it, improve standardof living and improving public health which can be possible withthe help of GM crops and food products when they are madeavailable to the public under proper rules and regulation by settingup mechanism in this regard at the earliest. The Constitutionfurther emphasis the ‘State for organization of agriculture andanimal husbandry89’ the State under the duty to improve andpreserve the agriculture with the help of modern scientific line,but while taking benefit of biotechnology they also have to lookinto the safety of human health and environment. The crops whichare being harvested with the help of GM seeds are used not as oilonly but also as feed and food and we need to preserve theenvironment in case transgenic seeds have some health hazard tohuman as well as the animals and environment. It’s theresponsibility of the State to set up a mechanism which can assessthe risk and management of risk can be done while commerciallyallowing transgenic crops and food products. Yes, biotechnologyhas benefits which can solve many problems but with that certainrisk, safety and health is associated which cannot be neglected atall. The government needs to take initiative for balancing theinterest. ‘Protection and improvement of environment andsafeguarding of forest and wild life90’ the State has to protect theenvironment and safeguard the vast biodiversity of India, as studieshas showed that due to increase of Bt cotton which has wipeoutthe various varieties of traditional cotton from India and samemay happen with other crops. These varieties are the biodiversityof the country which are endangered because of totally adoptingthe GM crops and not preserving the traditional varieties in cotton.

GM crops and food products since its beginning is incontroversies based on various issues thatgo around the farmersand the consumers who adapted it directly or unknowingly.Consumer point of view is essential which can be taken fromConsumer Protection Act (CPA) into account which provides manyrights to the consumers and various Schemes like ‘Jago Grahak

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Jago’ are taken by the government to educate the consumers forthe goods or services they avail. But in case of GM crops and foodproducts many ‘rights of the consumers91’ are infringed which aregiven to them for their protection under CPA. The consumers areto be protected from all kinds of hazardous goods and services,GM corps and food product are considered as not safe and in sometransgenic they may have new form of allergens or toxicity whichcan be harmful for the safety of human, animals and environmentas they are directly exposed in the environment without propertesting and safeguards. Those GM crops and foods should be studiedwell, all risk associated with it should be assessed through step bystep procedure, and in case it is released in environment, theyshould be able to deal such hap hazard prior to its use and release.Under CPA, the consumers has the right to be completely informedabout the goods but in case of GM crops it is not done, it’s theresponsibility of the governing bodies to provide all the detailsassociated with GMOs should be available to public and openaccess should be provided to them in public domain. Another rightwhich the consumer has is the right to free choice which is alsonot provided; this issue could be resolved by labeling the GM cropsand food products. Labeling will help the consumer to make a choicewith GM crops and food products where to go for it or not. Lastlythe consumer has the right to complete consumer education, thegovernment need to educate the public about the benefits of GMcrops and food product and also the adverse effects of GMOs ifany. When the consumers have been educated for GMOs, half ofthe controversies will be resolved because they will be aware aboutthe content and context of the choices they make. The governmentneeds to make labeling, monitoringand traceability of GMOsmandatory like majority of the countries around the world likeEuropean Union, Australia, China, Japan, Switzerland etc.

Bioethics, Biosafety, Legal, Social and Economic impact ofGM crops and food products

Since the first release of the GM crop various ethical issuesare associated with this transgenic technology. GM crops and foodproducts are considered as ethically against the Mother Nature.GM foods are referred as “Crops plants or animals created forhuman or animal consumption that have been modified in thelaboratory to enhance the desired traits or improved nutritionalcontent”92. The GM foods are pondered against the ethics as theseGM crops are alteredin the research laboratory with microorganis

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-m’s gene for gettingdesired qualities in these crops which isunnatural and does not exist originally in plant.Majority of thepopulation is Vegan and also some religious people and society isagainst this practice as the GM crops are inserted withmicroorganism of different plant, animal etc. which is tamperingand crossing the natural boundaries of the nature. These groupsof people have a strong objection as they may consume the animalgenes or a product which is outcome of GM. The GM crops are notnatural, they are created with biotechnology which may have newunknown or unpredicted allergens or toxins, and the basemicroorganism is not being disclosed to the public and by hidingthis gene, what is its function, trait and its effect which is unethical.The changes which are made by GM insertion is extremely complexand which may totally react different when exposed to theenvironment and the changes which may take place after exposingto environment may have unexpected result. The major ethicalcontroversies are that they are not assessed properly for risk, riskmanagement, continuous monitoring and no mandatory labelingdisclosing the gene. Further concern is the unintended transfer oftransgenic into the neighbouring farm which has traditional varietythrough cross pollination which affects the natural flora and faunaand biodiversity.

Biosafety of the Transgenic is another concern as GM cropsand food products lacks in India adequate standards of riskassessment. No procedure laid down for complete information ofGM which is required for a full environment risk assessment forits effect on field, yield, environment and ecosystem, people whoconsume it or use it as feed for animals, with that no appropriatesafety and emergency responses laid down by any of the governingbody. The government has not specified the instructions, termsand conditions for use of labeling, packaging of food product whichcontains GMOs. Even though we are the signatory to the Cartagenaprotocol but the detailed safeguards embodied in it are not beingincorporated. Although the government has set up the food safetystudies but they are very arduous in nature as they are prescribedby the RCGM as we don’t have proper risk assessment mechanismwhich can deal this novel biotechnology which is always uncertainand risk are undefined. And for biosafety purpose on urgent baseswe need to set up and take up stronger initiative so that there iscoordination amongst the governing bodies to resolve the concernsof this innovative GM food and food products in the country. GMplants and food require our special attention as it directly interact

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with the ecosystem and biodiversity which raises the concerns forrisk to the environment and the biodiversity varieties which areendangered. Health safety is one of the major concerns which draga special attention which links to genetically modified crops andFood products as we are eating foreign DNA from this transgeniccrops and plants, even different species in the surroundingmightlet gene contamination through food chain resulting intodrastic consequences and unpredictable result. Biosafety ofecological system is at stake as the GM impact the traditionalvarieties through crossing and which may give a potential newinsect population with different traits and also affect the non-targetorganism during this process hampering the biodiversity. It is alsopossible that the virus resistant plant can grow stronger variantswhich can infect plants and speed up the viral mutation process.Gene flow process even though it is accidental because of wind,rain, insect pollinators which destroys the traditional breeds ofcrops and seeds through pollen transmission by contaminatingtraditional local breeds which result in the loss for the farmerswho losses their traditional varieties. One of the biosafety concernsis also that “if the insects and other pest adapt the mechanism ofGM crop then it poses serious environmental and health impact”.GM crops changes the soil biology as many GM plants leaks thechemical compounds in the soil through its roots which raises thespeculation for change in the ecology of the soil composition andbiodiversity. Field trials of genetically modified crops also raiselots of concern of biosafety for the surrounding environment, floraand fauna.

Legal concern of biotechnology and GM is that they areuncertain in their performance and outcome. Legal governance ofthese crops is essential but without long term study of the GMOsin the fields and environment can further raises mysterious issueswhen they are release without assessment. How can we judge thelegal status of the GMOs, through just by law or by its scientificdata and/or temporary experiment that we need to resolve?Another legal concern is the ethic and morals which are associatedwith GMOs, ethics and moral varies from group to group on basisof religion, tradition and culture and how to make law on the basisof ethics is a concern. Various scientist, research and developmentinstitution are working on same products which raise many issuesand complicate the matter. No uniform guidance for research anddevelopment is being established which can have uniformregulatory framework for research in food, agriculture,

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multinational companies who commercially exploit thisbiotechnology. Different companies or agencies works on the sameproducts and transgenic crops which further complicated the issuesof Intellectual Properties, Regulation, and Infringements etc.There is no specific legislation on GMOs in India only we haveregulatory bodies which govern them but the issues here is thatthey lack clarity about their own responsibilities, Monitoring,Collection of data, its potential environmental hazard associatedwith it, risk assessment and risk management differs in allregulatory bodies creating chaos. Absence of the legal facet tocontrol biotechnology directly hampers social, economic, ethicaland cultural aspect altogether.

Socially genetically modified organisms has created lots ofcontroversies in various groups in the country some favour butthe large population is opposite to this biotechnology, as they haveless knowledge or no knowledge on the modern biotechnology andthey go according to their perspective or whatever they hear. Fewdecades back cultivation was done by the traditional mode withtraditional seeds which were considered as healthy and from past15 years we had a shift from traditional practice of food, agricultureand food products which are result of modern biotechnology.Urbanization has brought a drastic change in the land use practices,social system and environment. Population is growing rapidly andto feed the huge population is a big task and due to the shift ofpeople from rural to urban areas is leading to poverty assuagement.One of the crucial questions which surround GMOs is the non-performance of transgenic for the traits which were promised tothe farmers for high yield, economic benefit, less pesticide andinsecticide which lead the farmer’s debtedness and increasingnumber of farmer’s suicide. Due to no market for the traditionalvarieties as they perish early, don’t have nutritional values whichthe GM has which leads loss for the small farmer’s labour, wealthand land. Today multinational companies like Monsanto andMahyco Monsanto Biotech (India) (MMB) solely sells thegenetically modified seeds to the farmers, these companies createdmonopoly in the market which resulted into the exploitation ofthe farmers at the hands of these companies. It was also seen thatthe governing bodies also were more inclined to favour thesecompanies rather than the farmers. Due to the huge exploitationof the farmers at the hands of the companies and the false promiseof companies for high yield also resulted in more than three lakhsfarmers’ suicide. Recently due to lots of controversies and cases

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going against Monsanto “Monsanto Settles GM Cotton Dispute withThree Indian Seed Firms”, “The dispute sparked a series ofgovernment actions that prompted the world’s biggest seedcompany to withdraw from some businesses in India, one of theworld’s most important seed markets”93. This action of governmentwill provide some relief to the farmers from the exploitation ofthe multinational company. GM crops and food products areconsidered to infringe the religious traditional and also its lackthe information to the consumers which they have all the right toknow about the content of those GM crops and food products. Wecan see there are conflicting views and opinion amongst thescientist and experts on biotechnology which also result incontroversies for its authenticity and credibility of GM crops andfood products.

Modern biotechnology has economically impacted India withregards to GM crops and food product as these transgenic areindustrially commercialized wherein big farmers are benefitingout of it but the small/marginal farmers and producers suffer dueto failure of crop, labour, wealth leading to poverty because of debts,increasing the gap between the larger and smaller farmers.Majority of the population is agrarian out of which majorly aresmall/marginal farmer who are in danger due to GM crops whichresult into no market for their crops or because of failure of cropsmaking them economically poorer. These circumstances also leadto decrease in cultivation leading to economic loss, as well asarising food security issue. GMOs also raises hazard to theenvironment and the ecosystem and to protect them andenvironmental treatment process is costly, resulting investmentof huge cost for protection. Economically huge amount of royaltiesare to be paid to the multinational companies for getting thetransgenic seeds as they are solely selling them in India which isnot cost effective for us.In the case of All India Crop BiotechAssociation of India and 3 Others94, the court held that “for pastfew years, in view of significantalteration in the agriculturalpattern, predominantly in the usage and practice of seeds,provisions of the Act were not sufficient for implementation inrespect of quality of Bt. cotton seeds and by-law of trade of non-notified cotton varieties/breeds and hybrid varieties, etc. Hence,as an outcome the whole economy of agriculturalists was adverselyaffected and therefore was effective control of Central Governmentand machinery provided under the Essential Commodities Act soas to control price of cotton seeds. Therefore, Section 2A of the

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Essential Commodities Act, empower Central Government, if itwas satisfied and if it was necessary to do so in public interestwasfound that price of Bt cotton seed had been fixed by GujaratSeedsCorporation after consulting farmers’ associations as wellas seed companies represented by their associations and on basisof available materials placed before Corporation and StateGovernment. Hence, it could not be said that there was non-application of mind while exercising powers under Section 12 ofthe Gujarat Act, Ratio Decidendi‘Government shall have power tofixed price of cotton seeds if it is found necessary to do in publicinterest’. “95 This decision of the court has provided a relief to thosesmall/marginal farmers who suffered at the hands of thismultinational companies wherein they don’t have to by GM seedsat high price. In case of National Seed Association of India andRasi Seeds Limited96 the petitioner had challenged the statutesand notifications of the State of Maharashtra for “price control ofcotton seed” inMaharashtra. The court was of the view that bothGovernments must consider the various facets of industrializationwhile dealing with fixing of price of any commodities, wherein thegovt is required to encourage “inward investment” to give“sweeteners” and “Subsidies” to develop industrialization andcommercialization in various part of the country including themultinational industries considering modern technology andglobalization97. But while doing that we have to consider the Socio-economic situation for future development and progress from allsides and the price control theory needs to be utilized consideringthe poor class farmers/ agriculturist and the rich class farmers/agriculturist. Therefore the price may not be equal for all; itdepends upon the situation of the State climate, weather and landquality, including the potentiality of the land to grow particulartype of crops and seeds and/or other commodities98. These decisionneed to be implemented and followed by the governing body andthe multinational companies need to follow this rule and not toexploit the farmers by creating monopolistic approach. The Indiangovernment needs to make a framework on urgent basis to resolveall such issues and lay down guidelines under that framework forthe governance of the companies.

ConclusionTechnology has various advantages and disadvantages and

same goes for GM crops and food products,we need to balance themand take the advantage of such biotechnology to solve issues of

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food crises, malnutrition and food varieties. Disadvantages can becurtailed by laying down proper mechanism which governs,regulate and enforced by the instrument of law. When GM cropsand food products are compulsorily labeled,it will reduce thecontroversies associated with it. When the general public iscommunicated about the content of the GMOs in those crops andfood products, the average consumer is rightly informed whichwill reduce and minimized the misinformation associate withGMOs. When the government will have transparency in thedecision making process of GMOs and all required information iskept open for access to the public in public domain people willunderstand the true content of GMOs and controversies of social,economic and legal will be resolved. It’s the need of the time thatgovernment frame specific legislation for GMOs rather havingdifferent governing bodies. Under single legislation GMOs aredealt by segregating the provisions which are divided in parts forgoverning, regulation, guiding, reviewing and penalties which willprovide all solution in one Law specifically meant for GMOs.Setting-up of infrastructure for risk assessment and management,having experts from all strata such as experts, scientist, memberfrom farmers side, legal personnel, representative fromgovernment, from medical field to be part of research as this is anovel technology and always surrounded by uncertainties.

References

1. Alan McHughen, What can Nanotechnology learn fromBiotechnology? Social and Ethical lessons for Nanoscience fromthe debate over agrifood biotechnology and GMOs. “ Learningfrom Mistakes: Missteps in Public Acceptance Issues withGMOs” Academic press is an imprint of Elsevier, Pg. 54

2. Geoffrey Barrows, Steven Sexton and David Zilberman,“Agricultural Biotechnology: The Promise and Prospects ofGenetically Modified Crops”, The Journal of EconomicPerspectives, Vol. 28, No. 1 (Winter 2014), American EconomicAssociation, pp. 99-119

3. Jeffrey Burkhardt, What can Nanotechnology learn fromBiotechnology? Social and Ethical lessons for Nanoscience fromthe debate over agrifood biotechnology and GMOs. “The ethicsof Agri-food biotechnology: How can an agricultural Technologybe so important?” Academic press is an imprint of Elsevier,Pg. 87

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4. Geoffrey Barrows, Steven Sexton and David Zilberman,“Agricultural Biotechnology: The Promise and Prospects ofGenetically Modified Crops, The Journal of EconomicPerspectives, Vol. 28, No. 1 (Winter 2014), pp. 99-119

5. Michelle Ma, “Anticipating and Reducing the Unfairness ofMonsanto’s Inadvertent Infringement Lawsuits: A Proposal toImport Copyright Law’s Notice-and-Takedown Regime into theSeed Patent Context”, California Law Review, Vol. 100, No. 3(June 2012), pp. 691-720

6. Neil Gunningham, “The Regulatory Challenge of Biotechnology:Humab Genetics, Food and Patents”, Edited by Han Somsen,Tilburg Institute of Law, Tilburg University of Amsterdam.

7. Biotech Innovation and Fundamental Rights, Edited by SaraLorenzon, Nocola Luchhi and Roberto Bin, Springer MilanDordrecht Heidelberg London New York (ebook).

8. M. K. Sateesh, “Bioethics and Biosafety”, I. K. InternationalPublishing House Pvt. Ltd, (2008).

Websites

1. http://heinonline.org

a. Carmen G. Gonzalez, “Trade Liberalization, Food Security, andthe Environment: The Neoliberal Threat to Sustainable RuralDevelopment”.

b. Maria R. Lee-Muramoto, “Reforming the “Uncoordinated”Framework for Regulation of Biotechnology”.

c. Debram. Strauss, “The Application of TRIPS to GMOs:International Intellectual Property Rights and Biotechnology”.

2. http://www.jstor.org

3. http://www.wipo.int/pct/en/texts/articles/a0.htm

4. www.globalresearch.ca

5. www.vandanashiva.com

(Footnotes)1 Ms. Nanda Pardhey, PhD Scholar of Department of Law, Savitribai

Phule Pune University, Pune ( Assistant Professor in Law)

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2 Sreenivasulu N. S., “ Law Relating to Biotechnology”1st Edition(2016), Oxford University Press, P. 65

3 Dr M. Parthasarathi, “Genetically Modified Crops and itsFuture” Bio-Green Books (2012), P. 64 Shivendra KumarSrivastava1 and Deepthi Kolady, “Agricultural biotechnologyand crop productivity: macro-level evidences on contributionof Bt cotton in India”Current Science , Vol. 110, No. 3, 10February 2016

5 Ibid

6 Ibid

7 Supra foot note no. 3

8 Ibid

9 Ibid

10 Ibid

11 Ibid

12 http://www.nrcpb.res.in/writereaddata/files/Transgenic%20Crops%20%26%20Technology.pdfaccessed on 9th October,2017.

13 Geoffrey Barrows, Steven Sexton and David Zilberman,“Agricultural Biotechnology: The Promise and Prospects ofGenetically Modified Crops”, The Journal of EconomicPerspectives, Vol. 28, No. 1 (Winter 2014),American EconomicAssociation, pp. 99-119

14 Supra foot note no. 3

15 Supra footnote no. 13

16 Supra foot note no. 3

17 Ibid

18Dr. Baburam Singh, “Genetically Modified (GM) Crops andControversies”, Orissa Review May-June 2010, P. 73

19 Ibid

20 Kenneth David and Paul B. Thompson edited book, “What canNanotechnology learn from Biotechnology? Social and Ethical

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lessons for Nanoscience from the debate over agrifoodbiotechnology and GMOs“Jeffrey Burkhardt, “The ethics ofAgri-food biotechnology: How can an agricultural Technologybe so important?” Academic press is an imprint of Elsevier, P.87

21 Dr. Elizabeth Verkey, “Law of Patents”First Edition (2005),Eastern Book Company, P. 5

22 Ibid

23 Anand Mohan Battarai, “Protection of Himalayan Biodiversity,First published in 2010 by Sage Publication India Pvt. Ltd., P.245

24 Supra footnote no. 21

25 Ibid

26Supra footnote no. 3

27 Supra footnote no. 13

28 Ibid

29 Ibid

30 Ibid

31 http://www.insightsonindia.com/2016/02/08/insights-into-editorial-genetically-modified-crops-the-way-forward/accessedon 14/01/2017.

32 http://indiagminfo.org/wp-content/uploads/2017/06/15-yrs-of-Bt-Cotton-in-India.pdfaccessed on 01/10/2017

33 Ibid

34 Ibid

35 Ibid

36 http://www.nfsm.gov.in/StatusPaper/CottonStatus2017.pdfaccessed on 05/10/2017

37 Ibid

38http: / / rajyasabha.nic. in/rsnew/publication_electronic/gen_modify_crops.pdf accessed on 5/10/2017

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39 http://www.thehindubusinessline.com/economy/agri-business/globally-acreage-under-gm-crops-at-a-new-high-of-1851-m-hectares/article9 682984.ece published on May 5, 2017

40 Ibid

41 Aruna Rodrigues and Ors. Vs. Union of India (UOI) and Ors.2012 5 AWC4489SC, 2012(5)SCALE262, (2012)5SCC331available on www.manupatra.com

42 Supra footnote no. 36

43www.indiagminfo.orgaccessed on 19/10/2017

44http://indiagminfo.org/media-editorials-on-gm-mustard-some-facts-from-our-side/accessed on 19/10/2017

45 Supra footnote no. 36

46http://www.envfor.nic.in/legis/hsm/hsm3.html accessed on 02/10/2017 available on Ministry of Environment & Forest.

47 Ibid

48 Ibid

49http://www.moef.nic.in/division/genetic-engineering-approval-committee-geacaccessed on 06/10/2017

50https://www.cbd.int/accessed on 8/10/2017

51http: / /www.un.org/documents/ga /conf151/aconf15126-1annex1.htmaccessed on 8/10/2017. “In order to protect theenvironment, the precautionary approach shall be widelyapplied by States according to their capabilities. Where thereare threats of serious or irreversible damage, lack of fullscientific certainty shall not be used as a reason for postponingcost-effective measures to prevent environmental degradation”.

52https://www.cbd.int/doc/legal/cartagena-protocol-en.pdf accessedon 10/10/2017

53 https://bch.cbd.int/protocol/ accessed on 10/10/2017

54http:/ /www.basel.int/TheConvention/Overview/History/Overview/tabid/3405/Default.aspx accessed on 10/10/2017

55http://www.fao.org/fao-who-codexalimentarius/en/ accessed on 10/10/2017

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56https://www.wto.org/english/tratop_e/sps_e/spsagr_e.htmaccessed on 12/10/2017

57https://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm accessedon 12/10/2017

58http://www.fao.org/plant-treaty/overview/en/ accessed on 23/10/2013

59 Ibid.

60 Supra footnote no. 21

61http://www.prsindia.org/uploads/media/Biotech%20Regulatory/Bill%20Summary-Biotech%20Regulatory.pdf accessed on 21/10/2017

62htt p : / / i ndiag minfo . org / wp-c onten t /upl oads / 2014 / 03 /Parliamentary-Standing-Committee-on-Agriculture-59th-report-on-GM-crops.pdf accessed on 5/08/2017

63 Ibid

64 Ibid P.15

65 Ibid P. 20

66 Ibid P. 22

67 Ibid P. 26

68 Ibid P. 27

69 Ibid P. 28

70 Ibid P. 32

71 Ibid P. 32

72 Ibid P. 33

73 Ibid P. 36

74 Ibid

75 Ibid P. 39

76 Ibid P. 42

77 Ibid

78 Ibid P.47

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79 Ibid

80 Ibid P. 51

81 Ibid P. 55

82 Ibid P. 58

83 Ibid P. 59

84 Ibid

85 Ibid P. 60

86 Constitution of India, Art. 21

87 Constitution of India, Art. 41

88 Constitution of India, Art. 47 available onhttp://lawmin.nic.in/coi/coiason29july08.pdf accessed on 09/09/2017

89 Constitution of India, Art. 48available on http://lawmin.nic.in/coi/coiason29july08.pdfaccessed on 09/09/2017

90 Constitution of India, Art. 48Aavailable on http://lawmin.nic.in/coi/coiason29july08.pdf accessed on 09/09/2017

91 Consumer Protection Act, 1986, under Sec. 6

92 M. K. Sateesh, “Bioethics and Biosafety”, I. K. InternationalPublishing House Pvt. Ltd, (2008), P. 477

93 By Mayank Bhardwaj on 12/10/2017 at https://thewire.in/186633/monsanto-settles-gm-cotton-dispute-three-indian-seed-firms/accessed on 20/10/2017

94All India Crop. Biotech Association of India and 3 OrsV. State ofGujarat and 5 Ors, 2009GLH(3)1 available at www.manupatra.com

95 Ibid

96 National Seed Association of India and Rasi Seeds Limited Vs.The State of Maharashtra, Rep. By the Secretary, Law &Judiciary Department and Ors.,2013(6)ABR76, 2013(6)ALLMR79, 2013(7)BomCR832, 2014(1)MhLj34 available onwww.manupatra.com

97 Ibid

98 Ibid

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8LOCATING TIMBER TRADE IN

INTERNATIONAL TRADE: A CONSPECTUSOF WTO REGIME

(Dr. Ripon Bhattacharjee)

The FrameThe frame of this article is the legal regime of international

Trade. Timber trade is not confined to domestic market only; ithas a strong international market. However the location of timbertrade within the framework of the international trade regime isnot very clear. There is need for a control and regulation of timbertrade at the international level

The focusThe focus of this paper is to provide a concise background to

the main issues at stake in the interaction between the WTO systemin international timber trade and sustainable development and tobring to the fore the disputed relationship between sustainabledevelopment and liberalization of international trade. It has beenargued that trade liberalization is crucial to economic and socialdevelopment and environmental protection; and, conversely, thatis harmful to one or all of these three pillars of sustainabledevelopment or at least , that it gives a much greater focus toeconomic growth at the expense of the social and environmentaldimensions.

The objectives of this article is to explore a number of issueswhich affect the international context in which action againstillegal logging and the associated trade in illegally logged timber

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can be undertaken. Specifically, it looks at activities designed toexclude illegal products from final consumer markets, and othersimilar potential initiatives and their interaction with WTOagreements and the WTO’s current Doha Round of tradenegotiations, Bilateral agreements on trade or agreements whichinfluence trade: US Free Trade Agreements, and EU EconomicPartnership Agreements and lastly the International TropicalTimber Agreement.

The general agreement on tariff and trade (GATT) wasconcluded as early as in 1947. In 1994 it was re negotiated andWorld Trade Organization (WTO) was created. There was noexplicit provision in GATT in 1947 that directly addressedenvironmental protection or timber trade. Article 20 of GATT maybe interpreted as dealing with environment directly1. GATT’Scompetence limited to trade policies and those trade relatedaspects of environmental policies that may result in significanttrade effects for contracting parties. It does not concern itself withreviving national environmental policies or policies relating totrade in environmental (forest) produce. It also does not set anyenvironmental standards or priorities at global level. Therefore itis difficult to consider GATT at domestic context or in relation totrade in a particular product. Therefore in case of timber depletionof forest, endangered species etc are of no concern to GATT.Concern for environment has become acute almost from the decadeof the eighties and is at present both a global and national priority.So there is a rationale in applying the “Technical Barrier to Trade”.Signatories of the Tokyo Round Agreements on “Technical Barrierto Trade” are required to notify the other party through GATTSecretarial of products to be covered by their proposed technicalregulations; to the best of the knowledge of the present researcherno such notification regarding timber trade has been made.

The Uruguay Round2 was launched before environmentalconcerns became so prominent but there is an expectation amongthe stake holders that GATT will make some contribution towardstrade in Environmental (Forest) Produce.

The Preamble of WTO1 stipulates that resources are to be usedaccording to the objective of sustainable development seeking bothto protect and preserve the environment.

Relation between trade and environment are covered underdifferent branches of international law viz. InternationalEnvironmental Law and International Trade Law. There are a

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series of multilateral agreements under InternationalEnvironmental Law which is already discussed in Chapter 2 ofthis thesis. WTO and GATT both come within the purview ofInternational Trade and Law. The final Act of GATT 1994 includesthe following provision of health safety and environment:

Technical Barrier to Trade: Standard technical regulationand confirmity assessment procedures such as testing, inspectionand certification may not be used by the government to discriminateor otherwise create obstacle for trade. It advances procedurewhere testing by one country may be accepted by another country.

Sanitary and Phytosanitary Measures: Regulationmeasures aimed to protect human, animal or plant life or healthfrom risk of plant and animal borne pests and data must be basedon scientific principles and should not be maintained withoutsufficient scientific evidence.

Despite the above it allows members to provisionally adoptsanitary or phytosanitary measures on the basis of availablepertinent information where there is insufficient scientificevidence. Under the trade provisions there are effects of new formsof packing, labeling requirements and transparency of trade relatedenvironmental measures.

Member Governments have notified GATT of some 300environmental regulations and standards which include domesticscale, restrictions on trade in hazardous products, environmentalpacking, marketing, labeling requirements and waste disposalregulation and requirement.

The final Act of GATT 1994 contained a decision on trade inservice and the environment in Article XIV, Paragraph (b).129

COMMITTEE ON TRADE AND ENVIRONMENT (CTE): Thiswas set up in 1995 after the Uruguay Round. It has two foldmandates.

a. Identity relationship between trade measures and environmentmeasures.

b. Make recommendation whether any modification to WTOprovision is required with respect to goods, services andintellectual property rules.

MINISTERIAL CONFERENCE OF WTO, SINGAPORE 1996:It observed that the CTE has made an important contribution

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towards fulfilling its work programme and it will continue toexamine, inter alia, the scope of the complimentaries betweenliberalization, economic development and environmentalprotection.

Full implementation of WTO will help to achieve sustainabledevelopment. The CTE will continue to coordinate at the nationallevel as well.

MINISTERIAL CONFERENCE OF WTO, GENEVA, 1998: Itincluded indirectly the issue of link between trade andenvironment in its declaration in the form of other issue.

MINISTERIAL CONFERENCE OF WTO, SEATTLE, 1999: Itis differed from the issue of trade and environment.

MINISTERIAL CONFERENCE OF WTO, DOHA, 2001: Theconference declared that “with a view to enhancing the mutualsupportiveness of trade and environment, we agree tonegotiations, without prejudicing their outcome of:

(i) The relationship between existing WTO Rules and specificTrade obligations set in Multilateral EnvironmentalAgreements (MEAs).

(ii) Procedures for regular information exchange between MEASecretariats and the relevant WTO committees, the criteriafor granting of observer status.

(iii)The reduction or, as appropriate, elimination of tariff and non-tariff barriers to environmental goods and services.

We instruct the committee on Trade and Environment to giveparticular attention to:

(i) The effect of environmental measures on market access;

(ii) The relevant provisions of the Agreement on TRIPs; and

(iii)The labeling requirements for environmental purposes.

The committee shall report to the 5th session of the MinisterialConference, and make recommendations, where appropriate, withrespect to future action, including the desirability of negotiations”(paragraph 31)

The 5th Ministerial Conference was held at Cancun of Mexicoin 2003. The declaration states about ‘environment negotiations’thus:

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“They take note of the progress made by special session of theCommittee on Trade and Environment in developing a commonunderstanding of the concepts contained in its mandate inparagraph 31 of the Doha Ministerial Declaration”

The 6th Ministerial Conference of WTO was held at Hong Kongin 2005. The declaration states on ‘environment negotiation’ thus:

“They reaffirm the mandate in paragraph 31 of the DohaMinisterial Declaration aimed at enhancing the mutualsupportiveness of the trade and environment and welcome thesignificant work undertaken by the Committee on Trade andEnvironment (CTE) in special session. They instruct members tointensify the negotiations without prejudging their outcome, onall parts of paragraph 31 to fulfill the mandate”

The developing countries fear that their concern for theenvironment and working conditions in the developing countriesare really a subterfuge for protectionism. So, the developingcountries opposed the proposal of the link between trade andenvironment in WTO.

International trade in forest products and services is animportant contributor to deforestation and forest degradation,especially in developing countries5. The World Trade Organization(WTO, 1997)6 has concluded that international trade has little todo with unsustainable forestry and deforestation, and WTO’sCommittee on Trade and Environment expressed the view thattrade and sustainable forest management are mutually supportivewhen cross-sectoral collaboration and coherent policies are inplace7. Nonetheless, with international trade in all categories offorest products measured in round-wood equivalents havingincreased by more than 400% over the past 10 years, concerns overcontinued forest degradation and loss of forest cover are increasingthe pressure on governments, the private sector and internationalinstitutions to address the impact of trade on sustainable forestmanagement8.

With issues of sustainable forest management driving thecurrent policy agenda, the economic value of world trade of woodproducts is at stake. This value in the main categories of round-wood, sawn-wood, pulp and paper, was estimated at approximately150 billion US dollar in 2003 with paper continuing for nearly half.Trade in secondary processed wood products added approximately40 billion US dollar to the total. The trade in all products categoriesof tropical timber accounted for only 16 billion US dollar in 2002.

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While most of the international trade in forest products takes placebetween developed countries and rapidly emerging markets suchas China and India, exports from developing countries offer muchneeded opportunities for income. However, forest production forinternational markets is limited to a relatively small number ofdeveloping countries, either those with an important resource baseor those with rapidly expanding plantations9.

CONSPECTUS OF WTO REGIMEThe General Agreement on Tariffs and Trade (GATT) came

into existence, alongside the World Bank and InternationalMonetary Fund, as a result of the discussions on the post-warinternational economic architecture held at Bretton Woods in 1944.Its aim was to remove barriers to trade between participatingcountries, and to end discrimination in trade, both betweendomestic and foreign products and between products originatingin different countries. Its scope and effect were steadily enlargedthrough a series of rounds of negotiations, of which the UruguayRound, completed in 1994, was the eighth135

More ambitious and long-drawn-out than its predecessors, itled to the creation of a permanent rule based body, the World TradeOrganisation (WTO), which came into being in 1995. The WTOoversees the implementation of the GATT and the range ofadditional agreements which came into place alongside it, togetherwith a quasi-judicial system of dispute resolution which requiresconsensus among WTO members to overturn any decision takentogether, a much more powerful and far-reaching system of traderules than had previously existed. To date the WTO has been lesssuccessful, however, than the GATT in extending its reach further.This is not particularly surprising. Because of the achievementsof successive trade rounds in reducing tariffs, particularly onmanufactured products, the attention of trade negotiatorsincreasingly turned to other factors affecting trade in goods – forexample, product standards imposed for reasons of health andsafety, or environmental quality – which are much more difficultto harmonize, or approximate, between countries. In addition, thegrowth in WTO membership (which now stands at 150, comparedto twenty-three original signatories of the GATT) vastlycomplicates the negotiations11.

The first WTO round finally got off the ground in 2001, afteran abortive attempt at Seattle in 1999. Dubbed the ‘Doha

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Development Round’ (with the Doha Development Agenda, (DDA)the negotiations were supposed to focus in particular on the needsof developing countries. Four new issues which are investment,competition, government procurement and trade facilitation wereincluded, mainly at the request of developed countries, but fordeveloping countries more important was the implementation ofUruguay Round commitments, mainly on market access. However,it became clear at the fifth WTO ministerial, in Cancun in 2003,that developing countries were still not convinced that anacceptable balance was being struck, and the conference ended infailure. Many of the more ambitious components of the DDA,including investment, competition and government procurement,were dropped or sidelined; the main remaining issue, and the mostdifficult, was agriculture, the ‘last major frontier for tradeliberalization’, as one observer put it. In contrast to manufacturedproducts, trade distortions in agriculture, including exportsubsidies, domestic support and limitations on market access,remain extensive. Although agricultural and related activities arenot of great economic significance to most developed countries(their priorities lie in further liberalisation of services and non-agricultural goods), farmers’ organisations and pressure groupsstill retain considerable political power.

The difficulties over agriculture contributed to the limitedoutcome of the Hong Kong ministerial, in December 2005. Memberswere able to agree on the phasing out of agricultural exportsubsidies by 2013, but only if subsequent agreement was reachedon numbers and formulas for cutting tariffs and subsidies for bothagricultural and non-agricultural products. Successive deadlinesfor this agreement, in April and June 2006, were missed, and inlate July the Doha Round talks were suspended indefinitely, asthe key trading nations failed to reach any agreement on the crucialissues: US agreement to deeper cuts in domestic farm support,EU willingness to accept increased agricultural market access, andcommitment by developing countries to lower industrial tariffs12.

Although past trade rounds have often looked deadlocked untilthe very final stages, and although the Uruguay Round itself atseveral points looked close to failure, few observers are optimisticabout the future of the Doha Round. According to Indian trademinister Kamal Nath, the round, although not dead, was ‘betweenintensive care and the crematorium13. Maintaining the medicalanalogy, in December 2006, the chair of the Agriculture Committee,

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Crawford Falconer, claimed that the negotiations – being carriedout through informal talks – seemed to be showing ‘signs of life’,although it was possible that these amounted to little more than aminor ‘twitch’1414 His reasons for suggesting this, though, seemedto amount to little more than the observation that participantshad engaged less in ‘empty posturing’; no one argued that anyonehad actually changed their position15.

In summer 2007 the US administration’s trade promotion (or‘fast-track’) authority, which enables it to put any WTO agreementthrough Congress as a single item, expires, and the prospects forrenewal now seem very slim. This represents yet another obstacleto the completion of the Doha Round. One area of discussion thathas made some progress is over the need for ‘aid for trade’, basedon the recognition that financial assistance is needed for mostdeveloping countries to enable them to take advantage of thepotential benefits from liberalised trade. A WTO Task Force reportin July 2006 was endorsed by the WTO Council in October; it setout policies for the WTO, donors, and recipients to follow in termsof identifying and fulfilling trade-related needs, and monitoringthe progress of aid for trade activities. Since the WTO itself doesnot possess the resources to deliver this aid, it is of course relianton donors to incorporate the proposals in their developmentcooperation programmes16.

International Timber TradeThe liberalization of trade in forest products is not a separate

item on the WTO’s Doha agenda, but is included under thenegotiations on non-agricultural market access – which, along withall the other elements of the Doha Round, are currently suspended.Nevertheless, since the Round may ultimately be revived, and sincetrade in forest products may be liberalized in any case underbilateral agreements, it is worth examining the likely impact ofreductions in trade barriers.

CHANGING ORIGIN OF FOREST PRODUCTIONForest plantations of high –yielding varieties are providing

an increasing share of the supply of industrial round wood. In 2000,planted forests were estimated to supply about 35% of the globalindustrial round wood, with a further increase to 44% expected by200217. Much of the wood which is not sourced from the plantationsis from semi-natural forests, with the share from round wood fromnatural forests in international trade becoming increasingly small.

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Even though in global production the share of tropical round woodhas grown from 9 to 8% since 1961. The annual increase of tropicalhardwood in the world market has been only slight over the past10 years18 and the increase to a certain extent due to maturationof plantations.

NON-TARIFFS BARRIERS OF TIMBER TRADEImports tariffs are generally low for logs and do not limit their

trade. Tariffs escalations, where higher tariffs are applied to theimport of value added products, are higher in developing countries,particularly in Asia, and are used to support domesticindustrialisation rather than sustainable forest management.Exports tariff on logs including direct charges such as, export taxesor export levies have been widely used by timber exportingcountries to raise revenue and support domestic wood processingindustries particularly in Asia where they generally range from10 to 20% and can be even higher19. However policies generallyshifting away from export tariffs towards investment incentivessupported by export restrictions.

Government export restrictions are among the more frequentlyapplied non-tariff measures in most developing and somedeveloped producer countries. These restrictions include totalexport banns, export quotas and selective bans based on species;limits on harvest levels which limit the amount available for exportand administrative controls such as, permits and licences20 . Whilemost of the international trade in forest products take placebetween develop countries and rapidly emerging markets such asChina and India, export from developing countries offer muchneeded opportunities for income. However, forest production forinternational market is limited to a relatively small number ofdeveloping countries, either those with a important resource baselike Indonesia or those with rapidly expanding timber plantations21.

Although often criticized, such non-tariff restrictions cancontribute to industrial development and prevent the destructionof forest albeit at a substantial cost. They may also contribute toforest destructions by keeping domestic prices artificially low andencouraging wasteful use of timber. As long as they are adapted tolocal situations and used in combination with other policyinstruments aimed at rural or industrial development22.

It is difficult to be precise about the impact of tradeliberalization. Since the average tariff for forest products is already

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quite low about 5 per cent in aggregate, and lower in the majortrading nations further reductions are only likely to have a marginaleffect. Non-tariff measures are common, and vary substantiallybetween countries, complicating the analysis significantly.Nevertheless, the analysis of the forest products sector carriedout for the European Commission as part of its series ofsustainability impact assessments of the WTO negotiations23

included the following conclusions:

Global round wood production would increase a little, by about0.5 per cent compared to baseline, though trade would increase bymore (about 2 per cent).

Trade in value-added products would increase in importance,and trade in industrial round wood would decline; in countrieswhere log export bans are currently in place, however, theirremoval would counter this effect, and trade in logs could increase.

South–South trade would increase proportionally more, asdeveloping countries tend to apply larger tariffs than do developedcountries; since many developing-country exports to the EU alreadyenjoy tariff reductions, the impact on their exports to the EU wouldbe limited.

Those developing countries with the highest concentrationsof good-quality forest resources, good transport infrastructure,adequate technological and human resource capacity, ready accessto capital and political stability will see their exports expand themost.

The removal of log export restrictions would gradually improvethe production efficiency of processing industries, particularlysawmills and ply mills, following increased competition for rawmaterial.

The environmental impact would almost certainly be negative,at least in developing countries, adding to pressures on theremaining natural forests. This would particularly be the casewhere forest governance is weak, and especially in countriescontaining unique biodiversity resources (as is generally true oftrade, however, trade liberalisation would be a magnifier ratherthan a cause of these negative impacts).

The likely rise in some forest product prices, particularly offinished products, would improve incentives for sustainable forestmanagement, though it could also accelerate the current trendtowards conversion of natural forest into higher-yield plantations.

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Increased pressure on forests would also cause negative socialimpacts in many developing countries, including continued erosionof indigenous people’s rights, and an inequitable distribution ofthe economic benefits, with large companies benefiting much morethan small and medium-sized enterprises or local communities.

Liberalization in trade in agricultural products, under theagriculture component of the Doha Agenda, could also increasepressure on forests by encouraging increased conversion of forestareas to agricultural land. The main beneficiaries of agriculturalliberalization seem likely to be the middle income developingcountries with large, but not particularly intensive agriculturalsectors, such as Brazil; in these countries in particular, forestconversion would accelerate.

Restrictions of imports of illegally harvested and traded timberis currently under discussion as a new approach for supportingsustainable management through trade24 . Although consumercountries have so far refrained from developing specific laws inthis regard, few countries like China, Japan, Norway, United Statesand the European Union have began to negotiate and finalizebilateral agreements with individual timber producer countries.These activities carried out under Forest Law Enforcement andGovernance (FLEG) initiatives in Asia and Africa are often coupledwith increased bilateral cooperation supported by OverseasDevelopment Assistance (ODA), the private sector and the non-governmental Organisations (NGOs). This approach to increasecompliance with national and international laws has an interfaceof trade, social standards, and environmental standards in forestproduction25.

Governments seeking to exclude imports of illegal timbergoods have to face two problems:

Goods produced illegally in one country are not necessarilyillegal in another country just because the trees are cut illegally inprotected area. In Indonesia placing the illegally cut timber onthe market in a foreign country is not illegal. The act of felling isillegal in Indonesia but transaction in a foreign market is legal.Countries like United States26, the European Union27 andAustralia28 have passed legislation to prohibit the placing of illegaltimber on their markets notwithstanding where it originates.

The government seeking to exclude illegal timber find itdifficult to distinguish legal timber from illegal timber. The

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prohibition is not a trade measure applied at the border andcompanies handling the timber products are not require forproviding proof of legality at the point of import or sale. Theexporting and importing companies may not be aware that theyare handling illegal products. Even when they are aware that theproduct is illegal, it is not difficult to falsify the documentation29.GATT Article III requires imported and domestic “like products”to be treated identically with respect to internal taxes andregulations which could protect the goods produced from illegallyfelled timber.

It is in the attempts to establish requirements of evidence oflegal origin and processing of timber products imported or placedin the market the possibility of interaction with the WTO traderules lie. There are four cases under which a requirement for proofof legality for imports could, at least in theory, raise potentialissues.

First, the system is designed to discriminate between legaland illegal timber and these could potentially be considered to be“like products”. If this is done, it is a violation of Article I of GATT.The GATT does not define “like product” and in recent years thereare much debate on this topic, in particular over whether the waysin such products are manufactured or harvested can be used as abasis for discrimination in trade ( between sustainable andunsustainable timber). Legality is a universal requirement. Anyproduct that is put on sale in a market must be a legal product.There is however no clarity as to how a WTO dispute would handlethe issue of legality of product. More important is the issue of traderestriction primarily derived from the requirements placed on alltimber imports to show a proof of legality which is very difficultespecially at the border where the product passes on to the finalmarket destination. The difficulties are as follows:

1. If the requirement for proof of legality is imposed on countrieswith high level of illegal logging and not on others, some WTOmembers would be treated differently from the others. This isviolation of GATT Article I (most favoured nation treatment)30.

2. If imports are treated differently from domestic timberproducts, this would be violation of GATT Article no. III(national treatment)31.

3. Since the requirement of trade restriction imposed on theborder other than a duty, tax, or other charge, it would be

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violation of GATT Article XI (elimination of quantitativeRestrictions)32.

If the legality requirement is found to conflict with any of theGATT Articles described above it could be “saved” under GATTArticle-XX under which exceptions can be made to other provisionsof the agreement and thus be incompliance with WTO rules. ArticleXX of GATT does not relate to illegal logging directly but ArticleXX (b) provides that measures are allowable if “necessary to protecthuman, animal, or plant life or health”. Illegal logging is clearlydetrimental to the life and health of the plant. In order to protectthe life and health of the plant it is necessary that less tradedistorting options are made available. However imposing suchincreased restriction on the other hand could result in unnecessarydisruption of trade raising timber prices, reducing demand fortimber and encouraging consumption of timber substitutes andalternative non-trade disrupting option such as improving theenforcement of law in the country of origin of the timber and timberproduct could be much more preferable33. The cost of provinglegality varies from country to country and may not very significant.Other measures are adoption of national and internationalverification schemes particularly in high risk areas makes thequestion of legality verification much easier. Moreover, the productscan now be certified under the Voluntary Certification Scheme(VCS) of the Forest Stewardship Council (FSC) and Programmefor the Endorsement of Forest Certification (PEFC) bare the costof proving legality which does not increase the cost of the timber.Many of the timber producing countries insist that they haveimproved the enforcement of law within their country and denythat revenue from foreign market is earned from selling of illegallogs. Nevertheless, the necessity test is a crucial but difficult oneto satisfy34.

GATT Article XX (d) covers “measures necessary to securecompliance with laws or regulations which are not inconsistentwith the provisions of this agreement, including those relating tocustom enforcement and the prevention of deceptive practices”.This Article is specifically pointed toward prevention of importsof counterfeit goods. Under this Article one could require that theharvesting process and its source be compatible with therequirements under GATT and illegal timber should not be passedoff as legal timber. Under this provision the laws of the exportingcountry is to be stringently enforced and not that of the importing

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country35.

GATT Article XX (g) provides that measures are allowable ifthey are “relating to conservation of exhaustible natural resourcesand is specifically applicable to the issue of illegal logging. ThisArticle probably offers the strongest defence against illegallogging36.

TECHNICAL BARRIER TO TRADEThe WTO Technical Barrier to Trade Agreement (TBT) is

designed to ensure that technical regulation and standards whichapply to trade may not be distorted. Requirement for proof oflegality of timber is a technical requirement. This provision aimsat transparency, predictability and encourages the use ofinternational standards. The Forest Certification System (FCS)and Programme for the Endorsement of Forest Certification (PEFC)are international in scope but are not in the same category of thebodies accepted by the WTO system as international standardsetters such as ISO for technical standards or Codex Alimentariusfor food standards. Similarly standards may be set by variousinternational processes for sustainable forest management.Voluntary Certification Systems (VCS) for timber is relatively widespread and there is no strong reason for governments to developtheir own national or international standards for their ownproducts. Like GATT Article XX the TBT agreement also containsa saving clause in Article 2.2 which recognizes the right to takenecessary measures to fulfill a legitimate objective such asprevention of deceptive practices, protection of human health orsafety, animal or plant life or health, or the environment. Thedifficulties that are discussed above in relation to GATT are alsorelevant to TBT agreement and can have the same arguments.Experience of timber trade restriction due to technical barriers oftrade has not yet been encountered. Therefore development in thissegment is much awaited37.

It is still too early to access the practical outcome of theapplication of the above provisions more documentary evidenceand disputes studies are required to ascertain how the WTO rulescan control and monitor international trade in timber38

TRADE MEASURES IN MULTILATERAL ENVIRONMEN-TAL AGREEMENTS AND WTO

The WTO approach recognizes the importance and thestrength of a multilateral trading system. However there is a

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conflict between WTO, Multilateral Environment Agreements(MEA) and Trade Related Environmental Measure (TREM) onjurisdictional issues relating to dispute settlement regardingillegal international trade in environmental products includingtimber. There is also a need to reconcile the provisions of theseinstruments with GATT Article XX. The first option provides forGATT Article XX in order to enable measures taken in accordancewith Multilateral Environment Agreements to be compatible withWTO39. A second option requires WTO Ministerial Conference togive an official interpretation of GATT Article XX40 . A third optionprovides for waivers of specific Multilateral EnvironmentAgreements4141 renewable every year.

A fourth option is the reversal of burden of proof in GATTArticle XX. Currently the party that applies the Trade RelatedEnvironmental Measure (TREM) must prove its legitimacy andnecessity and the burden would fall on the party affected by themeasure. Therefore any conflict between TREMs and the MEAsand the WTO has to be resolved amicably. One of the ways toresolve conflict between the three is to explore solution outsidetheir preview. Another way to solve the conflict is the non-compliance procedures and dispute settlement systems of theMEAs must be made stronger and decided in exclusiveenvironmental forum. A last way to solve the conflict is to constitutea Global Environmental Organization (GEO) on the lines of WTO.Since the conflict between TREMs, MEAs and the WTO is that ofJurisdiction, co-operative approach would be the best approach.It is also submitted that Article 30 of Vienna Convention on theLaw of Treaties which rules how to deal with competing treatiescan also be made use of for settling the disputes between theseorganizations.

THE DOHA ROUNDOnly two years after the completion of the Uruguay Round in

1994, pressure began to build for a further round of trade talks.Four new issues investment, competition, governmentprocurement and trade facilitation were proposed for negotiations,mainly by developed countries, at the first WTO ministerialconference at Singapore in 1996. From one perspective thisreflected a logical process of establishing multilateral rules togovern policies which affected cross-border economic activity. Fordeveloping countries, however, more important was theimplementation of Uruguay Round commitments, mainly on

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market access. It was these developing country concerns, muchmore than the well-publicized NGO and trade uniondemonstrations that torpedoed the third WTO ministerial, atSeattle in 1999, and prevented the launching of a ‘MillenniumRound’ of negotiations42.

The new round finally got off the ground at Doha in 2001. Thefour ‘Singapore issues’ were included in the agenda, along withfurther liberalization of agriculture and services (envisaged in theUruguay Round agreement), implementation issues from theUruguay Round, and a new trade and environment agenda. Dubbedthe ‘Doha Development Round’ (with the Doha DevelopmentAgenda, DDA) the negotiations were supposed to focus inparticular on the needs of developing countries43.

However, it became clear at the fifth WTO ministerial, atCancun in 2003, that developing countries were still not convinced,and this conference too ended in failure. Cancun was notable forthe emergence of more organized developing-country negotiatingblocs, in particular the G20, a group of middle-income developingcountries with significant agricultural exports. Other groups whichcame into being at Cancun or subsequently include the G33, led byIndonesia and focusing on proposals for special and differentialtreatment and special products, and the G90, the least developedcountries together with other developing countries from Africa,the Caribbean and the Pacific. The creation of these groups helpedto highlight how diverse the ‘developing world’ is in terms of tradeinterests44.

In the wake of the failure at Cancun, many of the moreambitious components of the DDA, including investment,competition and government procurement, were dropped orsidelined. The overriding issue going into the Hong Kongministerial, in December 2005, is agriculture, the ‘last majorfrontier for trade liberalization’, as one observer put it. In contrastto manufactured products, trade distortions in agriculture,including export subsidies, domestic support and limitations onmarket access, remain extensive. Although agricultural and relatedactivities are not of great economic significance to most developedcountries (their priorities lie in further liberalization of servicesand non-agricultural goods), farmers’ organizations and pressuregroups still retain considerable political power. The EU, one ofthe two major negotiators alongside the US, is itself internallysplit over reform of the Common Agricultural Policy. If significant

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progress is not made at Hong Kong, then WTO members will beunder severe pressure to reach final agreement in 2006, beforethe expiry in summer 2007 of the US administration’s fast-trackauthority, which enables it to put the agreement through Congressas a single item. The final shape of the deal, which is bound tofocus on agriculture and non-agricultural market access (the mainpriority for developed countries) but may include a disparate rangeof other issues, is still far from clear45.

INTERNATIONAL TIMBER AGREEMENTThe new International Tropical Timber Agreement (ITTA 2006)

was agreed in January 2006 to replace the ITTA 1994; it is expectedto enter into force in 2008. The new agreement is not significantlydifferent from the old one. Its aim is ‘to promote the expansionand diversification of international trade in tropical timber fromsustainably managed and legally harvested forests and to promotethe sustainable management of tropical timber producing forests’46.A few other references to illegal (or legal) logging and forestgovernance appear throughout the text, but their inclusion provedcontroversial during the negotiations. The ITTO’s activities onillegal logging are limited to two areas: project funding for nationalinitiatives on analyzing illegal activities and improving forest lawenforcement; and the collection, and attempts to improve thereliability of, data on trade in timber and timber products.

Summations free trade in timber must not be a goal in itselfand the issue of sustainable development and sustainable forestmanagement lost sight of Sustainable development has a link withsocial, economic and environmental policies and obligations topreserve the environment for future generation. WTO and its alliedinstruments do not address the issue of timber trade exclusivelyanywhere. However given the state of the world forest we seem tohave reached the brink of a precipes and an urgent need to avoidthe issue of international trade in timber cannot be put off anylonger.

ConclusionThis paper makes an endeavour to locate timber trade within

the framework of WTO. It must be mentioned that the WTOframework and the international trade framework does not dealdirectly with timber trade. However, there are some provisionswhich impact upon timber trade sometime directly and oftenindirectly. It is observed in this chapter that during the journey of

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the WTO in 1999 from Seattle (Doha Development Round) till 2005in Hong Kong and onward to 2014 the WTO was not able to convincethe developing countries of an acceptable trade policy. Issues’relating to agriculture still remains “the last major frontier fortrade liberalization”. Since WTO itself does not possess theresources to deliver this aid, it relies heavily upon the members topropose the modalities for achieving a balanced and acceptabletrade policy. Timber is also listed on the non-agricultural marketaccess product but that too is suspended because it is linked withother issues relating to agriculture. Import tariff is generally lowfor logs from developed countries but high for the developingcountries, especially those countries which have a natural resourcebase like Indonesia and those countries that are expanding theirtimber plantation. Non-tariff barriers involve restriction of importof illegally harvested and traded timber. They are meant to controland regulate the entry of illegally felled timber into the marketfor export import purposes, even if the price for such timber werekept very low. The real obstacle for effectively implementing thebarrier comes from the developed consumer countries. GATTArticle 3 requires that imported and domestic ‘like products”should be treated equally with regard to internal taxes andregulations. This brings the goods produced from illegally felledtimber at par with goods produced from legally felled timber. TheGATT does not define like product. This is in direct conflict withthe WTO norms of non-tariff barrier. WTOs technical barrier totrade agreement is design to control and regulate standard of thegoods. Requirement of proof of legality of the timber can broughtwithin this category as a technical requirement. This provisionaims at transparency, predictability and encourages the use ofinternational standards even in the case of timber. The ForestCertification System [FCS] and Programme for the Endorsementof Forest Certification are international in scope but are not inthe same categories of bodies accepted by the WTO system ofstandard setter. Voluntary Certification System is wide spreadbut not well recognized. The International Tropical TimberAgreement came into being in 1994 and was enforced in 2008. Thisagreement too did not have any significant impact upon illegaltimber trading. Thus the international mechanisms of trade havefailed to ensure a sustainable timber trade.

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(Footnotes)1 Article 20, GATT reads as follows: Subject to the requirement

that such measures are not applied in a manner which wouldconstitute a means of arbitrary or unjustifiable discriminationbetween countries where same condition prevail, or a disguisedrestriction on International Trade, nothing in the agreementshall be construed to prevent the adoption or enforcement byany party of measures…….

(b) necessary to protect , human, animal or plant life or health……

(g) Relating to conservation of exhaustible natural resources, ifsuch measures are made effective in connection withrestrictions on domestic production or consumption.

2 September 1986 to December 1993 In order to determine whetherany modification of Article XIV of the Agreement is requiredto take account of such measures, to request the committee onTrade and Environment to examine and report withrecommendations, if any, on the relationship between services,trade and the environment including the issue of sustainabledevelopment, the committee shall also examine the relevanceof inter-Governmental agreements on the environment andtheir relationship to the Agreement.

4The committee shall report the results of its work to the firstbiennial meeting of the Ministerial Conference after the entryinto force of the Agreement establishing the WTO”.

5 Dudley, N & Nectoux, F. 1995. The Timber Trade: a study for theexpert panel on trade and sustainable development. BristolUK, Equilibrium

6 World Trade Organization (WTO), Committee on Trade andEnvironment. 1997. Environmental benefits of removing traderestrictions and distortions. Note by the Secretariat. WT/CTE/W/67. Geneva, Switzerland.

7 WTO Committee on Trade and Environment. 2003. Report to thefifth session of the WTO Ministerial Conference in Cancun.Paragraphs 32 and 33 of the Doha Ministerial Declaration. WT/CTE/8. Geneva, Switzerland. Available at: docsonline.wto.org/ddfdocuments/t/wt/cte/8.doc.

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8 Rytoken, A. 2003. Market access of forest goods and services.Background paper of global project: Impact Assessment ofForest Products Trade in Promotion of Sustainable ForestManagement, GCP/INT/775/JPN. Rome, FAO. Available at:www.fao.org/forestry/foris/data/trade/pdf/rytkonen.pdf.

9 C. Mersmann Links between Trade and Sustainable ForestManagement: An overview, http://www.fao.org/docrep/008/y5918e/y5918e02.htm.

11 Ibid.

12 Ibid

13 ‘Doha Round suspended indefinitely after G-6 talks collapse’BRIDGES Weekly Trade News Digest Vol. 10, Number 27, 26July 2006 as cited in Duncan Brack, Action against illegallogging: interaction with international trade agreements,www.chathamhouse.org.uk/eedp.

15 Duncan Brack, Action against illegal logging: interactionwith international trade agreements, www.chathamhouse.org.uk/eedp

16 Duncan Brack, Action against illegal logging: interactionwith international trade agreements, www.chathamhouse.org.uk/eedp

17 J. Carle, Vuorinen, P. & del Lunge, A. 2002. Status and trends inglobal forest plantation development. Forest Products Journal,52(7/8): 12-23.

18 FAO, 2004. FAOSTAT forestry data. Available at:faostat. external.fao.org/faostat/collections?subset=forestry

19 Trade and Sustainable Forest Management-Impacts andInteraction, Analytical study of the global project, GCP/INT/775/JPN: Impact Assessment of Forest Products Trade in thePromotion of Sustainable Forest Management, Rome,www.fao.org/forestry/site/trade.

20 A. Rytkonen, Market Access of Forest Goods and Services,Background Paper for Global Project: Impact Assessment ofForest Products Trade in Promotion of Sustainable ForestManagement, GCP/INT/775/JPN: Rome, FAO, www.fao.org/forestry/foris/data/trade/pdf/rytkonen.pdf.

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21 C. Mersmann Links between Trade and Sustainable ForestManagement: An overview, http://www.fao.org/docrep/008/y5918e/y5918e02.htm.

22 B. M. Hoekman and M.M. kostecki, The political Economy of theWorld Trading System: The WTO and Beyond, OxfordUniversity Press (2001).

23 Savcor Indufor Oy in association with institution forDevelopment Policy and management, University ofManchester. Sustainability, Impact Assesment of ProposedWTO Negotiations: Final Report for the Forest Sector Study,19 June 2005; available at http://trade-info.cec.eu.int/doclib/docs/2005/october/tradoc_ 125566.pdf

24 C. Mersmann Links between Trade and Sustainable ForestManagement: An overview, http://www.fao.org/docrep/008/y5918e/y5918e02.htm

25 Ibid.

26 The Lacey Act.

27 Timber Regulation

28 Illegal Logging Prohibition Act.

29 Duncan Brack, Combating Illegal Logging: Interaction with WTORules, www.Chathamhouse.org.

30 Ibid.

31 Ibid.

32 Ibid.

33 Ibid.

34 Ibid.

35 Ibid.

36 Ibid.

37 Ibid.

38 Ibid.

39 T. J. Schoenbaum, “International Trade and Protection of theEnvironment: The continuing search for reconciliation”,2AJIL

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(1997) P. 283-312.40 Article IX.2, Marrakech AgreementEstablishing the WTO.

42 Duncan Brack, The World Trade Organization and sustainabledevelopment: A guide to the debate, Chatham House,December2005.

43 Ibid.

44 Duncan Brack, The World Trade Organization and sustainabledevelopment: A guide to the debate, Chatham House, December2005.

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9Women as Guardians of Environment, Sustainable

Development and the Role of Media

Dr Bharti Chhibber

IntroductionToday environmental issues have become a major security

threat due to over straining earth’s carrying capacity andunsustainable development (Chhibber 2004). The process ofeconomic growth and development through industrialization andurbanization – transportation, burning of fossil fuels anddeforestation have led to problems like desertification, globalwarming, air, land and water pollution and resulting in long-termloss of natural vegetation, poor water supply, famine, displacementand mass migration affecting health and well-being of innumerablepeople. Global warming and pollution pose serious threats toliving beings. Likewise, acid rain is destroying the ecosystems.‘Acid rain’ is a general term used to describe a range of pollutioneffects. Several air pollutants, particularly sulphur and nitrogenoxides can cause acidification of the environment.

For the development and the survival of mankind we have tomake this process of growth not at the cost of environment butenvironmentally sustainable. Women have always shared a closerelationship with environment, natural resources and are crucialactors in sustainable development.

The mass media; electronic and print media, is viewed as havingchanged people’s perceptions of the environment to a large extent.The importance and news attention given to environmental issues

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in the last decade has led to a heightened public awareness of theenvironmental condition we are living in. However, with the kindof vast reach and mass audience that these mediums ofcommunication have, their full potential is still to be tapped andchanneled in the right direction to bring about a change in people’sperception, especially with regard to the role of women inenvironmental preservation. There is need for mass media to givewider coverage and due importance to initiatives taken by womenorganizations, women activists as well as common women, both inrural and urban areas to protect their environment and ecologicalresources in spite of the obstacles and hardships that they face intheir endeavours.

The paper is in two sections. The first section systematicallyexamines interrelationship between sustainable development andwomen empowerment. Women play a crucial role as a medium ofenvironmental preservation. The second sections analyses closelink between women, environment and media. The arguments arefurther substantiated through case studies. In the final, the paperoffers some policy implications for wider coverage of womeninitiatives in the field of environment protection.

Section I

Women and Sustainable Development in International ForaHow critical the issue of environmental protection is clear from

the emphasis that the Sustainable Development Goals (SDGs) puton issues like reversing environmental degradation, combatingclimate change and working for sustainable development. The 2015‘Transforming Our World: the 2030 Agenda for SustainableDevelopment’ has 17 SDGs with 169 targets to be realised overthe next 15 years. SDGs develop on the Millennium DevelopmentGoals (MDGs). As many as 10 goals talk about different aspects ofsustainable development which highlight its importance.

Goal 6 calls for ensuring access and sustainable managementof water and sanitation for everyone. Goal 7 emphasise oneconomical, dependable, energy to be available to all. Similarly,Goal 9. talks about sustainable infrastructure development withinclusive industrial growth. Taking from the notion of ‘smart cities’,Goal 11 deals with safe and comprehensive cities. Goal 12 stresseson sustainable consumption and production methods. Goal 13 callsfor immediate plan to deal with climate change issues. Goal 14 layemphasis on the preservation of natural resources like oceans, seas

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and other marine resources. Likewise, Goal 15 stresses onconservation and restoration of forests and biodiversity, andreverse the process of desertification and land degradation. Goal16 highlights the importance of just and inclusive societies basedon the notion of sustainable development. Emphasing on theinterdependent world, Goal 17 talks about the global partnershipfor sustainable development. 1

SDGs also integrate gender targets with other goals.Sustainable development depends on empowerment of women andworking towards true gender equality in practice. The importantroles that women can play in environment and sustainabledevelopment are widely recognised today, however the stereotypeswithin the patriarchal system and structural and attitudinaldiscrimination deeply entrenched in our society hinder genderequality in these issues too. The Beijing Plan for Action adoptedin 1995, the World Summit on Sustainable Development held in2002, and the MDGs derived from Millennium Summit 2000 havecalled for intense women’s role in environmental policies for thesuccess of these programmes.

The Beijing Declaration and Platform for Action argues thatit is imperative to:

Involve women actively in environmental decision-making atall levels.

Integrate gender concerns and perspectives in policies andprogrammes for sustainable development.

Strengthen or establish mechanisms at the national, regionalinternational levels to assess the impact of development andenvironmental policies on women.

Beijing Platform for Action was reviewed after five years. Itwas realised that some progress has been made in the realm ofgender and the environment. However, a number of obstacles towomen’s empowerment in the environmental field still remainsas identified during Beijing+5 meet. These include sparse women’sinvolvement in the issues relating to the planning andimplementation of the environment conservation. It furtherhighlighted that fewer women are participating in the field ofresearch and teaching in the natural sciences. Moreover,environmental plans are not gender sensitive. Other reasons forlow level of women’s participation are lack of funding, limited

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access to resources and education. These aspects are interrelatedand lead to gender inequality.

Similarly the MDGs recognised the urgency to work for genderparity, end economic deprivation and contribute towardssustainable environmental development. The United Nations (UN)‘Millennium Development Goals Report 2015’ emphasised thatissues of environmental deterioration and climate change hamperthe growth process. Global carbon dioxide emissions have increasedby over 50 per cent since 1990. Continuous rise in greenhouse gasemissions will have a further negative impact on climate changeresulting in altered ecosystems, extreme weather conditionsthreatening the very existence of humanity. This indeed is a seriousand pressing challenge for the world (United Nations 2015).

Women and Environmental MovementsEcofeminists delve into gender subjugation and environmental

deterioration, primarily created by men. Feminist thinkers whilecritising the process of development have argued that alienationof women from the means of production contributes to theoppression of women (Boserup. 1970). Further, globalization andtechnological advancement have influenced avenues, regulationand occupancy of land and assets. As Vandana Shiva argues thatwith the adoption of new technologies women’s ideas of takingcare of belongings like saving seeds for next season have taken abackseat, although latest technologies are not easily accessible towomen leading to their alienation (Shiva. 1989). To bring aboutthe required metamorphosis in society for gender-equality andenvironmental sustainability, it is critical to confront theunderlying structure that generate prevalent untenable ecologicalactivities and gender inequality impeding the developmentalmechanisms (UNEP 2016). The process of modernisation inagriculture has culminated in environmental complications.Therising use of fertilizer and pesticides, excessive and fiercemechanisation had a negative consequence for soil fertility, forests,inland water, and ecological balance. This has resulted in high levelof soil erosion, pollution of waters, and deforestation, disregardingforest preservation laws. The mechanism of intense monocultureeradicate the characteristics and pollinating agents of agriculturalfields and multiply diseases and pests.

Today we have to deal with institutional challenges likerestoring women’s rights over land and water and the denial of

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intellectual property rights is a violation of women’s basic humanrights. These issues are providing a gender aspect to environmentalissues. Some steps are taken to standardize gender role inenvironmental activities and programmes, both at thegovernmental and non-governmental levels. But all efforts aresuccessful. Although we see an enhancement of women’srepresentation in environmental decision-making, it is stillinadequate. However, we must acknowledge initiatives taken bywomen in environmental conservation and management.

We have the example of women group in Kozhikode areas ofKerala who in a bid to keep environment clean, collect waste of allkinds from door-to-door for disposal. They work for ‘Kudumbasree’,project which was undertaken by the City Corporation in March2004 under the Centre’s Development of Women and Children inUrban Areas Scheme. Disregarding health hazards they face dueto direct contact with stinking garbage, they carry on their jobs.These women divided into 69 units, each comprising 10 member,are authorized by the corporation to collect wastes also from hotels,shops and hospitals. They are often ill treated by the public wholook down upon their services. The Corporation offers themmedicare, but some of the women were forced to give up their jobafter they development serious ailments. The diseases range fromrespiratory problems to gynecological disorders and occur due toinhaling garbage odour and lifting heavy loads of waste.

Another example is that of rural Indian women collecting thedead branches which have fallen off due to storm to use for fuelwood which protects trees from being cut for this purpose (Rodda,1991). Of late, there is a surge in movements on environmentalwomen’s rights issues (Mellor, 1997). However, as part of capitalismthere has always been a scarce regard for public good and welfare.With market economy making inroads into the remotest areas ofthe world, governmental connections with the multinationalcorporations are being exposed. Neoliberalism is associated withprivatization of all productive resources (Kaplan, 2001). Asignificant theme of women environmental movements is the notionthat a clean environment is a human right. As the women fromMothers Organised to Stop Environmental Sin (MOSES) and othergroups all over the world point out that human rights are aboutfulfilling basic needs of human beings like safe food, drinking water,clothing, shelter, work dignity and health care. ‘By placing theemphasis on human rather than on legal rights, the women in

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grassroots environmental struggles are redefining human rightsto mean the common good or what socialism once meant: the rightto a fulfilling life, in which safe housing, proper health conditions,nourishing food, educations and clean air and water are assured’(Kaplan, 2001).

Women have always played an important part in theagricultural field which is the financial backbone of many states.They form major component of the labour force engaged inmanaging farm activities like planting, weeding, harvesting andprocessing agricultural crop. In developing countries, especiallyin rural sections, women take care of gathering food, fuel, andfodder, thus they are seen as the principal users of natural assets.Moreover, in many cases women cultivate land to harvest and havefood for their family members – in this process they get informationon soil and water conditions. Thus, women and nature becomeclosely related which promotes a sense of judicious use of resourcesand preservation of environment. Women want optimumagricultural production and human nutrition as well as securedaccess to the land (Jiggins. 1994). When it comes to adjudicationand registration, it is usually men who get absolute rights to land,in spite of the fact that today, women are involved with manyenvironmental management projects like reforestation, and soiland water conservation. As women often bear the brunt ofenvironmental disasters directly, they get more distressed withenvironmental issues. According to United Nations Chroniclejournal, use of pesticide DDT and derivate DDE may be associatedwith breast cancer. Likewise, a World Health Organization studyhas detacted a link between exposure to pesticides and higher riskof abortion (UN 1997).

Today, women’s groups are a major force behind constructiveecological programmes at the ground level. Further, women aresignificant players in the development which is environmentallysustainable and able to positively contribute to natural resourcemanagement. Environmental conservation programmes can onlybe successful if women are integrated in policy-making. For womenthese natural resources represent social and political autonomy.Denial of these rights is to keep them subjugated. Women haveparticipated both as workers and as leaders in direct action andcivil disobedience movements on environmental issues. Womenacross the globe are working towards confronting ecologicaldegeneration and pollution, which are not due to nature fury but

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are man made. Environmental complications are the result of thehuman greed and unending desire for profits at the cost of thecommon good. As homemakers and mothers concerned with thehealth and safety of their families and society, women have drawnattention to the dangers of nuclear testing, and water, air and landpollution. They have continued their struggle to preserve forestson which they depend and to plant more trees where serious erosionhas occurred (Kaplan, 2001).

In India, a path-breaking case in which women seized theinitiative in an environmental uprising was that of the Chipkomovement, which began in 1970s in the Himalaya mountains. Herewomen stood for environmental conservation. The Chipkomovement in 1972 highlighted women’s close relationship withenvironment, right to common resources and important role insustainable development. The movement showed that any actionleading to adverse impact on their sources of livelihood water,fuel or fodder would be strongly dealt with. Women protested tree-felling by private contractors by hugging the trees. Thus, if womenare victims of environmental degradation, they are also agents ofenvironmental protection. Chipko’s thought and concept spreadthrough the verbal communication.

Recently in Bhangar villagers are engaged in a massiveresistance movement against the Power grid project beingundertaken by Power Grid Corporation of India (PGCIL). Althoughthe PGCIL describes the project being established as Rajarhat 400/220KV substation with 1000MV capacity which is critical for supplyof power in Kolkata and surrounding areas, the villagers areconcerned about the impact of these High Voltage TransmissionLines on their lives, livelihoods, health and environment (WSS2017).

Another important environment movement is the Green Beltmovement by Nobel Prize winner Wangari Maathai in Kenya in1977. It all started with a few women planting some trees inMaathai’s courtyard. By 2005, 30 million trees were planted byactivists in the Green Belt movement. The objective of Green Beltmovement is to restore environment along with economicdevelopment. When Wangari Maathai, was awarded the NobelPeace Prize some people were not pleased. It was argued thatenvironmental protection is not related to peace. However Maathaianswered her critics by pointing out that many wars have takenplace over resources. For example oil and water are contentious

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issues in the Middle East and minerals, land and timber createdconflicts in the African region. The Nobel Peace Prize appreciatesthe efforts aimed at the protection of the humanity from the scourgeof war.

However, it is to be noted that even if there are gender neutralenvironmental laws, they have not actually contributed to women’sempowerment because gender neutral laws cannot be fullysuccessful with existing structural inequalities. It is time to respecthuman’s relationship with environment and move to substantiveequality from formal equality by taking care of bottlenecks thathamper women’s control of land and resources (Kamerimbote,2006). Thus, women are agents of social justice and environmentalprotection. They can play an important role in reduction of socialdisparities and contribute to a process of development which willcreate respect for the environment.

In India, the government has initiated some steps like JointForest Management (JFM), Fuel wood and Fodder Plantation, andForest Development Agencies and IFS Training and Gendersensitisation. Agreeing that women living within the vicinity ofthe forests have an enhanced share in maintaining and conservingnatural resources, the women participation is considered vital ingrassroots organisations for conservation, and management ofdeteriorated forests. It is mandatory that:

At least 50 per cent of JFM general body members are women.Moreover, as part of the quorum of the general body meeting,at least 50 per cent of women members should be present.

Further, it states that women should form at least 33 per centof the JFM Executive Committee or Management Committee.Either President or Vice-President or Secretary should alsobe a woman.

Similarly, a system of Forest Development Agencies (FDA) hasbeen established at the Conservators’ Division level to encouragethe process of reforestation and afforestation with effectiveengagement of the community. This is a financial engagement andan integrating group for advocating the progress of JFM in theAfforestation Programme. One critical element of the plan is toprovide for the fuel wood and fodder requirements of the people.

Under the United Nations Development Programme (UNDP)‘Participatory Agro Forestry Project for Poverty Alleviation

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Programme’ is put into action in the Perur Block of CoimbatoreDistrict of Tamil Nadu. Some steps have also been taken to impressupon a perception of affinity, dignity, accountability, andadvancement among the rural women through the Self Help Groups(SHGs) created under the project. They include: Promoting theallocation of Old Age Pension to sixty four women by Talampoo,SHG of Kulathupalyam; Financing the painting of Mettur Blawadiby the Kurichi SHG Federation; Arranging text books and notebooks for school children by Shanti Talampoo Self Help Group ofAmmanpudur and Indira SHG of Vedapatti.

With the tragic effects of global warming looming large on ourplanet ranging from the exacerbation of poverty to depletingenvironmental, and economic security, it is time that women arepart of climate change solutions. At the international level,Women’s Environment and Development Organization (WEDO)is working in the direction of ensuring that women exist at allstages and ambit of climate change decision-making and deal. Onlylong-term, and continuous global effort will protect the world fromthe ramifications of climate change. The United States has notshown any inclination to be part of the world agreements onmitigating climate change effects. The Women Demand U.S. Actionon Climate Change Campaign aims to bring women together fromacross the American continent. It calls for binding minimization ofgreenhouse gases and re-starting UN consultations on the post-Kyoto international accord focusing on reversing global climatechange.

Section II

Women, Environment and MediaToday mass media is playing an important role in creating

awareness regarding environmental issues threatening the verysurvival of living beings. However, it is argued that there isdifference of reporting environmental issues in India and the West.‘The Indian media reports environmental issues as conflictsbetween environment and development in a structurallyunmanageable system whereas the American media tends to reporton domestic environmental crisis structurally sound system’ (Alam2007).

Apart from mainstream newspapers, journals, radio, televisionchannels, occasionally printing or showing programmes onenvironmental degradation and preservation we have specific

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dedicated channels working for the cause. In Nepal a community-based radio station called Environment Cycle Radio F.M. 104.2MHZ (ECRFM104.2MHZ) is functional since April 2004. It has acrucial contribution in making people conscious of ecological issueslike degradation of the environment and increasing pollution withadverse affect on human health. This forum uses the mass mediato share environmental information and work for environmentalconservation, which in turn is expected to improve he livelihoodand security of local people, thus empowering the society. Thisneighbourhood-based enterprise envisage itself as an autonomous,non-commercial activity in the direction of ‘Community Radio forRural Voice’.2

In 2005, a Women’s Division of ECRFM104.2MHZ was started.The enterprise realises that a country cannot progress if womenare facing exclusion and injustice. So, they are working to widenthe coverage of the station to every nook and corner of the state toeducate and motivate women. The initiative aims at enhancingwomen’s knowledge of ecological degeneration, their rights, equity,skills, health issues, and economic growth. It aspires to empowerwomen through community radio by sharing women’s experiencesin far-flung places, and by having women specific broadcasts toaugment their information and know-how levels.3

Similarly in other cases when media reports highlighted thathow hazardous industrial waste dumps to toxin rivers are makingway into people homes, women realised that they may be directlyfacing this issue. Women have raised their voice againstenvironmental degradation on many occasions. Environmentalissues know no territorial boundaries. In the year 2000, amovement of African American women – Mothers, Organized toStop Environmental Sins (MOSES), took off from Winona, Texasto march from one contaminated community to another across theU.S.A. They linked their struggle for survival to other suchcampaigns, and demanded reparations for their sufferings. Theyargued that environmental injustice is violation of their humanrights which needs to be immediately dealt with.

Women participated in environmental movements mostly intheir capacity as mothers, as protector of their families and wereready to confront public officials or managers of private enterprisesif called for. Women have confronted authorities demanding anend to deforestation or the removal of the dangerous wasteproducts left by war, or an industry. Incidents of miscarriages,

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children’s illness or death have often proved as a catalyst inbringing women to the forefront of environmental issues. Womendemonstrated in Poland to alert people to the dangers ofincinerating toxic waste. In Kazakhstan, women raised the issueof the tragic results of open-air testing of atomic weapons. Womenare also at the forefront of a mass movement against thegovernment-supported oil companies who have destroyed the landand polluted the air in Nigeria. Women also led importantenvironmental movements in Asia and Africa (Rodda, 1991).

Another instance is that of Lois Gibbs who lived in Love Canal,near Niagara Falls outside Buffalo, New York in 1978. Her sonfell ill after he started going to school. In conversations with herneighbours she discovered a number of problems like respiratorydiseases, skin irritations, childhood arthritis, and frequentmiscarriages. About 40 per cent of all pregnancies in Love Canalresulted in low birth weight, retardation or deformity. Alsolocalities complained of some tar-like sludge coming from theirbasements and barrel rims emerging in their gardens. The cityauthorities and the state officials charged them with being‘hysterical’ and accused them of misunderstanding the scientificevidence. Residents sought the help of medical experts from theState University of New York at Buffalo. It was discovered thattheir housing development and the school were built over a toxicwaste dump. The Hooker Chemical Company (now OccidentalChemicals) a subsidiary of Occidental Petroleum had dumpedchemical wastes with strong components of chlorine into abandonedcanal for decades. The company deeded the property to the city ofNiagara for one dollar. The city built a school on the land anddevelopers constructed working-class houses above the dump(Gibbs, 1981).

Local women managed some press coverage as they went aboutseeking help from doctors and public officials. This made themrealize the importance of media coverage. They had to be seen inorder to be heard. They used signs, skits and theatre over the nextfew years to rescue their families from Love Canal. Theydemonstrated their suffering and anger and received a wide presscoverage. Finally they succeeded in getting the State of New Yorkand the Federal Government of the United States to buy theirhomes from them so they could move to a safer place.

In the 1980s, a movement for ‘environmental justice’ also beganin Warren County, North Carolina, in the USA when a group of

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poor blacks resisted a government plan to put a toxic waste dumpin their district. Lately it has been seen that the so-calleddeveloped and rich states have turned to the poor countries orregions as dumping grounds. In the late 1990s, a German wasteremoval company secretly purchased land in South Carolina touse as a nuclear waste dump. It has come to light that someEuropean-based companies also sought out dump sites in SouthAfrica and Namibia. This disaster for the local inhabitants wasprevented due to timely mass movements led by the local women.

Thus, on the one hand women are protector and preserver ofthe environment. On the other hand they are the ones to sufferfirst and most due to environmental degradation. They have to tomiles to fetch water in rural areas. Further, they are responsiblefor collecting firewood in developing countries. They also takecare of agriculture including the preservation of soils. Moreover,it is again woman who is at the forefront of the movement to stopenvironmental plundering and work for sustainable development.But their work is seldom documented and their voices are rarelyheard.

It is essential to have avenues to gather information in orderto make enlightened decisions at all stages. It is noteworthy thatChapter 40 of Agenda 21 which was adopted at the United NationsConference on Environment and Development (UNCED) held inRio de Janerio, Brazil in 1992 states that in feasible advancement,all are user and provider of information seen from the wider pointof view that incorporate facts, statistics, knowledge and experienceaptly put together. Similarly, the 1992 Belo Horizonte InternationalMeeting of Journalists and Environment and Developmentmentioned that disparate access to media and the consolidation ofinformation assets by few economic aggregates pose a seriousthreat to free and fair means of communication.

ConclusionToday, the role of the media in the age of globalisation of

information is critical not only in creating awareness aboutenvironmental issues but also to support and recognise women’sinitiatives in environmental preservation. Media can, not onlycontribute in this women’s worldwide struggle for sustainabledevelopment of environment by distributing information onwomen’s enterprises and interests to people in different parts ofthe country and even internationally but can also help in creating

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a network of women groups through which they can share theirexperiences, learn from each other and support each other’s efforts.This will help women fighting for environmental protection toremain interconnected and think globally, act locally as well asthink locally and act globally.

Media also needs to play a crucial role in changing the mindsetsof society at large so that not only do these women get support butalso respect and freedom from a patriarchal mode of society.Dedicated media services and channels will facilitate nongovernmental organisations from the South and the North,grassroots women institutions, as well as urban women’s groupsto monitor government and business activities so as not toundermine sustainable development. These mass media servicescan be further utilised to impart knowledge to women onsustainable development according to their indigenousenvironment. So, it is time that media vigorously reach out towomen and women organisations with data that reinforce, aid andencourage them in their community ventures for protection andpreservation of environment for the generations to come. Mediaought to devote more space and time to this cause as a socialresponsibility.

References

Alam, Sabiha. 2007. ‘Media and Environment-A Critical Study’. InZahid Hussain and Vanita Ray (eds) Media andCommunications in the Third World. Kanishka, New Delhi.

Boserup, Ester.1970. Women’s Role in Economic Development. StMartins Press, New York.

Chhibber, Bharti. 2004. Regional Security and RegionalAssociations: A Comparative study of ASEAN and SAARC.Century, New Delhi.

Gibbs, Lois Marie, as told to Murray Levine.1981. Love Canal: MyStory, State University of New York Press, Albany.

Jiggins, Janice. 1994. Changing the Boundaries: Women-CentredPerspectives on Population and the Environment, Island Press,New York.

Kamerimbote, Patricia. 2006. ‘Women, Lank Rights and theEnvironment: The Kenyan experience’, Development. 49(3) 43-48.

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Kaplan, Temma. 2001. ‘Uncommon Women and the Common Good:Women and Environmental Protest’ In Sheila Rowbotham andStephanie Linkogle (eds) Women Resist Globalization:Mobilizing for Livelihood and Rights, Zed Books, London.

Mellor, Mary.1997. Feminism and Ecology, New York UniversityPress, New York.

Rodda, Annabel.1991). Women and the Environment, Zed Books,New Jersey.

Shiva, Vandana.1989. Staying Alive: Women, Ecology andDevelopment, Zed Books, London.

UN. 1997. ‘From Silent Spring to vocal vanguard’. United NationsChronicle. 34(3), 35-38.

United Nations. 2015a. Transforming our world: the 2030 Agendafor Sustainable Development. https://sustainabledevelopment.un.org/post2015/transformingourworld Accessed 12 September2017.

United Nations. 2015b. The Millennium Development Goals Report2015. New York.

http://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20rev%20%28July%201%29.pdf. Accessed 12September 2017.

UNEP 2016. Global Gender and Environment Outlook. UNEnvironment, Nairobi, Kenya.

WSS. 2017. Towering Resistance: The Bhangar Movement Againstthe Power Grid. Women Against Sexual Violence and StateRepression, Gurgoan.————————

Brief Curriculum Vitae of Dr Bharti Chhibber

Dr Bharti Chhibber is teaching Political Science in University ofDelhi for about twelve years. She has published books and morethan 50 research papers and articles in mainstream journalsto her credit. She has presented papers in various nationaland international seminars and conferences. Dr Chhibber’s

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specialisation includes international relations, Indian politics,environmental issues and gender discourse.

(Footnotes)

1 The Intergovernmental Negotiations on the Post 2015Development Agenda were held in 2015 and a final documentwas adopted at the 25-27 September 2017 UN SustainableDevelopment Summit in New York, USA.

2 It is created by the Youth Awareness Environmental Forum(YAEF) which is a community initiative based on the non-profitmechanism.‘Radio Paryabaran’ is called worlds firstenvironment radio. For details see http://www.radioparyabaran.org.np/about.php

3 This radio medium in Nepal is acting as a facilitator to developavenues for women to inculcate leaning and training in thedisciplines of economics, science and technology the rebyraising their abilities, proficiency and expertise to participatein the process of environmental decision-making. For detailssee http://www.radioparyabaran.org.np/about.php

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10Environmental governance for sustainable devel-opment: prospect and scope towards delivering

environmental justice.

Subhara Bakul Karmakar*

1. INTRODUCTIONEnvironmental governance aims basically about how to reach

environmental goals i.e justice and how decisions are made andimplemented in reality also. From the national level aspect,environmental governance highlights to improve quality of naturalresources, conservation of resources, preservation of resources forthe present and future generations and above all to reduceenvironmental degradation as much as possible. Rapid degradationof the environment is a key hindrance for achieving the sustainabledevelopment goals, the millennium development goals etc.Sustainable Development is the key factor of sound environmentalgovernance which leads to deliver environmental justice.Environmental justice promotes the linkage between right toenvironmental protection and right to life which arecomplementary and supplementary to each other. Right toenvironment free from pollution is one of the main facet of right tolife and human right as well. Environmental governance isimperative as it is promotes to keep a nice balance between growth,development and ecology which can be achieved by collective andactive participation of legislatures, judges, scientists and socialaction groups. In the 21st century we have adopted the concept ofglobalization, liberalization and modernization where thedevelopment of society from several aspects is crucial but it should

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not be at the cost of environment vice versa the environment shallhave to be protected but not at the cost of development of society.So there should be proper balance in between development ofsociety and environment so that both can co-exist.

In present context, the protection of environment is a burningissue for the entire globe. The term ‘environment’ is derived fromthe French word ‘environ’ which means ‘to encircle’ andencompasses within it physical elements soil, water, air, minerals,etc. According to Encyclopedia Britannica, “The term‘environment’ means the entire range of external influence actingon an organism, both the physical and biological and otherorganism, i.e forces of nature surrounding an individual”. Accordingto the United Nations Council on Environmental Quality is that‘environment’ means man’s total environmental system includingnot only the biosphere, but also his interactions with his naturaland man made surroundings. The Supreme Court in the caseVirendra Gaur Vs. State of Haryana has opined that environmentis meant as “hygienic atmosphere and ecological balance”.1

The simple meaning of the term ‘governance’ provides thatthe positive action’s decisions and its implementation.Environmental governance is one of the potent weapon forachieving environmental justice. Environmental governancerelates to government interference with regard to soundimplementation of legislations for protection of environment whichensures sustainable development for the present and futuregenerations.

There is close link between environment and sustainabledevelopment which is used in the broad perspective and the overalldevelopment of human beings without any distinction. The WorldConservative Strategy initiated by the United NationsEnvironment Programme, the World Wide Fund for Nature andinternational Union for Conservation of Nature recognized theplace for international debate on sustainability. The most importantstep towards sustainable development is the publication of aninternational report titled “Our Common Future” by WorldCommission on Environment and Development in 1987. This iscommonly known as ‘The Brundtland Report’ which definedsustainable development as “Development that meets the needsof the present, without compromising the ability of futuregenerations to meet their own needs.”2 The historic StockholmConference, 1972, Rio Conference, 1992 and the Johannesburg

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Conference, 2002 are the milestones in generating awarenessaround the world about environmental protection. Basicallyindustrialization, deforestation and pollution all together are theperpetual sources of environmental degradation globally. The termsustainable development has appeared in the BrundtlandCommission Report of 1987, which is titled ‘Our Common Future’which stated that sustainable development means an integrationof economics and ecology in decision making.3 Demand forenforcement of environmental laws will be a important factor ofEnvironmental Democracy Index (EDI) which states thatenvironmental issues are best handled with public participation,Access to information and access to justice.4 In M. C Mehta Vs.Union of India5 (Delhi Stone Crushing Case), Court opined thatevery person enjoys the right to a wholesome environment, whichis a facet of the right to life guaranteed under Article 21 of theConstitution. This paper highlights the importance ofenvironmental governance for keeping environment healthy andlivable for present and future generations.

2. CONCEPT OF ENVIRONMENTAL GOVERNANCEThe Concept of ‘Governance’ is as old as human civilization.

Basically it means the process of decision making and the processof by which decisions are enforced or executed. In ancient India itis observed that the king or the ruler was bounded by the ‘dharma’which is preciously meant to ensure ‘good governance’ to the societyas a whole. “Rajdharma” was the code of conduct or the rule of lawwhich was above the will of the king or ruler. Even in the greatepics like Mahabharat and Ramayana the rulers abide by theprinciples of good governance which are cited in many occasionslike ‘Arthashastra’ written by Koutilya in the reign of famous kingChandragupta Mourya. The key factors of Kautilya’s policies arethe protection, welfare and prosperity of the State and its peoplewhich is the utmost concern of the ruler or king. The whole idea of‘good governance’ is the prticipative system of governance in whichthose are called upon to govern on behalf of the people aremotivated with a will to give their best, serving and doing well tothe people, solving their problems, making their lives more livable,satisfying and enjoyable and resolving their disputes within theparameters of the ‘Constitution’ and the ‘Rule of Law’.6

The Constitution of India provides the basis of the relationshipbetween the Union and the States and delineates the Legislative,

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Judicial and Executive framework within which the Union andthe States shall discharge their respective responsibilities fordelivering governance. The preamble to our Constitution enshrinesthe sovereignty of the people and envisions a socialist, secular,democratic, republic based on justice, liberty, equality andfraternity. Article 37 of the Constitution 37 of the Constitution ofIndia lays down the principles of ‘governance’. The founding fathersof the Constitution of India believed that, within the democraticframework, clean and efficient governance would transform thesocial, economic and political life of our people and will build astrong, prosperous and vibrant nation.7

The concept of ‘Good Governance’ has eight major facets. It isparticipatory, consensus oriented, accountable, transparent,responsive, effective and efficient, equitable, inclusive and followsthe rule of law. According to the World Bank document entitled‘Governance and Development(1992)’ the parameters of goodgovernance are as follows :-

1. Legitimacy of the political system. This implies limited anddemocratic government.

2. Freedom of association and participation by various social,economic, religious, cultural and professional groups in theprocess of governance.

3. An established legal framework based on the rule of law andindependence of judiciary to protect human rights, securesocial justice and guard against exploitation and abuse of power.

4. Bureaucratic accountability including transparency inadministration.

5. Freedom of information and expression required forformulation of public policies, decision making, monitoring andevaluation of government performance.

6. A sound administrative leading to efficiency and effectiveness.

7. Co-operation between government and civil societyorganizations.8

Governance refers to power sharing through structures andprocesses that shape individual and collective actions. States actingalone are unable to bring the targeted changes – environmentalgovernance requires collaboration between various tiers of

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government, public and private actors, and between the state andcivil society. Governance has gone through a transformation withgrowing interactions of policies, processes and people.Environmental governance at the national level aims to improvequality of natural resoures, reduce environmental degradation andpreserve the environment for the present and future generations.A number of forces influence the nature of governance, such asmarket structure, political culture, regulatory frameworks, legaltradition, experiences in democratic governance and socio-economic conditions. With the Rio+20 Earth Summit (2012), thereis now a growing discourse relating to environmental governancein the context of sustainable development, which offers anopportunity for the global community to revisit its successes andfailures in governance. Governance approaches, regulatory modelsand enforcement instruments to protect the environment andmanage natural resources are becoming increasingly diverse. Inorder to have an effective system of compliance, it is necessary tohave an agreed system of rules and standards. These are mutuallyand intrinsically connected. Strong governance institutions andforums for fostering agreement are the first step towards efficientcompliance mechanisms. Effective mechanisms are required toenable enforcement of the regulatory regime. While environmentalregulation takes place at different levels – international, regional,national and local – these levels are inter-related and inter-dependent. National mechanisms are sometimes used to enforceinternational regulation, while measures or provisions of nationalregulation can have a global dimension as a consequence of theinterconnectedness of environmental issues and ecologicalprocesses. The environmental regulation and compliance regimesgenerally follow an amicable, non-confrontational, equitable routewith an ultimate aim to promote sustainability. Sustainableenvironmental governance needs to be supported by the regulatoryand enforcement capacity of the state.9

3. SUSTAINABLE DEVELOPMENT AND ITS PRINCIPLESSustainable development means an integration of

developmental and environmental imperatives. Sustainabledevelopment must posses both economical and ecologicalsustainability. Sustainable development is essentially a policy andstrategy for continued economic and social development withoutdetriment to the environment and natural resources on the qualityof which continued activity and further development depend. The

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World Commission on Environment and Development was set upby the General Assembly of the United Nations in the year 1983.According to the Brundtland Report, the concept of sustainabledevelopment contains within it two key concepts:

a. The concept of “needs”, in particular the essential needs ofthe world’s poor, to which overriding priority should be given,and

b. The idea of limitations imposed by the state of technology andsocial organization on the environment’s ability to meet presentand future needs.

Dominic McGoldrick has discussed that sustainabledevelopment shall have three pillars such as internationalenvironmental law, international human rights law andinternational economic law. His opinion regarding the sustainabledevelopment is that present sustainable development asintegrating and interactive. So, in widest sense, the strategy forsustainable development aims to promote harmony among humanbeings and between humanity and nature.10

The principle of sustainable development as a result ofBrundtland Commission Report (1987) was overwhelminglysupported by all the nations. The principle of sustainabledevelopment seeks to achieve the basic objectives :

1. To maintain production of goods and services for developmentand efficiency,

2. Conservation and management of natural resources includingpreservation of bio-diversity and maintenance of biologicalintegrity,

3. Maintenance and enhancement of the quality of life adoptingthe principle of equitable distribution of wealth and materialresources.

The objective of the principle of sustainable developmentfocuses three issues from environmental point of view, they are ;a. to maintain essential ecological processes; b. to preserve geneticdiversity; and c. to secure sustainable utilization of species andecosystems.

Some of the salient features which traced out in RioDeclaration, 1992 and Agenda 21 are as follows 11:

A. Inter-generational equity : Intergenerational equity is a

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concept that means “hold the natural and cultural environmentof the Earth in common both with other members of the presentgeneration and with other generations, past and future”. Thisprinciple of inter-generational equity pre-supposes the rightof each generation of human beings to benefit from culturaland natural resources of the past generation as well as the‘obligation’ to preserve such heritage for future generations.Principle 1 and 2 of the Stockholm Declaration, 1972 deal withthe intergenerational equity –

Man has the fundamental right to freedom, equality andadequate conditions of life, in an environment of quality thatpermits a life of dignity and well being, and he bears a solemnresponsibility to protect and improve the environment for thepresent and future generations.12

From the Stockhlom Declaration we come to know thatnatural resources of the earth, including the air, water, lands, floraand fauna, and especially representatives samples of naturalecosystems, must be safeguarded for the benefit of the presentand future generations through careful planning or management,as appropriate.13

Principle – 3 of the Rio Declaration says about the right todevelopment must be fulfilled so as to equitably meetdevelopmental and environmental needs of present and futuregenerations.

B. Use and conservation of natural resourcesUse and Conservation of natural resources is also an essential

principle of sustainable development which is recognized by RioDeclaration under principles of the Rio Declaration states aboutthat to achieve sustainable development and a high quality of lifefor all people, States are under duty to reduce and eliminateunsustainable pattern of production and consumption. Further theRio Declaration provides that the environment and naturalresources of people under oppression, domination and occupationshall be protected.14

C. Environmental ProtectionProtection of environment is an integral part of sustainable

development through which a balance is made in betweenenvironment and development and environmental degradation willalso be checked properly. In Citizen Consumer and Civic Action

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Group Vs Union of India15 the Court opined that while the Courtshave social accountability in the matter of protection ofenvironment, there should be a proper balance between the sameand developmental activities, Which are essential in progress.Development is required but should not be at the cost ofenvironment. Both development and environment shall co-existand go hand-in-hand.16

D. The Precautionary PrincipleFrom Municipal law perspectives, Precautionary principle

means :

i. Environmental measures by the State Government and thelocal authorities must anticipate, prevent and attack the causesof environmental degradation.

ii. Where there are threats of serious and irreversible damage,lack of scientific certainty should not be used as a reason forpostponing measures to prevent environmental degradation.

iii. The “onus of proof” is on the actor or the developer/ industrialistto show that his action is environmentally benign.17

The Stockholm Declaration provides that the discharge oftoxic substances or of other substances and the release of heat, insuch quantities or concentrations as to exceed the capacity of theenvironment to render them harmless, must be halted in order toensure that serious or irreversible damage is not inflicted uponecosystem. This principle is based on precautionary principle whichis one of the most important part of sustainable development.18

It also incorporates the “Precautionary principle” that scienceand technology as part of their contribution to economic and socialdevelopment must be applied to the identification, avoidance andcontrol of environmental risks and the solution of environmentalproblems and for the common good of mankind.19

Principle 15 of the Rio Declaration says that where thereare threats of serious or irreversible damage, lack of full scientificcertainty shall not be used as a reason for postponing cost effectivemeasures to prevent environmental degradation.

In Research Foundation for Science (18) Vs Union ofIndia20 the Supreme Court has explained that the ‘Precautionaryprinciple’ describes an approach to the protection of theenvironment or human health based on precaution even where

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there is no clear evidence of harm or risk of harm from an activityor substance. It is a part of the principle of sustainable development.It provides for taking protection against specific environmentalhazards by avoiding or reducing environmental risks before specificharms are experienced.21

E. The Polluter Pays’ PrincipleThe Polluter Pays Principle is an environmental policy

principle which requires that the costs of pollution be borne bythose who cause it. Here polluter is liable to pay the cost to theindividual sufferers and damaged compensatory mechanismbecause the polluter should pay for the harm inflicted by him onthe environment, two, preventive mechanism in the sense, theheavy penalty may be imposed upon the polluter.

Principle 4 of the Stockholm Declaration, 1972 providesthat man has special responsibility to safeguard and wisely managethe heritage of wild life and its habitat. Nature conservationincluding wildlife, must receive importance in planning foreconomic development.

The Rio Declaration in Earth Summit in 1992 which waslegally and internationally recognized as an integral part ofsustainable development which provides that national authoritiesshould endeavour to promote the internationalization ofenvironmental costs and the use of economic instruments, takinginto account the approach that the polluter should, in principle,bear the cost of pollution, with due regard to the public interestand without distorting international trade and investment.22

In Indian Council for Enviro-Legal Action Vs Union ofIndia23 here the Supreme Court stated that Polluters PaysPrinciple means that absolute liability of the harm to theenvironment extends not only to compensate the victims ofpollution, but also to the cost of restoring environmentaldegradation. Remediation of damaged environment is a part ofthe process of ‘sustainable development’ and as such polluter isliable to pay the cost to the individual suffers as well as the cost ofreversing the damaged ecology.

In M.C Mehta Vs. Kamal Nath24, the Supreme Court observedthat ‘polluter pays principle’ has been recognized as fundamentalobjective of Government’s environmental policy to prevent andcontrol pollution. The Court interpreted that the calculation ofenvironmental damages should not be on the basis of claim put

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forward by the party, but it should be on the basis of examinationof the situation by the Court, keeping in view the factors such asdeterrent nature of the award. The Court directed that one whopollutes the environment must pay to reverse the damage causedby his act.25

F. Principle of Liability to help and co-operateBasically environmental degradation is global problem now a

days. It is not at all a problem for a particular State or States. It isto be solved and eradicate with the co-operation of all Statesthroughout the Globe. Some principles of Rio-Declaration can bementioned in this respect ; they are as follows :-

a) States should co-operate to strengthen indigenous capacity –building for sustainable development by improving scientificunderstanding through exchanges of scientific andtechnological knowledge, and by enhancing the development,adaptation, diffusion and transfer of technologies, includingnew and innovative technologies.26

b) the Rio Declaration states that environmental issues are besthandled with the participation of all concerned citizens, at therelevant level.27

Principle 12 of the Rio Declaration focuses the States tocooperate to promote a supportive and open internationaleconomic system that would lead to economic growth andsustainable development in all countries, to better address theproblems of environmental degradation.

Principle 27 of the Rio Declaration expects the people andthe States to co-operate in good faith and in a spirit of partnershipin the further development of international law in the field ofsustainable development.28

G. Principle of Absolute Liability, andThe principle of Absolute Liability has been evolved as one of

the component of sustainable development after setting aside theprinciple of ‘Strict Liability’ in India in the case “M.C Mehta andanother Vs Union of India”29 which is known as ‘Shriram Gas LeakCase’ where the then Chief Justice P.N Bhagwati stated “We cannotallow our judicial thinking to be constricted by reference to thelaw as it prevails in England or for the matter of that, in any otherforeign country. We no longer need the crutches of a foreign legal

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order. We are certainly prepared to receive light from whateversource it comes, but we have to build up our own jurisprudenceand we cannot countenance an argument that merely because thenew law does not recognize the rule of strict and absolute liabilityin cases of hazardous and dangerous liability or the rule as laiddown in Ryland vs Fletcher as developed in England recognizescertain limitations and responsibilities. We in India, cannot holdour hands back and I venture to evolve a new principle of liabilitywhich English Courts have not done.”30

H. Principle of Public Trust.The principle or doctrine of ‘Public Trust’ is basically based on

the principle that certain resources like air, sea, water and forestshave such a great importance to the people as a whole that itwould be wholly unjustified to make them a subject of privateownership. The natural resources are treated as gift of nature,they should be made freely available to anyone irrespective of hisrace, religion in life practically. The doctrine impose duty uponthe government to protect the resources for the enjoyment ofcommon people rather than to allow or permit their use for privateownership or for commercial purposes. Principle 2 of theStockholm Conference states that the natural resources of theearth, including the air, water, land, flora and fauna and speciallyrepresentative samples of ecosystems, must be safeguarded forthe benefit of the benefit of the present and future generationsthrough careful planning or management.31 In the case M.C MehtaVs. Kamal Nath32, the Court held that it says “natural resources”are held by the State as a “trustee” of public, and can be imposed ofonly in a manner that is consistent with nature of such trust. Article48-A of the Constitution of India mandates that State shallendeavour to protect and improve the environment and safeguardthe forests and wildlife of the country. Article 51A of theConstitution enjoins that it shall be the duty of every citizen ofIndia, inter alia, to protect and improve national environmentincluding forests, lakes, rivers, wildlife and to have compassionfor living creatures. These two Articles are not only fundamentalin the governance of the country but also it shall be the duty of theState to apply these principles in making laws.33

4. JUDICIARY FOR ENVIRONMENTAL JUSTICE ANDSUSTAINABLE DEVELOPMENT POLICY IN INDIA

Constitution of India guarantees justice, liberty and equality

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to all citizens in the society. In Maneka Gandhi’s case the Courtextended the scope and ambit of Art. 21 where the concept of ‘rightto life’ is not merely confined to physical existence but it includes‘right to life with human dignity’. Art. 21 also shows that ‘right toget pollution free environment’ is part of the ‘right to life ’whichpromotes ‘sustainable development’. Art. 48 of Directive Principlesof State Policy provides that the State to take organize agricultureand animal husbandary on modern and scientific lines. Moreover,Art. 48-A states that the State shall take steps to protect andimprove the environment and to safeguard the forests and wildlifeof the country. Further, under Article 51-A (g) provides that itshall be the duty of every citizen of India to protect and improvethe natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.34

Despite several legislations with regard to environment forattainment of sustainable development Government of India hasmade some policies35 time to time, these are as follows -

i. National Conservation Strategy and Policy Statement onEnvironment and Development :- In 1988, the Ministry ofEnvironment and Forests constituted an expert committee torecommend a framework and an action plan for theconservation of resources. The Report of an expert wasaccepted as National Conservation Strategy, 1992. ThePreamble of the strategy acknowledges that economicdevelopment of a nation is to satisfy the needs and values ofall interest groups without foreclosing future options.

ii. National Environment Policy, 2004 :- The key principles ofthe National Environment Policies are-

a. Human beings are at the centre of Sustainable Developmentconcerns;

b. Right to Development;

c. Environmental protection is an integral part of thedevelopment process;

d. The precautionary approach and Economic efficiency;

e. Equity and Public Trust Doctrine; and

f. Environmental standard setting.

iii. National Environment Policy, 2006 :- Under the National

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Environment Policy, 2006 –

A. Institutionalise a holistic and integrated approach to themanagement of environment and natural resources;

B. Identify emerging areas for new legislation, due to betterscientific understanding economic and social development, anddevelopment of multilateral environmental regimes, in linewith the National Environmental Policy;

C. Review the body of existing legislation in order to developsynergies among relevant statues and regulations, eliminateobsolescene, and amalgamate provisions with similarobjectives, in line with the National Environmental Policy;

D. Encourage and facilitate review of legislation at the level ofState and Local Governments with a view to ensuring theirconsistency with this policy;

E. Take steps to adopt and institutionalize techniques forenvironmental assessment of sector policies and programmesto address any potential adverse impacts, and enhancepotential favourable impacts; and

F. Ensure accountability of the concerned levels of Governmentin undertaking the necessary legislative changes in a definedtime-frame, with due regard to the objectives and principlesof National Environmental Policy, in particular, ensuringimproved access to the necessary environmental resources.36

From UN Sustainable Development Summit in September2015, provides Goal 16 to “Promote peaceful and inclusive societiesfor sustainable development, provide access to justice for all andbuild effective, accountable and inclusive institutions at all levels”.The proposed targets under Goal 16 provide :

# Promote the rule of at the national and international levels andensure equal access to justice for all, effective,

# accountable and transparent institutions at all levels and toensure responsive, inclusive, participatory and representativedecision-making at all levels, and

# public access to information and protect fundamental freedoms,in accordance with national legislation and internationalagreements.37

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With the consistence of several international instruments forfighting against the pollution and to reduce the environmentaldegradation during the later part of the last century, the Parliamenthas enacted three major enactments, such as Water ( Preventionand Control of Pollution) Act1974, Air ( Prevention and Control ofPollution) Act, 1981 and the Environment (Protection) Act, 1986.Apart from that, the Parliament has also framed other legislationswhich are supportive to the mandate of anti-pollution legislations.The first kind is the Public Liability Insurance Act, 1991, whichprovides for public liability insurance for the purposes of providingrelief in cases of industrial accidents. Secondly, the NatonalEnvironmental Tribunal Act, 1995 and The National EnvironmentAppellate Authority Act, 1997, which have been enacted to createa specialist adjudicatory body which can handle the environmentalpollution and protection of environment. 38

The National Green Tribunal was established on 18.10.2010under the National Green Tribunal Act, 2010 for effective andspeedy disposal of cases relating to environmental protection andconservation of forests and other natural resources includingenforcement of any legal right relating to environment and givingrelief anf compensation for damages to persons and property andfor matters connected therewith or incidental thereto. It is aspecialized body equipped with the necessary expertise to handleenvironmental disputes involving multidisciplinary issues. NewDelhi is the Principal Place of Sitting of the Tribunal and Bhopal,Pune, Kolkata and Chennai shall be the other four places of sittingof the Tribunal. 39

After considering all aspects we have witnessed thatenvironmental degradation is serious in now-a-days. The existinglegislations and policies with regard to environment anddevelopment project are not in a balancing position. Developmentis going on without caring the environmental measures whichcompels the judiciary for ensuring complete justice through judicialactivism with special emphasis on development and environmentalcontroversies by way of accessing public interest litigation since1970 on the issues as development projects, mining and quarrying,litigation concerns big dams, gas leak disaster, hazardous wastesfrom industries, noise pollution etc. The role of judiciary in Indiahas emphasized on sustainable development rather thandevelopment at the cost of environment. In ‘Development andEnvironmental’ disputes fundamental rights are discussed and

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detailed orders were given based upon the considerations of equitywhen a person approached with pro bono public. The liberalizationof locus standi approach provides the right of persons to accesscourts which justify such expansion of rights not only to its powerbut also the DPSP, Art. 48-A and fundamental duty, Art. 51(A) (g)of the Constitution.40

In Essar Oil Ltd. Vs. Halar Utkarsh Samiti and Others41 ,and in D. Saravanam Vs. Union of India42, and in Dr. MeenakshiBharath Vs. State of Karnataka43 the Court strongly opined thatthe concept of Sustainable Development is not a empty slogan thatrequires pragmatic view of implementations to conserve theresources both the present and future generations. The adherenceto sustainable development principles is a sine-qua-non for themaintenance of the symbiotic balance between the rights toenvironment and development. The right to sustainabledevelopment cannot be singled out. The concept is treated as anintegral part of life under Article 21.44

In K.M Chinnappa Vs. Union of India45 the Apex Courtobserved that it cannot be disputed that no development is possiblewithout some adverse effect on the ecology and environment, andthe projects of public utility cannot be abandoned and it isnecessary to adjust the interest of the people as well as necessityto maintain the environment. Where the commercial venture orenterprise would bring in results, which are far more useful forthe people, difficulty of a small number of people has to be by-passed. The balance has to be struck between the two interests.46

In Subhash Kumar Vs. State of Bihar47 Hon’ble JusticeKuldip Singh has opined that Article 21 includes the right ofenjoyment of pollution free water and air for enjoyment of life.

In State of Karnataka Vs. Ranganath Reddy48 the SupremeCourt observed that material resources of the community in thecontext of re-ordering the national economy embraces all thenational wealth, not merely natural resources, all the private andpublic resources of meeting materials, not merely publicpossessions. Everything of value or use in the material world ismaterial resource and the individual being member of thecommunity his resources are part of those community.49

In Chetriya Pardushan Mukti Sangarsh Samithi Vs. Stateof U.P50, in L.K. Koolwal Vs. State of Rajasthan51, in DamodarRao Vs. Municipal Corporation, Hyderabad52, in

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Lakshmipathy Vs. State of Karnataka53, in Sayeed MasoodAli Vs. The State of M.P.54, in M.P Ram Babu Vs. The DistrictForest Officer55, in M.C. Mehta Vs. Union of India and others56

the Court in all abovementioned cases emphasized that materialresources of the community are not confined to public resourcesbut include all resources, natural and man-made public and privateowned.57

5. ENVIRONMENT DEMOCRACY INDEX FORENVIRONMENTAL GOVERNANCE

The United Nations Environment Programme’s Bali guidelinesEnhance and supplement Principle 10 of the Rio Declaration thatwas signed by 178 governments in 1992. The environmentaldemocracy principle58 states that environmental issues are besthandled with three pillars i.e public participation, access toinformation and access to justice. The United Nations EnvironmentProgramme’s Bali guidelines for the Development of NationalLegislation on Access to Information, Public Participation andAccess to Justice in Envrionmental matters provide with aninternational standard against which national laws can be assessd.India was ranked at 24th position out of 70 Countries in the firstEnvironmental Democracy Index that is topped by Lithuania atthe first position, Latvia at the second and Russia is at the thirdposition. World Resources Institute and partners in the AccessInitiative launched the first ever Environmental Democracy Indexon May 20, 2015, to track countries’ progress in enacting nationallaws to promote transparency, accountability, and citizenengagement in environmental decision making. The index evaluatesenvironmental democracy in 70 countries, including 75 legal and24 practice indicators, based on recognized international standards.Country assessments were conducted in 2014 and will be updatedevery two years. With the number of critical moments inenvironments in environment and sustainability in 2015, advancinggood governance and environmental rights are essential. This indexis a powerful lever that will help governments to become moretransparent and ordinary citizens to advocate for more rights. TheEnvironmental democracy Index (EDI) draws on national laws andpractices that were assessed and scored by more than 140 lawyersand experts around the world.59

6. WAY FORWARDEnvironment and sustainable development are interrelated

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and interconnected to each other. Sustainable development itselfhas three dimensions such as Social, Dimension, EconomicDimension and Environmental Dimension. These trio are closelyrelated among themselves. Environmental justice can be achievedif sustainable development is maintained properly. Environmentaljustice depends on proper implementation of several legislationswith regard to environment which is otherwise namedenvironmental governance. The Strategic planning is sine qua nonwhich identifies the areas of environmental governance in Indiashould deal with the followings:

a) land use planning and development control;

b) Prevention of pollution, efficient use of energy, control ofhazardous substances, and waste disposal;

c) Environment Impact Assessment for all new developments andprojects;

d) Conservation of species and eco-systems;

e) Public access to information including to Environment ImpactAssessment reports, environmental audit data and the resultsof monitoring as well as information relating to the production,use and disposal of hazardous substances;

f) Public participation and citizen access to Courts.60

(Footnotes)

*Subhra Bakul Karmakar, Assistant Professor, Surendranath LawCollege ; [24/2 Mahatma Gandhi Road, Kolkata-700009.] (Affiliated under University of Calcutta ), B.Com(Hons), LL.B,LL.M (UGC-NET); Former Lecturer-in-Law of Haldia LawCollege (Vidyasagar University) Mobile No. 09434650796;Email- subhrabakul.soham@gmail.com//or//subhrabakul.karmakar @gmail.com

1 Babu Sarkar and Ananya Ghoshal, Environmental Law in Indiap.1-2 ( N.M Roychowdhury Co., Kolkata, First Edition; 2017)

2 Shyam Anand “Interface Between Environment Pollution andthe Development” PD 94-95 (June,2016). 3 Prof. Vijay Oak,“Sustainable Developments in Developing Countries and ItsLegal Principles” , Vol. xxxii (1&2), IBR 265-266 (2005).

4 Dhiraj Pandey, “Environmental Democracy Index : A Tool for

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Democratizing Nature”

,PD 93 (August, 2015).

5 1992 (3) SCC 256, 257

6 Subhra Bakul Karmakar, “Concept of Good Governance and Roleof Right to Information for Stregthening Grassroots Democracyin India”

, Vol. VI. No.1 JCCLR 46-47(2015).

7 Smt. Uma R. Hiremath “Good Governance Through Speedy,Effective and Efficient Justice Delivery System”

, Vol.24:No.7,LN&V 99(July,2010).

8 Second Administrative Reforms Commission (Govt. of India) – “

Right to Information-Master key to Good Governance” p-84 (June2006).

9 Jona Razzaque, Environmental Governance in Europe and Asia,11-14, (Routledge, Oxon, 1st Edn. 2013).

10 Dr. Paramjit S. Jaswal, Dr.Nishtha Jaswal, et.al., p. 98-103(Allahabad Law Agency, Faridabad[ Haryana] Fourth Edition,Reprint, 2016).

11 Babu Sarkar and Ananya Ghoshal, Environmental Law in Indiap.156-157 ( N.M Roychowdhury Co., Kolkata, First Edition;2017).

12 Principle – 1 of theStockholm Declaration, 1972

13 Ibid 12 [ Principle -2 ofStockholm Declaration, 1972]

14 Dr. Paramjit S. Jaswal, Dr.Nishtha Jaswal, et.al., p. 138 (AllahabadLaw Agency, Faridabad[ Haryana] Fourth Edition, Reprint,2016) ; [ Principle 8 and 23 of Rio Declaration].

15 A. I. R 2002 Mad. 298.

16 Dr. Paramjit S. Jaswal, Dr.Nishtha Jaswal, et.al., p. 138(Allahabad Law Agency, Faridabad[ Haryana] Fourth Edition,Reprint, 2016).

17 Dr. Paramjit S. Jaswal, Dr.Nishtha Jaswal, et.al., p. 139(Allahabad Law Agency, Faridabad[ Haryana] Fourth Edition,

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Reprint, 2016).

18 Principle 6 of the Stockholm Conference

19 Principle 18 of the Stockholm Conference

20 (2005) 13 SCC 186

21 Dr. Paramjit S. Jaswal, Dr.Nishtha Jaswal, et.al., p. 143 (AllahabadLaw Agency, Faridabad[ Haryana] Fourth Edition, Reprint,2016).

22 Principle 16 of the Rio Declaration in Earth Summit in 1992

23 AIR 1996 SC 1446

24 (1997) 1 SCC 388

25 Babu Sarkar and Ananya Ghoshal, Environmental Law in Indiap.171-173 ( N.M Roychowdhury Co., Kolkata, First Edition;2017).

26 Principle 9 of Rio Declaration

27 Principle 10 of Rio Declaration

28 Dr. Paramjit S. Jaswal, Dr.Nishtha Jaswal, et.al., p. 145-146(Allahabad Law Agency, Faridabad[ Haryana] FourthEdition, Reprint, 2016). [ Principle 12 & 27 of the RioDeclaration].

29 AIR 1987 SC 1086

30 M.C Mehta and another vs Union of India and Others AIR 1987SC 1086. [Dr. Indranil Bhattacharyya p-114

31 Babu Sarkar and Ananya Ghoshal, Environmental Law in Indiap.162-163 ( N.M Roychowdhury Co., Kolkata, First Edition;2017).

32 1997 (1) SCC 388

33 Dr. J.N. Pandey, Constitutional Law of India, p275-276 (CentralLaw Agency, Allahabad, 51st Edition,2014).

34www.employmentnews.gov.in/Protection of Environment.pdf .Last visited on 20.09.2017.

35 Shodhganga.inflibnet.ac.in/bitstream/10603/37586/12/12_chapter6.pdf . Last visited on 23.09.2017.

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36 Ibid 29

37 www.unep.org/..../V2__01%2005%202015%20Background%20paper_Asia-Pacific%2 .... . Last visited on 15.01.2017.

38 Indrajit Dube, Environmental Jurisprudence Polluter’sLiability,p17-18(LexisNexis Butterworths; New Delhi,2007.)

39 www.employmentnews.gov.in/Protectionof Environment.pdf .Last accessed on 15.09.2017.

40 Shodhganga.inflibnet.ac.in/bitstream/10603/37586/12/12_chapter6.pdf . Last visited on 23.09.2017.

41 AIR 2004 SC 1834

42 (2009) 4 ML

J 917

43 2012 (4) Kar LJ 248

44 Supra note 34

45 AIR 2002 SC724

46 Ibid 39

47 AIR 1990 SC 420

48 AIR 1978 SC 215 at para.95

49 Ibid 42

50 AIR 1990 SC 2060

51 AIR 1988 Raj.2

52 AIR 1987AP171

53 AIR 1992Kart.57

54 AIR 2001 MP220

55 AIR 2002 AP 256

56 (1998) 6 SCC 60

57 Shodhganga.inflibnet.ac.in/bitstream/10603/37586/12/12_chapter6.pdf . Last visited on 23.09.2017.

58 Principle 10 of the Rio Declaration

185

59 Dhiraj Pandey, “Environmental Democracy Index : A Tool forDemocratizing Nature” ,PD 93 (August, 2015).60 Robert V.Percival, Jolene Lin, et.al. (eds.), Global Environmental Lawat a Crossroads 234-235(Edward Elgar Publishing Limited,U.K, 2014).

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11“Ramification of Human Rights against Industrial

accidents regarding Environmental Laws”

Ms. Satya Rishishwar

Introduction:The torrential after effect of the Bhopal gas disaster has led

to the blatant violation of the basic human rights where even aftertwo decades;. This has posed a question in front of the legalfraternity of India, if there exists article 21 of the constitution whichembodies right to life whereby right to live with human dignity isimplicit in it, then why the compensation granted to the victimsamounts to less per victim than the Indian railroad pays itsemployees for loss of life or injury? Thus the most pertinentquestion of this era is, if moral capitalism is possible in the contextof a corporate socially responsible business? The time has comewhere the government has to take stringent measures to ensurethat disasters like Bhopal gas tragedy does not happen in futureand the industries realize their obligation not legally but morallytoo and whether the possibility of the industrial disaster can onlybe stopped by making a hybrid of all the schisms where not onlythe government but the industries as well as the society activelyparticipates in the process of carving out the possible solutions.

Humanity today faces the greatest environmental crisis in thehistory of human civilization. Earth is a very special planet. Itsupports conditions in which life flourishes. But earth is also veryfragile planet. Even variation in the few degrees in the meantemperature of the earth can destroy life.Hinduism declared in itsdictum that “the Earth is our mother and we are all her children”.1

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But the children of mother earth continue to bleed its mother withthe thousands cuts. And the Bhopal gas tragedy has become thebest paradigm of the recent times. Bhopal gas tragedy is consideredto be the Hiroshima of chemical disaster and has raised questionsover the corporate social responsibility in the era where the issueslike human rights and environmental safeguards have taken acentre stage in the 21st century. This paradigm of disaster hasenticed the money minting industrialists to use scant safetymeasure to pile on the profit and endanger the lives of thousandsof innocents. A scientific study after the Bhopal gas disastermanifests that even today the air and water of the union carbideplant and its surrounding areas are contaminated. Article 51(g) ofthe constitution obligates every citizen of India to protect andimprove the natural environments including forests, lakes, riversand wildlife and to have compassion for living creatures. Thisconfers to every citizen that right to sweet water and the right tofree air which further leads to the right to social security. When itcomes to the industries than this obligation acquires the shape ofa duty thereby providing a corresponding right to social securityto the society.

Bhopal gas tragedy: A Horrendous disaster that led to theintrospection of the legal as well as the corporate bodies:

The facts and figures of the accident are as follows:

The Day: After 2nd December midnight, 3rd of December, 1984

The Time: Around 1 a.m. on Monday

The Place: Bhopal, a densely populated region in the city of Bhopal,

The Poisonous Gas: A poisonous vapor, a highly toxic cloud ofmethyl isocyanate, burst from the tall stacks.

The Corporate Villain: The Union Carbide pesticide plant.

Immediate deaths: 2000

Injured people: 3, 00,000

Injured animals: 7000, of which 1000 killed.

On the night of December 2-3, 1984 a gas leak at a smallpesticide plant in Central India owned by a subsidiary of UnionCarbide Corporation devastated a whole city Over 90% of the worstaffected people were the poor living in the close vicinity of Bhopal’s

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industrial area. The job of the police who went to lower classlocalities was clearly defined: Open doors to one-room tenants;and pull out bodies five, six, and seven. Anees Christi, a journalistwho witnessed the tragedy first hand states, “After a while webegan to devalue the meaning of death. On seeing another deadbody, all one felt was a twinge of sadness, rather like what onefeels when an Indian batsman walks back to the pavilion”. 2

Over 70% of the exposed populations were earning subsistencewages. An estimated 50,000 are in need of alternative jobs becausethey can no longer do the physically demanding work that theydid before. Less than 100 people affected by the gas have foundregular employment under govt. economic rehabilitation schemes.Unable to carry on with physically demanding jobs, families havebecome economically devastated.3

This act has surely created a shudder in the legal fraternitywhereby it was the first time in the history of Indian legal systemthat the action that like that of the mass torts took place. This actwhich had its repercussion on thousands of paupers living in theaffected area has raised numerous questions over the consciousnessof corporate bodies and the corporate social responsibility.

The Basic human rights violation of the victims of the Bhopalgas tragedy:

Right to life:Article 25 of the Universal Declaration of Human Rights states

that:

Everyone has the right to a standard of living adequate for thehealth and well-being of himself and of his family, including food,clothing, housing and medical care and necessary social services,and the right to security in the event of unemployment, sickness,disability, widowhood, old age or other lack of livelihood incircumstances beyond his control.

The Right to Life is also guaranteed by Article 21 of the IndianConstitution, which the Supreme Court of India has read asprotecting the right to health and a safe environment:“environmental, ecological, air, water, pollution, etc., should beregarded as amounting to a violation of Article 21.”4

The Right to the Highest Attainable Standard of Health:Another international human right that has clearly been

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violated in Bhopal is the right to highest attainable standard ofhealth. In 1979 the government of India acceded to theInternational Covenant on Economic, Social, and Cultural Rights(ICESCR). Article 12 of the ICESCR states:

“The States Parties to the present Covenant recognize the rightof everyone to the enjoyment of the highest attainable standard ofphysical and mental health.”

In the year 2000, the Committee on Economic, Social andCultural Rights clarified that the right to health includes not onlythe right to health care, but “also to the underlying determinantsof health, such as access to safe and potable water and adequatesanitation, an adequate supply of safe food, nutrition and housing,healthy occupational and environmental conditions, and access tohealth-related education and information, Including on sexual andreproductive health. Furthermore, According to Article 47 of theIndian Constitution, “the State shall regard the raising of the levelof nutrition and the standard of living of its people and theimprovement of public health as among its primary duties.”

The Right to a Safe EnvironmentDestruction of the environment at any scale threatens to

infringe directly and indirectly upon almost every basic humanright that exists .Article 48A of the Indian Constitution lists thefollowing as duties of the government: “Protection andimprovement of environment and safeguarding of forests and wildlife.—The State shall endeavor to protect and improve theenvironment and to safeguard the forests and wild life of thecountry.” 5 Therefore, right to healthy environment plays animportant role and to further elucidation in needed on thispertinent subject to do a substantial and authentic whodunit ofthis disaster.

Environmental perspective:Industrial disaster does not only takes away the basic human

right of the individual i.e. the right to livelihood but also otherrights which are implicit under the constitution of India. The Indianconstitution is among the few in the world that contains specificprovisions on environmental protection. Still, the inclusion of it isnot sufficient enough to stop the degradation of the environment.The directive principle of the state policy and the fundamentalduties chapter explicitly enunciates the national commitment to

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protect and improve the environment. The judicial interpretationhas strengthen the constitutional mandate.6

Some of the rights which are implicit under the fundamentalrights chapter of the constitution of India are : the right towholesome environment7, the right to livelihood8, the right toequality9 and also freedom to trade vis-à-vis environmentalprotection.10

The apex court even went to the extent of saying that ‘the issuesof environment must and shall receive the highest attention fromthe court.’11 As the time progressed the concern for the environmentbegan to take the centre stage. Notable among the fundamentalnorms amongst the fundamental norms recognized by the courtare:

(1) Every person enjoys the right to a wholesome environment,which is a facet of the right to life guaranteed under article 21of the constitution of India.12

(2) Enforcement agencies are under an obligation to enforcestrictly the environmental laws.13

(3) Government agencies may not plead non-availability of funds,inadequacy of staff or other insufficiency to justify the nonperformance of their obligations under environmental laws.14

(4) The ‘polluter pay’ principle which is apart of the basic environmental law of the land requires that apolluter bear the remedial or clean up costs as well as theamounts payable to compensate the victims of the pollution.15

(5) ‘The precautionary principle requires the governmentauthorities to anticipate, prevent and attack the cause ofenvironmental pollution. The principle also imposes the onusof proof on the developer or the industrialist to show that hisor her action is environmentally benign.16

(6) Stringent actions ought to be taken against the contumaciousdefaulters and persons who carry on industrial ordevelopmental activity for profit without regard toenvironmental laws.17

(7) The state is the trustee of all natural resources which by naturemeant for the public use and enjoyment. The public at large isthe beneficiary of the sea shore, running waters, air, forests

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and ecological fragile lands. These resources cannot beconverted into private ownership.18

The pertinent question that needs to be answered is that howmany of the above judgments or the principle that has been laid bythe apex court with regard to the environment have been executedand being followed. Is really the stringent action has been takenby the supreme court in the case of the environmental degradationor the principle so laid down exist only on paper and have norelevance as far as the applicability part is concerned.

It is also important to note that the above guiding principleshave been laid down after the horrendous Bhopal gas tragedy.Therefore, one can safely infer that now the court has become morevigilant than it used to be earlier. Every aspect to safeguard theenvironment has been reconnoitered day by day. But much moreneeds to be done. Not only laying down of the principle is necessarybut what is more important than that is the execution of thatprinciple. It is in this regard that the judgment of the apex courtin Indian council in enviro legal action v. union of India19 holdsimportance. The supreme court laid down the obligation on theenforcement agencies to strictly enforce the environmental laws.Much emphasis has been supplied on the word strictly.

To avoid the great debacle like that of the Bhopal gas tragedyin future the measures that has to be taken should concur with thechanging dimensions of the environmental protection measuresand ensuring its strict compliance.

Need of the harmonious construction so as to avoid appre-hension of any conflict:

In Sachidanand Pandey v. Sate of West Bengal20, the apex courtheld that:

Whenever the problem of ecology is brought before the court,the court is bound to bear in mind article 48A21 of the constitutionof India……and article 51A(g)22. ….when the court is called uponto give effect to the directive principles of the state policy and thefundamental duty, the court is not to shrug its shoulders and saythat priorities are the matter of the policy and so it is the matterof the policy making authority. The least that the court may do isto examine whether appropriate considerations are borne in mindand irrelevancies excluded. In appropriate cases, the court maygo further but how much further will depend on the circumstancesof the case. The court may always give the necessary directions.

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However the court will not attempt to nicely balance relevantconsiderations. When the questions involves the nice handling ofthe relevant considerations the court may feel justified in resigningitself to acceptance of the decisions of the concerned authority.

Thus the apex court here has made a distinction so as to thejob of the government and that of the judiciary with respect to thematters that are listed in the directive policy relating to theenvironmental safeguards. The court emphasized on the needs ofthe harmonious construction. It casts an obligation on thegovernments as well as the judiciary to deal with such matter withutmost great care so as to ensure the rights of an individual. Thusboth the state as well as the judiciary owes a duty to create anhealthy environment so as to negate the possibility of a potentialindustrial disaster in future. The focus should not only be on theareas of the industrial development but also on the areas of theenvironmental protection.

Adaptation of different approaches for reconciliation ofhuman rights with environmental law in the recent times:

Human rights and environmental law have traditionally beenenvisaged as two distinct, independent spheres of rights. Towardsthe last quarter of the 20th century, however, the perception arosethat the cause of protection of the environment could be promotedby setting it in the framework of human rights, which had by thenbeen firmly established as a matter of international law andpractice. Because of the many complex issues that arise when thesetwo seemingly distinct spheres interact, it is to be expected thatthere are different views on how to approach ‘human rights andthe environment’.23

The first approach is one where environmental protection isdescribed as a possible means of fulfilling human rights standards.Here, environmental law is conceptualized as ‘giving a protectionthat would help ensure the well-being of future generations aswell as the survival of those who depend immediately upon naturalresources for their livelihood.’ Here, the end is fulfilling humanrights, and the route is through environmental law.

The second approach places the two spheres in invertedpositions – it states that ‘the legal protection of human rights is aneffective means to achieving the ends of conservation andenvironmental protection.’ The second approach thereforehighlights the presently existing human rights as a route to

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environmental protection. The focus is on the existing human right.In this context, there exists a raging debate on whether one shouldrecognize an actual and independent right to a satisfactoryenvironment as a legally enforceable right. This would obviouslyshift the emphasis onto the environment and away from the humanrights. These are the subtle distinctions between the two ways inwhich this approach can be taken.

A third approach to the question of ‘human rights and theenvironment’ is to deny the existence of any formal connectionbetween the two at all. According to this approach, there is norequirement for an ‘environmental human right.’ The argumentgoes that, since the Stockholm Conference in 1972, internationalenvironmental law has developed to such extents that even thedomestic environments of states has been internationalized. In lightof the breadth of environmental law and policy, and the manner inwhich it intrudes into every aspect of environmental protection inan international sense and notwithstanding the concept of statesovereignty, it is argued that it is unnecessary to have a separatehuman right to a decent environment. This view militates againstthe confusion of the two distinct spheres of human rights law andenvironmental law. However, there are many who oppose this view.They argue that there is in fact a benefit to bringing environmentallaw under the ambit of human rights. Environmental law has inmany parts of the world, be it at the international or domesticlevel, suffered from the problem of standing. Because of this barrier,it is often difficult for individuals or groups to challengeinfringements of environmental law, treaties or directives, as thecase may be.There has been a great deal of debate on the theoreticalsoundness of the idea of a human right or rights to a satisfactoryenvironment.24 For one thing, there can occasionally be a conflict,or tension, between the established human rights and theprotection of the environment per se. There are circumstanceswhere the full enjoyment of the rights to life, to healthy living andto ones culture can lead to the depletion of natural resources andenvironmental degradation. Nevertheless, clearly there is a primafacie rhetorical and moral advantage in making the environment ahuman rights issue.25 There has been a simultaneous increase in‘legal claims for both human rights and environmental goods,’ whichis a clear reflection of the link between ‘human’ and the‘environment’ and the dependence of human life on theenvironment. The Bhopal gas tragedy can also be construed as suchclaim and thus there is a need of making environment a human

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rights issue, infact implicitly it has become a human rights issueand the best example is that of the Bhopal gas tragedy and itsrepercussion on the thousands of innocent victims.

Need of ethical consumerism and moral capitalism:Ideally Governments should hold corporations accountable

through “strong internal regulations backed by strong internationallaw and enforcement institutions”. However, transnationalisationof investment has not been matched by transnational regulation.Globalization has also weakened regulation at the national level.Many countries have set up special investment zones that are notonly tax free but also free of virtually all regulations. A coalition ofseveral influential NGOs are calling for international codesrequiring that transnational corporations disclose informationabout the environmental and human impact of their work. Theproposal is based on the US Toxic Release Inventory which requirescompanies to disclose annual emissions of toxic chemicals.Corporations should be held responsible for legal wrongs. But aslong as consumers continue to demand ever-cheaper goods andservices, businessmen will find ways to deliver. Much of the successor failure of a corporate social responsibility movement dependson ethical consumerism.

Conclusion and suggestions:Judge Weeramantry, International Court of Justice, said that

“The protection of the environment is...a vital part of contemporaryhuman rights doctrine, for it is a sine qua non for numerous humanrights such as the right to health and the right to life itself. It isscarcely necessary to elaborate on this, as damage to the environmentcan impair and undermine all the human rights spoken of in theUniversal Declaration and other human rights instruments.” Stillthe blatant violation of it continues. The questions that stand beforeis that what can be done to safeguard the interest of thousands ofinnocent victims and what can be done so as to make the corporatebodies realize of their responsibility towards the society as wellas their moral obligations.

Global taxes, fees and fines are policy instruments that couldshape corporate action to promote more sound development. Taxesor other levies use market pricing, rather than regulatory rules,to press companies to adopt more socially responsible policies, forexample, they can create a disincentive for financial speculation(Tobin tax) or they can create a disincentive for the use of carbon-

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based fuels or the production of products dependent on carbon-based fuels (Carbon tax).26 The revenues raised by theseinstruments could be used to fund global agencies such as the UN,and they could be used to correct existing problems—to clean upenvironmental disasters. Levies might be based on nationallegislation and harmonized internationally through a treaty orother accord.27

It is apparent that environmental and human rights areinextricably linked. As we increasingly recognize the serious impactof a degraded environment on human health and well being, weare better placed to adjust our policies and cultural practices toreflect our enhanced understanding. As a result, we should be ableto protect human rights and human dignity within its broadersocial, economic and cultural context by drawing from andcontributing to those who are actively engaged in theenvironmental and public health arenas. This should also facilitatethose who are working in the environmental and conservation fieldsto develop a better working relationship with those in the humanrights arena. This will eventually lead to the articulation of a moreintegrated approach to dealing with socio-economic andenvironmental problems, encouraging the development of asustainable model for the preservation of biological resources andnatural ecosystems, for the use and enjoyment of both present andfuture generations.

A corporation may commit a crime, but it will remain beyondthe bounds of IPC for serious crimes because IPC prescribes 3 kindsof punishments: imprisonment, fine and death penalty. Wherelesser crimes may be punishable with fine alone, IPC does not allowthat for offences of gravity. In such cases, imprisonment ismandatory. Imprisonment of a corporation is not literally possible.This would have us believe, there is a lacuna in the law, which canbe remedied by Parliament alone.28

But if imprisonment means drawing a convicted offender intoa preset confined space as a prison, it is arguable that an offendingcorporation cannot be imprisoned. But, the constituents ofimprisonment include detention, restriction of certain libertiesand, more recently, it has been held to be about productive workwhile in prison the wages for which would go to repair the victims’lives. These are certainly capable of being imposed on a corporation.The notion of imprisonment clearly needs to be revisited. So toodo other possibilities of sentencing of a convicted corporation.

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The other important aspect is to make such kind of laws thatcan impose severe sanctions. The sanction should be proportionalas to the nature of crime committed because the purpose of makinga law is to provide justice and the law should be interpreted insuch a manner so as to further the cause of justice and to defeat itscause, thus, there is a need of such kind of law that covers thisdraconian situation.

Thus the need of an hour is to understand and construe therelationship between the human rights and the environmental lawand to further strengthen the relation between the two so as tofight with the tremors of the industrial disaster. Hybrid of all theschisms is needed in this era, whereby the government, thecorporations alongwith the society has to act in order to safeguardthe basic human rights of the thousands and to negate thepossibility or another edition of the Bhopal gas tragedy.

(Footnotes)1 See, http//: www.supremecourtofindia.nic.in/new_links/

humanrights.htm.

2 See, Dr. Madhabhushi Shridhar, The present and continuousdisaster of Bhopal: Environmental Dimensions,http://www.legalservicesindia.com/articles/bhopal.htm.

3 See , Dr. Nakka Sai Bhaskar Reddy, BhopalGas Tragedy – 20years and after, http://environmentalartilces.wordpress.com/bhopal-gas-tragedy-20-years-after/

4 Virendra Gaur vs. State of Haryana, 1995 (2) SCC 577.

5 See, Basic Human Rights for Bhopla Survivors, http://studentsforbhopal.org/Assets/20HumanRights.pdf.,

6 See, Shyam Diwan, &Armin Rosencranz, Enviromental Law andpolicy in india: cases, materials and statutes, 2nd edition,oxford university press, New Delhi.

7 Recognized by the supreme court of India for the first time in,Rural litigation and entitlement kendra, dehradun v. State ofuttar Pradesh AIR 1988 SC 2187.

8 Recognized by the supreme court in the case of Olega tellis v.Bombay Municipal Corporation, AIR 1986 SC 180.

9 The right to equality guaranteed under article 14 may be infringed

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by the government decisions which have impact on theenvironment.

10 In India council for enviro-legal action v. union of India,( CRZcase) 1996 (5) SCC 281, the court held that as environmentalregulation grows more stringent and its enforcement becomesmore vigorous, industrial challenge to agency action is likelyto increase. Courts will then need to balance environmentalinterests with the fundamental righst to carry on anyoccupation, trade or business granted in article 19(1)(g).

11 Emphasis supplied. Tarun Bharat Singh, Alawar v. union ofIndia(Sariska case) writ petition (civil) No. 509. of 1991,Supreme Court, !4 may 1992( M.N.Venkatachaliah andB.P.Jeevan Reddy).

12 ,Subhash Kumar v. State of Bihar AIR 1991 SC 420.

13 Indian Council for Enviro legal Action v. Union of India, 1996(5) SCC 281.

14 Dr.B.L. Wadhera v. Union of India ( delhi garbage case) AIR1996 SC 2969.

15 Indian council for enviro-legal action v. union of India (Bicharicase) AIR 1996 SC 1446.

16 Vellore Citizens welfare Forum v. union of India AIR 1996 SC149.

17 Supra note 5.

18 M CMehta v. Kamal nath ( spans motel case) 1997 (1) SCC 388.

19 Supra note 3.

20 AIR 1987 SC 1109

21 See ,Art. 48A. Protection and improvement of environment andsafeguarding of forests and wild life —The State shallendeavour to protect and improve the environment and tosafeguard the forests and wild life of the country

22 See ,Art.51A(g).it shall be the duty of every citizen of India- Toprotect and improve the natural environment including forests,lakes, rivers and wildlife, and to have compassion for livingcreatures.

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23 See , Y k Sabharwal, Human Rights and environment ,http://www.supremecourtofindia.nic.in/new_links/humanrights.htm24See, for example,A. BOYLE AND M.Anderson (eds.), HumanRights Approaches to Environmental Protection (Oxford, 1996).

25 See, Margaret DeMerieux, “Deriving Environmental Rights fromthe European Convention for the Protection of Human Rightsand Fundamental Freedoms”21 (3)OxfordJournal of LegalStudies521 (2001).

26 See ,http/www. en.wikipedia.org/wiki/Carbon_tax at 12 am onMarch,16,2010

27 See , Pooja Gautam

, Lessons from Bhopal : the elusive quest for justice andaccountab il ity ,http: / /www.ebc india . com/pract ical lawyerindex2.php?option=com_content&itemid=54&do_pdf=1&id=84

28 See for example the opinion of the majority in Standard CharteredBank v. Directorate of Enforcement, (2005) 4 SCC 530: 2005SCC (Cri) 961 wherein the Supreme Court has expoundedprinciples for corporate criminal liability.

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12Indian Constitution & Judiciary on

Environmental Protection

Bhawana Sharma

IntroductionTo live in a healthy and clean environment is priority of every

human life. As environment furnishes all essentials for human life,so there has been a close link between the environment and humanbeing. It is said that- without a natural and pleasant environment,human existence is not possible on earth. History is witness thatsince time of its origin, human have made very efforts to make useof natural resources in order to modify their surroundings. Theexample of human’s such efforts may be seen in the form ofdeveloping industrialization, infrastructural developments and soon. Such efforts result the causes of high temperature, rainfall,pollutions, disease and in other words we may say that merely theexploitation of environmental resources. However such humanactions are to make their happy and prosperous life only whichcomes under their “Right to Life”. As Article 21 of the IndianConstitution ensures “Right to Life” that- “No person shall bedeprived of his life or personal liberty except according to theprocedure established by law”. Further expressing the democraticrepublican nature, Indian Constitution has defined that- “Right toLife” means not only a physical act or breathing, but it has muchwider meaning including- right to live with human dignity, rightto livelihood, right to health, right to pollution free air etc. Thischapter defines that- in the present 21st century, the worldcountries started to encounter the ill- effects of industrialization

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and thus “Right to live in Healthy Environment” gained attentionfor these countries. Thus it becomes the duty of the state to keepclean and healthy environment within its territory. As has beendefined under the Article 51 A (g) of the Indian constitution that-“to protect and improve the natural environment including forests,lakes, rivers and wild life and to have compassion for livingcreatures”. Beside this Articles 48A, 39(e) and 47 declares that- itis the duty of the state to protect the environment. So in order todeal with such above defined ever growing environmental problems,many acts have been enacted by the government of India on timeto time, under the constitutional provisions. It is the judiciary ofIndia, which keep checks on proper making and implementationof such acts and interpretation if needed. However, judiciary ofIndia has its rich room full of the landmark judgments onEnvironmental Protection as Supreme Court and High Courts havebeen entertaining Environmental Petitions under Article 32 or 226against the violation of Article 21. Environmental laws have seenconsiderable developments in last two decades in India sharinginitiatives of Judiciary under Constitutional provisions. It isassumed that- improvement of public health forms the core ofenvironment, because due to various environmental problems it ishealth of people, which comes into effect. In order to protect thehealth of the people, Indian Constituents gave emphasis on theimprovement of public health, which is more vital for the existenceof the mankind. For example- pollutions of water, soil and air arespoiling public health. Therefore, taking into consideration,Constitution of India recognized the Right to Health and cast aresponsibility upon the state to work for improving the health ofthe people. This chapter is all about the judicial response on theenvironmental issues, within the framework of the constitutionalprovisions.

The governments in today’s democratic countries of the worldare moving towards the path of Good Governance, a concept ofgovernance which has concern for the sustainable development orall over development of a particular country. The sustainableconcept of governance is about to develop the life standard of thepeople. Hence, in the era of globalization, it is assumed that forthe all over development or sustainable development of the countrypolicy agendas for industrial advancement and infrastructuraldevelopment are must. Such developmental agendas use to leadthe very harm to the given environment. That result in the verylife-effecting health issues through the polluted environment.

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However the countries of the world are very conscious to keeptheir environment clean and protective to the people’s life. As itreflects in their various policy agendas, based on the variousprovisions of their particular constitution. Constitution is a livingdocument, an instrument which makes the government system towork. In the case of India, it is a republic, where constitution hassupremacy over the actions by its three governmental organs.However from its origin on 26th January, 1950 Indian Constitutionhas specified no provision for environmental protection. Howevercertain specific provision has been incorporated by the constitutionas 42nd constitutional amendment (1976) and subsequentamendments. Through such amendments Indian Constitutionarranged provisions for the protection and improvement of theenvironment.

India is among the one of largest populous developingdemocracy in the world countries, where environmental issues aretaken as the most concerning issue by the government. As securedand healthy life to the people is one of ideal of the democracy.However, there is no provision for environmental protection inthe constitution of India. But such issue is wedded with humanRights approach and it is said that- “it is the basic human rightof every individual to live in a pollution free environmentwith full human dignity”. And judiciary of India, being theprotector or guardian of such human rights has passed variouslaws or decisions, regarding the Environmental Protection.

As Supreme Court of India has said that- “the essentialfeature of sustainable development such as the‘Precautionary Principle’ and the ‘Polluter Pays Principle’are part of the Environmental Law of the country”. WhenIndian Constitutional was drafted it did not have any specificprovisions on Environment and even the word “Environment” didnot find any place in the constitution. But there are certainprovisions which are of great extent to the improvement of publichealth, for example- provision for Organization of Agricultural andAnimal Husbandry, Protection of Natural Monuments etc. Howeverthroughout various constitutional amendments, some provisionson Environmental Protection were added by the Judiciary. Article47 of the constitution after judicial interpretation, reveals that-“it is primary duty on the state to provide public withimproved health, raised level of nutrition and ultimatelyimproved standard of living”. It is assumed that public health

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can be assured to the public, only by offering the safe and protectedenvironment to live in. This view enabled the architects of IndianConstitution to be more conscious on the environment. Throughthe various cases before it, Judiciary of India play its active roleon environmental Protection within the Constitutional framework.

What is “Environmental Protection”-The term “Environment” refers to the surrounding, around

us. It includes virtually everything, which are essentials for ourlife. It can be defined as anything, which may be treated as coveringthe physical surroundings that are common to all of us, like- air,water, land, space, plants, soil, wildlife etc. In the WebsterDictionary, Environment is defined as the- “aggregate of allthe external condition and influences, affecting the life anddevelopment of an organism”. Whether, the EnvironmentProtection Act, 1986 has referred the meaning of Environmentas- “it includes water, air and land and the inter- relationship whichexists among and between water, air, land and human beings, otherliving creatures, plants, micro- organism and property”. In presenttime due to increasing awareness or craze for the sustainabledevelopment, has become the very cause, responsible for theexploitation of the resources, given by the Environment. Theexploitation of such resources is producing various life- effectinghealth issues. In order to protect or provide safe and healthy lifeto its people, the concerned state or authority makes efforts, underits jurisdiction, which is termed in the form of “EnvironmentalProtection”. For example- in India state as well as judiciary playtheir active role in ensuring protective life to the people of thecountry. But in present time, several account for environmentalhazards are going beyond the control of the state. Thatswhy, therehas been passed many Environmental Acts in the concernedgovernments on time to time, Environmental Wildlife ProtectionAct, 1972, Environmental Water (Prevention and Control ofPollution) Act, 1974, Environment Forests Conservation Act, 1980,Environmental Air (Prevention and Control of Pollution) Act, 1981,Environmental Protection Act, 1986 (Article- 253) etc. have beenmost legislative acts on Environmental Protection.

Historical Background of Environmental Protection in India-It was 1972 when India became a signatory of the Stockholm

Declaration, which is known as Magna- Carta on HumanEnvironment. Then Prime Minister of India, Mrs. Indira

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Gandhi, in the first International Conference on HumanEnvironment at Stockholm in 1972, expressed her deep concernabout the degradation of the environment and eco- imbalances.She also emphasized that- “Pollution, Population and Povertyare interrelated problems and there must be an integratedapproach to deal with them”. After this speech of Prime Minister,the Parliament of India passed the 42nd Constitutional Amendmentin 1976, while adding two specified articles on protection andimprovement of Environment in the constitution as Article 51-Aand Article 51-A (g). This amendment also specified the obligationon the state as well as on individual to protect and improve theenvironment. Justice K. S. Dakshinamurthy said that-“Environment as a subject, environmental as a concern andenvironment as part of socio- economic- political structurein the country seems to have taken of. In fact, it has enteredthe structure in such a way that- no intellectual, political oracademic discourse is complete without it”.

Beside this, some of International conventions onEnvironmental Protection helped the Indian authorities to takesteps for Environmental issues, some of them were-

United Nations General Assembly Resolution of 1972,emphasized on the need for the active cooperation among thestates in the field of human environment.

Earth Summit- India also adopted the Agenda- 21, presentedin the Earth Summit. It was document about thecomprehensive programme of action for global action in all areasof sustainable development.

Indian Constitution & Judiciary on EnvironmentalProtection-

The Constitution of India has some of the provisions relatedto Environmental Protection. Some of them are has been insertedthrough judicial interpretations, which may be defined as following-

A. Indian Constitution on Environmental Protection-However, there is no use of the word “Environment” or specific

provision on Environmental Protection in the Constitution ofIndia. But there are some provisions which has rapedEnvironmental Protection in Fundamental Rights and duties ofthe people, some of them are as following-

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1. Preamble of Indian Constitution and EnvironmentalProtection & Justice-

India as a Socialist Country- Preamble of IndianConstitution declares India as a socialist country, where state hasto pay more attention to the social problem than any Individualproblem. Environmental Protection has emerged as the one of mostsocial problem in the country. As it is affecting the society at large.Thus, according to Preamble, it becomes the obligation of the stateto fulfill the basic aim of socialism that is to provide decentstandard of living to all, which can be possible from pollution freeenvironment only.

The Preamble of Constitution further declares that- the greatrights and freedoms of the people of India, intended to secure allwith social, economic and political justice. Here justice alsoincludes Environmental Justice, however the word “environment”does not find any place in preamble. It is interpreted that-“Environment is a subject- matter that has entered in our dayto day life in such a way that we cannot ignore deliberationson environmental matters, while discussing on social,economic and political arenas of the country”.

2. Right to Equality (Article 14) and EnvironmentalProtection-

The Indian Constitution guarantees Right to Equality to allpeople of India, without any discrimination. This indicates thatany action of the state, related to environment must not infringeupon the right to equality as mentioned in the Article 14 of theConstitution.

The Stockholm Declaration, 1972, also recognized thisprinciple of equality in environmental management and it calledup all the world nations to abide by this principle

3. Right to Know (Article 19 (1) (a)) and Environment-Article 19(1) (a) of the Indian Constitution provides Right to

Know as Fundamental Right to the people of India. Right to knowhas a close link with Right to life (Article 21), particularly inenvironmental matters where the secret governmental decisionsmay affect health, life and livelihood of the people. It declares that-“any governmental plan of construction of dam or information ofthe proposed location of nuclear power stations or thermal powerplants and hazardous industries, which directly affect the lives

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and health of the people of that area, must be widely published”.

4. Freedom of Speech and Expression and EnvironmentalProtection-

Article 19(1) (a) guarantees every citizen a fundamentalfreedom of Speech and Expression. In India most of theenvironmental jurisprudence has developed by judicial activism.Most of the cases came before the Court as a result of PublicInterest Litigations (PILs) in which the people exercised theirfreedom of speech and expression sometimes by writing letters tothe court or otherwise by filing petitions before it, whilehighlighting the violation of the rights of the people to live inhealthy environment in one way or the other. Freedom of speechand expression under Article 19(1) (a) also includes freedom ofPress. In India the public opinion and media have played animportant role in molding the public perception on environmentalissues.

5. Freedom of Trade & Commerce and EnvironmentalProtection-

Article 19(1) (g) guarantees all citizens the Right to practiceany profession or to carry on any occupation, trade or business.This Right of the citizens is not absolute. It is the subject to Article19(6) under which reasonable restrictions in the interest of thegeneral public can be imposed. Thus, Environmental interests fromthe hazards of any trade or business can be protected.

6. Article 21 (Right to Life) and Environmental Protection-Article 21 of Indian Constitution declares ‘Right to Life’ as

Fundamental Right. Further it consists that- “No person shallbe deprived of his life or personal liberty except accordingto procedure, established by law”. The Supreme Court of Indiatransferred this Fundamental Right into Positive Right andimposed an affirmative duty on the state to enforce it. This view ofthe Supreme Court emerged in Francis Coralie Mullin v/sAdministrator, Union Territory of Delhi, (1981) where JusticeP. N. Bhagwati observed that- “the Right to Life enshrined inArticle 21, cannot be restricted to mere animal existence. Itmeans something more than just physical survival”. Furtherhe said that- “Right to Life includes the Right to Life with humandignity and that goes along with it, namely, the bare necessities oflife such as adequate nutrition, clothing and shelter over the head

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and facilities for writing and expressing oneself in diverse formswith it. Right to live in a healthy Environment is guaranteed byArticle 21 of the Constitution. It consist a life of dignity to be livedin a proper environment, free of danger of disease and infection”.

7. Article 47 of the Indian Constitution and Environment-This Article of Indian Constitution defines, “the state shall

regard the raising of the level of nutrition and the standard ofliving of its people and the improvement of public health as amongits primary duties. The state shall endeavour to bring aboutprohibition of the consumption except for medical purposes ofintoxicating drinks and drugs which are injurious to health”. Thisarticle calls upon the state to perform the basic duty to look-afterthe health of the people and to take necessary and effective stepsto improve their standard of living and also raise the level ofnutrition.

8. Article 48-A and Protection of Environment-Through the 42nd Constitutional Amendment Act in 1976, a new

Article 48-A, was inserted in the constitution with the aim ofaffording better Environmental Protection. It consists that- “thestate shall endeavour to protect and improve the environmentand safeguard the forests and wild- life of the country”. Firsttime, in this article the word “Environment” was used in a widersense, which affects all the living being and influences theconditions of their lives. It was said that- “Water and Air areimportant factors, which mould the life of a living being. Thus itbecomes the obligatory for the state to protect the water and waterresources as well as whole environment”. This Article not onlyhold that- the state should adopt the protectionist policy, but alsoholds that- state also should provide the improvement policy ofenvironment. It more emphasized on the protection of forests andwild- life in order to ensure Environmental Protection.

9. Part IV- A (Fundamental Duties) & EnvironmentalProtection-

Duties are defined as the moral and natural rights, which areinserted in the Article 51-A, in the Indian Constitution in the formof Fundamental Duties. Through the 42nd ConstitutionalAmendment Act (1976) a new part IV-A, dealing with “FundamentalDuties” was added in the constitution. Article 51- A specially dealswith the fundamental duty with respect to the environment that-

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“It shall be the duty of every citizen of India to protect andimprove the natural environment including forests, lakes,rivers and wild life and to have compassion for livingcreatures”. The scope of Article 51-A is that- it gives a right to thecitizens to move the court for the enforcement of the duty caste onthe state, instrumentalities, agencies, departments, local bodiesand statutory authorities created under the particular law of thestate”.

On the other side, Article 51-A (g) refers to the fundamentalduty of every citizen to improve ‘Natural Environment’. Naturehas given us the gift of pollution free environment and it is theduty of every individual to improve or preserve the environmentin the same way as nature has gifted it to all of us.

10. Part XIth of the Indian Constitution and Environment-This part of the constitution consist three subject lists, defining

the jurisdictions of union and states of the country, are named as-Union list, State list and Concurrent list. Parliament on union leveland state legislatures on state levels are empowered to make ruleson such listed subjects. Some of subjects of these lists have theconcern to provide a clean and safe environment. For example-State list includes subjects such as- public health, sanitation,agriculture, water supplies, irrigation and drainage of fisheries.Like this- Concurrent list includes subjects as, forest, protectionof wild life, mines and mineral developments, population control,family planning, minor ports, factories etc. on which parliamentas well as state legislatures have jurisdiction to make rules. Butin condition of confusion, last decision by parliament is consideredfinal. As happened in the Water Prevention and Control ofPollution Act of 1974, it was enacted by Parliament pursuant toconsent resolution passed by the state legislature.

11. Article- 253 & Environmental Law-Such article of the constitution declares the power of

parliament to enact any Environmental Law and it would not bequestioned before any subordinate courts. For example, Parliamentof India, has used this power in Air Prevention and Control ofPollution Act (1981), Environment Protection Act (1986).People’s Union for Civil Liberties v/s Union of India, VelloreCitizens Welfare Forum v/s Union of India etc. These were somecases before the Indian Judiciary related to the acceptance ofInternational Environmental treaties on Environmental

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Protection.

B. Judiciary of India & Environmental Protection-The Judiciary of India is said to be the guardian or protector

of the fundamental Rights of the people inn the country. Howeverbeing a republican democracy, in India the Constitution hassupremacy on the actions of the all the three organs of thegovernment. But it is the Judiciary, which is empowered with itsspecific powers such as- Judicial Review as well Judicial Activism,by exercising these powers Judiciary may interpret in anyConstitutional Provision, particularly on the basis of petitions orcases before it. For example- the Right to livelihood as a part ofRight to life under Article 21 was recognized by the Supreme Courtin some cases before it, Olga Tellis v/s Bombay MunicipalCorporation (1985), Sodan Singh v/s N.D.M.C. & Others (1989)Ahmadabad Municipal Corporation v/s Nawab Khan GulabKhan & Others (1996), Ramesh Chander v/s Imtiaz Khan andAnr. (1998) etc. On other side, the judiciary, on various occasions,has struck down the arbitrary official sanction in environmentalmatters on the basis that it was violation of Article-14. The Rightto equality is generally resorted to in urban development wherepermission for construction is granted by the authorities arbitrarilyunder its discretionary powers without evaluating the publicinterest and without application of mind and considering theenvironmental impacts. For avoiding such issues Judiciary hasresolved many cases, related to the Environment while giving itswise and protective decisions, some of the important cases are asfollowing-

1. Baleshwar Singh v/s State of U.P. (1958) –Through this caseprohibition on the existence of a saw mill, near or around anyforest was imposed by the Court, for the maintenance of theforest wealth and ecological balance in the sense of social aswell as national interest.

2. S. P. Gupta v/s Union of India (1982) - The Judiciarybroadened the scope of the Right to know in this case. TheSupreme Court recognized the Right to know to be implicit inthe Right to free Speech and Expression in matter ofEnvironmental decisions by the Government. For example- Ifgovernment launches any dam project or pass any proposal,which may affect environmental protection of that particularplace, than it is Right of the people to know the details of

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governmental decisions on that.

3. K. Chandru v/s State of Tamil Nadu, (1985) - The SupremeCourt held that- “if the government plans the construction of alarge dam or any other project, without making properEnvironmental Impact Assessment (EIS) and resulting inthe displacement of persons from their habitat, therebydepriving them of their livelihood, then that action can bedeclared as unconstitutional, being violation of Article 21. Theprocedure of displacing the people from their habitat can becalled “just, fair and reasonable” only when they are providedwith suitable alternative sites with all basic amenities of life”.

4. Kinkri Devi v/s State of Himachal Pradesh (1986) - In thiscase, Justice P. D. Desai remarked- “There is both aconstitutional pointer to the state and a constitutional duty ofthe citizens not only to protect but also to improve theenvironment and to preserve and safeguard the forest, the floraand fauna, the rivers and lakes and all other water resourcesof the country. The neglect or failure to abide by the pointer orto perform the duty is nothing short of betrayal of thefundamental law which the state and indeed the every Indianis bound to uphold and maintain”.

5. L. K. Koolwal v/s State of Rajasthan (1986) - In this casethe municipality of Jaipur was accused to fail in discharge itsprimary duty to provide safe and healthy environment, thatwas resulting in the acute sanitation problem in Jaipur (Capitalof Rajasthan), which is hazardous to the life of the citizens ofJaipur. The High Court concluded that- “It lies under theArticle 21 for an individual to have safe and healthy life. If thelegislature or the state government feels that, the law enactedby them cannot be implemented, then the legislature has theliberty to scrap it, but which remains on the statutory bookswill have to be implemented, particularly when it relates toprimary duty.

6. M.C. Mehta v/s Union of India, (1986) – In this case SupremeCourt of India treated Right to live in a pollution- freeenvironment as a part of Right to Life (Article 21). In this casea group of tanneries, doing business on the banks of the riverof Ganga, were alleged to polluting the river water. JusticeK. N. Singh remarked on this decision as- “we are consciousthat- closure of tanneries may bring unemployment, loss of

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revenue but life, health and ecology have greater importanceto the people”. The Supreme Court stated that – “Articles 39(e), 47 and 48-A, by themselves and collectively casts a dutyon the state to secure the health of the people, improve publichealth and protect and improve the Environment. Articles 48-A and 52-A (g) impose the constitutional obligation on the stateto conserve, preserve, protect and improve the environment”.

7. M.C. Mehta v/s Union of India, (1986) – Again in this case,the Supreme Court directed that- “Industries which were notshowing any progress regarding the installation of the airpollution controlling system in compliance with the SupremeCourts earlier order, should be closed. In this case the SupremeCourt did not refer Article 19 (1) (g) however it is impliedthat while passing the order it had in its mind Article 19 (1) (g)along with Article 19 (6) and Article 21 of the Constitution.

8. Abhilash Textiles v. Rajkot Municipal Corporation,(1987) - The Gujarat High Court made it clear that- “one cannotcarry on the business in the manner by which the businessactivity becomes a health hazards to the entire society. In thiscase High Court issued the notice to stop discharging theeffluents full of harmful chemicals from the factory on publicroad or drainage, which is the violation of Right to life (Article21) as well as harmful for the environment. No one can asserttheir right to carry on business without any regard to thefundamental duty under Article 51-A (g) to protect and improvethe natural environment. There is no right under Article 19(1)(g) to carry on business without complying with the MunicipalLaw and other environmental statutes”.

9. T. Damodhar Rao v/s S. O. Municipal CorporationHyderabad, (1987) - Andhra Pradesh High Court observedthat- “in view of Articles 48- A and 51- A (g), it is clear thatprotection of environment is not only the duty of every citizen,but it is also the obligation of the state and all other state organsincluding courts”.

10. Charanlal Sahu v/s Union of India, (1987) - Supreme Courtof India said that- “in the context of our national dimensions ofhuman rights, Right to life, liberty, pollution- free air and wateris guaranteed by the Constitution under Article 21, 48-A and51-A (g). And it is the duty of the state to take effective stepsto protect such constitutional rights”.

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11. Shri Sachidanand Pandey v/s State of West Bengal & Ors.(1987) - This case emphasized on the jurisdiction of thejudiciary on environmental issues. The Supreme Court saidthat- “whenever a problem of ecology is brought beforethe court, the court is bound to bear in mind Article 48-Aand 51-A (g) of the Constitution.

12. Rural Litigation and Entitlement Kendra Dehradun v/sState of U. P. (1988) – This case was before the Supreme Courtof India, about the progressive mining of trees or forests inMussoorie hills. The mining resulted in the soil- erosion, land-slides, and blockages of underground water- channels. SupremeCourt took this case under the Article 32, as the “WritPetition”. The court appointed an expert committee to helpthe judicial- bench on technical issues, related to the case. Onthe report of this committee, Supreme Court said that-“disturbance of ecology and pollution of water, air andenvironment by reason of quarrying operation definitely affectsthe life of a person and thus involves the violation of Right toLife and Personal Liberty (Article 21)”. As it is an essentialfact that, there is a close link between life and environment.Right to life would become meaningless if there is no healthyenvironment

13. F. K. Hussain v/s Union of India, (1990) - The Kerala HighCourt pointed out that-”the Right to sweet water and theRight to free air are attributes of Right to life, those are thebasic elements which sustain life itself”.

14. P.A. Jacob v/s The Superintendent of Police, Kottayam,(1992) – In this case the Kerala High Court held that- freedomof speech under Article 19 (1) (a) does not include freedom touse loud speakers or sound amplifiers. It creates noise pollutionthat may be violation of the Right to life under Article 21. TheCourt said that- the use of loudspeakers can be controlledunder Article 19(1) (a) of the Constitution. Right to life,comprehends Right to a safe environment, including safe airquality, safe from noise.

15. K.C. Malhotra v/s State of Madhya Pradesh (1993) – Inthis case the High Court held that- Right to live with humandignity is the fundamental right of every individual andtherefore, in the discharge of its responsibilities to people,state has to provide at least minimum conditions ensuring

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human dignity. The Court directed that there must be separatesewage line from which the filthy water may flow out. Thedrainage must be covered and there should be proper lavatoriesfor public convenience which should be regularly cleaned.Public health and safety cannot suffer on any account and allsteps to be taken as Article 47 make it a paramount principleof government for the improvement of public health as itsprimary duties.

16. Talcher Swasthya Surakshya Perishad v/s Chairman-Cum- MD Mohanadi Coal Fields Ltd. and Others, (1996) -It was alleged that due to the operation of the collieries (CoalMine) in the Talcher area, the people of Talcher town andnearby areas have been affected as there is no pure air tobreathe and pure water to drink. It was said that- due toextraction done from underneath the ground surface, land isbecoming loose and there have been several instances ofseepage of water and subsidence of earth, thereby endangeringhuman life and property. In this case High Court observed that-“at the expense of industrial development, environment andconsequentially health of the people would not get sacrificed.It is the function of Pollution Control Board to ensure that therigid guidelines are required to be followed in the matter ofair and water pollution”. Court further said that- “for theindustrial development, the people should not become illon account of collapse of buildings, surface erosion andwater pollution.

17. Hamid Khan v/s State of Madhya Pradesh, (1996) – Thiscase was about the state government’s negligence in takingproper measure of drinking water, before supplying it. Thisaction of government resulted in health issues. The High Courtsaid that- “the state was responsible and has failed todischarge its primary duty to afford better EnvironmentalProtection to its people”.

18. S. Jagannath v/s Union of India, (1996) - The SupremeCourt said that- “the sea beaches and sea coasts are gifts ofnature and any activity polluting the same cannot be permitted.The Intensified Shrimp (prawn) Farming CultureIndustry by modern method in coastal area was causingdegradation of mangrove eco- system, depletion of plantation,discharge of highly polluting effluents and pollution of portable

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as well as ground water. That is violating the constitutionalprovisions and various other environmental legislations. TheCourt made decision that- “before any shrimp industry ispermitted to be installed in the ecologically fragile coastal areathan, it must be pass through a strict environmental test, theEnvironmental Impact Assessment (EIA) test, in other words-reasonable restriction can be put to regulate the Right underArticle 19(1) (g) of the Constitution”.

19. State of Himachal Pradesh v/s Ganseh Wood Products,(1995) – The Supreme Court of India, in this case opined that-“a decision- making authority must give due weight and regardto ecological factors such as the environmental policy of thegovernment and the sustainable use of natural resources. Agovernment decision that fails to take into account relevantconsideration affecting the environment is invalid”.

20. Research Foundation for Science Technology and NaturalResource Policy v/s Union of India (1995) - Supreme Courtof India has stated that- “the Right to Information andCommunity Participation, are necessary for the protectionof environment and human health, which is an inalienable partof Article 21 and is governed by the accepted Environmentprinciples. So the government and the authorities should haveto motivate the public participation by formulating necessaryprogrammes”.

21. F.B. Taraporawala v/s Bayer India Ltd., (1996) – In thiscase, the question before the Court was regarding the relocationor shifting of chemical industries from the populated area ofThane in Mumbai. The Court directed an authority to examinethe whole matter under section 3(3) of the EnvironmentProtection Act, (1986).

22. Moulana Syed Md. Noorur Rehman Barkati v/s State ofWest Bengal (1998) - The Calcutta High Court in this caseobserved that excessive noise is certainly pollution in thesociety. Under Article 19(1) (a) along with the Article 21 of theConstitution of India, the individuals have Right of decentenvironment and they have Right to live peacefully, Rightto sleep at night and to have Right to leisure which all isnecessary ingredients of the Right to life”.

23. Burrabazar Fire Works Dealers’ Association v/s

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Commissioner of Police Calcutta, (1998) – The High Courtsaid that Article 19(1) (g) of the Constitution of India does notguarantee the fundamental right to carry on trade or businesswhich creates pollution or which avoids safety, health and peaceof particular community. The Court further stated that- thereis no fundamental Right of a citizen to manufacture, sell anddeal with fireworks without any permitted limits”.

24. Ashwin Jajal v/s Municipal Corporation of GreaterMumbai, (1998) – This case was about the advertisement withthe use of neon lights in residential areas. It was argued that-the display board with neon lights has created environmentaland health issues and such bright lights creates problems inpeaceful sleep. On the other hand, the respondents said that-they have fundamental right under Article 19 (1) (g) to havefree trade. Then the Court concluded that the environmentaland health issues are always open to the authorities to regulatethe advertisement in a reasonable manner to the extentpermissible and this does not result in the violation offundamental right of free trade.

25. Obayya Pujari v/s Member Secretary, KSPCB Bangalore,(1998) - The Court stated that- “a license in favour of stonecrushing units does not confer on them absolute rights to carryon commercial activities of trade or occupation withoutlimitation. The Rights are subject to reasonable restrictionsand can be regulated by Court’s direction as necessary forcontrolling pollution from such units”. The Court held that theright to life is most fundamental Right as inserted in Article21 of the Constitution of India and such right includes allattributes of life. The Court directed the State Government,to formulate a policy regulating stone- crushing business anddirected the state to identify safer zones for stone crushingwithin one year.

26. A.P. Pollution Control Board (II) v/s Prof. M. V. Nayudu,(1999)- The Supreme Court of India said that- “the Right tohealthy environment and sustainable development arefundamental Human Rights implicit in the Right to life.Supreme Court of India was one of the first ‘Court’ in the world,to develop the concept of “Healthy Environment” as part ofRight to “life” under Article 21 of the Constitution.

27. Goa Foundation v/s State of Goa (2001) - Bombay High Court

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observed the question of locus standi from the premises of thefundamental duties under the constitution of India. This casewas about to protect and improve the natural environment,including forests, rivers and wild life and to have compassionfor living creatures. The Court held that- “A society has theduty to have a locus standi to move to the court to preventecological degradation, to formulate and implement programfor rehabilitation of environment and to restore ecologicalbalance”.

28. Sitaram Chhaparia v/s State of Bihar (2002) - In this casePIL (Public Interest Litigation) was filed by five residents of alocality, seeking directions from the court for closure of tyreretreading plant in the residential area as the industrial plantwas emitting carbon-dioxide gas and other obnoxious gases,causing harm to the environment of the locality. Then the PatnaHigh Court issued the notice to the concerned authority bystating that- “Protecting the environment is now afundamental duty under Article 51-A by the authority”.

29. Rajiv Ranjan Singh v/s State of Bihar & Others (2004) -The Patna High Court held that- “failure to protect theinhabitants of the locality from the poisonous and highlyinjurious effects of the distillery’s effluents and fumesamounted to an infringement of the inhabitants’ rightsguaranteed under Articles 14, 21 with Articles 47 and 48-A ofthe Constitution of India”.

30. Subhash Kumar v/s State of Bihar & Others (2007) - TheSupreme Court of India observed that-”Right to live is afundamental right under Article 21 of the Constitution and itincludes the Right of enjoyment of pollution - free waterand air for full enjoyment of life. If anything endangers orimpairs that quality of life in derogation of laws, a citizen hasright to have recourse to Article 32 of the Constitution forremoving the pollution of water or air which may be detrimentalto the quality of life.

Thus from the perusal of all above mentioned cases it is evidentthe judiciary has certainly prevented the flagrant violation of theRight to safe environment.

Conclusion-This chapter carries the Indian Constitutional Provisions and

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Judicial interpretation in them including some cases related tothem on Environmental Protection. India is said to be one of thelargest developing populous democracy in the world, wherevarious problematic issues are very common to be faced by thegovernments. Among such issues, Environmental generated issuesare very concern of the governments as well as judiciary of thecountry. However, Indian Constitution has ensured FundamentalRights to its people in the form of Right to live in a good livingstandard through their affordable practices for it. And this view ofthe Constitution, in the era of Globalization has increasedindustrial development or infrastructural advancement in thecountry. Such human practices have result of the exploitation ofEnvironmental Resources and attacked on the EnvironmentalProtection. Judiciary of India, being the protector and guardian ofthe fundamental Rights of the people, in order to play itsconstitutional status, has made various interpretations in theConstitutional Provisions. As many cases with the concernedoppositions were filed in the Supreme Court or High Court, arguingtheir constitutionally guaranteed Fundamental Rights. Thatswhy,Judiciary of India play active role to its legal scholarship in thedevelopment of Environmental Jurisprudence as it is empoweredwith the Right of Judicial Review as well as Judicial Activism.Through various cases before it, either within the framework ofConstitution or with the amendments in Constitution, Judiciaryalways has played a protective role. For example- system of PILs(Public Interest Litigations) offers more liberty to the people tospeak about their Rights, provided by the Constitution to them.This chapter concludes that- through the realization ofFundamental duties to protect our surrounding and not toexcessively exploitation of Environmental Resources, may raisesome protection to our Environment. As has been defined in theConstitution that- it is the duty of the state to provide a safe, healthyand protective Environment to its people as well as the duty ofevery individual to keep safe and healthy Environment. Both stateand Individual should take step for the improvement inEnvironmental degradation. Judiciary of India also concludedthroughout its very decisions in the cases related to Environment& Development that- “In order to ensure sustainabledevelopment, Environmental Protection could not beavoided”.

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References-

Kothari, Ashish (2006), Environment and Human Rights AnIntroductory Essay and Essential Readings, National HumanRights Commission, New Delhi.

http://nhrc.nic.in/Documents/Publications/Environment.pdf

Laxmikanth, M., (2017), Indian Polity, (fifth edition) McGrawHill Education Private Limited, Chennai, India.

Portney, R. Paul and Stavins, N. Robert, (2000), Public Policiesfor Environmental Protection, Rff (Research For Future) PressPublications, USA.

Advrudra (2015), Environmental Laws and ConstitutionalProvisions in India. www.legalservicesindia.com/article/article/environmental-laws-and-constitutional-provisions-in-india-1926-1.html

Vardhan, P., Pooja, (2014), Environmental Protection underConstitutional Framework of India. http://pib.nic.in/newsite/PrintRelease.aspx?relid=105411

Dubey, Amit, and Tiwari, B. K., Role of the Judiciary inEnvironmental Protection, Department of Law, BarkatullahUniversity, Bhopal, India.

Guru, Supriya, The Role Played by Indian Judiciary inEnvironment Protection.

http://www.legaldesire.com/role-of-judiciary-in-environmental-protection/

Sharma, Binod, Constitutional Provisions related toEnvironmental Conservation.

https://cmsdata.iucn.org/downloads/constitutional_ provisions_related_to_environment_conservation___final.pdf

Gupta, S. K., Principles of International Environmental Lawand Judicial Response in India.

http://www.bhu.ac.in/lawfaculty/blj200607200809/BLJ_2007/11_Dr.%20S.K.%20Gupta%20Artical%20on%20Int’l%20Envt’l%20_Law_Corrected_on.doc.

Sisodiya, Atisha, The Role of Indian Judiciary in Protection of

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Environment in India.

https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/

Banarjee, Debadyuti, (2008) Environmental Jurisprudence inIndia: A look at the initiatives of the Supreme Court of Indiaand their success at meeting the needs of Enviro-social Justice.

https://www.academia.edu/430162/Environmental_ jurisprudence_in_India_A_look_at_the_init iatives_of_the_Supreme_Court_of_India_and_their_success_at_meeting_the_needs_of_enviro-social_justice

Bagai, Rohan, Judicial Activism and EnvironmentalJurisprudence in India. http://www.legaldesire.com/role-of-judiciary-in-environmental-protection/

Sahu, Geetanjoy, Implications of Indian Supreme Court’sInnovations for Environmental Jurisprudence, LawEnvironment and Development Journal.

http://www.lead-journal.org/content/08375.pdf

Sharivastava, Ashish, Environmental Protection and HumanRights in India: An analytical study, Environmental Protectionand Human Rights.

Singh, Arvind Kumar, (2017), Role of Judiciary inEnvironmental Protection.

http://www.legaldesire.com/role-of-judiciary-in-environmental-protection/.

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13Ethos of Environment protection in India:

A Constitutional and Judicial approach

Dr. Deepom Baruah

“Earth provides enough to satisfy every man’s need but not everyman’s Greed”

Mahatma Gandhi

IntroductionNature is the creator of every living organism including human

beings. Nature has given us everything from food, health, shelter,water, means of livelihood etc but man in its zeal to create moremeans of comfort for itself has undermined the importance ofnature and environment.

The ancient Indian scripts shows us the importance ofenvironment in human life the Bhagwad Gita, Upanishads containsvarious literature showing the relation of nature and human beingand also the responsibility one has towards the nature. Thesephilosophies provided in these ancient texts are also reflected tosome extent in the Constitution of India through its variousprovisions. But even then the problem of environmentaldegradation has reached an alarming stage.

Today protection of environment is one of the key issues inthe policy making process of almost every country. Saving thisEarth from environmental degradation is now of utmost concernto the entire humanity. The world is witnessing a global crisis of

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environmental degradation. Degradation of environment hasreached such an alarming stage that majority of the countries hadto enter into different treaties and conventions to protect theenvironment. India is also not an exception to this devastatingissue of environmental degradation. The rapid industrializationin India in the recent past has posed a lot of issues concerningenvironmental protection. The parliament of India has enacteddifferent laws to protect the environment in India. TheConstitution of India contains different provisions for theprotection and promotion of environment in India. The Judiciaryas a guardian of the Constitution and its law too has played a pivotalrole in the protection and promotion of safe and healthyenvironment in India. In this chapter an attempt has been made tostudy and analyze the importance of environment and the issue ofenvironment degradation and it affects the society.

Environment and Indian SocietyFrom the time immemorial emphasis was laid on the

maintaining of the purity of nature. The Hindu philosophy saysthat the human body is composed of five elements (Panch-Tatva),viz, air, water, fire, earth and sky. In this sense human body iscreated by nature. Since the advent of mankind our religiousscriptures like Vedas, Puranas, Upanishads and other religiousscriptures are full of praise of nature and in this protection ofnature and natural resources are given a place of special reference1.

The relation between man and environment is very muchcomplicated, on one hand man is seen as worshiping nature for allthat it has given us and on the other hand man itself is somewhatresponsible for the deplorable condition of environment. Theculture of Indian society has shown us that man has always heldnature in great respect. Religion plays an important role withinthe social system of this country and the socio religious values’prevailing within the society proves the dominant role of naturewithin the Indian society. Hinduism is a major religion in India.Most of the sacred texts relating to Hindu religion speak aboutthe superior status of nature in relation to human beings. Hinduismshows great respect for the nature.

Hinduism, regarded by its adherents as Sanatana Dharma,orthe Eternal Truth, contains perhaps the most ancient religiousscripture known to the world. These texts contain the theology,philosophy and guidance for daily life that form the basis of the

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religion of over a billion people in the world today. It is clear thatthe most ancient texts on Hinduism demonstrate through the praiseof the deities an ecological awareness and great respect for thenatural world. There are many specific teachings on environmentalmatters contained in all these writings and ecological activists havedrawn much inspiration from the text. A few examples are:

* “Do not cut trees, because they remove pollution.” (Rig Veda,6:48:17)

* “Do not disturb the sky and do not pollute the atmosphere.” (YajurVeda, 5:43)

* Destruction of forests is taken as destruction of the state, andreforestation an act of rebuilding the state and advancing itswelfare. Protection of animals is considered a sacred duty.(Charak Sanhita)

All of this is an enormous source of concepts, principles,traditions and practices which is of deep relevance to the study ofthe future of humanity and of the long-term perspectives which itis so essential to bring into the thought-frames of the presentgeneration.2

The Bhagwad Gita in Chapter 10 verse 8 speaks about theultimate truth

“Aham Sarvasya prabhavo mattah sarvampravartateIti matva bhajante mam budha bhava-samanvitah”

In the above phrase Lord Krishna Says that “I am the originalgenerating cause of all causes, everything emanates from me;comprehending this spiritually intelligent endowed withdevotional sentiments become devoted unto me”. Thus, everythingthat is found in nature from human beings, animals or trees arecreated by the god himself and one day it will again be devoted tohimself. There is god everywhere and no one is supposed to harmanything created by nature.

Trees and animals find a special place in most of the religioustexts. Some of the trees are considered as holy and are worshipedby many and no harm should be caused to any such trees. It ismentioned in the Padma Purana and Koorma Purana that thetrees like Peepal, Bel, Ber, Neem Etc are the abode of God andhence they are not to be cut. All this is meant to conserve thevegetatrion. Planting of plants like Tulsi in every house is

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considered to be religious act3.

Most of the ancient religious texts depict animals as associatedwith the God. Such as Cow as the vehicle of Lord Shiva, Owlassociated with Goddess Saraswati or Lion with Goddess Durga.In this way all these animals were worshiped by man and causingof any harm was seen as an offence.

This intrinsic relationship between man and nature provesthe importance of nature and why it is to be protected. Althoughthere were no codified laws at that time but, perhaps nature wasmore protected than it is today and that is solely because man hadan inherent respect for all the creations of God including NatureItself.

Constitution and EnvironmentBased upon the socio-cultural values the Constitution of India

provided for a comprehensive list of rights promoting andprotecting the environment in India. As discussed in the earlierpart that man and nature had a very interesting relationship inbetween them. In almost every aspect of a man’s life nature playeda very important role mostly because of the religious and culturalphilosophy binding man and nature together

When India became an independent state the need to frame aConstitution for this independent country became a necessity. TheConstitutional makers of that time were well aware of the socio-religious structure of this country and also the need to have acomprehensive list of rights which will ensure that nature stayswell protected.

Preamble:The Constitution starts with the preamble which contains the

objectives and ideals sought to be achieved by the Constitution.The preamble speaks about socialism and social justice; these twoterms refer to a state wherein the welfare of the people getspreference above other issues pertaining to governance of thesociety. Thus, on a broader note the concept of Social welfare willinvariably include a healthier and clean environment for the people.As such, although the preamble does not specifically speak aboutprotection of environment but on an interpretation of the preambleone can assume that protection of environment is a basic need toachieve the true purpose of socio-welfare state as stated in thepreamble.

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Fundamental RightsThe Constitution of India contains a comprehensive list of

fundamental rights. These fundamental rights ensure that basichuman rights enjoyed by a person are not infringed upon byanybody. Although in the list of fundamental rights there is nospecific mention of a right relating to environmental protection,but, through the interpretation of some of the articles of theConstitution the right to a healthy and clean environment comesto be recognized as a Fundamental right under the Constitution ofIndia.

Right to equality is a fundamental right under the Constitutionof India. Right to equality ensures protection against any kind ofarbitrary action of the state. Article 14 strikes at arbriteriness instate action and ensures fairness and equality of treatment. Assuch if a state action arbitrarily deprives the citizens from theright to a healthy environment the same may be declared as violativeof the Constitution. A good example of such a situation is found inBanglore medical trust Vs B.S Muddappa4. In this case the SupremeCourt thwarted the attempt to convert a public park site into anursing home5.

During the 80’s the judicial approach towards litigation gonethrough a lot of change. The traditional concept of locus standigave way to public interest litigation which brought a sea changein the entire concept of litigation process relating to protection ofhuman rights of citizens. A very fascinating development that tookplace was with respect to Article 21 of the Constitution of Indiawhich provides for the right to life and personal liberty. It wasinterpreted by the Apex court in the widest possible terms, so asto include all that which would make life worth living. Right toclean and healthy environment was declared as a fundamentalright under article 21 of the Constitution of India.

Doctrine of Public Trust: Polluter pays Principle:Precautionary Principle

The expansive interpretation of life in article 21 has led to thesalutary development of an environmental jurisprudence in India.Doctrine of public trust and polluter pays principle and theprecautionary principle were developed by the Supreme Court.The public trust doctrine rests on the premise that naturalresources like air, sea, waters are means for general use and cannotbe restricted to private ownership. These resources are gift of

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nature and the state as a trustee thereof, is duty bound to protectthem6.

The “Precautionary Principle” means that the state governmentand the concerned statutory authorities must anticipate preventand attack causes of environmental degradation. The principle of“Polluter Pays” means that one who carries on a hazardous activityis liable to make good the loss caused to another person by suchactivity7.

In Vellore Citizens Welfare Forum v. UOI8, AIR 1996 SC 2718:It was held that the precautionary principle and the polluter paysprinciple are part of environmental law of the country.

Thus through the interpretation of the fundamental rights theSupreme Court has given a new dimension to the concept ofenvironmental protection in India.

Directive Principles of State PolicyThe Directive principles of state policy under the Indian

Constitution are directed towards ideals of building a socio-welfarestate. Healthy environment is also one of the elements of welfarestate. Article 47 provides that the State shall regard the raising ofthe level of nutrition and the standard of living of its people andthe improvement of public health as among its primary duties.The improvement of public health also includes the protection andimprovement of environment without which public health cannotbe assured. Article 48 deals with organization of agriculture andanimal husbandry. The directive principles of state policy directthe State to take effective steps to organize agriculture and animalhusbandry on modern and scientific lines. In particular, it shouldtake steps for preserving and improving the breeds and prohibitingthe slaughter of cows and calves and other milch and draught cattle.Article 48 -A of the Constitution says that “the state shall endeavorto protect and improve the environment and to safeguard theforests and wild life of the country”9. Thus, the directive principlesof state policies reflect the age old traditional values of Indiansociety aimed at creating a rational, just, equal and fair society,where every object of the nature is respected, loved and protected.

Fundamental DutiesRight and duty are both co related every right corresponds to

a duty when u has a right you must also perform a duty. Pollutionfree environment is a fundamental right of a citizen and that but

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also implies that the citizen shall also have a corresponding dutynot to pollute or cause any harm to the environment.10 TheConstitution (Forty-Second Amendment) Act, 1976 added a newpart IV-dealing with “Fundamental Duties” in the Constitution ofIndia11. Article 51-A (g) specially deals with fundamental duty withrespect to environment that: “It shall be the duty of every citizenof India to protect and improve the natural environment includingforests, lakes, rivers and wild life and to have compassion for livingcreatures”. Article 51-A (g) refers to the fundamental duty of everycitizen to protect and improve “natural environment”. But in thepresent days the pollution is caused not only by exploiting the“natural environment” but otherwise also. Nature has given us thegift of pollution free environment. The fundamental duty imposedon every citizen is not only to “protect” the environment from anykind of pollution but also to “improve” the environment quality ifit has been polluted. So it is the duty of every citizen to preservethe environment in the same way as nature has gifted it to all ofus12.

Judiciary and EnvironmentOver the years the judiciary in India has played a very

important role protecting and promoting the natural environmentof India. From the various judgements that were passed by thejudiciary in India, one can very easily understand the role playedby the judiciary in the preservation of nature and protecting itfrom various types of encroachments. In this part some of theimportant judgements of the various courts shall be mentioned tohighlight the role of judiciary in protecting the environment inIndia.

The judiciary in India has on many occasions has held thatright to live is a fundamental right under article 21 of theConstitution and it includes the right of enjoyment of pollutionfree water and air for full enjoyment of life13.

On September 3 this year, the principal bench of the NationalGreen Tribunal (NGT) at New Delhi passed a landmark judgmentthat, for the first time, brought important principles of townplanning within the scope and jurisdiction of the NGT. In itsjudgment in the matter of Sunil Kumar Chugh v. Secretary,Ministry of Environment and Forests, New Delhi, Appeal No.66 of 2014, the NGT held that open spaces, recreational groundsand adequate parking facilities in buildings had an important

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bearing on the right to life of people14.

A division bench of Uttarakhand High Court has declared thatrivers Ganga and Yamuna, all their tributaries, streams, everynatural water flowing with flow continuously or intermittently ofthese rivers, as juristic/legal persons/living entities having thestatus of a legal person with all corresponding rights, duties andliabilities of a living person.

The bench opined that there is utmost expediency to give legalstatus as a living person/legal entity to rivers Ganga and Yamunar/w Articles 48-A and 51A (g) of the Constitution.

“All the Hindus have deep Astha in rivers Ganga and Yamunaand they collectively connect with these rivers. Rivers Ganga andYamuna are central to the existence of half of Indian populationand their health and well being. The rivers have provided bothphysical and spiritual sustenance to all of us from time immemorialRivers Ganga and Yamuna have spiritual and physical sustenance.They support and assist both the life and natural resources andhealth and well-being of the entire community. Rivers Ganga andYamuna are breathing, living and sustaining communities frommountain to sea”15

In Charanlal Sahu v. Union of India the Supreme Court ofIndia held that, in the context of our national dimensions of humanrights, right to life, liberty, pollution free air and water isguaranteed by the Constitution under articles 21, 48–A and 51 – A(g). It is the duty of the State to take effective steps to protect theguaranteed Constitutional rights16

In A.P. Pollution Control Board (II) v. Prof.M.V.Nayadu theSupreme Court stated that the rights to healthy environment andto sustainable development are fundamental human rights implicitin the right to life. Our Supreme Court was one of the first Courtsto develop the concept of “healthy environment” as part of right to“life” under Article 21 of the Constitution.17

In Subhash Kumar v. Bihar18 the apex court has held thatenjoyment of pollution free environment is included in the rightto life under Art 21. The court has observed:

“Right to live is a fundamental right under article 21 of theConstitution and it includes the right of enjoyment of pollutionfree water and air for full enjoyment of life. If anything endangersor impairs that quality of life in derogation of laws, a citizen hasright to have recourse to article 32 of the Constitution for removing

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the pollution of water or air which may be detrimental to qualityof life19.

In M.C Mehta v Union of India20 which is popularly known asoleum gas leakage case, the Supreme Court once again impliedlycame to recognize the right to live in pollution free environmentas a part of fundamental right to life under article 21 of theConstitution of India.

In MC Mehta v. Union of India held that: “In order for thehuman conduct to be in accordance with the prescription of law itis necessary that there should be appropriate awareness aboutwhat the law requires. This should be possible only when stepsare taken in the adequate measures to make people aware of theindispensable necessity of their conduct being oriented inaccordance with the requirements of law21.

The Andhra Pradesh High Court in T Damodhar Rao v S.OMunicipal Corporation22 declared that:

It would be unreasonable to hold that the enjoyment of lifeand its attainment and fulfillment guaranteed by article 21 of theConstitution embraces the protection and preservation of nature’sgift without which life cannot be enjoyed. There can be no reasonwhy practice of violent extinguishment of life alone should beregarded as violative of article 21 of the Constitution. The slowpoisoning by the polluted atmosphere caused by environmentalpollution and exploitation should be regarded as amounting toviolation of article 21 of the Constitution of India23.

In Enkay Plastics Pvt. Ltd. Vs. Union of India (UOI) and Ors24

the High Court upheld the order of the Delhi Pollution ControlCommittee for closure of certain polluting industries, industries,and held that the direction direction of close down the industryindustry which is creating air pollution in residential areas.

Thus, it can be seen that the higher courts in India have playeda significant role in the protection and preservation of environment.The courts by playing a role of activist have made considerablechanges in the field of environmental protection. The right toenvironment has been elevated to the status of a fundamental rightby the courts in India and thereby tried to ensure that this right isnot violated by anyone under any circumstances.

Conclusion and Suggestions:Nature is the creator and reservoir of all natural resources on

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which we all are dependent. The preservation, protection andproper utilization is the primary duty of all of us. Human beingscannot survive without oxygen and for purity of oxygen we needtrees. We all are aware of these facts the government has alsotaken initiatives to make people aware of these situations but stillthe problem og environmental degradation is a persistent problemin India. The people need to understand their duties andresponsibilities towards nature. There may be different reasonsfor the problem of environmental degradation in India and onesuch reason is:

(i) Moral degradation has to some extent has contributed to thisproblem of environmental crisis. Mans urge for more, his greedfor wealth and means of comfort resulted in the destruction ofNature. other aspects will include

(ii) (ii) Rapid industrialization and urbanization is another factorfor environment degradation

(iii) (iii)Lack of proper planning and coordination of variousgovernmental departments in various developmentalactivities. May be if we can create a proper environment andnot just educatethem but actually making them realize withpractical exposure about the importance of nature them maybe we will be able to deal with the problem of environmentaldegradation. Further on the part of the government Creatinga single authority having representation from various depttsuch as urban planning, environment and forest, health andsanitation, PWD, power and electricity, and leading NGO’s andconcerned local authority etc for clearing developmentalprojects will definitely play a positive role in balancingdevelopment and environmental protection.

Thus, we need a proper vision for the future course of actionfor safeguarding the environment. Indian legal system is a basketfull of laws and we have enough laws relating to different aspectsof environmental protection but even then we have not been ableto deal with the situation as we would have liked it to be. There isa serious need of introspection of our self that where we are lacking.Is it the government, the people, the laws or the enforcementmachinery or all who is responsible for such a situation? In theanswer to this question lies the faith of our future generations.

Lastly in the words of Ross Perot:“The activist is not the man who says the river is

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dirty.The activist is the man who cleans up the river”.

References:

1. Judge C.G.Weeramantry at the inaugural meeting of the WorldFuture Council held in Hamburg on 9 -13 May 2007, publishedin Asian Tribune by World institute of Asian studies.

2. Singh K.R, Environmental law, University book house pvt ltd,Jaipur, 2011, p22

3. Upadhyay.R.J.J, Environmental law, Central law agency,2010,Allahabad

4. (1991) 4 SCC 54

5. Supra ft n 3

6. Jain, M.P, Indian Constitutional law (2008) Lexis NexisButterworths wadhwa,pp 1137-1139

7. Ibid

8. AIR 1996 SC 2718

9. http://pib.nic.in/newsite/PrintRelease.aspx?relid=105411accessedon 08.11.17 at 9:06 p.m

10. shodhganga.inflibnet.ac. in/bitstream/10603/76685/9/09_chapter%202.pdf accessed on 08.11.2017 at 8:39p.m

11. Sec 11 of the Constitution (Forty-Second Amendment) Act, 1976w.e.f 3.1.1977.

12. P.S. Jaswal and Nishtha Jaswal, Environmental Law, 45(Allahabad Law Agency: Haryana, 3rd Edn. 2009, Reprint 2012).

13. A.I.R 1991 SC 420

14. Down to Earth, Friday 13th November 2015

15. Mohd Salim vs State of Uttrakhand and others WP (PIL) No126 of 2014, accessed at Livelaw.in on 25th October 2017.

16. (1990) 1 SCC 613

17. (2001) 2 SCC 62 at 70-71

18. AIR1991SC 420

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19. Jain, M.P, Indian Constitutional law (2008) Lexis NexisButterworths wadhwa, P 1138

20. AIR 1987 SC 1086; See also AIR 1987 SC 965

21. AIR 1992SC 362

22. AIR 1987 AP 191

23. Upadhyay.R.J.J, Environmental law, Central law agency,2010,Allahabad, p.50

24. 2000(56)DRJ828

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14RELATIVE ECLECTIC ALUSIONS ABOUT THE

ENVIRONMENTAL REFUGEE

Paula Honorato

When we approach the issue about environmental refugees, in themajority of the cases, it is addressed from the International Lawperspective. That is, how we define the concept as such, theconditions in which a person would be under this specific category,the possible position that countries have taken in relation to theseimmigrants, and the level of commitment and the responsibilitythat exists in regards to the effects of climate change. However, inregards to the human aspect, such as dignity, the possible conflictsthat the situation may bring forth, the relationship and conflictsbetween local communities and the native indigenous populationwho are gravely affected, is generally forgotten. Their contributionto the conservation of the ecosystem through their traditionalknowledge is just as relevant as the effort that each Governmenthas put forth in the struggle against climate change. Due to this,we have made an analysis that is eclectic, but that considers all ofthe relevant aspects of the current environmental condition.

In order to understand the phenomenon and the situation inwhich environmental immigrants or eco-refugees live, we mustfirst understand their way of life. Thus,we must take intoconsideration their environment, including their culture, dailyactivities, family ties, interpersonal relationships, daily tasks, andwork, just to mention a few.

From another perspective, we must consider climate change,whether it is caused by human activity or by nature, as a natural

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force that has an immense impact and that brings forthunimaginable needs at times when there is a natural catastrophe.

But why should we analyze these elements? By studying thesurroundings in which displaced people live and who are affectedby this type of immigration, though voluntary; we must understandthat they are in some way obliged to do so, due to external causeswhich will be explained later on. Understanding their environmentwill also help us comprehend the way these people’s lives areimpacted by theirrelocation.

On the other hand, although climate change is evidencedthrough phenomena which are represented by the force of nature,it is in some authors’ opinion1 that it is ultimately caused by theeffect that humans have had on Earth for over hundreds of years,and through our modification of our surroundings, our overproduction and by our constant search for a so-called “improved”way of life.

Likewise, it is necessary to point out how governments havegenerally reacted when they have been confrontedby this type ofsituation, such as when they are affected byeithera naturalorman-made catastrophe that has affected their country and whichhas resulted in the mass relocation of people or, when in turn,they have been requested to accept people as refugees.

Within, we will indicate what would be the current tendenciesin regards to the waythat different legislations considerappropriate forthis subject to be addressed,while keeping inaccordance with their internal regulations.

Another characteristic to consider, when addressingthissubject,is the human aspect, as well as the conditions whichshould emerge when a country decides to open its borders to thistype of immigration. Basic dignity must be guaranteed whenconsideringwhat must be put into effect in order to receive theRefugees,as they are human beings that are in need.

It is also significant to note that within the group of refugees,there are groups that are believed to be in a higher state ofvulnerability due to their particular position in society; by this wewould like to make mention of the native inhabitants and localcommunities who have therefore been considered specifically byinternational legal regulations.

These international regulations are of vital importance to thenative inhabitants, not only because they have been put in place to

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protect them, but also because they recognize their contributionto the conservation of natural recourses. Thus, recognizing themas an important agent in the protection of the ecosystem; the sameone that we aim to protect considering that our life depends on it.

Yet, we have only been able to understand this in the past fewyears, and have beenlate to react given that many species havealready vanished from the face of the Earth, and with many morethat are currentlyon the endangered species list, as we will discussfurther on.

It is also important to note that many of these species alsocollaborate in the defense and preservationof our ecosystem andthat no matter the size of the species in question, we should valueits contribution towards the proper functioning and balance ofnature.

Therefore, if we take into consideration a sustainabledevelopment as our main objective in the conservationof our planet,we must impose on ourselves the obligation of safeguarding allspecies, because by keeping with this premise, future generationscould experience an equally rich or in fact possibly a betterenvironment than we.

In order to demonstrate these ideas, we will try to addressthese environmental issues in a broad sense, to later analyze themas related to Chile, keeping in mind that it is a country rich innatural resources, that itpossesses a diverse population,includingnative inhabitants with varying traditions, cultures andabove everything, knowledge.

As for its ecosystem, this country has an abundance ofimportant endemic species, all ofwhich generate an importantprospect of environmental conservationism.

It is for the above reason, that we have considered exposingthe case of a particular species in Chile which is currentlyendangered due to our intervention in their habitat.

We will therefore first proceed with presenting theenvironmental issue and its effect on environmental immigrants.Later, its relationship with the communities that could primarilybe affected, and finally we will examine the case of theRhinodermadarwinii, as an example of a species that like man,has been impacted by climate changedue to our anthropocentricuse of the Earth and its resources.

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To introduce and place ourselves in front of the eco-refugeeproblem, we will begin by describing report N°3 from 1990. Thisarticle was presented by the Intergovernmental Panel on ClimateChange2, who has made public, giving details about the diverseimpact that occursas a consequence of climate change, such as theeffects it has had on soil, water and air quality; presenting theseas determining factors that could cause a large migration ofpopulation.

As in the case of natural disasters, especially those of a largemagnitude and that generally bring along the displacement of fullcommunities or a large number of people, given that by losing theirhomes and surroundings, they must relocate in order to find similarlocations where they can find living conditions equal to what theyhad before the environmental catastrophe occurred.

As an example, we can take the case of Sumatra, Indonesia,The Maldives and Sri Lanka which were all struck on December26th, 2004 by a large Tsunami recorded as being 9.0 on the Richterscale and whose effects were devastating, leaving evidence of thevulnerability of their population3.

Cases such as these, as well as a slow but progressivedegradation, have caused human migration throughout history.Once the resources in the ecosystem can no longer be used, orwhen they are no longer capable of satisfying the needs of thepopulation, or when there has been a large change in the currentsituation, displacement has always been inevitable since thebeginning of time.

From this standpoint, it is possible that a community who onceoccupied a certain territory adapts to the acquired site4, developingnew implements in order to continue responding to their needs.They may also decide to relocate to a new territory where theycan find all of the resources needed for their lives to continuedeveloping in a normal way.

This situation has been present throughout history and hasforced certain populations to uprootto new areas where they candevelop their daily lives without major difficulties.

However, what happens when a community that has establisheditself or has settled in a location and has grown accustomed to itssurroundings, is obligated to find a new place to livedue toenvironmental causes? What happens when these people don’t havethe possibility to settle in a new place in order to continue with

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their activities and occupations?

What happens when a community that finds itself in asituation of need, is not able to find shelter under the protectionof another country because there have not been any relatedmeasures taken, leaving the community in a state of illegality?

These people go from having a nationality, a culture, anupbringing, having knowledge, family relations, etc., to becomingan illegal alien that has nothing and that in many cases receivesunworthy and discriminatory treatment.

In regards to this, it is important to mention that in 2014 therewere 19.3 million people who were obligated to leave their homesas a result of catastrophes that were categorized as “not-sonaturaldisasters” and that between 2008 and 2013; 165 millionpeople had left their homes, migrating to other cities.

According to the annual “GlobalEstimates” report from theNorwegian Refugee Council, in the majority of the cases, thedisplacement has been internal. Similarly, the UN has reportedthat “around 150 million climate refugees will have been displacedby the year 20505”.

Within the complex condition in which these people are forcedto live, another dilemma arises in regards to what to do with thisgroup and how to find a solution for them. In the presence of this,in general and according to the analysis made of the situation,there are three different approacheswith which nations willaddress the subject that will be according to the causes or originsof the displaced eco-refugees.

The first approach would be to try and ponder over thephenomenon, considering it under a governmental point of view,where a government is considered to be responsible for the creationand the implementation of the public policies that are to resolvethe matter.

A second course is to treat it solely as an environmentaldilemma that consequently should be dealt with through measuresaimed at avoiding the degradation of the ecosystem.

The last position is a combination of the previous twoapproaches; where a special legislation should be created, giventhat it addresses the existence of Eco-refugees as an environmentalissue that arises as a consequence of global warming and climatechange.

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But because they bring about relevant social side effects, theyshould be included in government policies in order to give solutionsand ultimately provide a legal status to people who have beenuprooted and obliged to relocate from their territories due toenvironmental disasters.

We must take into consideration that one of the difficultiesthat these communities confront is that nations are not obligatedto create mechanisms nor actions towards giving asylum to thesetypes of immigrants. Therefore, when the situation arises, thearrival of these refugees is perceived negatively and is notunderstood.

It is still difficult for some to put themselves in the place ofthese people who have lost everything abruptly as in the case ofnatural disasters or when the loss has been gradual as in the caseof the degradation of the ecosystem which is a slow process.

Moreover, another disastrous consequence of thesedisplacements, according to other authors6, is that onceenvironmental degradation has taken place and the communityhas been obligated to uproot, there is a possibility that this couldcreate a legal conflict.

Additionally, if the relocation were to be in the territory ofanother nation, this could degenerate into a war between the twonations.

On the other hand, from an International Law standpoint, thediscussion about the use of the term environmental refugee arises7,due to the fact that it alludes to the nature of a refugee strictlyspeaking, that is to say on how it was conceived by the GenevaConvention, which imposes specific requisites in order to activatetheir protection and that do not necessarily coincide with that ofthe Eco-refugee.

As a result of and in order to avoid discussions around theaccession of international instruments destined to protect refugees,it is imperative to create a different legal status for the “displacedor environmental refugees”.

By doing so, not only does the issue about how to treat thesecases on a national level emerge, but also in an internationalsetting, that is, referring to the status that these people shouldreceive in order to receive refuge.

Owing to this, ideally a special legal category should exist,because within the international instruments which are currently

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in place, sufficient protection is not contemplated for people whofind themselves in this particular situation.

In regards to the creation of special legislations, it would firstbe necessary to shape the definition, or what is understood by theterm “environmental, climate or eco-refugee” or however it isnamed.

The need for such a definition would serve to standardize theelements that constitute such a state, as well as, helping to establishwhen a person is considered to be under that condition and requiresmore than just legal protection, but rather comprehensiveprotection from the other nation.

Concerning the elements that should be present when defininga person as an environmental refugee, we must first acknowledgethe fact that the person has been forced to uproot, for externalreasons that are caused by a change to their environment,originated by either a natural disaster or by the intervention ofman and which makes it impossible to live in the affected area, orperhaps, it does permit them to stay, but is so poverty-strickenthat it does not provide for their basic needs.

We must also add that one of the difficulties that should beavoided when formulating the definition of “EnvironmentalRefugee” is that of being too restrictive, thus, risking the possibilityof leaving people, who are in fact eco-refugees, without legalprotection.

Reversely, if the definition is too broad, there is a risk ofaccepting too many cases, leaving an “open door” to a large quantityof people that could be received under the designation ofenvironmental refugee, without in fact being one.

Another concern, within this same frame, is if that if thecircumstances in which a person is considered to be fit for receivingthe an environmental refugee status have been established, It issimilarly important to determine responsibilities8, the causeswhich have been clearly established in the Principle of InternationalEnvironmental Law, within the “Polluter Pays Principle” (PPP)setting as well, the way it must take responsibility9.

This mechanism could help ascertain whether theresponsibility should be assumed through public policy or under aspecial environmental regulation.

It is important to point out that in regards to the motives forimmigration; authors generally classify these as being due to

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environmental reasons; strictly speaking, because of situations suchas the exhaustion of natural resources, natural disasters andenvironmental causes due to human interference.

Within these last cases, we can mention urban expansions,industrial accidents and environmental damage from militarysources10, etc.

As a result, we make the distinction betweenclimate changesasa product of nature or as a byproduct of man, although, in practiceit is sometimes difficult to immediately determine the origin ofeach one.

From this standpoint, the causes of environmental migrationscould help, in turn, to determine who the competent authority fordeciding the grounds under which a particular person should begranted “environmental refugee” status is.

Relative to these same grounds, we must take into accountthat within the concerns for establishing this type of refugee,measures should also be taken towards the conservation andrecovery of the damaged environment.

Moreover, and if at all possible, we should tend towardsachieving a sustainable Development of countries while taking intoconsideration that we are dealing with an already harmedecosystem; keeping in mind that our main charter, the constitution,declares that we possess the right to live in a clean environment11.

Onthe other hand, as noted earlier, if the displacement ofenvironmental migrants exists, there could also be a conflictbetween them and the citizens of the country into which they enter.

Due to this, it is important that within the public policiesestablished by a nation for there to be specific regulations for thereception of these migrants. Thus, they must stipulate a plannedreintegration that is organized under a comprehensive point ofview that is, not only considering the physical location that will bearranged, but also taking into consideration the services that willbe available to them which should include health, food, education,etc.

The purpose of this is to provide those who have been relocated,to have similar living conditions to what they had, in their previouslocation, prior to the depletion of the ecosystem.

In regards to the above, it is also important to state thatifrefuge isgiven to an environmental migrant, and if the personcannot find employment within the local job market; for the

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government or local official, responsible for their relocation, toconsider a procedure for their reinsertion into the job market.

These procedures shouldalso include training or skilldevelopment with the objective of being able to find job placementin the new market; because we should understand that there maybe a cultural, social, differences in the way of working, etc.

In reference to this, and keeping in mind that in accordance tothe prediction made by theNGO,Christian Aid, in 2007, that “therewill be at least 150 million climate refugees by the year 205012”.

Therefore, the creation of specific legal statutes, forenvironmental immigrants, would be an ideal tool, if and when itwere able to insure basic living conditions for these refugees;likewise, we should consider that if there are floods, the rise insea levels, salinization, land erosion, high risk storms ordesertification due to anthropocentricreasons, it is our soleresponsibility to answer for the refugees because of ourunsatisfactory administration of the Earth’s natural resources, notto mention our limitless overconsumption.

Continuing with our reflection, as we have mentioned before,there are certain groups of people that in the case of climatechange, whether it be gradual or drastic as in the case of a naturaldisaster, who find themselves in a higher state of vulnerability.With this we would like to refer in particular to the situation whichour original inhabitants endure.

For this we will take as an example the Mapuche communityin Chile; we should mention that these indigenous people inhabitedour territory before the Spanish colonization.

Unfortunately, many of these tribes have now disappeared asin the case of the Caucahué, Picunches, Changos, Selk´nam,Aonikenk, Cuncosand Chonos; while other populations have beenreduced significantly due to illness, wars or due to their integrationinto western culture, thus abandoning their way of life, culture,their traditions and roots.

Today, within the original inhabitants that we can still find inour national territory and being officially recognized, are theAimaras, Diaguitas, Atacameño, Quechuas, Rapa-Nui, kollas,kaweskar and Yaganes as well the Mapuche tribe, one of the mostnumerous indigenous groups and of which we will refer to withmore detail.

Conversely, Chile is currently going through a process of

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appreciation of worldviews, in particular the worldview of theMapuche peoples13, considering their way of interpreting the world,as we are beginning to understand thatthe traditional knowledgeof these indigenous inhabitants has served as a key tool in theconservation of the ecosystems.

However, what has happened historically in regard to westernsocieties? What is our concept of nature? In general, we understandit as a resource that is in our service, we can explain this throughour anthropocentric vision, in which we situate ourselves in thecenter of everything and where everything that surrounds us isours, consequently we can manage it as we please.

Incidentally, our management of resources has been quitedeficient, if we take into account that due to our actions throughoutthe years, we are facing the shortage of some resources today.Because of this, there are some groups that are obligated to fleeand abandon their homes; others have been forced to migratebecause of the lack of water that allows them to survive.

As a consequence, our planet that is considered a sacred placefor the original inhabitants has turned into a place of desecration.We can, in this way, see that although we are advancing intechnology, without natural resources, our life on this planet iscondemned to disappear; both the life of the planet and ours alongwith it.

It is because of this, that we have begun to modify our visionduring recent times, going from an anthropocentric view, to anecocentric view and in some cases even abiocentric view.

Understanding, that in the last, nature gains relevance overhuman life, given that it allows man to live on Earth. It is alsovalued as a place of worship and spirituality, seeing it as divineand it is according to this belief that the indigenous peoples havedeveloped and have lived.

According to their worldview, the environment in which welive does not belong to us, but rather we are borrowing it from ourfuture generations. The traditions that guide their actions havealways been present, even before the Spanish colonization process.Today, we understand this as “sustainable development”.

Yet, within our society in which we classify ourselves as“civilized”, we have only been able to coin that concept since theStockholm Declaration of 1972. However, until a few years ago,our development has still been less than sustainable one and more

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of one of consumption.

We, as a society, have perceived the indigenous population asa group of people who live on reservations and therefore, we mustkeep an eye on them, since, we have believed erroneously thatthey may cause damage to our ecosystem. However, if we analyzeand reflect overouractions we will notice that these populationslive in harmony with the ecosystem.

Its members (the Mapuche community) receive what natureprovides them, without putting pressure on it in order to satisfytheir need for consumption, or rather, over consumption.

We, on the other hand, put large pressure on nature, so that itcan produce in relation to our needs, which were and areexaggerated. Therefore, it is clear that we, unlike the nativeinhabitants, do place such pressure on nature.

It is in regards to these differences,that there has also been achange in the situation of the native peoples in regards tointernational subjects. However, if the Indigenous and TribalConvention article n°107of the ILO, proposed that they should betreated as a group that needed to be inserted into society (or ratherassimilated) it nonetheless, tried to impose on them westernculture and values, over their own.

After this Convention, we have passed over to the Indigenousand Tribal Convention within an Independent Country N°169, thatwas held by the International LaborOrganization in 1989, of whichChile is a member since 2008. In this convention,we can clearlysee that the idea of “integration” no longer exists, but rather arespect towards the culture and traditions possessed by them andthat have an innate value. Furthermore, it recognizes theircontribution to “human ecology”14 in the prolog and within variousarticles.

What’s more, this document recognizes the “sacred”relationship that these peoples (native inhabitants and localcommunities) are able to have with the ecosystem in art. 13, whichexpresses: “In applying the provisions of this Part of theConvention, governments shall respect the special importance forthe cultures and spiritual values of the peoples concerned of theirrelationship with the lands or territories, or both as applicable,which they occupy or otherwise use, and in particular the collectiveaspects of this relationship.”

In this same sense, The Convention on Biological Diversity

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and The International Union for Conservation of Naturerecommend:”The incorporation of an adequate recognition inrelation to indigenous territories of conservation as well ascommunity conserved areas”, because, there is evidence that thesecommunities have represented an important contribution towardsthe conservation of the biodiversity in the areas where they live.

Related to this, we should keep in mind that in accordancewith the worldview that the Mapuche community has, there is a“sacred” relationship with our surroundings and our ecosystem.Within this view, man is just one more life in our planet, and wehave the responsibility to protect and conserve it.

It is thereforeunderstood that there is, or there should be, abalanced existence; living in harmony with the Earth.

In this way, we consume only what the earth has to offernaturally is, and there is a constant value put on traditionalwisdom, which is transmitted from generation to generation. Atthe same time, this knowledgehelps us understand and face ourcurrent reality.

It is important to mention that within our evolution as asociety, there is more and more importance placed on technologyand the different scientific advancements. However, at the sametime we are distancing ourselves from that unique character thatdefines us, that is, “our traditions”.

These are the customs, uses, values and knowledge, chargedwith sociocultural moral codes, and which are considered worthpreserving.

Consequently, today these traditions require legal protectionin order to assure their continuity and in this way, tend towardsthe conservation of our ecosystem.

Therefore, it is no longer natural for this wisdom to be passedon from “father to son”, being that technology is winning over thistype of communication, with the speed that a digital implement isable to provide us with the information that we are seeking.

However, these traditions, along with helping us pass alongimportant wisdom, are enriched with values that are not part ofthe digital or technological world.

Consequently, if these traditional wisdoms are no longertransmitted, it is of utmost importance that a legislation associatedwith the protection of the environment should also be focused on

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having legal protection of this knowledge; especially, if thesewisdoms are considered to be fundamental elements in theconservation of our biodiversity and our sustainable development.

We should therefore understand that the environment, inwhich we live in, becomes an important plight for these peoples, aplight that it is both social and cultural and which has in its centerthe defense of this place that is sacred to them.

For us, this land is inherited from our ancestors and we simplyregard it as property. For them,the indigenous peoples,on theother hand, it is called earth or “pacha mama”, and is consideredby them as the home that shelters us all.

In this way, when the native inhabitants are displaced fromtheir lands and resources, this situation is not only experiencedas a loss of goods or of profits, as it would be for us. It is experiencedeven further because of their relationship with the life thatsurrounds them andthey connect with it in a sacred sense,therefore, the loss of their land also means a spiritual and ecologicalloss.

This can be appreciated through the following words:“The Mapuche conceive that all animals, plants, rivers, hills

and humans have souls; one that gives them life and breath. Youcan’t use what is WenuMapu Chau without first asking forpermission and making a prayer. A Mapuche mother teaches herchildren that Chau Ngenechen should be thanked and should beoffered the first harvest of the year to repay what it has given them.”

quote by Armando Melineo, Lonko (tribal chief) from PuertoSaavedra, Chile included in the book “Introduction a lareligiosidadmapuche” [Introduction to the Mapuche religiousness]by Rolf Foerster.

We need to become aware of the fact that the planet is not atour service and that our consumption is not a real necessity, butrather one that is falsely imposed.

Therefore, as an example, in the South of Chile native speciesare being replaced by eucalyptus and pine trees, since these growfaster and in that way can satisfy these supposed needs, which inthis case is to obtain wood and paper. Unfortunately, byincorporating these trees, the habitat of other life is being modifiedin these forests.

Modifications that also influence climate change, since man

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has intervened in nature’s natural cycle, in order to obtain profitthat only enriches him.

In regards to the Mapuche people, they are impeded fromaccessing medicinal herbs because the trees where these grow nolonger exist due to the replanting of pine trees, causing the acidityof the ground; making it impossible for these valued plants to grow.

Likewise, and as we have mentioned previously, we will nowmake mention of the Rhinodermadarwinii, colloquially known asthe Darwin’s frog. Today,it has seen its existence affected due tothe modification of its ecosystem through the intervention of manand our inadequate management of the world’s natural resources.

This being an example of a living creature that contributes tothe functioning and balance of the ecosystem in which it lives, yetitspopulation is in decline and endangered due to the modification oftheir habitat because it is being used for cattle, agriculture andalso for tree plantations15.

Keeping in mind that we continue putting our economic needsbefore the needs of those that allow us to live now and that willmake our future generations’ lives possible in the future. We mustunderstand that technological advances and the digital era do nothave the ability to bring back species that are now extinct.

It is because of that, that we must value the knowledge of ournative inhabitants and understand that although we wronglybelieve that the Earth is at our service and disposal, without theknowledge of our natives, the Darwin’s frog, like many otherspecies, may disappear if we do not recognize the relevance thattheir traditional beliefshave.

In brief, we must try to understand that the migration that isbeing witnessed in different communities, which have been affectedby climate change, is not an isolated incident. A definite cause canbe found in the relationship between the smallest organism in theecosystem and the modification of its habitat, etc.

When represented on a large scale, we are able to see that thecauses of climate change generate a series of effects that we havenot yet been able to manage, and that bring as a consequence thedisplacement of an uncountable amount of people who are seekingan untouched habitat that is becoming more inaccessible and scarceto find.

(Footnotes)

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1The influence of man on the climate system is clear’, 5th scientificreport published on Friday 27 September of 2013, IPCC

2Climate Change: The 1990 and 1992 IPCC assessments, FirstAssessment Report of the IPCC, General Summary, and thesummaries for Policy and Supplementary Officers of the 1992IPCC. Climate change: The 1990 and 1992 IPCC assessments;World Meteorological Organization (WMO), United NationsEnvironment Program (UNEP), Intergovernmental Group ofExperts on Climate Change (GIEC), June 1992

3"... The earthquake and subsequent tsunamis that swept acrossthe Indian Ocean on December 26, 2004 will be rememberedas one of the worst human tragedies in history. These naturaldisasters caused more than 200,000 deaths and destroyed thelivelihoods of some 5 million people in Southeast Asia and EastAfrica. “After the Tsunami: Towards a coordinated forest sectorresponse, FAO documents, online: http://www.fao.org/docrep/008/y6006s/y6006s14.htm

4As is the case of the Arkavathy sub-basin (south of India) and thewatershed of Darjeeling (northeastern India), where short-term adjustment measures have been applied, as well asadaptation strategies, “Adaptation (IDRC), online: https://www.idrc.ca / fr/project /adaptation-aux-changements-climatiques-des-bassins-versants-en-cours-durbanisation-0

5"According to the most optimistic forecasts, about 250 millionpeople will be displaced by the middle of this century becauseof extreme weather conditions, declining water supplies anddegradation of agricultural land,” he said. precise. This meansthat the number of displaced people will increase by at leastsix million a year due to climate change “, UN News Center,on-line: http://www.un.org/apps/newsFr/ storyF.asp? on-line:h t t p : / / w w w . u n . o r g / a p p s / n e w s F r /storyF.asp?NewsID=17960#.WdTz6VuCzIU (04-10-2017)

6Homer-Dixon T.F., “Environmental Scarcities and ViolentConflict: Evidence from Cases”, International Security, 1-19,1994, pp. 5-40.

7Environmental change and Forced migration. A state of the artreview. Refugee studies centre, James Morrissey, on-line:https://www.rsc.ox.ac.uk/files/files-1/dp-environmental-change-

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forced-migration-2009.pdf (04-10-2017)

8Chapter I The polluter-pays principle in international law. P.311-329. Legal transcriptions of the polluter-pays principle, Elzéarde Sabran-Pontevès

9Vlassopoulos C.A “Institutional barriers to the recognition andassistance of environmentally forced migrants” in Afifi T.,Jagger Environment, forced migration and vulnerability,Springer-Verlag, Berlin and Heidelberg Gmbh& co, 2010.

10The role of environmental degradation in populationdisplacement

, Environmental Change and Security Project Report, Issue 4(Spring 1998): 5-15,Steve Lonergan

11Article 19 n ° 8 Political Constitution of the Republic of Chile“The Constitution guarantees all persons: ... No. 8.- “The rightto live in an environment free of pollution. It is the duty of theState to ensure that this right is not affected and to protectthe preservation of nature. “

12Human tide: The real migration crisis, A Christian Aid Report,may 2007, on-line: https://www.christianaid.org.uk/Images/human-tide.pdf (04-10-2017)

13House (National Congress) approved project creating nationalcouncil of indigenous peoples and village councils, Chamber ofDeputies of Chile, June 20, 2017, on-line: https://www.camara.cl/prensa/noticias_detalle.aspx?prmid=132270 (04-10-2017)

14The Indigenous and Tribal Peoples Convention n 169, The GeneralConference of the International LabourOrganisation

15HUILO-HUILO, The Southern Biological Reserve of the World,Darwin Conservation Ranita, On-line: https://huilohuilo.com/fundacion/conservacion-ranita-de-darwin/ (04-10-2017)

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15SUSTAINABLE APPROACH ON HABITATS

FOR WILD ANIMALS: INDIAN ANDINTERNATIONAL PERSPECTIVES

Dr. Partha Pratim Mitra

I. INTRODUCTIONThe latest IUCN World Parks Congress in 2014 in Sydney

addressed the challenges facing the planet, through protected areaapproaches that respect and conserve nature, while benefittinghuman health & prosperity and also recognized the rebalancing ofrelationship between human society and nature is essential.1

Protected areas now cover 15.4% of the planet’s terrestrial andinland water areas, 3.4 % of the oceans and 8.4% of all marine areaswithin national jurisdiction (0-200 nautical miles). Only 0.25% ofmarine areas beyond national jurisdiction are protected.2 In India,due to continuous pressures of the human population over thenatural habitat, Wild animals are now struggling for their existencelike other parts of world. Shrinkage, fragmentation anddeterioration of habitats have led the destruction of wildlife andgenerated conflict between man and wild animals. Endangeredwildlife species and their habitats are coming under increasingpressure from a variety of social forces; consumer, urban andindustrial interests for minerals, water, power, forest productsand even recreational use.3 Then Laws relating to wildlife havealso developed the status of Protected Areas including ReserveForests, Sanctuaries and National Parks as animals depend greatlyon their habitat mainly forests, grasslands, wetlands, water bodiesand other natural shelter. Protected areas can also provide an

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opportunity for rural development and rational use of marginallands for conservation education, recreation and tourism.International Union for Conservation of Nature and NaturalResources (IUCN) describes a Protected Area as an area of landand/or sea especially dedicated to the protection and maintenanceof biological diversity, and of natural and associated culturalresources, and managed through legal or other effective means.Again as per Article 2 of Convention on Biological Diversity, 1992,‘Protected Area’ means a geographically defined area which isdesignated or regulated and managed to achieve specificconservation objectives. Again IUCN’s Commission on NationalParks and Protected Areas (CNPPA), a leading internationalscientific and technical body, has categorized mainly eight typeslike, Scientific Reserve, National Park, Natural Monument/National Landmark, Nature Conservation Reserve/ManagedNature Reserve/Wildlife Sanctuary, Protected Landscape orSeascape, Resource Reserve, Anthropological Reserve/NaturalBiotic Area and Multiple Use Management Areas. After World WarII most of the countries have developed concepts of protected areas.In 2000, nearly 30,000 Protected Areas covering 13, 250, 000 sq kmof the land surface of the world, smaller proportion of the world’sseas (barely 1%), are protected for biodiversity.4 The primecondition for conservation of wildlife is the legal protection of theirnatural habitats in the ecology for better survival.

II. CONSERVATION OF PROTECTED AREASIUCN used ‘conservation’ in its preamble as conservation of

nature and natural resources involve the preservation andmanagement of the living world, the natural environment ofhumanity and the earth’s renewable natural resources on whichrests the foundation of civilization in 1956. Legally, Conservationmeans the supervision, management, and maintenance of naturalresources; the protection, improvement, and use of naturalresources in a way that ensures the highest social as well aseconomic benefits.5 Again, In-Situ Conservation meansconservation of plants and animals within their own ecosystem orhabitat where they are originally situated like, National Parks,Reserved Forests, Sanctuaries, Game Reserves, Protected Areasand Biosphere Reserves etc but in-situ conservation is very muchcost effective. Ex-Situ Conservation means conservation of livingelements outside their own ecosystem or habitat and those areconserved in Botanical Gardens, Zoos, Deer Parks, Aquarium,

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Gene Banks, Seed Banks, and Safari Parks. Protected areas makea vital contribution to the In-Situ Conservation of natural resourceswhere various species of wildlife can survive.

As per Professor Gillespie, the first notable occurrence wherehabitat was protected, so as to protect the targeted species, wasthe Convention between the United States, Great Britain, Russiaand Japan for the Preservation and Protection of Fur Seals, 1911.This approach was adopted with a number of other early speciesspecific agreements, such as those related to the protection ofcertain birds and their associated habitats6 as well as a latercollection of species specific agreements ranging from Vicuna tosea turtles and whales. The African Convention, 1933 obliged itsParties to, “explore forthwith the possibility of establishing in theirterritories national parks and strict natural reserves” in Africa.This was especially so for the benefit of endangered species. TheWestern Hemisphere Convention, 1940 had a very similarobligation. This obligation is both long standing in both generaland specific contexts.7 But all of these efforts about habitatprotection were mainly between two or more countries or mainlyat regional level. According to him, the first truly internationalresponse was UNESCO Conference on the Use and Conservationof the Biosphere, 1968. From this conference, Member statesaccelerate the establishment and development of national parksand wildlife sanctuaries. Three years later the Ramsar Convention,1971 was concluded by combining far-sighted national policies withco-ordinated international action through which the Parties agreedto, “promote the conservation of wetlands and waterfowl byestablishing nature reserves on wetlands”. The response of theinternational community was the creation of the World HeritageConvention, 1972, and two habitat related conventions in 1979.The Convention on Migratory Species obliged all of its Parties to,“endeavour to conserve, and where feasible and appropriate,restore those habitats of the species which are of importance inremoving the species from danger of extinction”. In a similar vein,Convention on the Conservation of European Wildlife and NaturalHabitats, Berne was built on the recognition that the conservationof natural habitats is a vital component of the protection andconservation of wild flora and fauna.8

INDIAN POSITIONThe species conservation policy is a western concept which is

generally adopted by rich countries as huge financial aids are

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needed whereas projects for protection for total ecosystems arefollowed by ‘developing’ or ‘underdeveloped’ countries.9 TheEndangered Species Act, 1973 and Marine Mammals ProtectionAct, 1972 in USA are examples of the ‘species approach’ where asthe Wild Life (Protection) Act, 1972 of India is an ‘ecosystemapproach’ for conservation of wildlife in the nature. Thoughadministrative schemes like Man and Biosphere Program (1970),Project Tiger (1973), Elephant Project (1991) or Project Cheetah(2010) time to time by Government have helped to solve ecologicalproblems in India very much.

Presently, various categories of Protected Areas are availableunder Indian law and after the Amendment of 2003; ProtectedAreas mean National Park, Sanctuary, Conservation Reserve andCommunity Reserve.10 The old concept of ‘Game Reserve’ wasrepealed through Amendment Act of 1991 and declaration of ‘ClosedArea’ was repealed in 2003. No hunting of any wild animal waspermitted in a closed area during the period specified in thenotification. Again the Indian Forest Act, 1927 has provision mainlyfor Reserved Forests, Protected Forests and Village Forests. Thebasis of classification of different protected areas were fordivergent purposes that motivate the establishment of protectedareas non-consumptive purposes such as wildlife conservationrecreation and scientific study on the one hand and consumptionpurpose aimed at wise use of resources on the other.11 There are23 MPAs present in peninsular India and more than 100 MPAs inthe country’s islands as per report (2014)12 and these 23 MPAs coversan area of about 6158 kms, which is 3.85% of the total area coveredunder the entire Protected Areas network of India or less than0.2% of the total land area of India. There are 105 PAs in theAndaman & Nicobar Islands out of which about 100 include marineareas.

Change of types of Protected Areas under the Wildlife(Protection) Act, 1972

Original 1972’s Act After, 1991 Amendment After, 2003 Amendment

1. Sanctuary (Sec 18) 1. Sanctuary (Sec 18) 1. Sanctuary (Sec 18)

2. National Park (Sec35) 2. National Park (Sec35) 2. National Park (Sec35)

3. Closed Area (Sec 37) 3.Closed Area (Sec 37) 3. Conservation Reserve

(Sec 36A)

4. Game Reserve (Sec36) 4. Community Reserve

(Sec 36C)

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Wildlife and forests have symbiotic relationship and existenceof one reinforces the existence of another. In spite of severalinitiatives taken by central and states government in India, thetotal areas declared by governments are not sufficient in accordancewith the total land or human population of the nation. There aretwo methods of conservation policy available in India like rest ofthe world also. One is an exclusionist policy where total exclusionof forest residents from Protected Areas for wildlife and totalrestriction on human access and prohibition of traditional rightsover the forest lands and another policy is a socialistic approachwhere the interests of local residents and forest dwellers areconsidered in conservation process.

III. ORIGIN OF NATIONAL PARKSThe enactment of national legislation to protect wildlife and

environment with forestry conservation laws adopted in Babylonin 1900 BC and a law for the establishment of nature reservespromulgated in Egypt in 1370 BC.13 National Park was first timethought by an American artist George Catlin and in 1832, hepointed to the need of a, ‘national park, containing man and beast,in all the wild and freshness of their nature’s beauty’ and withinfifty years, various administrations began to respond to these typesof calls.14 In 1864 US Congress being inspired by Catlin’s thought,donated Yosemite Valley to California for preservation as a ‘StatePark’ the in regime of Abraham Lincoln and in 1872, Yellowstonewas reserved as a National park. The national parks are as sacredto most Americans as the flag, motherhood and apple pie. Likeapple pie, but unlike the flag, national parks are distinctively butnot uniquely American. For beauty and diversity of its residentspecies and habitats, Serengeti in Tanzania probably morecelebrated than Yellowstone in Wyoming, Manas in eastern Indiaat least as remarkable as Yosemite in California.15 The US modelof national park was adopted by many African countries forprotection of their natural resources including wild animals. TheKrueger National Park (originally Sabie Game Reserve) wasestablished in South Africa in 1898 and a few decades later KingAlbert Park (later known as Virunga National Park), wasestablished in 1925 after the Belgian King sought to ensureprotection for the mountain gorillas living on the flanks of theVirunga volcanoes. In Kenya, ‘Nairobi National Park’ was the firstnational park established in 1946 and ‘Tsavo National Park’ wascreated in 1948 for better ecological protection.16 In Tanzania,

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Serengeti National Park was created in 1951 which is an importantdestination for thousands of tourists. Such national park systemwas spread in Zimbabwe, Botswana, Nigeria and other countriesin Africa during the colonial regime. In 1887, New Zealandestablished its first National Park and in 1879, Australia madetheir first National Park as ‘Royal National Park’ in south Sydney,Canada in 1885 ‘Rocky National Park’ and France in 1963 developed‘Vanoise National Park’ in Alps.17 Britain was slow to establish asystem of national parks18 and national park system was establishedin English law through the National Parks and Access to theCountryside Act, 1949. National Parks Authorities (NPAs) werecreated by the Environment Act, 1995 to replace the national parksboards and committees. According to IUCN (1975) National Parkis relatively large area where (1) One or several ecosystems arenot materially altered by human exploitation and occupation whereplant and animal species geomorphologic sites and habitats arespecial scientific, educative and recreative interest or whichcontain a natural landscape of great beauty, (2) The Highestcompetent authority of the country has taken steps to prevent oreliminate as soon as possible exploitation or occupation in thewhole area and to enforce effectively the respect of ecologicalgeomorphologic or aesthetic features which have let to itsestablishment, and (3) Where visitors allowed to enter underspecial conditions for inspirational, cultural and re creativepurposes.19 In 1993 according to Conference for African Fauna inthe London, a ‘National Park’ is an area placed under public control,the boundaries of which shall not be altered except by componentlegislative authority. The area is declared for the all timepreservation and protection for life of wild animal and vegetationfor the benefit, advantage and enjoyment of the general public. Inthis area hunting of fauna or collection of flora is prohibited exceptunder the direction of park authority.20 Though national park waswestern practice but the Indian Forest Act, 1927 first timeintroduced the concept of ‘Reserved Forest’ in India and a largenumber of Protected Areas including Corbet National Park,Kaziranga Sanctuary, Jaldapara Sanctuary were notified byprovision of this law during British period before Wildlife(Protection) Act, 1972 came into existence. Support for the nationalpark movement in India has come chiefly from internationalconservation organizations and from a class of big-game hunterspreservationists – these include many former maharajas21 and theHailey National Park Act, 1936, named after Governor Malcom

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Hailey, was the first important legislation for protection of wildlifeand management of its habitat in India22 which was inspired byinternational ‘Convention Relative to the Preservation of Faunaand Flora in their Natural State’ at 1933 held on London. ‘KanhaNational Park’ was given status of National Park by the MadhyaPradesh National Parks Act, 1955 though it was already declaredas a ‘Reserved Forest’ in 1879 and ‘Banjar Valley Sanctuary’ in1935. Then ‘Todoba National Park’ was established in Maharastrain 1955 and in 1959 ‘Madhav National Park’ was also set up inMadhya Pradesh as a part of conservation project afterindependence under respective state laws. Before the Wildlife(Protection) Act, 1972, the first five National Parks in India, like,Corbett (UP), Shivpuri, Kanha, Bandogar (MP) and Toroba(Maharashtra) were established by respective State legislations23

but after the enactment of Wildlife (Protection) Act in 1972 thenumber of national parks were increased. A National Park can beestablished by State Government under section 35 or by CentralGovernment under section 38(2) and also Existing National Parksalready declared by State Government under any law will betreated as valid under section 66(3) of the Wildlife (Protection)Act, 1972. In most countries a National Park can only be crated byNational, Central or Federal Government of the country and soparks are known as ‘National’ for their national importance. Butin India, a State Government can constitute a National Park in itsstate legislative subject to certain standards as laid in the statute.A National Park as per Indian Board for Wildlife (IBWL) is anarea dedicated by statute for all time to conserve the scenery,natural and historical objects, to conserve wild life there in and toprovide for enjoyment of the same in such manner and by suchmeans that will leave them unimpaired for the enjoyment of futuregenerations with such modification as local conditions may demand.

IV. DEVELOPMENT OF SANCTUARY IN INDIAIn India, the concept of sanctuary was very much in practice

and more original than western concept of National Park. TheMaurya rulers used to maintain some zoological gardens andreserved forests without any human interference and grazing werenot allowed within those protected areas. In Arthashastra therewas evidence of reserves known as Abharanyas had been set asideespecially to safeguard elephants.24 According to noted historianRomila Thapar, the importance of forest wealth is recognized inthe Arthasastra of Kautilya who states that no one is permitted to

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cut any part of the forest without permission of the state. This wasto ensure a control over revenue both from the produce of the forestand from the land cleared and brought under cultivation.25 In spiteof lots of hunting, some conservation methods were adopted byMughal rulers like Akbar and Jahangir also. Hunting grounds wereturned a form of protection under the name of ‘Sanctuary’ whichwas followed later by many Indian rulers. The princely states tooksome initiatives also for preservation and protection of wildlifeinside their natural habitat. The Acting Deewan of Junagadhpublished an order in state Gazette to ban lion hunting within theforests of Gir in 1880. Again Mohabbat Khan on March 31, 1920also intended to make certain strict laws to give more protectionto the lions.26 So conservation policy was same time adopted withthe aim of hunting also. Lord Curzon was invited by Nawab ofJunagarh for trophy hunting but considering the small numbers ofAsiatic lions in Gir forest, Lord Curzon requested the Nawab toprotect the park and conserve the lions.27 Sanctuary got thestatutory sanctity in more or less same time with National parks.The Amendment in 1935 of the Wild Birds and Animals (Protection)Act 1912 was land mark in the history of wildlife as it was for thefirst time that the provincial government, could, by notification,set aside an area to be a Sanctuary for protection and growth ofwild animals and birds.28 Sariska Tiger Reserve, originally ahunting reserve for Maharaja Jaisingh of Alwar, was declared as aWildlife Sanctuary on 18th September 1958 with an amendednotification under the Rajasthan Wild Animals and BirdsProtection Act, 1951.29 Sanctuary may be created to any areaother than reserved forest or territorial water by StateGovernment under Section 18 of the Wildlife (Protection)Act, 1972 and after the amendment of 1991, State Governmentcan also declare any reserve forest or territorial water assanctuary under Section 26A of the same statute forprotection of marine and coastal wildlife in India. AgainCentral government can also declare any area as sanctuaryunder Section 38(2) by same procedure. Any existingsanctuary established by any state legislation will alsoremain as sanctuary in spite of repealing of State Act underSection 66 of the Wildlife (Protection) Act, 1972. The modernwildlife conservation movement has its roots in the traditionalpreservation of animals as game in the amusement parks of thenobility.30 Wildlife sanctuary according to IBWL is an areaconstituted by the competent authority in which killing, hunting,

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shooting or capturing of any species of animal bird is prohibitedexcept by an order. A wildlife sanctuary, as defined by IUCN in1975, is an area dedicated to protect the wildlife but it considersthe conservation of species only and also the boundary of it is notlimited by state legislation. Further in the sanctuary killing,hunting or capturing of any species of birds and mammals isprohibited except by or under the control of highest authority inthe department, responsible for management of the Sanctuary. In1979, prior to the amendment of the scheduled introducing theban on commercial whaling, the International Whaling Commission(IWC) established the Indian Ocean Sanctuary31 following aproposal by the Republic of Seychelles. In 1994, the Southern OceanSanctuary was also established, which similarly bans commercialwhaling in the area south of forty degrees southern latitude apartfrom in the Indian Ocean.32

V. NATIONAL PARKS VS. SANCTUARIESThe distinction between National Parks and Sanctuaries does

not make any watertight compartment for conservation functionsunder the provision of the Wildlife (Protection) Act, 1972 butdeference lies on historical development about the status ofprotected areas in India. The concept of Sanctuary was mainlydeveloped by former Indian rulers of pre-independence periodwhere as the idea of National Park was borrowed from westernconcept mainly USA and international conferences. The term‘national’ within the concept of ‘National Park’ indicates this parkis under the possession of Union or Central government of anycountry mainly federal country. So national park is the part andparcel of government administration with some sense of nationalheritage. The first National Park in India was established during1935-1936 under United Provinces National Parks Act, 1935 whichwas renamed as Corbet National Park in 1957. Again Sariska TigerReserve, originally a hunting reserve for Maharaja Jaisingh ofAlwar, was declared as a Wildlife Sanctuary in 1958 with anamended notification under the Rajasthan Wild Animals and BirdsProtection Act, 1951. But Sariska had not been legally declared asa reserved forest under Rajasthan Forest Act as only declaredreserved forests can be changed into status of Sanctuary or Nationalparks.33 After 1972, The Wildlife (Protection) Act restricted thehuman interference in both national parks and sanctuaries as thoseare protected areas for wildlife of the country and destruction ofwildlife habitat is strictly prohibited. Cattle grazing are typically

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prohibited in the national parks and when the Bharatpur BirdSanctuary was redesignated as the Keoladeo National Park in 1982then grazing of buffaloes on marshland was become illegal by newregulation.34 The history of cattle grazing in the Keoladeo NationalPark is longer than of its development as a waterfowl huntingreserve. In India as a whole, pastoralists have grazed cattle morethan 5000 years but overgrazing did not become common untilrecent agricultural expansion.35

Growth of National Parks and Sanctuaries in India36

As per provision of Section 33(d) of that statute gives somerelaxation for grazing of live-stock within the Sanctuaries whereas inside the National Parks grazing is not allowed at all.38 Differentmodels of protected areas were the impact of internationalawareness generated by several international convention andtreaties and also American National Park movement byconservationists and environmentalists.39 Again in India, Sanctuaryis usually created by an order or gazette notification of stagegovernment. So the weakness of sanctuary is that it can be de-notified merely by another order or gazette notification of a stategovernment.40 Protected area systems vary considerably onecountry to another, depending on needs and priorities and ondifferences in legislative, institutional and financial support. Theideas behind the National Park and Wildlife Sanctuary are samelike maximum protection and conservation of wild animals.

VI. CONFLICT WITH PEOPLE AND PROTECTED AREASIndia has far more stringent wildlife protection standard and

a complex set of forest law in comparison with many countries inSouth America, Africa and Asia.41 But traditionally national parks

Years National Parks Sanctuaries

In 1970 5 62

1971 to 1980 24 165

1981 to 1990 71 418

1991 to 2000 88 481

2001 to 2010 100 515

Up to 2016

(09 February, 2016) 1

103 535

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and wildlife reserves in Africa have had more restrictions onextractive use than forest reserves but there is an understandabledifference in use philosophy and practice compared with Africanwildlife reserves.42 In post-independent India, Conservationistshave primarily used idea for total exclusion of humans fromprotected areas but a large number of communities in Indiansociety are centered on wild faunal species for livelihood and theyare also directly dependent on natural resources for fuel woodand fodder. As per the Indian Institute of Public Administration(IIPA), 69% of surveyed Protected Areas had humans living insideand 64% had rights, leases or concessions to extract fuel and fodder,to graze, or the carry out other activities in the late 1980s43 andaccording to the Anthropological Survey of India, there are as manyas 196 communities in the country that trap birds and animals fortheir livelihood.4444 The Hunter and The Hunted; Conservation withMarginalized Communities, Bahar Dutt, Rachel Kaleta andVikram Hoshing; in Ghazala Shahabuddin & Mahesh Rangarajan(ed)Making Conservation Work, 1st Published

The mid-1980s was a tense phase in conservation politicswhich developed sociological problem like confrontation with theForest Department against local communities. Only in case of KunoWildlife Sanctuary, 5000 people were displaced between 1998 and2003 from 24 villages.45 In USA also same conflict started fromvery beginning in 1872 after establishing first National Park whenstate got the authority to create ‘forest reserve’ on any land frompublic domain in America.46 In conservation programs, wild speciesare given more preference than human species which is verydifficult for human beings to accept from their anthropocentricpoint of view.47 American ‘Yellowstone model’ was adopted bymaximum developing and African countries where public angerwas generated within the protected areas. India’s legal provisionof ‘Reserve Forest’ through the Indian Forest Act in 1927 and thenthe Wildlife (protection) Act, 1972 and the Forest (Conservation)Act, 1980 were very much against the traditional forest dwellersor tribal peoples of India. In the 1970s a series of country-wideprotests and tribals prompted a thoroughgoing critique of forestpolicy in modern India.48 Between 1979 and 1984 conflicts cameout sharply and 51 clashes were reported on national parks andsanctuaries in India.49 Banning of water buffalo grazing inside ofKeoladeo National Park in 1981 led to widespread civildisobedience among the local people who have traditionallydepends on grazing to supply food to their cattle.50 The Indian

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Forest Department, founded during British rule and in effect India’ssingle largest landlord, viewed all needs of ecosystem people as aburden, as ‘biotic’ not ‘anthropic’ pressure, as if the people behindthese demands were less than human. Indeed, forest working plansclassified ‘man’ as one of the ‘enemies’ of the forest.51 Even thedevelopment of protected areas was slow downed comparativelyduring 1970s and till total protected areas are nearly 5% of wholeland areas of the India from 1988 to 2014.

Comparative Growth of Protected Areas in India (in Percentage)

These Movements over forest were recurring phenomenon inregions ruled by the British, the Dutch and the France.55 Nomads,peddlers and pastoralists faced a more univocal opposition underthe colonial regime and by the Criminal Tribes Act, 1871, wanderingbecame a crime and legal sanction for action against wanders. TheState also extended the control over the pastoralist’s animal stockand all animals were to be enumerated, registered and branded.Again the Punjab Military Transport Act, 1903 legalizedgovernment rights over all transport animals.56 But there havebeen significant developments in some countries like Zimbabweand Nepal for providing tribal communities or forest dwellers astandard of life with coexistence. In USA, accordance with the 1855US–Makah Treaty of Neah Bay, the Makah tribe was granted the‘right of taking fish and of whaling’.57 Provisions recognizing huntingand gathering rights of indigenous and aboriginal people areimportant topic covered by Migratory Birds Treaties and suchprovisions, varying extensively, are found in Migratory BirdsTreaties signed by the United States as well as Australia but isignored in Japan.58 Then promulgation of the Schedule Tribes andOther Traditional Forest Dwellers (Recognisation of Forest Rights)

Year 19881 2009

(up to March)2

2016

(as on 09 February)3

Types of Protected Area Area

(Sq. Kms)

Percentage

Area

(Sq. Kms)

Percentage

Area

(Sq. Kms)

Percentage

National Park 21,003 0.64% 39,155 1.19% 40500.13 1.23%

Wildlife Sanctuary 88,649 2.7% 1,18,417 3.60% 118004.92 3.59%

Conservation Reserve - - 1,155.06 0.04% 2344.53 0.07%

Community Reserve - - 17.76 - 46.93 0.001%

Total Protected Areas 1,09,652 3.34% 1,58,745 4.83% 160896.51 4.88%

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Act, 2006 was a major step in India for protection of the rightsincludes both individual and community of forest dwellers indifferent forests. Though wildlife lobby wanted stringent safeguardfor national parks and sanctuaries but a new concept i.e. ‘criticalwildlife habitat’ was inserted where human interference isprohibited.

VII. ROLE OF INDIAN JUDICIARY ON PROTECTED AREASThe necessity of National Parks and Sanctuary is well

understood by judiciary of India also. A cement plant was set up in1990 within the area of Narayan Sarovar Sanctuary which wasdeclared in 1981 by Gujarat State Government. But to facilitateindustry, State Government issued a notification in 1993 to cancelthe order of Sanctuary and finally in 1995 State government bylegislation reduced the areas from 765 to 444 sq. kms. ThoughSupreme Court accepted the legislation about the de-notificationof protected areas but did not allow Cement industry to operatebusiness at the cost of ecosystem.59 In November 1994, a worldclass forest lodge was set up within the Nagarhole National Park,an area of previous the royal hunting reserve along the riverKaveri, which already was declared a sanctuary in 1955. TheSupreme Court said that the lease was contrary to the laws relatingto conservation and ordered to hand over the possession of thebuilding to State Government.60 In a popular case the SupremeCourt appointed an expert committee to assess the environmentaldamage due to mining project in the Sariska National Park andtill the Committee submits its report, the granting of license wasprohibited. The court further directed the Central Government toexamine the proposal to delete the mining area and replace it withother lands.61 In another case,62 petitioner demanded to live insidethe ‘Wild Ass Sanctuary’ which was declared in 2001 and alsochallenged that declaration of State Government as land wasallotted in 1978 to the petitioner for rehabilitation of Pakistanirefugee. But Gujarat High Court rejected the claim of right to livethere and also pointed out that no one has the right to enter orpass a land in the sanctuary without the permission of ChiefWildlife Warden Sections 27 and 28 of the Wildlife (Protection)Act, 1972. The Supreme Court favoured tourism business butdisagreed with the lease for a snacks bar and restaurant wasnecessary for visiting tourists in the reserved forest.63 Tourismactivities within the protected areas should be environmentally,economically, socially and culturally sustainable and to ensure all

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these aspects as per apex court, the policy should be such wherethe tourists are not put to inconvenience.64 It should be helpful forthe local communities, strengths the local economy and employeesalso. In very famous MC Mehta vs. Kamalnath65 case Supreme Courtpreferred the protection of ecology and forest over the industryand also held that State Government committed a patent breachof public trust by leasing out the ecologically fragile land for amotel to facilitate ecotourism. The Supreme Court referred theview of Prof. Weiss, that Conservation, however, always takes aback seat in times of economic stress. All human beings have afundamental right to a healthy environment coupled with acorresponding duty of ensuring that resources are conserved andpreserved in such a way that present as well as the futuregenerations are aware of them equally.66 The apex court and variousstate High Courts of India have always given their views in favorof ecological protection of wildlife habitat in the nature.

VIII. CONCLUSIONThe Protected Area network in India comprises; ‘Protection

of wildlife outside the Protected Areas’ and ‘Recovery program forsaving critically endangered species and habitats’ Schemes.67 Butthis is not sufficient for vast country where in Nepal total ProtectedAreas constitute about 17 per cent of the country.68 So, hugedevelopments of protected areas are needed in India for betterecology with rehabilitation and employment scope for the localpeople who are helpful to wildlife conservation. India constituteshardly 5 to 10 per cent foreign tourists for lack of infrastructure, ifNational Parks and Sanctuaries are commercialized for touristslike African countries then it will also generate employment forlocal people and will bring revenue for protection of wildlife also.But continuous public interference with rampant commerciali-zation of protected areas with establishment of hotels and resortswithin parks are generating danger for wildlife. So, strictguidelines should be framed for commercial hotels, resorts and tolimit of daily visitors in the parks and reserves. A separate wildlifeservice should be started in India for better administration of wildanimal apart from forest service like National Park Service (NPS)in USA and protection force like United States Park Police (USPP)for Parks through separate legislation in the line of the KenyaWildlife Service Act in Kenya. The human presence within someof the spectacular ecosystems has proved the coexistence of manand wildlife can possible in the protected areas and the Serengeti

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National Park, Tanzania is the good example69 and in Brazil, nativepeoples have lived in the rainforests for centuries withoutdamaging forests. So India has to generate many community basedconservation process but any how number of protected areas mustbe increased. The making of statutes is not enough but India shouldadopt sustainable method for better survival for all living elementsin this earth i.e. man and wild animal both.

(Footnotes)1 Official website of the IUCN World Parks Congress

2 Submitted on 22 December 2014, following the deliberations ofthe IUCN World Parks Congress 2014, Sydney

3 Environmental Issues in India, edt. By Mahesh Rangarajan,Pearson, 11th impression 2012, Page 3764 IUCN–WCPA[http://www.iucn.org/about/union/commissions/wcpa/wcpa_overview/]

5 Black’s Law Dictionary, Thomson West, 8th edition, 2004, Page324

6 Declaration for the Protection of Birds Useful to Agriculturebetween Austria – Hungary – Italy, 1875; Convention(s)Concerning Hunting (waterbirds) on Lake Constance and theRhine between Baden and Switzerland, 1897, 1907, 1914 and1927; Convention between the United States and Great Britainfor the Protection of Migratory Birds, 1916; Convention betweenthe United States and Mexico for the Protection of MigratoryBirds, 1936

7 From the Galalpagos to Tongariro: Recognizing and Saving themost important places in the World, Professor AlexanderGillespie, Resource Management Theory & Practice, 2009, Page117

8 Ibid 118 - 120

9 Handbook on Environmental Law, Sanjay Upadhyay & VidehUpadhyay, Volume-1, LexixNexisButterworth, New Delhi, 1stedition 2002, Page 219

10 Section 2(24A) of the Wildlife (Protection) Act, 1972

11 Environmental Law, Dr.I.A.Khan, Central Law Agency,

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Allahabad, 2nd Edition 2002, Page 263

12 India’s Fifth National Report to the Convention on BiologicalDiversity, 2014, Ministry of Environment & Forests,Government of India, Page 25

13 Lyster’s International Wildlife Law, Michael Bowman, PeterDavies, Catherine Redgwell, 2nd Edition (2010), CambridgeUniversity Press, Page 3

14 Protected Areas and International Environmental Law,Alexander Gillespie, Martinus Nijhoff Publishers, 2007 edition,Page 7 and 8

15 Environmentalism: a global history, Ramachandra Guha, TheRamachandra Guha Omnibus, 2005 edition, Oxford UniversityPress, New Delhi, Page 2

16 www.ypte.org.uk

17 www.scribd.com

18 Urban Environments and Wildlife Law: A Manual for SustainableDevelopment, Paul A. Rees, Blackwell Science, Page 83

19 Concepts in wildlife management, B.B.Hosetti, Daya Publication,Delhi; 3rd Edition 2008, Page 110

20 ibid; Page 110

21 How much should a person consume, Ramchandra Guhha,Hachette India, 2010, Page 109

22 Environmental Law and Policy in India, Shyam Divan and ArminRosencranz, Oxford University Press, New Delhi, 8thImpression 2007, Page 31

23 Battling for Wildlife in Bihar, S.P.Shahi, Saving Wild Tigers 1900-2000, Valmik Thaper (edt.), permanent black, 2nd impression2011, Page 205

24 Battles Over Nature, Vasant Seberwal & Mahesh Rangarajan(edt.), 2nd impression 2009, permanent black, Delhi, Page 189

25 Environmental Issues in India, A Reader, edt. By Mahesh Ranga

rajan, Pearson, 11th impression 2012, Page 39

26 The Last Lair, Mayank Vyas & Hitesh Ankleshwaria, The Sunday

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India (8Oct -14 Oct 2007) Page 120

27 All the (W)right moves? Belinda Wright, The Sunday Indian (8Oct – 14 Oct, 2007) Page 121

28 Handbook on Environmental Law, Sanjay Upadhyay & VidehUpadhyay, Vol-1, LexixNexisButterworth, New Delhi, 1stEdition 2002, Page 231

29 Conservation at the Crossroads: Science, Society and the Futureof India’s Wildlife, Ghazala Shahabuddin, permanent black,Ranikhet, 1st published 2010, Page 14

30 Ecological Journeys, Madhav Gadgil, permanent black, Delhi;1st Published 2001, Page 48

31 Article V(1)c of the Convention for Regulation of Whaling, 1931

32 Lyster’s International Wildlife Law, Michael Bowman, PeterDavies, Catherine Redgwell, 2nd Edition (2010), CambridgeUniversity Press, Page 170 & 171

33 Conservation at the Crossroads: Science, Society and the Futureof India’s Wildlife, Ghazala Shahabuddin, 1st published 2010,permanent black, Ranikhet, Page 14

34 Battles Over Nature, Vasant Seberwal & Mahesh Rangarajan(eds), permanent black, Delhi, 2nd impression 2009, Page 15

35 ibid, Page 89

36 State of Environment Report, India 2009, p 67 – 68 and AnnualReport 2009 – 2010, MoEF, GoI, p. 67

37 [http://www.wiienvis.nic.in/Database/Protected_Area_854.aspx]Accessed on March 2, 2016, 11.12 AM

38 Environmental Law and Policy in India, Shyam Divan and ArminRosencranz, Oxford University Press, New Delhi, 8thImpression 2007, Page 330

39 Environmental Law, Dr.I.A.Khan, Central Law Agency,Allahabad, 2nd Edition 2002, Page 265

40 Concepts in wildlife management, B.B.Hosetti, Daya Publication;Delhi; 3rd Edition 2008, Page 112

41 Conservation at the Crossroads: Science, Society and the Future

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of India’s Wildlife, Ghazala Shahabuddin, 1st published 2010,permanent black, Ranikhet, Page xvi

42 Battles Over Nature, Vasant Seberwal & Mahesh Rangarajan(ed.), 2nd impression 2009, permanent black, Delhi, Page 340

43 People, Parks & Wildlife Towards coexistence, Vasant Saberwal,Mahesh Rangaragan & Ashish Kothari, Orient Longman, NewDelhi, 1st Published 2001, Page 72 permanent black,Uttaranchal, 2007, Page 242

45 Conservation at the Crossroads: Science, Society and the Futureof India’s Wildlife, Ghazala Shahabuddin, 1st published 2010,permanent black, Ranikhet, Page 68

46 Conflict and Coexistence in a National Park, Ananya Mukherjee,ECONOMIC & POLITICAL WEEKLY, June 6, 2009; VOL XLIVNO 23, Page 52

47 People’s Participation through Conservation Education, JyostnaBapat, Environmental Movements in India, Rawat Publication,1st Published 2005, Page 139

48 Nature, Culture, Imperialism – Essays on the EnvironmentalHistory of South Asia, edt. by David Arnold & RamchandraGuha, Oxford University Press, New Delhi, 7th Impression2011, Page 17

49 This Fissured Land, Madhav Gadgil & Ramchandra Guha, OxfordUniversity Press, New Delhi, 11th Impression 2008, Page 234

50 Battles Over Nature, Vasant Seberwal & Mahesh Rangarajan(edt.), 2nd impression 2009, permanent black, Delhi, Page 87

51 Ecology and Equity, Madhav Gadgil & Ramachandra Guha,Penguin Books, New Delhi, 1995, Page 23

52 India’s Fifth National Report to the Convention on BiologicalDiversity, 2014, Ministry of Environment & Forests,Government of India, Page 25

53 State of Environment Report, 2009, Ministry of Environment &Forests, Government of India, Page 67 & 68

54 [http://www.wiienvis.nic.in/Database/Protected_Area_854.aspx]Accessed on March 2, 2016, 11.12 AM

265

55 How much should a person consume, Ramchandra Guha,Hachette India, 2010, Page 118

56 Nature, Culture, Imperialism – Essays on the EnvironmentalHistory of South Asia, edt. by David Arnold & RamchandraGuha, Oxford University Press, New Delhi, 7th Impression2011, Page 83

57 Lyster’s International Wildlife Law, Michael Bowman, PeterDavies, Catherine Redgwell, 2nd Edition (2010), CambridgeUniversity Press, Page 157

58 Migratory bird treaties’ issues and potentials: are they valuabletools or just curios in the box? Mitsuhiko A. Takahashi, Lewis& Clark Law School, Environmental Law Review, Vol. 42 Issue2, Spring 2012, Page 620

59 Consumer Education and Research Society vs. Union of India,2000 (1) SCALE 606

60 Nagarahole Buddkattu Hakku Sthpana Samithi vs. State ofKarnataka, AIR 1997 Kant.288

61 Tarun Bharat Sangh, Alwar vs.Union of India AIR 1992 SC 514

62 Mahesh Kumar Virjibhai Trivedi vs.State of Gujarat, AIR 2006Guj 35

63 Union of India vs. Kamth Holiday Resorts Pvt. Ltd. (1996) 1 SCC774

64 Forest Friendly Camps Pvt. Ltd. vs. State of Rajasthan, AIR 2002Raj 214

65 1997 (1) SCC 388

66 Intellectuals Forum, Tirupati vs.State of A.P., AIR 2006 SC 1350(Para 75)

67 Annual Report 2014-15, Ministry of Environment, Forests andClimate Change, Government of India,

68 Global Environment Outlook 3, UNEP (http://www.unep.org/GEO/geo3/)

69 People, Parks & Wildlife Towards Coexistence, Vasant Saberwal,Mahesh Rangaragan & Ashish Kothari,Orient Longman, NewDelhi, 1st Published 2001, Page 45

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16Sustainable Management of Natural Resources

Development: Need for an Inclusive Society

Tapan R. Mohanty

Prolegomena:A careful reading the discourse on political philosophy in

general and the historicity of the rise, growth and development ofthe trinity of state, market and civil society in particular providesan interesting insight. In their structure and orientation theseinstitutions of human interrelationship and interaction have a lotin common in the sense that each of them is orientated towardsmaximizing human interest and minimizing the risks. In the contextof sociology of development and sociology of law, the trinity of state,market and civil society are invoked to provide kaleidoscope ofinteraction of human groups, their trials and tribulation. Theseinstitutional mechanisms were developed to provide opportunitiesfor flowering of human potentialities, underlining human freedomand improve material and spiritual conditions of human existence.

The political and social philosophy of all times have inherentlyfocused on creating a just, fair and reasonable society, to share thebenefits and burdens, to underline justice, fairness and equity andto respect human life and dignity. Yet, despite our resoundingsuccess in achieving material progress and technologicalsophistication we are as far from these ideals as were a millionyears ago. The presence of caste, race, religion, ethnicity, nativismdenotes to the structure of divisions among human groups andconsequent differences have not only gave rise to inequities butalso often resulting in violence, indignities and sufferings. As an

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addition to the fire of these forces, of late environmentaldegradation in general and climate change in particular has onlyexacerbated the problem.

It is in this context, the current paper attempt to examinerather critically the convergence of state, market and civil societyin combating challenge to the human rights of tribal population ofIndia and ‘putting them first’ over access to natural resources evenif we cannot ensure that the ‘meek shall inherit the earth’. Thefirst part of the paper provides an introduction to the issue whilethe second section conceptualizes sustainable management ofenvironment. The third depicts the dynamics of (mal) developmentand the consequent environmental hazard in mining sector andthe last part is about the analysis of the issue and conclusion. Sincethe issue is already introduced we will straight away go into theconcept of sustainable management of environment.

Perspectives from Sociology of LawThe design that comes from sociology of law is replete with

legislative and judicial framework expressed thorough doctrinesviz. equity, rule of law, constitutional guarantees sandinternational covenants. The other dimension is legislative andregulatory mechanism viz. Prevention of Atrocities againstScheduled Caste and Scheduled Tribes Act, Protection of CivilRights Act, and other enabling provisions. But the problem is muchmore than that and if law would have taken care of the issue thenwe would not have reached at such a state. Hence, something moreis required apart from the measures taken by the state throughlaw and to my mind the larger and significant participation of thecivil society can prevent the precipitation of the crisis.

The gradual withdrawal of State from the ‘public sphere’ underthe restructuring of governance and polity unleashed in the era ofliberalization, privatization and globalization has only accentuatedthe anomie. The weaning of State power and the hegemony ofmarket along with the growth of ‘new public institutions’ and riseof ‘neo social movements’ underlines the critical significance ofcivil society. The encompassing vision of civil society that construesmarket as its part clearly distinguishes itself from the Gramascianpure civil society and ‘invisible market and autonomous’ marketof Smith. The neo- socio-legal perspective of civil society thusrecognizes the tremendous potential of market while highlightingthe regulatory and supervisory role of State in free, open and

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competitive ‘public sphere’.

However, rarely one has witnessed the combined effort of theState and Civil Society in ensuring environmental sustainabilitywhile pursuing developmental goals especially of social justice andequity. The case in point is of mining industry. It is important touse natural resources for development but it has to be done withabundant caution with an eye over the ‘regenerative capacity ofthe earth’ as well as benefit accrued to local communities.Unfortunately, unbridled commercialization coupled withunscrupulous administrators has spelled doom to both theenvironment and people. The mining areas of Keonjhar andelsewhere are testimony to this assertion. No amount of ‘publictrust doctrine’ or ‘Polluter’s Pay Principle’ or for that‘Precautionary Principle’ can be of any use unless we have a vibrantand active civil society that has the interest of public at large atmind. Law and policy can help but only upto a point beyond thatwe have to trust communities and their ability to shape theirdestiny.

The Context: Mining and Sustainable ManagementMining exists in many countries. London is known as the

capital of global “mining houses” such as Rio Tinto, BHP Billiton,and Anglo American PLC. The US mining industry is also largebut it is dominated by the coal and nonmetal minerals, and thevarious regulations have worked to reduce the significance ofmining in the United States. In 2007 the total market cap of miningcompanies was reported at US$962 billion, which compares to atotal global market cap of publicly traded companies of about US$50trillion in 2007.

Environmental issues can include erosion, formation ofsinkholes, loss of biodiversity, and contamination of soil,groundwater and surface water by chemicals from miningprocesses. In some cases, additional forest logging is done in thevicinity of mines to increase the available room for the storage ofthe created debris and soil. Contamination resulting from leakageof chemicals can also affect the health of the local population if notproperly controlled. Extreme examples of pollution from miningactivities include coal fires, which can last for years or even decades,producing massive amounts of environmental damage.

Mining companies in most countries are required to followstringent environmental and rehabilitation codes in order to

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minimize environmental impact and avoid impacts on humanhealth. These codes and regulations all require the common stepsof Environmental impact assessment, development ofEnvironmental management plans, Mine closure planning (whichmust be done before the start of mining operations), andEnvironmental monitoring during operation and after closure.However, in some areas, particularly in the developing world,regulation may not be well enforced by governments.

For major mining companies, and any company seekinginternational financing, there are however a number of othermechanisms to enforce good environmental standards. Thesegenerally relate to financing standards such as Equator Principles,IFC environmental standards, and criteria for socially responsiblemining. Mining companies have used this financial industryoversight to argue for some level of self-policing. In 1992 a DraftCode of Conduct for Transnational Corporations was proposed atthe Rio Earth Summit by the UN Centre for TransnationalCorporations (UNCTC), but the Business Council for SustainableDevelopment (BCSD) together with the International Chamber ofCommerce (ICC) argued successfully for self-regulation instead.

This was followed up by the Global Mining Initiative whichwas initiated by nine of the largest metals and mining companies,and led to the formation of the International Council on Miningand Metals to “act as a catalyst” for social and environmentalperformance improvement in the mining and metals industryinternationally. The mining industry has provided funding tovarious conservation groups, some of which have been workingwith conservation agendas that are at odds with emergingacceptance of the rights of indigenous people - particularly rightsto make land-use decisions.

Ore mills generate large amounts of waste, called tailings.These tailings can be toxic. Tailings, which are usually producedas a slurry, are most commonly dumped into ponds made fromnaturally existing valleys. These ponds are secured byimpoundments (dams or embankment dams). In 2000 it wasestimated that 3,500 tailings impoundments existed, and that everyyear, 2 to 5 major failures and 35 minor failures occurred forexample, in the Marcopper mining disaster at least 2 million tonsof tailings were released into a local river. Subaqueous tailingsdisposal is another option. The mining industry has argued thatsubmarine tailings disposal (STD), which disposes of tailings in

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the sea, is ideal because it avoids the risks of tailings ponds;although the practice is illegal in the United States and Canada, itis used in the developing world.

Mines, Mineral and India’s DevelopmentIndia is endowed with a rich variety of mineral resources due

to its varied geological structure. Bulk of the valuable mineralsare products of pre-palaezoic age and are mainly associated withmetamorphic and igneous rocks of the peninsular India. The vastalluvial plain tract of north India is devoid of minerals of economicuse. The mineral resources provide the country with the necessarybase for industrial development. A mineral is a natural substanceof organic or inorganic origin with definite chemical and physicalproperties. Minerals may be grouped under two main categoriesof metallics and non-metallics.

Metallic minerals are the sources of metals. Iron ore, copper,gold produce metal and are included in this category. Metallicminerals are further divided into ferrous and non-ferrous metallicminerals. All those minerals which have iron content are ferroussuch as iron ore itself and those which do not have iron contentare non-ferrous such as copper, bauxite, etc. Non-metallic mineralsare either organic in origin such as fossil fuels also known as mineralfuels which are derived from the buried animal and plant life suchas coal and petroleum. Other type of non-metallic minerals areinorganic in origin such as mica, limestone and graphite, etc.

Most of the metallic minerals in India occur in the peninsularplateau region in the old crystalline rocks. Over 97 per cent of coalreserves occur in the valleys of Damodar, Sone, Mahanadi andGodavari. Petroleum reserves are located in the sedimentarybasins of Assam, Gujarat and Mumbai High i.e. off-shore region inthe Arabian Sea. New reserves have been located in the Krishna-Godavari and Kaveri basins. Most of the major mineral resourcesoccur to the east of a line linking Mangalore and Kanpur. Mineralsare generally concentrated in three broad belts in India. Theremay be some sporadic occurrences here and there in is olatedpockets.

The mining sector in India contributes 2.6 percent to the GDPand is one of the largest employers in India, employing more thanone million workers which is around four percent of Indianworkforce. India produces 89 minerals, out of which 4 are mineralfuels, 11 metallic, 52 non-metallic and 22 minor minerals (TERI

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2001). It is from the perspective of economic and employmentopportunity one needs to view the vitality and safeguard of themining resources for the country. However, of late, there have beenseries of tragedies in mines notably in Kudremukh Iron OreCompany Limited (KIOCL) and in Digibadi in Bihar. Also closedmines present a severe problem to the health and safety of peopleresiding around them. Then the question that becomes paramounthow to deal with the development and environment issue and howcan we make the process of management of natural resourcessustainable.

Sustainable Management: A Conceptual ClarificationSustainable management of natural resources can be defined

the use of best managerial practices that could improve upon thelivelihood of present generation without risking the regenerativecapacity of natural resources. It is in this context, the sustainablemanagement of natural resources in general and mining industryin particular needs to be viewed. Minerals being non-renewableand limited natural resources are vital for the growth of economy.However, the extraction of minerals from nature often createsimbalances, which adversely affect the environment. The keyenvironmental impact of mining are on wildlife and fishery habitats,the water balance, local climate and the pattern of rainfall,sedimentation and the depletion of forests, and the disruption ofecology. Therefore, the management of a country’s mineralresources must be closely associated with her overall economicdevelopment and environmental protection and preservation ofstrategy.

In the name of industrialization forests were destroyed, miningand quarrying went unabated causing enormous damage tomountains and springs, toxic and harmful effluents were drainedto the water bodies without giving a second thought. Huge damsand massive reservoirs were constructed in order to tame therivers and generate hydroelectric power. This has not only alteredthe ecological balance of the area but also changed the socio-economic bases of the population besides causing large-scaledisplacement. The design of development has created majorproblems not only in terms of environmental degradation but alsoin terms of human suffering. The alternative to development wasnot an accident but the product of continues search for a strategythat will harmoniously combine nature and culture.

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Figure 1. Sustainable economic developmentSource: Adapted from Pearce and Barbier (2000).

Realizing the imminent danger of ignoring the environmentalissues there has been some kind of new awakening and the newworld order addressed itself to protect the environmental cause.How best one can maintain, upgrade and improve the environmentwith judicious utilization of the natural treasure is a million dollarquestion? There has been a plethora of environmental issues needto be debated and focused. Environmental issue needs to be debatedand focused. Environmental issues is not lies in technical andscientific arena but enmeshed with social, economic and politicalfabric besides in the ethos of humanity.

It was only in the early seventies that the world made an

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extraordinary rapid transition in terms of social awareness fromcapitalist economy to environmental concern particularly, themutilation of natural resources and subsequent ecologicalimbalances. Administration, monitoring, abatement andmaintenance of environment is linked with certain decision ofpolitical nature and legal sanctions. Here exists an urgency toexamine ecological improvements and maintenance in the contextof local condition and native population. It was this awareness onconservation of nature that led to the Stockholm conference in1972, which not only recognised the crisis that environment wasfacing but also emphasized that solving these problem is a politicalissue and could not be left to the hands of a few environmentalistalone. The effect of the conference is evident today with the changein the attitude and perception of third world countries towardsenvironmental problems in these nations went unnoticed, uncaredand unemphasised. Issues relating to environment were thenconsidered as the domain of the industrialized world.

The catastrophe of Bhopal in 1984 and followed by Chernobylin 1986 provided a glimpse of the destructive potential of globalenvironmental hazards. Six years later at Rio de Janerio in 1992the earth summit presented a programme for action to avert globalenvironmental disaster based on the underlying principle ofsustainable development. There has been the ending of the of thecold war, the brake up of the former soviet empire, the war in theGulf, which along with the emergence of new-nation statesprovides an unique opportunity to give a fresh look at the immediateenvironmental problem. The uneasy stability of super powers hasbeen replaced by an increasingly unpredictable world bur itcertainly has delayed the imminent nuclear threat and opened upthe possibility of diverting resources towards more humaneconcerns than in the horse race of global domination.

In the advanced western countries public interest in theenvironment is mounting. In Eastern Europe and former USSRthe emerging evidence of grossly degraded and polluted areasunderlined the urgency of the problem. In the developing countriesproblem of deforestation, desertification and resource depletionwas also attracting greater attention. And the long term butapparently inevitable threats of global warming and ozonedepletion also underline the global interest in environmentalprotection. At regional, national and global level environmentalpolicy has achieved a higher priority and underwent vigorous

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development, the leitmotif of the Bruntland report in 1987, hasbecome the accepted goal of policy at Rio five years later.

It soon became clear that optimism must necessarily bequalified. Interests in the environment, though sustained, werenot always translated into action in the face of more immediateand pressing economic concerns. Overall was the threat of nuclearproliferation, more alarming as the Soviet nuclear complex wasdispersed and which, if not restrained, would pose a far moredangerous threat to world survival than 5the more published globalwarming. However some steps have been taken in order to checkglobal pollution i.e. the international agreements in the Vienna,Montreal and London in 1985, 1987 and 1990 respectively. Theseachievements have led to the banning of Chlorofluorocarbons(CFCs) to protect the ozone layer and various other agreementsdesigned to restrict the trade in hazardous waste (Basel convention-1989, Bamko convention-1991 and related environment commissiondirectives).

This process of global negotiations and agreements onenvironmental problems culminated at Rio summit which saw theadoption of 27 principles constituting a declaration on environmentand development, the first of which was “human beings are at thecenter of concerns for sustainable development”. Over 150 nationssigned a framework convention on climate change to tackle theproblem of global warming and also a convention on biologicaldiversity. By consensus the summit endorsed agenda 21, an 800-page action programme of follow-up (United Nations). Althoughthe summit had been proceeded by conflict especially betweenNorth and South over the responsibility and resources Rioproduced a number of positive features. It was a process engagingmore governments than even before and the participation of 6,500non-governmental organizations and 15,000 participants at theirglobal forum. The involvement of NGOs had begun at the Bergenconference on sustainable development in 1990. Despite, the failureto reach agreements on certain issues, notably forests, and USA’sreluctance to enter into binding targets or to sign Bio diversityConvention, Rio was a global endeavor at cooperation in theinterest of mutual security. “It defined the new international valuesof equity and environment, linked them inseparably, anddramatized how powerfully they affect North-South relations.1Rioshould also be seen as stage in a sustain process of developingpolicy and securing implementation.

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Sustainable development has now passed a threshold of publicand political concern that makes it fully and permanentlyestablished as an issue of high priority on the national andinternational policy making agenda. Although the environment ison the agenda, environmental policy making is fraught withuncertainty and conflict, particularly between North and South.

Sustainable development is the acknowledged subject of mostrecent development thinking but little headway appears to havemade in terms of a rigorous definition of the concept. Therefore,not surprisingly, efforts to “operationalize” sustainabledevelopment and to show how it can be integrated into practicaldecision-making have been few and generally unpersuasive. Theuse of the term ‘development’ rather than ‘economic growth’ impliesacceptance of the limitations of the indexes such as Gross NationalProduct (GNP) to measure the well being of nations. Insteaddevelopment embraces wider concerns such as the quality of life,educational attainment, nutritional status, and access to basicfreedom and spiritual welfare.2

The emphasis on sustainability suggests that what is neededis a policy effort aimed at making these developmentalachievements last well into the future. According to Winepenny,“sustainable development is that which leaves our total patrimony,including natural environment assets, intact over a particular overa particular period. We should be able to bequeath to futuregenerations at the same capital, embodying opportunities forpotential welfare that we currently enjoy.”3

Perhaps Repetto gives the best definition of sustainabledevelopment. For him sustainable development is a developmentstrategy that manages all assets, natural resources, and humanresources, as well as financial and physical assets, for increasinglong term wealth and well-being. Sustainable development as agoal rejects policies and practices that support current livingstandards by depleting the productive base, including naturalresources and leaves future generations with poorer prospects andgreater risks than our own.”

The analysis of this definition depicts that sustainabilityappears to be accepted as the mediating term designed to bridgethe gulf between ‘developers’ and ‘environmentalists’. Its beguilingsimplicity and apparently self-evident meaning have obscured itsinherent ambiguity. It survival attests to the fact that

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developmental interests now recognize that much more seriousattention must be paid to incorporating although understandingof environmental process into project investment calculus, it forno other reason than that failure to do so, any result inenvironmental side-effects that carry economic losses.

The notion of sustainability appears most conveniently to thereplenishable use of renewable resources. The aim is to benefitfrom the advantage provided by such resources to the point wherethe rate of ‘take’ equals to the rate of renewal, restoration andreplenishment. So in agriculture the farmer derives fertility fromsoil equal to the ability of the soil to supply nutrition. Similarly,the woodsman removes trees or the products at a rate equal to theregeneration. The fisherman catches marine resources in amountsthat are equivalent to their refurbishment. This begs the questionof whether inherent rates of renew ability can be enhanced throughscientific management.

The relation between growth, equity and environmentalsustainability are extremely complex. On the one hand, thetransformation of natural resources into goods is essential forgrowth and rising of living standards. Thus, for example, theexpansion of the water supply is what makes it possible for growthof human settlements. On the other hand, however, economicdevelopment process affects the quality of the environment. Forexample, air and water pollution, which reduces the capacity ofecosystems to provide the community with vital goods and services.

The threat to environment and ecology due to population,poverty, pollution and indiscriminate industrialization is a hardreality in India. People have begun to realize the dangers toecosystem inherent in the development design India has chosenat the behest of capitalist forces. Alternative to this kind ofdevelopment has come as a blessing to fill the gap. There havebeen some fundamental problems endemic to sustainabledevelopment like transfer of environmental technology; the needfor social policy etc. and India has to decide its future in adevelopment policy, which will encapsulate equity, equality andexcellence. The sooner we will find the alternative is better forthe nation as well as for the world.4Sustainable development as agoal rejects policies and practices that support current livingstandards by depleting the productive base, including naturalresources and leaves future 5generations with poorer prospects

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and greater risks than our own.”

The analysis of these definitions depicts that sustainabilityappears to be accepted as the mediating term designed to bridgethe gulf between ‘developers’ and ‘environmentalists’. Its beguilingsimplicity and apparently self-evident meaning have obscured itsinherent ambiguity. Its survival attests to the fact thatdevelopmental interests now recognize that much more seriousattention must be paid to incorporating a thorough understandingof environmental process into project investment calculus, if forno other reason than that failure to do so, may result inenvironmental side-effects that carry economic losses. The notionof sustainability appears most conveniently to the replenishableuse of renewable resources. The aim is to benefit from theadvantages provided by such resources to the point where the rateof ‘take’ equals to the rate of renewal, restoration or replenishment.So in agriculture the farmer derives fertility from soil equal to theability of the soil to supply nutrition. Similarly, the woodsmanremoves trees or the products at a rate equal to the regeneration.The fisherman catches marine resources in amounts that areequivalent to their refurbishment. This begs the question ofwhether inherent rates of renewability can be enhanced throughscientific management.

Principles of Scientific Management

1. Knowability: the amount, rate and other characteristics ofrenewability are knowable and calculable.

2. Homeostasis: renewable resource systems operate broadlyaround equilibrium or can be manipulated to approximatefollowing human intervention. Homeostasis is a preferentialstate of nature.

3. Internal bioethics: the act of thinking upon a renewable resourceeven below some threshold has implications only for the tightlyconfined eco-systems that is the resource.

4. External bioethics: utilizing a renewable resource up to the pointof sustainable yield is morally justifiable even though thatresource, below in threshold of optimal ‘take’, may have otherecological values and function. Sustainable growth is primarilya technical concept, bounded by formalistic rules of efficiencyand administration. Sustainability is a much broaderphenomenon embracing ethical norms pertaining to the

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survival of living matter, to the rights of future generation andto institutions responsible for ensuring that such rights arefully taken into account while formulating polices and actions.The first two of the four premises of sustainability outlinedabove, are pertaining to renewability and homeostasis, applyto the concept of sustainable utilization. The later two, whichembrace a more bioethical perspective with implications for agreat variety of rights and obligations, impinge more directlyon the notion of sustainability. Sustainable utilization is a priorcondition for sustainability, but not a sufficient one. Theanalysis which follows asserts that sustainable utilization ismanageable and politically acceptable because it is safelyambiguous. Sustainability on the other hand, is politicallytreacherous since it challenges the status quo. Paradoxically,the objectives of sustainable utilization cannot be met withoutincorporating the principles of sustainability hence theconfusion of misunderstanding that has grown up around thesustainability debate should be removed.

It was the Brundtland Commission’s publication “Our CommonFuture” in 1987 that really put the concept of sustainabledevelopment on the international agenda and highlighted itsapplicability to the environmental problems in the developingworld. The report recognizes that in most developing countriesthere is a greater dependence on natural resources andenvironment as an input of production and economic growth.Essentially, development and the environment are complementary,it is not economic growth per se that is to be rejected but there is aneed to search for alternative development strategies andtechnologies based on sustaining and expanding the environmentalresource base in the word of the Brundtland Commission.

There has been a growing realization among nationalgovernments and multilateral institutions that it is impossible toseparate economic development issues from environmental issues;many forms of development erode the environmental resourcesupon which they must be based, and environmental degradationcan undermine economic development (WCED, 1987, p. 3).

The report reflects the importance of economic efficiency inachieving the goals of sustainable development but also stressesthat the benefits of development must be distributed equitably.Social equity both within and across generations is a fundamentalgoal and prerequisite to achieve sustainable development. In this

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context poverty is seen as a major cause and effect of globalenvironmental problems and attempts to deal with environmentalproblems will be thwarted unless a broader perspective thatencompasses the factors underlying world poverty andinternational inequality is adopted. Brundtland Commissionperceived sustainable development as a strategy to ensure that(development) meets the needs of the present withoutcompromising the ability of future generations to meet their needs(WCED, 1987, p. 8).

Natural Resources, Economic Gain and Social LossBrander and Taylor (1997 and 1998) note that over-exploitation

of many renewable natural resources – particularly the conversionof forests to agricultural land – occurs in developing countries ifproperty rights over a resource stock are hard to define, difficultto enforce or costly to administer. They demonstrate that openingup trade for a resource-abundant economy with an open accessrenewable resource may actually reduce welfare in that economy.As the resource-abundant country has a comparative advantage inproducing the resource good, the increased demand for this goodresulting from trade openness leads to greater resourceexploitation, which under conditions of open access leads todeclining welfare in the long run. Brander and Taylor concludethat, as the problem lies with the “open access” nature ofexploitation in the resource-abundant economy, then the first-bestpolicy would be for the developing country to switch to moreefficient resource management policy through simply establishingproperty rights. However, as they acknowledge, there are manypolicy and institutional distortions that currently work againstsuch solutions in developing countries. Consequently, Brander andTaylor (1997, p. 550) argue in favour of “second best approaches”,such as the imposition of “a modified ‘Hartwick’s rule’ (seeHartwick 1977) under which an exporting country that experiencedtemporary gains from selling a resource good on world marketsmight re-invest those proceeds in an alternative asset.”

Current policies in resource-abundant developing economiesappear not to be ensuring that any resource rents earned are re-invested efficiently into other productive assets in the economy(Pearce and Barbier 2000). Such an outcome may be reinforced bycorruption, bureaucratic inefficiency and misguided policies thatbenefit special interests that gain from short-term resourceexploitation (Ascher 1999; Barbier and Damania 2000; Deacon

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1994). If this is the case, then irrespective of what may happen to acountry’s terms of trade or commodity prices, any initial “economicboom” associated with land conversion or increased resourceexploitation. One can find the global dilemma in local context andhere the context is the state of Odisha in general and Keonjhar inParticular.

Iron Ore Mining in KeonjharOdisha is one of the leading mining states of India, both in

terms of mineral resources and production. The State accounts for95 per cent of chromite, 92 per cent of nickel, 55 per cent of bauxiteand 33 per cent of iron ore (hematite) resources of the country. Itis also rich in other minerals like coal, dolomite, fire clay,manganese, graphite, and lime stone, apart from having a host ofminor minerals. In terms of the total value of mineral production,Odisha ranked third among all the States in 2008-09, accountingfor 13.06% of the value of country’s mineral production (excludingatomic minerals) (IBM, 2011). In terms of value, iron ore contributessignificantly to Odisha’s mineral production, followed by chromite.

Within the State’s economy, the mineral sector occupies aprominent place. “Mining and Quarrying” contributed 8.55% to theNet State Domestic Product (NSDP) at factor cost

and current prices during 2009-10 (Base: 1999-2000). About 30%of the State’s area is under forest cover, which provides for thelivelihood of the tribal population. From the point of view ofsustainable development what is critical is that Odisha’s largemineral deposits are located in its forest areas which are rich inbiodiversity, contain the catchments of its major rivers and alsoprovide the habitats for its poor and marginalized tribal population.

Keonjhar district which occupies an important place in themineral resources map of India and produces the maximumquantity of iron ore in the country (54.9 million tonnes or 27% ofthe country’s production during 2007-08) mirrors this criticalityto a considerable extent (Indian Mineral Year Book, 2009). Thedistrict has abundant resources of high grade iron ore; besidesmanganese and chromite ore are also available along with otherminerals like limestone, dolomite, nickel, quartz and vanadium.

Officially, it has around 119 mining leases (as in Dec 2005) and31,256 hectares under mining although illegal mining is quitewidespread (Murthy and Rao, 2006). For 2010, the equivalentfigures were 108 and 23,753 hectares. The district has 37% of its

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geographical area under forest, home to the catchment area of majorrivers and small springs/streams feeding these rivers (Governmentof Orissa, 2010). Nearly 45% of the district’s population -

many of them living in these forests - belongs to the scheduledtribes and another 12 percent to belong to the scheduled castes(Human Development Report 2004). Iron ore mining is the mainmineral production activity in the district which has proved ironore resources of more than 1000 million tones. The Singhbhum -Keonjhar - Bonai - mining belt passing through Keonjhar and theJoda - Barbil region of the district is the main hub of iron ore (andmanganese) production. Chromite, a strategic mineral, is alsoproduced in another part (eastern) of the district (Anandpur Block).The production of iron ore, manganese and chromite wererespectively 78%, 69% and 4% of the Odisha’s mineral productionduring 2008-09 (Indian Mineral Year Book, 2009).

Empirical studies carried out by some professional agenciesin Keonjhar have shown that extensive mining in the Joda - Barbilarea of the district had both positive and negative effects. Thesurvey results cited by the World Bank in its report (World Bank,2007), for example, indicate that mining brought benefits to nearbycommunities, mainly in the form of better access to roads andgreater stimulus to economic activity. The people nearer to mineshad higher wage incomes and purchased more consumer goods,although those less exposed to mining activities seemed to havefared better on several indicators, including education levels,access to clean water, reported illness, production asset and totalcash incomes. The findings thus highlight the importance of sharingthe benefits of mineral development with the local communitiesand mitigating the negative effects of mining. Another researchstudy (Vasundhara,2008) highlights the considerable negativeeffects of mining (in Joda-Barbil area) on the natural environmentand the local communities around the mines. The land use patternsurrounding the mine area has changed rapidly, involving loss offorest cover and degradation of agricultural land and consequentsharp increase in waste land.

Apart from inadequate and unplanned efforts at landreclamation and afforestation in the mining areas, huge overburdenfrom the mines and their poor management is a major source oflandscape change. The purpose of compensatory afforestation hasnot been achieved as the condition of the re-afforested land is in ashattered condition; either no plants exist on the site or a few

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number of species like eucalyptus or acacia (not indigenous to theregion) have been planted on these lands. Also, soil quality ofagricultural land has been affected adversely due to the deposit ofiron ore dust generated from the nearby mines or during transport,mines run-off generated during the rainy season and deposit ofoverburden on agricultural land from the nearby mines. Miningand consequent deforestation and heavy vehicular traffic carryingmineral ores have also destroyed elephant habitats and corridors,leading to increased human-animal conflict and reduction in theelephant population in Keonjhar.

The Orissa State Pollution Control Board (SPCB) in its “Stateof environment report, Orissa” (Orissa State Pollution ControlBoard, 2006) has classified Joda - Barbil region of

Keonjhar district as a highly polluted zone (Zone 1). Duringthe rainy season, the water in rivers turns red with heavyconcentration of particles of iron oxide and the total suspendedsolids often go up to 1000mg/litre. Overflow of mine seepage andeffluents from beneficiation plants normally find their way tostreams and pollute streams passing through the mines areas.

Air pollution is also a major problem in the mines area, withconcentration of suspended particulate matter (SPM) in ambientair much above the permissible limit in many

places, particularly at crusher loading and transfer points. Oneof the biggest reasons for fugitive dust generation is the poorcondition of roads in these areas and movement of large number oftrucks carrying mineral ores on these roads. Sometimes thepollution level on the roads is much higher than in the mines wheresprinkling of water suppresses dust generated due to miningoperations. Infrastructure, especially roads, is in a very badcondition in Keonjhar and is totally inadequate to handle the heavyvehicular traffic generated for the transport of mineral ores froma large number of mines. Apart from the district and panchayatroads in the mining area

which are in pathetic conditions, the National Highway 215passing through the region is totally inadequate to handle thevehicular traffic comprising trucks carrying mineral ores out ofJoda - Barbil to their destinations. The highway has only two lanesof which one is blocked by parking of heavy vehicles during theday as these are allowed to ply only during night time. This oftencauses road block and jams and accidents. The situation furtherdeteriorates during night when there is heavy vehicular traffic

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causing great inconvenience to the local communities who continueto face frequent traffic jams during both day and night.

With virtual absence of traffic and local police to managedifficult situations on the roads, the local musclemen are oftenseen taking law into their hands to deal with the situation (and inthe process perhaps make some fast buck!).

Mining activity also has adverse effect on the health of thelocal population. In buffer villages, there is high incidence ofbronchial diseases and the number of respiratory tract infectionpatients is on the increase. HIV Aids is also a growing problem inthe area. All these naturally have a detrimental effect on the localcommunities with high exposure to mining. Firstly, large scale andindiscriminate mining in the Joda - Barbil area is threatening todisrupt the traditional livelihood and social fabric of the localcommunities comprising mostly Adivasis (members of thescheduled tribes). These communities used to depend onagriculture, forest produce and other traditional occupation suchas fishery and handicrafts for their livelihood. Degradation of landand soil quality as well as loss of forest has affected their occupationadversely, resulting in loss of total income. Due to the absence oftechnical skills, the eligible members of these communities can beemployed only as unskilled workers in the mines. With increasingmechanization, the scope for such employment is declining.

The opportunities for jobs in transport and other ancillaryoccupations are also limited and sometimes these can havedamaging effect on their traditional life style. Displacement dueto mining projects and exposures to urban and industrial activitiesis also disturbing the age old social structure creating tensionswithin these communities and in their interface with the outsideworld. This is aggravated by air and water pollution in theirlocalities, shattered infrastructure, health problems and chronicpoverty among the people. In Keonjhar, in a classic case of the so-called “resource curse”, nearly 62 percent of the population livebelow the poverty line and score poorly on various humandevelopment indicators, especially in the fields of education andhealth. It is obvious that in the absence of proper benefit-sharingmechanisms, the gains from the mineral sector are beingdisproportionately appropriated by a small group of people (mineowners). In such a situation, it is not surprising that the “sociallicense to mining” is under severe strain. It is, therefore, of criticalimportance that the benefits of mineral development are shared

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with the local communities and the negative effects of mining onenvironment are mitigated to the maximum extent possible. Thisis central to the issue of sustainable development in the mineralsector.

Keonjhar is dominated by small-sized mines. In 2010, therewere 108 mining leases for iron, manganese and chrome ore in thedistrict; only 6 leases were for chrome ore and the rest for iron/iron-manganese ore. These leases covered an area of 23753.45hectares of land including 17134 hectares of forest land. Eightythree of these mines were operational in

August 2010. The average land size of the mining leases was275 hectares with more than 50 percent having size of less than100 hectares. In fact, only 18 mines were of land sizes of more than500 hectares with only 7 mines having more than 1000 hectares ofland each. It is obvious that a large number of small-sized leaseshave been granted in Keonjhar where the landscape is scarred byextensive mining by these small operators (Additionally, extractionof minor minerals taking place all over the district also affects theenvironment adversely).

In the case of larger, mining firms, apart from adoptingtechnology-oriented mining operations, the executives often takea more proactive approach to environmental protection.

This could be due to the vision of their founders, a positivecorporate culture or a desire to present a “green image” forcommunity accountability. Many of them use ISO 14000 standardsand their senior executives display greater awareness of andcommitment to environmental and social issues. Of course evenamong large enterprises, there are variations in environmentalbehaviour with some firms being more proactive than the others.

So far as stakeholder engagement is concerned, themanagement behaviour of both the large and small firms hardlydiffers. The local communities comprising mainly of members ofthe scheduled castes and tribes (uneducated, poor and marginalizedin the society) are never taken as stakeholders in the activities ofthe mining companies. Also a more systematic and formalizedarrangement for bringing about socio-economic development of thepeople residing around the mines is necessary to compensate themfor taking way their habitat’s natural resources.

In Keonjhar (Joda - Barbil region), it appears that the air andwater quality deterioration and other environmental problems are

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the cumulative effect of a large number of mines operating beyondthe region’s carrying capacity, even though individual mines couldbe conforming to the prescribed standards. In particular, theindiscriminate mining by a large number of small and medium-sized concerns where the mining and environmental practices maynot conform to the best possible standards is contributing toenvironmental deterioration.

Then, there is also the prevalence of the so-called “illegalmining” in the area, fuelled by increase in the iron ore prices since2004. Odisha’s illegal mining scam that came to light in 2009 ismainly relates to iron ore mining in Keonjhar. The CentralEmpowered Committee (CEC) of the Supreme Court of India whichenquired into the allegation has the following to say in its interimreport (CEC, 2010) submitted to the Court in April 2010:-

“Mining activities were going on in a large number of mines inOrissa without the requisite approvals under the ForestConservation Act 1980, environmental clearances and the Air andWater Acts. The mining activities also exceeded the productionlimit as approved under the mining plans”.

A major factor that facilitated illegal mining is the system ofso called “deemed extension” of mining leases under Rule 24A(6)of the Mineral Concession Rules 1960.

Applications of mining lease holders for renewal of leases arekept pending for long periods, in some cases even beyond a periodof 20 years, after the expiry of the original lease. During this periodof pendency mine owners are allowed to carry on mining operations(as ‘deemed leases’) even without the required forest andenvironmental clearances. Collusion of mining and forestbureaucracies and corruption often play a critical role. This is thefinding of both CEC and the Justice M.B. Shah Commission ofInquiry for Illegal Mining of Iron Ore and Manganese appointedby the Government of India. (Justice M.B, Shah, 2011).

Apart from the recognized mine owners, both large and small,indulging in illegal mining, there are also instances of villagers inthe mining areas, encouraged by local mafia groups, taking to crudesurface mining with simple implements like picks and shovels intotal disregard of the law and environment. Prevalence of wide-spread corruption among the concerned official agencies andpolitical establishment only aggravates the problems. Illegal miningin all its forms is a great environmental hazard for it results in

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production beyond the prescribed capacities and violates all thenorms and standards laid down for maintaining environmentalintegrity in the mining areas.

Regulatory ArrangementsThis brings us to the question of effectiveness of the available

regulatory regime for mines development and environmentalprotection. Environmental protection in India is of the “commandand control” variety, without much emphasis on economic incentiveor market stimuli. Of late civil society and non-governmentorganization (NGO) pressure and people’s opposition to largeprojects (like Vedanta Aluminium and POSCO and Kalinganagarsteel projects in Odisha) on environmental and livelihoodconsiderations are having some impact on corporate environmentalbehaviour. But it is doubtful if the elaborate governance system

comprising multiple institutions, legislations and procedureshas been effective in bringing about a satisfactory environmentaloutcome in Keonjhar and other mining areas.

The two agencies which are directly concerned withadministration of the mineral sector are the State Directorate ofMines (along with its field formations) and the Regional office ofthe Indian Bureau of Mines (IBM) at Bhubaneswar, which is acentral government agency under the Union Ministry of Mines.Broadly, the State Government agency handles issues concerninggrant, revision and termination of mining concessions, surveyin demarcation of mining leases, revenue/royalty collection,production and transport of mined areas, illegal mining, etc. Mostof these matters are covered under the Mineral Concession

Rules (MCR) 1960 under MMDR (Mineral Conservation andDevelopment) Act 1957. IBM, on the other hand, primarily dealswith matters covered under the MMDR Rules 1988 such asapproval of mining plans and schemes, monitoring theirimplementation, mine closure plans, environmental protection inmines and other issues concerning scientific mining. There isevidence to suggest that this artificial separation of responsibilitiespertaining to mineral administration creates problems ofcoordination and blame games among the state and centralgovernment agencies. The administrative arrangements providedfor coordination such as the regional coordination committees, theState Geological Programming Board and the State Coordination-cum-Empowered Committee are not effective in bringing about

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the desired coordination and coherence.

This situation is best illustrated by the differences betweenthe Odisha State Government and the Central Government (UnionMinistry of Mines) on the issue of prevention of illegal mining inthe state. Since the mining plan approved by IBM for a mineralproject specifies the quantity of ore that can be extracted in a year,significant overproduction can amount to illegal mining. Therefore,in September-October 2011, the State Government complained tothe Central Government (Union Ministry of Mines) about theviolation of the annual production limits in various (iron ore) mines(274) in the state and the inadequacy of the action taken by IBM toprevent illegal mining.

The position of IBM is that checking illegal mining is a stateresponsibility as it is covered under the Odisha Minerals(Prevention of theft, smuggling and illegal mining and regulationof possession, storage, trading and transportation) Rules 2007framed by the State Government under Section 23C of MMDR Act1957. In view of this general position, the Central Government(Union Ministry of Mines), in its detailed response to the StateGovernment, sent in December 2011, threw the ball back to thelatter’s court. Their argument had two somewhat contradictorystrands. Firstly, it was contended that the State Directorate ofMines had legal powers and responsibilities to undertake siteinspection of mines in order to determine the quality and quantityof minerals excavated for assessing royalty payable on the minerals.They have the powers to examine the production records andaccounts of miners and exclusive powers to issue transit permitsonly after which these can be moved out of the mines. It is theState Government’s responsibility to correlate production anddispatch of minerals with the production figures indicated in themining plans and schemes (endorsed to them for this purpose byIBM) in order to check illegal mining including transportation.

At the same time, the Central Government’s letter contendedthat the Mining Plan was a dynamic document and while 20%deviation from the annual production limit indicated in the Planwas permissible, it could also be modified from time to time (underRule 10 of MCDR) in the interest of flexibility and scientific mining.On the basis of this formulation, and after regularization throughreview (by IBM), only 15 out of 278 instances (spread over a 10year period) identified by the State Government were shown (byIBM) to be the cases of violations on the ground of overproduction

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(Ministry of Mines, D. O. No. 16/185/2010-MVI, dated 12 th

December, 2010, Ministry of Mines, Government of India). Theresponsibility for the failure to detect such overproduction ofminerals (and restrict their transportation) was of course laid onthe state machinery for its failure to correlate with productionfigures indicated in the approved mining plan.

Similar overlapping is also seen in environmental governancerelating to the mineral sector. MMDR has as many as 11 rules(Chapter 5) concerning environment and IBM requires an“Environment Plan” along with mining and mine closure plans inrespect of a mining project. At the same time, an EnvironmentManagement Plan (EMP) for a mining project is prepared as partof the Environment Impact Assessment (EIA) process under the

Environment Protection Act 1984 and its implementation issupposed to be monitored by the Regional office of MoEF atBhubaneswar. IBM is also required to monitor environmentalprotection measures in mines including air and water pollutionwhereas the Air and Water

Acts give this responsibility to the State Pollution ControlBoard (SPCB). SPCB itself has an elaborate system of grantingconsent to establish (CTE) and consent to operate (CTO) and tToovercome these shortcomings, NALCO set up a foundation (NALCOFoundation) for undertaking development works in the villageslocated within 15km radius of Nalco mines in Damanjodi. Theyalso adopted a project-based accountability approach by ensuringparticipation of the primary stakeholders at grass-root level inthe decision-making processes relating to identification,formulation and implementation of projects. They also decided toallocate an additional 1% of NALCO’s total net profit every year tofund the schemes and programmes to be undertaken by the NALCOFoundation, making the CSR budget of the company to be 2% ofthe net profit.

There are two other aspects of mineral administration whichrequire some comments.

First, the issue of ‘forest clearance’ for mining projects underthe Forest Conservation Act (FCA) 1980. It has been said that inpractice the law is being construed “not so much as a tool forpreserving forests, as one for deriving compensation for thediversion of forests” (Bhushan and Hazra, 2008). This compensationcomes in the form of funds for compensatory afforestation and as

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an amount for the net present value (NPV) of the forest to be lost.Due to myriad administrative and procedural resources, there isavoidable delay in making available these funds to the localadministration for creating alternate assets in proportion to theloss to the natural environment due to a mining project. Besides,there are no criteria for the distribution of NPV-amount whichwould ensure that the amount is spent in the area where treeshave been felled.

Finally, there are two specific aspects of the EIA(environmental impact assessment) process under EIA Notificationof 2006, which require some comments. Firstly, private consultantsprepare EIA report for project proponents who pay them for theservice. These often do not present an objective analysis of thepossible environmental impacts of a project and the report endsup as a document in support of the project proposal. Secondly, thepublic hearing process in the field also suffers from manydrawbacks, especially in a backward area like Keonjhar where mostresidents of the villages affected by mining projects are illiterate,and belong to the marginalized scheduled tribes and castes. Veryoften the proceedings are stage managed, either by the projectproponents or opponents to the project or both. Sometimes localpoliticians and goons can create disturbance in the meetings witha view to blackmailing project proponents for irregular payments.Inter-company rivalries may also get reflected in these meetings.In the mining areas of Keonjhar, public hearings have sometimesbeen postponed or abandoned due to public disturbance and threatto law and order.

Sustainable Development in IndiaIndia’s tryst with destiny is fraught with plethora of challenges

and innumerable complexities. Its history, culture and polity reflecta wide range of diversity and multiplicity quite unparalleled inhuman civilizations. It is this ubiquity of uniqueness that hasbrought the nation into a perpetual process of realignment andassimilation. In the event of the approaching millennium andsubsequent change in global order in the form of globalization, riseof international terrorism, unbridled consumerism, climaticchange and emergence of unipolar world order, India’s challengehas gone manifold. The dilemma is more pronounced in theeconomic and social front particularly in its effort to achieve socialharmony and the need to ensure sustainable management of naturalresources and the environment. The difficulty in attaining social

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harmony in the face of multiculturalism and a predominance ofpluralist worldviews has been encapsulated in the historicity ofits tradition. The second, however, has gradually been incorporatedinto the core of the development debate in recent years.

India’s quest for economic growth, scientific achievement andsocial development has been aptly reflected in the Nehruvian policyof post-independent India. But a critical analysis of India’s progressafter half a century depicts a sad reality. Poverty, unemployment,illiteracy and poor health care facilities continue to haunt thenation. These facts question the validity of our development modeland its effect. The recent emphasis on sustainable development isa product of our search for alternatives in pursuing humanhappiness and welfare.

A conservative estimate of environmental damage in India putsthe figure at more than $10 billion a year or 4.5% of GDP in 1992.That is, urban air pollution costs India $1.3 billion a year. Waterdegradation leads to health costs amounting to $5.7b every year,nearly three fifths of the total environmental costs. Soil erosionaffects 83-163 million hectares of land every year. Deforestation,which proceeded at the rate of 0.6% a year between 1981 and 1990,leads to annual costs of $214 million.

Taking an example of a development process ofindustrialization and urbanization and its impact on theenvironment, it is noted that of the 3 million premature deaths inthe world that occur each year due to outdoor and indoor airpollution, the highest number are assessed to occur in India.According to the World Health Organization, the capital city ofNew Delhi is one of the top ten most polluted cities in the world.Surveys indicate that in New Delhi the incidence of respiratorydiseases due to air pollution is about 12 times the national average.According to another study, while India’s gross domestic producthas increased 2.5 times over the past two decades, vehicularpollution has increased eight times, while pollution from industrieshas quadrupled.

These disastrous revelations came at a stage when controllingsuch pollution was a Herculean task. The development of Indiacan be divided into phases. In the phase lasting almost till 1972,development essentially meant usage of natural resource to gainmaterial wealth or rather conversion of natural resource to marketcommodities. There was absolutely no consciousness of naturalresource depletion or other issues of environment degradation.

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The 1980s continued with speedy conversion of the green tree coverinto the green moolah cover in industrial houses and world stateeconomies. It was somewhere in the late 80s and early 90s that thealarm bells rang and the concepts of sustainable development etcsprung up. Thereafter the global community has become consciousof the possible results of the present rate of natural resourcedepletion world over.

Several enactments world over came into force; many of thembased on general environmental protection and quite a few onspecific aspects of environment protection. The crucial pointhowever is not in the framing of exclusive enactment but in theirenforcement. This is of special relevance in a developing countrylike India. A developing country like India is on its way to achievethe standards set by its developed counterparts like the UnitedStates of America; while on to this arduous task, the internationalcommunity imposes on it an obligation to take care of itsenvironment. The situation, which arises, is one of prioritization;which in itself is the most challenging decision for the stateauthorities. It’s a position in the middle of the valley and the well.

Environmental Impact Assessment:In view of the Bhopal gas tragedy, future projects in a

developing country like in India must apply environmental ImpactAssessment. (EIA) to fulfil the following objectives:

to identify adverse environmental problems that may be expectedto occur;

to incorporate into the development action appropriate mitigationmeasures;

to identify the environmental benefits and drawbacks of the project,as well as its economic and environmental acceptability of thecommunity;

to identify critical environmental problems which require furtherstudies and /or monitoring;

to examine and select the optimal alternative from the variousrelevant options available;

to involve the public in the decision-making process related tothe environment ; and

to assist all parties involved in development and environmental

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affairs to understand their roles, responsibilities and overallrelationships with one another.

Environmental Impact Assessment is essentially a preventiveprocess, which avoids costly mistakes in planning and development.Therefore, it is necessary to carry out EIA during the feasibilitystudy stage of the planning process. India must carry out EIA forits development projects in order to ensure economic development.It should ensure rational geographic distribution of itsdevelopment plans and try to avert adverse environmental impactsin the future. Training of skilled manpower and an easy access toin order from other countries having somewhat similar physicaland socio-economic conditions are important factors which coulddetermine the quality of environmental assessment to be made.

Developing countries must carry out EIAs to the best of theirnational capability. Therefore it is urgently necessary to train ourown experts in EIA. Foreign experts are no substitute for well-trained local experts. The involvement of local expertise will notensure that EIAs are carried out more relevant to local needs, butwill also ensure a significant reduction in EIA costs when comparedwith those conducted by foreign experts.

The need to take environmental considerations into accountto ensure successful economic development is increasinglyrecognized throughout the world. Laws of many countries providethat reports on environment impacts must be submitted for publicreview. Environmental Impact Assessment provides an importantmethodology for acquiring a clear understanding of the relationshipbetween economy, society and environment and offers positivemeasures for better harmonizing the relationship betweeneconomic development and environmental protection as aneffective means for strengthening environmental planning andmanagement. The implementation of this system is of greatsignificance to both economic development and environmentalprotection especially in a developing country like India, with itshistorical Bhopal gas tragedy.

Summary and ConclusionThe picture that emerges from the analysis of the situation in

Keonjhar is a mixed one. While larger mining enterprises havesome concern for scientific mining, environmental protection andlimited social development (through CSR activities), smallerenterprises are focused on the maximum extraction of mineral

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resources from their lease areas. There is also considerable illegalmining. In Keonjhar, mining is being carried on without anyconcern for the environment’s “carrying capacity” andinfrastructural limitations. Engagement with local

population and socio-economic development in the miningproject area are neglected issues both by the mining industry andthe government agencies which mostly focus on regulatory matters.Multiple central and state agencies create problems of coordinationand are ineffective in ensuring sustainable mineral development.

On the one hand, intervention leads to determination on theother hand intervention is required because the local productivityis perceptibly low to support today’s population. Thus the newdevelopment strategy should be sustained amidst variouspressures and the resource management has to be viewed in itstotality considering all the available uses and focusing not on thesustainability of any individual project on sector but on the entireproduction system. Analysts and planners have becomeincreasingly concerned about the futility of maximization of growthrate in ensuring economic equity and social justice.

References

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Anderson, Mary B., and Peter J. Woodrow. 1989. Rising from theAshes: Development Strategies in Times of Disaster. Boulder,Colo.: Westview Press and Paris: UNESCO. Bakshi, P. M. “Environmental Disasters- The Legal Aspect”, Hindustan Times,December, 11,1984.

Bandyopadhyaya, Jayanta. “Technological Terrorism”, IndianExpress, December 25, 1984. Belli, Melvin.M., “Bhopal Tragedyand US lawyers”, Indian Express, January 10, 1985: January11, 1985.

Barnby, F. 1991. ‘The Environmental Effect of Gulf War’, TheEcologist, Vol.21, No.4

Beck, Ulrich. 1995. Ecological Enlightenment: Essays on the Politicsof the Risk Society. Atlantic Highlands, New Jersey: HumanitiesPress.

Bell, C. and L. Roberts (eds). 1984. Social Researching: Politics,

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Problems, Practice. London: Routledge and Kegan Paul.

Bogard, William. “The Bhopal Tragedy-Language, Logic andPolitics in the Production of a Hazard”, 1989 Edn., West viewPress Inc., Boulder, San Francisco & London.

Brooks, H. 1986. “The typology of surprises in technology,institutions and development.” In: W .C. Clark and R.E. Munn,(eds.) Sustainable Development of the Biosphere. Cambridge:Cambridge University Press, pp. 325-347.

Brown, Phil, and Edwin J. Mikkelsen. 1990. No Safe Place: ToxicWaste, Leukemia, and Community Action. Berkeley: Universityof California Press.

Burton, Fan, and Robert W. Kates. 1986. “The Great Climacteric,1798-2048: The transition to a just and sustainable humanenvironment.” In: Robert W. Kates and Ian Burton, (eds.)Themes from the Work of Gilbert F. White. VollI: Geography,Resources, and Environment. Chicago: University of ChicagoPress, pp. 339-360.

Covello, Vincent T., and Miley W. Merkhofer. 1993. Risk AssessmentMethods: Approaches for Assessing Health and EnvironmentalRisks. New York: Plenum Press.

Cowan, Edward. 1968. Oil and Water: The Torrey Canyon Disaster.Philadelphia: J. B. Lippincott.

Curran, Daniel J. 1993. Dead Laws for Dead Men: The Politics ofFederal Coal Mine Health and Safety Legislation. Pittsburgh:University of Pittsburgh Press.

Cutter, Susan L. 1993. Living with Risk: The Geography ofTechnological Hazards. London: Edward Arnold.

Douglas, Mary.1992. Risk and Blame: Essays in Cultural Theory.London: Routledge.

Douglas, Mary .and Aaron Wildavsky. 1982. Risk and Culture: AnEssay on the Selection of Technological and EnvironmentalDangers. Berkeley: University of California Press.

Erickson, K. 1976. Everything in Its Path: Destruction of CommunityLife in Buffalo Creek. New York: Free Press.

Edelstein, Michael R. 1988. Contaminated Communities: The Social

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and Psychological Impacts of Residential Toxic Exposure.Boulder, Colo. : Westview Press.

Ellis, Derek. 1989. Environments at Risk: Case Histories of ImpactAssessment. Berlin: Springer-Verlag, pp. 38-69.

Gandhi, M. K. 1938. Hind Swaraj. Ahmedabad: Navjivan Press.

Hamilton, David. 1973. Technology, Man and the Environment.London: Faber and Faber, p. 296.

Holling, C.S. 1986. “The resilience of terrestrial ecosystems: localsurprise and global change “. In: W .C. Clark and R.E. Munn,eds. Sustainable Development of the Biosphere. Cambridge:Cambridge University Press, pp. 292-316.

Houts, Peter S., Paul D. Cleary, and Teh-Wei Hu. 1988. The ThreeMile Island Crisis: Psychological, Social, and EconomicImpacts on the Surrounding Population. University Park:Pennsylvania” State University Press.

Mitchell, James K. 1990. “Human dimensions of environmentalhazards: Complexity, disparity and the search for guidance.”In: Andrew Kirby, ed. Nothing to Fear: Risk and Hazards inAmerican Society. Tucson: University of Arizona Press, pp. 131-178.

Newson, ed. Managing the Human Impact on the NaturalEnvironment: Patterns and Processes. London: Belhaven Press,pp. 196-210.

Park, Chris C. 1989. Chernobyl: The Long Shadow. London:Routledge.

Pearce et al. 1990. Sustainable Development. London: EdwardEdgar Pvt. Ltd.

Walters, Robert. 1992. “Poison in the Pacific.” The Progressive 56(7):32-35.

Warner, Sir Frederick. 1992. Risk: Analysis, Perception andManagement. Report of a Royal Society study group. London:Royal Society.

Whiteside, James. 1990. Regulating Danger: The Struggle for MineSafety in the Rocky Mountain Coal Industry. Lincoln: Universityof Nebraska Press.

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World Commission on Environment and Development (WECD).1987. Our Common Future. Report of the BrundtlandCommission. London: Oxford University Press.

World Resources Institute. 1986. World Resources 1986. New York:Basic Books, pp. 203- 226.

World Resources Institute. 1992. World Resources 1992-93. NewYork: Basic Books. Wynne, Brian. 1992. “Uncertainty andenvironmental learning: Reconceiving science and policy in thepreventive paradigm.” Global Environmental Change 2(2): 111-127.

(Footnotes)

1 J. Speth, “A Post Rio Impact“, FOREIGN POLICY, No.88.pp. 146-61, 1994.

2 PEARCE et al. SUSTAINABLE DEVELOPMENT (London,Edward Elger Pvt. Ltd., 1990).

3 Winepenny, 1990 cited in KULA E., ECONOMICS OF NATURALRESOURCES, THE ENVIRONMENT AND POLICIES p. 32.(London, Chapman & Hall, 1994)

4 V.R. Reddy, “Environment and Sustainable Agriculturaldevelopment“, ECONOMIC AND POLITICAL WEEKLY, vol.XXV no. 12, March 25, 1995.

5 Pearce et al. Sustainable Development, London: Edward ElgarPvt. Ltd., 1990.

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17Human rights and climate change

Akshaya S. Desai

IntroductionEarth is the only planet which sustains life, the solar system

and the only member of the myriads of systems in the universe,which presents an intermingling condition of air, water and land.Thus, it is unique among the planets having abundant water, anatmosphere and surface temperature conditions that havesupported life.Development is an essential part of the societywhich has direct influence on human health and environmentrelated rights. One of the major drawbacks of the conceptdevelopment has been that, it is often equated with growth. Growthcan bring money and prosperity but development is a holisticconcept; it has to be culturally compatible, socially fair andeconomical. Sustainable development is the need of the presenttime not only for the survival of mankind but also for its futureprotection. Unlike the other great revolutions in human historythe Green Revolution and the Industrial Revolution the ‘sustainablerevolution’ will have to take place rapidly, consciously and on manydifferent levels and in many different spheres, simultaneously. Theaim of ecologically sustainable development is to maximize humanwell-being or quality of life without jeopardizing the life supportsystem. The measures for sustainable development may bedifferent in developed and developing countries according to theirlevel of technological and economic development. This article aimsto explore the human Rights aspects related to SustainableDevelopment.

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The idea of sustainable development became popular after1980s wherein the scientific evidence began to upsurge, indicatingthat human actions were having negative impact on theenvironment.The wholesome environment gives enriched sourcesof clean air, water, sunlight, food etc. These environmentalendowmentsoften referred to as ecosystem services which are atonce essential for the core survival of human existence. As per2012 Rio+20 conference,sustainable development requires that weapproach toward “harmony with nature”; and to achieve this idea,we must balance economic, social and human development with“ecosystem conservation, regeneration and restoration andresilience in the face of new and emerging challenges.” 1The natureof the linkages between the environment and human rights hasbeen debated for years. However, it has long been recognized thata clean, healthy and functional environment is integral to theenjoyment of human rights, such as the rights to life, health, foodand an adequate standard of living; because of this recognition theinternational community has hooped together through multilateralenvironmental agreements to prohibit illegal trade in wildlife, topreserve biodiversity and marine and terrestrial habitats, to reducetrans-boundary pollution, and to prevent other behaviors that harmthe planet and its residents. In short, Environmental protectionprotects human rights. At the same time, adherence to humanrights such which ensure public access to information and involvein decision making, contributes to more equitableand justiciabledecisions about protection of environmental resources. It will alsoprotect from potential abuse of environment. Thus, domesticenvironmental laws and multilateral environmental agreementscan both be strengthened through the incorporation of human rightsprinciples, even as they contribute to the ongoing realization ofhuman rights.

Human Rightsprinciples in case of climate changeClimate change results in a massive threat to the existence

and well-being of individuals and communities across the world.2

These harmful impressionsresult in some unexpected events thatmark a direct threat to human lives and safety, as well as moregradual forms of environmental deterioration that will undermineaccess to clean water, healthy food, and other important resourcesthat support human life. Thus, climate change will have a profoundeffect on the enjoyment of human rights for billions of people. Thisis not merely an abstract, future possibility. Climate change is

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already contributing to drought, ecosystem degradation, and foodshortages across the world. The impact of environmental imbalancechanges from one region to the other. Some regions are more pronefor greater damage. For example, rise in the sea level adverselyaffects the safety and well-being of the people who are stayingnear the coastal zone which ultimately affects their human rights.3

Right to Life, Right to health, Right to water and sanitation,Right to food and Right to adequate standard of living: Im-pacts on Ecosystems and Natural Resources–

Climate change will significantly reduce surface water andgroundwater levelin most dry subtropical regions, which willescalate the race for water resources among agriculture, industries,and individual usage; which will again reflect in the increase inthe frequency of droughts in presently dry areas and disturb theentire cycle of ecology. The primary elements of these projectedwater shortages and droughts include:

Reduced rainfall,

Higher temperatures, which increase evaporation from surfacewater and soils;

Sea level rise, which contributes to saltwater inundation offreshwater resources.

Reduced snowpack, resulting in less snowmelt supplyingrivers and streams;

In addition, variations in the timing, magnitude, and type ofprecipitation, as well as temperature increases and sea level rise,can harm freshwater ecosystems by changing stream flow and waterquality. This can also lead to the degradation of water supplies forhuman consumption, agriculture, and other uses.4Coastal Systemsand Low-lying Areas The projected increase in the intensity oftropical cyclones, aggravated by sea level rise and the degradationof ecosystems that provide protection from storms and flooding,will pose a direct threat to human lives and coastal settlements.Due to which hundreds of millions of people will be affected bycoastal flooding and will be displaced due to land loss by year 2100.Coastal communities will also be adversely affected by the moregradual degradation of land, soils, freshwater resources, andcoastal and estuarine ecosystems.5

These climatic changes will result in less produce in

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agriculture, lesser drinking water which will indirectly lead tomore poverty. Hence right to health, life, adequate standard ofliving will get hampered. If we consider economics aspects behindthis, then reduction in agriculture or scarcity of natural resourceswill result in in inflation and socio economic gap between the richand poor will increase and ultimately violation of human rightswill take place.

South Asia has become a theater for disaster. In the past decadealone, floods, cyclones, earthquakes, droughts, and a devastatingtsunami destroyed hundreds of thousands of lives and livelihoodsand left millions more homeless. In each disaster, humanitarianresponders rushed to the scene to preserve human life and reduceimmediate suffering. The International Strategy for Disaster RiskReduction estimates that 200 million people have been affected bynatural disasters every year for the past two decades. In thecourse of the past year, over 400 natural disasters took 16,000 lives,affected close to 250 million people and displaced many millions.

Most displaced people have no other option but to stay insidethe borders of the country even after being affected by naturaldisasters. It is defined in the Guiding Principles on internalDisplacement that displaced people are entitled to the full rangeof rights. It is the responsibility of their National Governmentsfor protecting of those who are displaced. Also, the Governmentshave to assist them and with facilitating durable solutions for theirdisplacement.

Poverty and marginalization makes things worse for victimsof natural disasters. Natural disasters in poorer countries havehigher casualties than disasters of similar magnitude in wealthiercountries. Within countries, it is often the marginalized groupswho suffer disproportionately.

The Operational Guidelines stress that human rightsencompass not only civil and political rights but also economic,social and cultural rights. However, it is difficult to concurrentlyprovide all rights to all affected people in the middle of the disaster.Thus for practical reasons, the Operational Guidelines dividehuman rights into four groups, namely:

Rights related to physical security and integrity (e.g. Protectionof the right to life and the right to be free of assault, rape,arbitrary detention, kidnapping, and threats to these rights);

Rights related to basic necessities of life (e.g. The rights to

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food, drinking water, shelter, adequate clothing, adequatehealth services, and sanitation);

Rights related to other economic, social and cultural protectionneeds (e.g. The rights to be provided with or have access toeducation, to receive restitution or compensation for lostproperty, and to work); and

Rights related to other civil and political protection needs (e.g.- The rights to religious freedom and freedom of speech,personal documentation, political participation, access tocourts, and freedom from discrimination).6

Time line detailing the international response to ClimateChange 2012

· The Doha Amendment to the Kyoto Protocol is adopted by theCMP at CMP8. 2011

The Durban Platform for Enhanced Action drafted andaccepted by the COP, at COP17. 2010

Cancun Agreements drafted and largely accepted by the COP,at COP16. 2009

Copenhagen Accord drafted at COP15 in Copenhagen. 2007

IPCC’s Fourth Assessment Report released. Climate scienceentered into popular consciousness. At COP13, Parties agreedon the Bali Road Map. 2005

Entry into force of the Kyoto Protocol. 2001

Release of IPCC’s Third Assessment Report. Bonn Agreementsadopted, based on the Buenos Aires Plan of Action of 1998.1997

Kyoto Protocol formally adopted in December at COP3. 1996

The UNFCCC Secretariat is set up to support action underthe Convention. 1995

The first Conference of the Parties (COP 1) takes place inBerlin. 1994

UNFCCC enters into force. 1992

The INC adopts UNFCCC text. At the Earth Summit in Rio,the UNFCCC is opened for signature. 1991

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First meeting of the Intergovernmental Negotiating Committee(INC) takes place. 1990

IPCC’s first assessment report released. 1988

· The Intergovernmental Panel on Climate Change is set up.1979

The first World Climate Conference (WCC) takes place.7

India- climate change initiativesCenter for Climate and Energy Solutions (C2ES) has produced

a comprehensive fact sheet of India’s climate and energy policies.The fact sheet examines India’s predominant climate goals andspecific policies and targets within the energy and transportationsectors.

Emissions and EnergyIndia is the fastest-growing major economy in the world. It is

the fourth largest greenhouse gas (GHG) emitter, accounting for5.8 percent of global emissions. India’s emissions increased by67.1 percent between 1990 and 2012, and are projected to grow 85percent by 2030 under a business-as-usual scenario.By othermeasures, India’s emissions are relatively low compared to thoseof other major economies. India accounts for only 4 percent ofglobal cumulative energy-related emissions since 1850, comparedto 16 percent and 15 percent for the United States and China.8

India pledged under the Copenhagen Accord to reduce its CO2intensity (emissions per GDP) by 20 to 25 percent by 2020 comparedto 2005 levels. India appears on track to achieve its voluntarypledge, though emissions are not projected to peak until around2050 or later. On October 1, 2015, India formally submitted itsintended nationally determined contribution (INDC) to the climateagreement due in December 2015 in Paris. Among its key elements:

To reduce the emissions intensity of its GDP by 33 to 35 percentby 2030 from 2005 level.

To achieve about 40 percent cumulative electric power installedcapacity from non-fossil fuel based energy resources by 2030,with the help of transfer of technology and low costinternational finance including from Green Climate Fund(GCF).

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To create an additional carbon sink of 2.5 to 3 billion tonnes ofCO2 equivalent through additional forest and tree cover by2030.

Policies Contributing to Climate MitigationIndia has a number of policies that contribute to climate

extenuation by reducing or evading Green House Gas emissions.In June 2008, the Prime Minister released India’s first NationalAction Plan on Climate Change, which identified eight corenational missions running through 2017. India’s current Five-YearPlan (2012-2017), which guides overall economic policy, includesgoals to:

Achieve average 8 percent annual GDP growth;

Reduce emissions intensity in line with India’s Copenhagenpledge; and

Add 300,000 MW of renewable energy capacity.

The Prime Minister has taken steps to scale up clean energyproduction and has initiated a shift in India’s stance ininternational climate negotiations. One of his first acts was torename the environment ministry the Ministry of Environment,Forests and Climate Change. In January, the newly reconstitutedPrime Minister’s Council on Climate Change launched newinitiatives on wind energy, coastal zone management, health andwaste-to-energy.9

Renewable energy- At the federal level, India has implementedtwo major renewable energy-related policies: the Strategic Planfor New and Renewable Energy,which provides a broad framework,and the National Solar Mission, which sets capacity targets forrenewables.10

Solar In November 2014, the Indian government announcedthat it would increase the solar ambition of its National SolarMission to 100 GW installed capacity by 2022, a five-time increaseand over 30 times more solar than it currently has installed. Tothis end, the government also announced its intention to bringsolar power to every home by 2019 and invested in 25 solar parks,which have the potential to increase India’s total installed solarcapacity almost tenfold.

Smart CitiesPrime Minister has launched an initiative tocreate 100 ‘smart cities’ with better transport systems, utilities,

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and energy networks to address the challenges of urban growth.India’s National Mission on Sustainable Habitat also includesinitiatives such as the Energy Conservation Building Code,mandated for commercial buildings in eight states, and actions tosupport recycling, waste management, and improved urbanplanning.11

Some of India’s accomplishments: The Natural ResourcesDefense Council

In the states of Andhra Pradesh and Telangana, NRDC workedwith local partners and state and city governments to developand enact comprehensive laws on commercial building energy-efficiency codes. They are also working in the IT hub ofHyderabad on an innovative implementation framework toensure strong code compliance. Also working with real estatedevelopers to drive market transformation toward energyefficiency, providing a scalable growth model for rapidlygrowing states and cities in India.

In western India, they have worked with city officials andpublic-health institutions to develop and implement thenation’s first heatpreparedness plan and early-warning systemfor heat waves: The Ahmedabad Heat Action Plan. Backed bygroundbreaking scientific research, the plan helps protect thosewho are most vulnerableslum communities and outdoorworkersto the health effects of extreme heat. This strategyhas become a model for other cities and states to produce theirown plans for safeguarding communities from the healthimpacts of climate change and to integrate climate events intothe dialogue for reducing national disaster risks.

The country’s ambitious 100 GW solar target has the potentialto create up to one million jobs by 2022. They are furthersupporting India’s solar and wind markets through extensiveanalysis on job creation, skill development, and innovativefinancing opportunities. The NRDC is working towardadvancing clean energy finance solutions to achieve India’s 175GW of renewable energy by 2022 to support even greatergrowth,

Partnering with a local women’s group, they are developingan innovative finance model to increase off-grid energy accessto clean energy and improve the lives of the Gujarat desert’s

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saltpan farmers, who provide 70 percent of India’s salt supply.Our analysis of the economic, environmental, and social benefitsof clean energy technologies has demonstrated that poweringwater pumps, which traditionally use diesel, with solar energycan save production costs, increase efficiency and harvestoutputs, and improve farmers’ livelihoods.

This work is advancing productive climate policy includesresearching the business case for phasing down the use of hydrofluorocarbons, the superpotent greenhouse gases commonlyused in air conditioners. NRDC engages with the businesssector, government officials, and civil society leaders onadvancing clean energy and climate policy, including atinternational forums like the Montreal Protocol and the UnitedNations Framework Convention on Climate Change.12

Constitutional Mandates and Environmental Protection:To protect and improve the environment is a constitutional

mandate. It is a commitment for a country wedded to the ideas ofa welfare State. The Indian Constitution contains specificprovisions for environment protection under the chapters ofDirective Principles of State Policy and Fundamental Duties. Theabsence of a specific provision in the Constitution recognizing thefundamental right to clean and wholesome environment has beenset off by judicial activism in the recent times.

In the Indian context, the Government of India as well as ourParliament is increasingly supportive of stringent environmentallegislations and Regulations. Various legislations have beenenacted by Indian Parliament in about the last 30 years to tacklethe problem of environmental protection. The Supreme Court haspronounced a number of judgments and orders and issued variousdirections with the objective of securing the protection andpreservation of environment and enforcement of human rights ofcitizens.

Initially, the Constitution of India had no direct provision forenvironmental protection. Global awareness for the protection ofenvironment and ecology in during 70’s decade, mainly due toStockholm Conference and increasing consciousness of theenvironmental crisis encouraged the Indian Government to enact42nd Amendment to the Constitution in 1976. The Constitution wasamended to introduce direct provisions for protection ofenvironment. This 42nd Amendment added Article 48-A to the

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Directive Principles of State Policy.

Land Mark Judgments

Kamal Nath Case: 13

In the State of Himachal Pradesh, Span motel, owned by thefamily members of Shri Kamal Nath, Minister for Environmentand Forests, Govt. of India diverted the Course of river Beas tobeautify the motel and also encroached upon some forest land. Theapex court ordered the management of the Span motel to handover forest land to the Govt. of Himachal Pradesh and remove allsorts of encroachments. The Court delivered a land mark judgmentand established principle of exemplary damages for the first timein India. The Court said that polluter must pay to reverse thedamage caused by his act and imposed a fine of Rs. Ten Lakhs (Rs.10,00,000) on the Span motel as exemplary damages. The SupremeCourt of India recognized Polluter Pays Principle and Public TrustDoctrine.

Oleum Gas Leak Case: 14

The court held that any enterprise that is engaged in aninherently dangerous activity is absolutely liable to compensateall those affected by an accident. They key feature of the judgmentwas the principle of ‘absolute liability’, in which no exceptions (suchas an ‘act of God’) are accepted.

Impact of the case : The case took place soon after the BhopalGas Tragedy and was keenly watched as an instance of howthe courts would deal with companies responsible forenvironmental disasters. Unfortunately, the complex courtlitigation around the Bhopal Gas Tragedy was an example ofwhat not to do in such cases.

Dehradun Quarrying case 1515Rural Litigation & EntitlementKendra Vs. State of U.P1989 AIR 594 1989 SCC Supl. (1) 537JT 1988 (4) 710 1988 SCALE (2)1574

The Supreme Court of India has held that pollution caused byquarries adversely affects the health and safety of people and hence,the same should be stopped as being violative of Article 21.In thiscase, the Supreme Court for the first time held that the right towholesome environment is a part of right to life and personal libertyguaranteed under Article 21 of the Constitution. Further, in thecase of Subhash Kumar v State of Bihar, again the apex court held

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that the right to get pollution free water and air is a fundamentalright under Article 21. Following this decision, the right to pollutionfree environment was incorporated under the head of right to lifeand all the law courts within the Indian Territory were bound tofollow the same. This laid down the foundation of environmentallitigation in India.

Silent Valley Case-In the late 1970s, the silent valley project stirred up a hornet’s

nest in India’s first major ‘environment versus development’controversy. The proposed project, now abandoned, was to damthe Kuntipuzha river in Kerala’s Palghat district. As it flowsthrough the valley, the Kuntipuzha drops 857 meters, making thevalley an attractive site for generation of electricity.Environmentalists, on the other hand, asserted that as home toone of the few remaining rain forest in the Western Ghats, thevalley ought to remain pristine. They further contended that withover 900 species of flowering plants and ferns and severalendangered species of animals and birds, Silent Valley was one ofthe world’s richest biological and genetic heritages. A writ petitionwas filed before the Kerala High Court seeking to prevent the stategovernment from constructing a hydroelectric project in Silentvalley. The petition stated that the necessary deforestation wouldaffect climatic condition in the state and would interfere with thebalance of nature. Dismissing the petition, the court held thatconsideration of the scientific, technical and ecological concernswas the job of the government and that it was not for the courts toevaluate these considerations again as the evaluation had alreadybeen done by the government. Finally, in December 1980, theKerala Government announced the scrapping of the project. TheSilent Valley was declared as a National Park,

LK Koolwal v State of Rajasthan and ors16

A writ petition was filed by the petitioner asking the court toissue directions to the state to perform its obligatory duties. Thepetitioner invoked Fundamental Rights and the DirectivePrinciples of State Policy and brought to the fore the acutesanitation problem in Jaipur which, it claimed as hazardous to thelife of the citizens of Jaipur.

The Court observed that maintenance of health, preservationof sanitation and environment falls within the purview of Art. 21of the Constitution as it adversely affect the life of the citizen and

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it amounts to slow poisoning and reducing the life of the citizenbecause of the hazards created of not checked.

The Court held that the Municipality had a statutory duty toremove the dirt, filth from the city within a period of six monthsand clear the city of Jaipur from the date of this judgment. Acommittee was constituted to inspect the implementation of thejudgment.

Sher Singh vs State Of Himachal Pradesh, 2014 17

In this case the principle : “The citizens of the country have afundamental right to a wholesome, clean and decent environment”was established. It is true that Part III of the Constitution relatingto Fundamental Rights does not specifically devote any Article tothe Environment or protection thereof per se. However, with thedevelopment of law and pronouncement of judgments by theSupreme Court of India, Article 21 of the Constitution has beenexpanded to take within its ambit the right to a clean and decentenvironment. In such cases, Article 21 acts like an umbrella toprotect environmental rights.

Judgement of the National Green Tribunal in the matterregarding tourism impacts on satellite spots of major touristdestination at Manali in the north-western Himalayas which aremostly spread in snow (environment) and include solang ,RohtangPass, Nalla, Kothi etc. On one hand due to these touristsdestinations, many job opportunities have been created toHimachali people resulting in significant economic growth but atthe same time heavy tourism is causing adverse effect on theenvironment and ecology of the State. NGT order states that “TheState Government has neither formulated nor issued any specificguidelines on prevention and control of environmental degradationand damage in relation to the glacier of Rohtang Pass valley. Hencethey are advised to do so. At the same time heavy tourist activityto be restricted to safeguard Rohtang Pass glacier by limitingnumber of vehicles approaching there.

ConclusionLinking human rights and environment is a valuable step that

explores the unexplored territory that lies between environmentaland human rights lawmaking. Human beings can ensurefundamental equality and adequate conditions of life in anenvironment that permits a life of dignity and well-being. There isan urgent need to formulate laws keeping in mind the fact that

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those who pollute or destroy the natural environment are not justcommitting a crime against nature, but are violating human rightsas well. Indeed, health has seemed to be the subject that bridgesgaps between the two fields of environmental protection andhuman rights. The advancement of the relationship between humanrights and environment would enable incorporation of humanrights principles within an environmental scope, such asantidiscrimination standards, the need for social participation andthe protection of vulnerable groups.

(Footnotes)1https://sustainabledevelopment.un.org/rio20/futurewewant

2IPCC, Climate Change 2014: Impacts, Adaptation, andVulnerability, Contribution of the Working Group II to the FifthAssessment Report of the Intergovernmental Panel on ClimateChange (Cambridge University Press 2014).

3Anthony Oliver-Smith, Sea Level Rise and the Vulnerability ofCoastal Peoples: Responding to the Local Challenges of GlobalClimate Change in the 21st Century, UNU-EHS PublicationNo.7/2009 (July 2009).

4h tt p : / / w w w. o h ch r . or g / Do c u me n t s / P u b l i c a t i o ns / C or eInternationalHumanRightsTreaties_en.pdf

5 Id. at 364. 19 Id. at 414. 20 Id

6 UNISDR Mandate UNISDR, Retrieved 14 August 2015

7 http://unfccc.int/essential_background/items/60318www.ri.org/blog/2014/11/6-graphs-explain-world%E2%80%99s-top-10-emitters

9http://unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pd...

10http://www.mnre.gov.in/solar-mission/jnnsm/introduction-2/

11http://newclimateeconomy.report/india/#section-2784-content-2828

12 https://www.nrdc.org/india

13 MC Mehta v. Kamal Nath, AIR 2000 SC 1997.

14 M.C. Mehta And Anr vs Union Of India &Ors 1987 AIR 1086,

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1987 SCR (1) 819

16L.K. Koolwal vs State Of Rajasthan And Ors. AIR 1988 Raj 2,1987 (1) WLN 134

17Sher Singh vs State Of Himachal Pradesh 2006(2) ShimLC 236

18APPRAISAL AND EFFICACY OF NATIONAL

GREEN TRIBUNAL ACT,2010

Aparna Sajeev

1. IntroductionThe National Green Tribunal Act,2010 was given the assent

of President on 2ndJune 2010. The Act provided for theestablishment of a tribunal which deals exclusively with theenvironmental matters.1 The tribunal was called “National GreenTribunal”(NGT).In recent decades, many environmental problemshave increased as the result of human activities. Therefore, adispute between the importance of conservation of the environmentand the satisfaction of human need arose. With the depletingresources and increasing pollution, the lives of people wereaffected. The need to protect the environment was realized by themankind. The NGT was first established with the Principal Benchin Delhi, later followed by four zonal benches in Chennai, Pune,Bhopal and Kolkata.2 The preamble of the Act declared that theNGT had been set up to carry out, inter alia, the constitutionalobligations under Article 21.National Green Tribunal thusreplaced National Environmental Appellate Authority(NEAA).Unlike the NEAA, the NGT was granted wide ranging powers andallowed it to adjudicate cases relating to the protection of theenvironment. It also protects the legal rights of people beingaffected under a number of existing laws such as the Water(Prevention and Control of Pollution) Act, 1974, the Air (Preventionand Control of Pollution) Act, 1981, Environment Protection Act,1986 and the Biological Diversity Act, 2002.

The NGT is more of a specialized environmental body,

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consisting of judicial members as well as expert members, whohave the necessary proficiency and knowledge to deal with issuesof environmental importance. The NGT has been given enormouspowers to deal with environmental litigation. The provisions ofthe Act stipulate that, efforts be taken to seek judicial interventionfor the protection, and improvement of environment will not berejected on the grounds that the problems concerned involvecomplex, scientific and technical questions beyond the purview ofthe court. This gives cause for hope to environmental advocateswho are interested in filing Public Interest Litigations.Furthermore, the NGT, with only two judicial members, is anindependent statutory panel and consists of eight experts fromthe fields of physics, chemistry, botany, zoology, engineering,environmental economics, social sciences and forestry who helpand advice judges on a regular basis. The inclusion of differentexperts to deal with different aspects of environmental problemswill undoubtedly help the NGT to look beyond the simple cost-benefit considerations of a particular project and to serve the largerinterests of environment and development

2. Origin of the ActIn India, National Tribunal Act 1995, was enacted to provide a

legislative stand to the environmental protection. But the Actmiserably failed to fulfil its objectives. A stronger law was requiredfor the heavily populated India. During the Rio De Janeiro summitof United Nations Conference on Environment and Developmentin June 1992, India vowed the participating states to providejudicial and administrative remedies for the victims of thepollutants and other environmental damage.

The concept of separate courts for environmental matters cameinto view and was addressed in the following landmark judgmentsof the Supreme Court of India. In M.C Mehta vs Union of India andOthers34, the Supreme Court stated that as environmental casesfrequently involve assessment of scientific data, it was desirableto set up environmental courts on a regional basis with a legallyqualified judge and two experts, to undertake relevant adjudication.IN another case of Indian Council for Enviro-Legal Action v Unionof India4,the Supreme Court again floated the establishment ofenvironmental courts with both civil and criminal jurisdiction inorder to deal with environmental issues in a speedy manner. Inthe case of AP Pollution Control Board vs Professor MV Naydu5 ,

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the court emphasized “Such courts would have the benefit of expertadvice from technically qualified environmental scientists, as partof the judicial process.” It was opined that the Law Commission ofIndia should look into this matter.

Thus National Green Tribunal Act was established in 2010,under Article 21 of Constitution of India, which assures the citizensof India, the right to a healthy environment.

3. Objective of the ActAs stated by the Act itself, the objective of the Act is “to provide

for the establishment of a National Green Tribunal for the effectiveand expeditious disposal of cases relating to environmentalprotection and conservation of forests and other natural resourcesincluding enforcement of any legal right relating to environmentand giving relief and compensation for damages to persons andproperty and for matters connected therewith or incidentalthereto”

4. National Green TribunalSection 3 of the NGTAct,2010 gives for the establishment of

National Green Tribunal. Section 3 of the National Green TribunalAct says that, The Central Government shall, by notification,establish, with effect from such date as may be specified therein, aTribunal to be known as the National Green Tribunal to exercisethe jurisdiction, powers and authority conferred on such Tribunalby or under this Act.

i. Structure of NGTThe Tribunal consist of-

a. a full time Chairperson;

b. not less than ten but subject to maximum of twenty full timeJudicial Members as the Central Government may, from timeto time, notify;

c. not less than ten but subject to maximum of twenty full timeExpert Members, as the Central Government may, from timeto time, notify.6

This is the most salient feature of the Act. The protection ofenvironment can only be done when the expert knowledge aboutthe environment and judicial knowledge is combined. The expertpersons such as scientists, environmentalist, technical experts and

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engineers are required to give their views on the factors disruptingthe environment and polluting it. Moreover, the judicial membersare the judges of Supreme Court or High Court, which gives thetribunal a high status and guarantees that the bench has requisitelegal expertise. It builds the faith of a common man in the NationalGreen Tribunal.

However, the members need practical experience of not lessthan 5 years or should have 15 years of experience in the mattersof environment in the Central or State Government. There is aconcern that these qualifications will convert the Tribunal into aretirement home for civil servants. A more careful selectionprocedure should be established to ensure that the reins of futureare in the right hands.

ii. Jurisdiction of NGTAs per the Act, The Tribunal has the jurisdiction over all civil

cases where a substantial question relating to environment(including enforcement of any legal right relating to environment),is involved and such question arises out of the implementation ofthe enactments specified in Schedule I.7The substantial questionsrelating to environment are of two kinds, whether the environmentat large is affected or likely to be affected or whether the damagecaused to the environment or public health is a result of directviolation of a specific statutory obligation relating to theenvironmental matters. The other question is whether suchdamage point out towards a specific activity or source of pollution.8

The act gives the tribunal myriad of powers and a vastjurisdiction. However, it lacks clarity on the meaning of certainterms such as public health. There is no uniform approach as towhat can be constituted as a substantial question regarding publichealth. For example; if a family fall victims of pollution by a giantfactory and develops a disease, will the term “public health” coverthis. The term needs to be quantified for more clarity and furtherto avoid contradictions.

In all cases, an application has to be made to the Tribunalwithin 6 months of the arise of cause of action. However, if theTribunal is convinced that there was sufficient reason that theapplicant was prevented from filing the application before due timelimit, then the Tribunal may accept the application. However, theextension cannot exceed 60 days.9

This time limit may cause trouble for the applicants who are

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the victims of pollution and health concerns. The health effects ofpollution may be visible after a long term and may take years todevelop as a symptom. For examples, the radioactive elementssuspended in the atmosphere of Hiroshima and Nagasaki afterWorld War II took months to show its effect. Protection ofenvironment is not only a personal need, rather it is for thecollective good of the society. Therefore, there should be somerelaxation in the limitation period.

The tribunal has the appellate jurisdiction under various actssuch as under section 28 of the

Water (Prevention and Control of Pollution) Act, 1974; section29 of the Water (Prevention and

Control of Pollution) Act, 1974; section 33A of the Water(Prevention and Control of Pollution)

Act, 1974; section 13 of the Water (Prevention and Control ofPollution) Cess Act, 1977; section

2 of the Forest (Conservation) Act, 1980; section 31 of the Air(Prevention and Control of Pollution) Act, 1981; section 5 of theEnvironment (Protection) Act, 1986. The appellate authority canreceive applications in the cases where an order made, grantingenvironmental clearance in the area in which any industries,operations or processes or class of industries, operations andprocesses shall not be carried out or shall be carried out subject tocertain safeguards under the Environment (Protection) Act,1986.10This grants NGT the power to question even the governmentdepartments granting environmental clearance.

iii. Access to NGTThe Act provides access to all aggrieved parties. They can

approach the Tribunal for reliefs, compensation, or settlements ofenvironmental disputes. The aggrieved party can be a person whohas sustained injury or owner of a property to which damage iscaused or legal

8National Green Tribunal, its Functioning and EffectivenessVis-a-Vis National

Green Tribunal Act, 2010, Shodhganga,August 11,2017,

10 Section 16; The National Green Tribunal Act,2010

representatives of a person who died because of an

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environmental damage. Even organizations and representativebodies functioning in the environment have access to the Tribunal.

iv. Procedures of NGTThe Act provides for an appeal to the Supreme Court of India

concerning the award or order passed by the Tribunal by anyaggrieved person. There is a limitation period of 90 days from thedate of communication of a decision. Although, if the SupremeCourt is satisfied that sufficient cause exists that an applicationcould not be made, it may allow an appeal even after 90 days. TheTribunal has the power to make such orders as to costs as it mayconsider necessary. The Tribunal also has the power to make ordersin the cases where the claim is not maintainable or false orvexatious. On one hand, this may act as a deterrent to those seekingto use the Tribunal for improper reasons such as for monetarygains or personal gains but it also restricts individuals ororganizations from taking a step ahead for the communities andaffected peoples.

The Act provides a penalty for not complying with theTribunal’s orders both for individuals and companies. If anindividual does not comply with the orders of the Tribunal, hemay face imprisonment for three years or a fine of rupees 10 croresor both. Corporate bodies are punishable by a fine of rupees 25crores and relevant company officials may face personal liability.There is a need to revise the bar of Rs. 25 crore as this would notsuffice as a sufficient deterrence for huge companies and businessorganizations. A similar situation happened at the time of BhopalGas Tragedy as Rs.25 crore was not in proportion to the irreparabledamage caused to the environment.

v. Principles applied by the NGTThe Tribunal has to apply the principles of environmental

jurisprudence of India, such as, the principles of sustainabledevelopment, precaution and the polluter pays principle.8 TheSupreme Court has declared and reinforced this commitment inseveral cases. For example, in the case of Vellore Citizens WelfareForum vs Union of India9 popularly known as the Tamil NaduTanneries Case,the Court dealt with the concept of ‘sustainabledevelopment’ and specifically accepted ‘the precautionaryprinciple’ and ‘the polluter pays principle’ as part of India’senvironmental law. According to the Supreme Court, “We have nohesitation in holding that sustainable development as a balancing

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concept between ecology and development has been accepted as apart of the customary international law though its salient featureshave yet to be finalized by the international law jurists. We are,however, of the view that ‘The Precautionary Principle’ and ‘ThePolluter Pays Principle’ are the essential features of ‘SustainableDevelopment’. “

According to the Supreme Court in that case, both the‘precautionary principle’ and the ‘polluter pays principle’ areaccepted as part of the law of the land since Article 21 of theConstitution of India guarantees protection of life and liberty. TheCourt also elaborated what is meant by these principles and inparticular ruled that the ‘polluter pays principle’ should beinterpreted as meaning that “the absolute liability for harm to theenvironment extends not only to compensate the victims ofpollution but also the cost of restoring the environmentaldegradation.

Remediation of the damaged environment is a part of theprocess of ‘sustainable development’ and as such the polluter isliable to pay the cost to the individual sufferers as well as cost ofreversing the damaged ecology.”

In another case of M.C Mehta vs Kamal Nath10, the court heldthat “It is thus settled by this Court that one who pollutes theenvironment must pay to reverse the damage caused by his acts”.

In another case of M.C Mehta vs Union of India14the court heldthat “the enterprise engaged in hazardous or dangerous activityowes an absolute duty to the community to ensure that harm isavoided to anyone on account of hazardous nature of activityundertaken by such enterprise.”

The precautionary principle was well applied by the SupremeCourt in various decisions .In the case of Jagannath vs Union ofIndia11 the Supreme Court directed “Shrimp culture industry toclose its activities in view of ecologically fragile coastal areas andadverse effect on environment because of its activities.”

In another case of Rural Litigation and Entitlement Kendravs State of Uttar Pradesh12 the Supreme Court directed the miningindustry to stop the mining activities in the forest areas of DoonValley.

In the case of M.C Mehta vs Union of India and others13 theSupreme Court directed the authorities for closure/shifting/relocation of hazardous and noxious industries outside the territory

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of Delhi which were operating in violation of Master Plan.

In the case of M.C Mehta vs Union of India and others14 thecourt directed the industries to stop constructing activity within1 km from the lakes of preservation of tourism and upheld theconcept of sustainable development and precautionary principle.

vi. Powers and functions of the tribunalThe Powers of the National Green Tribunal are enlisted under

Section 19 (4) of the National GreenTribunal Act 2010. The followingpowers are vested upon the tribunal by the Act:The Tribunal shallhave, for the purposes of discharging its functions under this Act,the same powers as are vested in a civil court under the Code ofCivil Procedure, 1908, while trying a suit, in respect of the followingmatters, namely: -

a) Summoning and enforcing the attendance of any person andexamining him on oath;

b) Requiring the discovery and production of documents;

c) Receiving evidence on affidavits;

d) subject to the provisions of sections 123 and 124 of the IndianEvidence Act, 1872, requisitioning any public record ordocument or copy of such record or document from any office;

e) Issuing commissions for the examination of witnesses ordocuments;

f) Reviewing its decision;

g) Dismissing an application for default or deciding its ex-parte;

h) Setting aside any order of dismissal of any application fordefault or any order passed by it ex-parte;

i) Pass an interim order (including granting an injunction orstay)

j) after providing the parties concerned an opportunity to beheard, on any application made or appeal filed under thisAct;

k) Pass an order requiring any person to cease and desist fromcommitting or causing any violation of any enactmentspecified in Schedule I;

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l) Any other matter which may be prescribed.15

vii. Functions of NGTAccording to the National Green Tribunal Act,2010, the

Tribunal would have 4 circuit Benches. The Tribunal shall consistof both judicial and expert members. Judicial members must havebeen judges of the Supreme Court or High Courts. Expert membershave to possess technical qualifications and expertise, and alsopractical experience. The Tribunal members would be chosen by acommittee.

The Tribunal shall hear only ‘substantial question relating toenvironment’. Substantial questions are those which,

(a) affect the community at large, and not just individuals orgroups of Individuals, or

(b) cause significant damage to the environment and property,or

(c)cause harm to public health which is broadly measurable.

“Persons aggrieved” are the persons who can move to the courtsand thus allows the individuals to approach the given tribunal. Italso outlines the “foundational principles” of polluter pays principleand principle of equity that give vast powers to the Tribunal. Thedecisions of the tribunal can be appealed against in the SupremeCourt. The Act now specifies territorial jurisdiction. It balancesthe number of judicial and expert members, 10 each, with theauthority to break a deadlock vesting the chairperson of thetribunal.

viii. Some Key Verdicts by the NGTOn 25 April, 2014, The National Green Tribunal (NGT) passed

verdict on Yamuna Conservation Zone and said the condition ofYamuna will be affected by the proposed recreational facilities onthe river. The NGT also recommended the Government to declarea 52 km. stretch of the Yamuna in Delhi and Uttar Pradesh as aconservation zone.16

In the case related to Coal Block in Chhatisgarh Forest, TheNational Green Tribunal has cancelled the clearance given by theUnion Environment and Forest Minister, Jairam Ramesh, to theParsa East and Kante-Basan Captive coal block in the Hasdeo-Arand Forest of Chhatisgarh, overruling the statutory Forest

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Advisory Committee. The forest clearance was given by Mr. Rameshin June, 2011, overruling the advice of the Minister’s expert panelon the two blocks for mining by a joint venture between Adani andRajasthan RaiyaVidyutUtpadan Nigam Limited. The blocksrequiring 1,989 hectare of forestland fell in an area that thegovernment has initially barred as it was considered a patchableforest and demarcated as a ‘no-go’ area.

The order is bound to have a more far-reaching impact, withthe tribunal holding that, “mere expression of fanciful reasonrelating to environmental concerns without any basis, scientificstudy or past experience would not render the advice of FAC – abody of expert – inconsequential. Under the Forest ConservationAct, 1980, the FAC is required to appraise projects that requiresforestlands and advise the environment Minister to grant approvalor reject the proposals. But in this case, the NGT noted, theMinister had taken all of one day and relied upon his“understanding and belief” without any “basis either in anyauthoritative study or experience in the relevant fields.” TheMinister, while clearing the coal block had given six reasons fordoing so, including that the coal blocks are linked to super-criticalthermal power plant, which is imperative to sustain the momentumgenerated in the XI Plan for increasing power production. These‘anthropocentric’ considerations, the NGT held, were not valid toevaluate the project.17

One of the greatest verdicts of the tribunal was the ban ondecade old Diesel Vehicles at Delhi NCR. P.M. 2.5 particles havereached alarming level in Delhi. An attempt to minimize airpollution at capital of India was initiated by the National GreenTribunal. As per the order of the Tribunal,10 years old vehiclesare not allowed to ply. However, as per Media report, CentralGovernment is trying to explore the possibility to appeal againstthe order at Supreme Court, especially for personal vehicles.22

The Principal Bench of the NGT at New Delhi has given somepowerful judgments in the recent years which have strengthenedthe process of obtaining environmental clearances. For instance,the case of M.P. Patil v. Union of India,18 wherein the Tribunalexamined the details of the basis on which environmental clearancewas obtained by the National Thermal Power Corporation Ltd(hereinafter referred to as ‘NTPC’). It was found that NTPC wasguilty of misrepresenting facts to obtain the EC. Additionally inthis case the tribunal stressed on the importance of a Rehabilitation

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and Resettlement Policy that adequately took into considerationthe needs of those affected by the project. In determining who wouldfall within the ambit of such persons, the tribunal chose anexpansive definition instead of restricting it only to the land ownersin the region. Finally, it was reiterated that the burden of provingthat the proposed project was in consonance with goals ofsustainable development was on the party proposing the project.

The NGT’s Principal Bench recently gave its verdict in BrajFoundation v. Govt. of U.P.19 The case was brought forth by theBraj Foundation, and their contention was that the Governmentshould be directed to execute the Memorandum of Understanding(MoU) for the afforestation of Vrindavan forest land. The Tribunalgave the verdict against them, holding that the MoU is not legallyenforceable. Further, it was decided that the advertisement issuedby the Forest Department was only an ‘invitation to treat’ and couldnot be a ground to enforce contractual obligations. Thus, theGovernment was allowed to continue with its policy decision oftaking up the afforestation work on its own, especially sinceinvolvement of third parties would give rise to the possibility ofillegal mining and encroachment. However, the Tribunal also wenta step forward and gave directions to the Government itself toensure proper afforestation. One of the most significant ones wasthe direction to declare at least a 100 meter long stretch on bothsides of the BrajParikrama route as a ‘no development zone’.

in Tribunal at its Own Motion v. Ministry of Environment &Forests20 it was held that wildlife is a part of environment and anyaction that causes damage or is likely to cause damage to wildlife,could not be excluded from the purview of the tribunal. TheTribunal has also given detailed directions in decisions involvingcontamination and pollution of river waters.

In Krishan Kant Singh v. National Ganga River BasinAuthority21the Tribunal gave a range of time bound and specificdirections to the polluting industrial units as well as the Municipalauthorities who were asked to allow the former to comply withdirections

ix. Criticism of NGTThere were many events where the National Green Tribunal

was criticized. One such event was when the High Court of Chennaiwas approached with a Public Interest Litigation challenging theNational Green Tribunal Act, 2010. A Division Bench of Madras

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High Court Comprising Justice ElipeDharma Rao and Justice D.Hariparanthaman have issued notice on the same.

The petition was filed by one Mr. M. Naveen Kumar, a studentpursuing B.A., B.L (Hons) Course at the School of Excellence inLaw, The Tamilnadu Dr.Ambedkar Law University, Chennai. Thepetition sought a declaration that the National Green TribunalAct 2010 is unconstitutional. The National Green Tribunal Act,2010 enacted by the Parliament provides for constitution of theNational Green Tribunal for the effective and expeditious disposalof cases relating to environmental protection. Naveen Kumarappearing in person submitted that the constitution of the GreenTribunal and exclusion of all environmental matters from ambit ofthe jurisdiction of High Court and the Civil Courts would severelyaffect the right of access to justice to the poor and needy. It wasfurther submitted that Section 3 of NGT Act only provides forconstitution of a National Level Tribunal and Section 4(4) providesfor circuit benches. It has been contended that there is no provisionunder the Act for providing a Tribunal for each state. This wouldalso make it difficult for the litigants to approach the tribunal asthe redressal process would be expensive, burdensome andcomplicated, added the petitioner.

Pointing out that the procedure for appointment of themembers of the tribunal, especially the expert members is not inaccordance with the well settled principles of law, the petitionersought the High Court to grant interim direction thereby directingthe Union Government not to appoint any further members,including expert members in constituting the National GreenTribunal and not to transfer any pending or fresh matters fromthe High Court to the Tribunal.

The petitioner contended that the exclusion of the power vestedin the High Court under Article 227 to exercise judicialsuperintendence over decision of all courts and tribunals withintheir respective jurisdiction by Section 22 of the Act is also illegal,unconstitutional and is against well settled principles of law.

5. ConclusionThe National Green Tribunal Act,2010 has provided for the

establishment of National Green Tribunal which is the mostconsistent and progressive environmental authority in India.National Green Tribunal was established for dealing exclusivelyenvironmental matters. It has been observed time to time that,

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unlike the Supreme Court, the National Green Tribunal does notroutinely favor infrastructure projects, nor does it cause a delayin resolving the cases before it. The speedy trial is one of thegreatest advantages of the National Green Tribunal. It gaverecognition to environment enthusiasts and environmental experts.The Act has laid down the criteria to select the experts which agood step but requires improvement. It has been largely successfulin implementing its orders, which usually relate to stayingenvironmental clearances. Sometimes Environmental clearancesare given by the governmental authorities favoring the businessgiants for personal or monetary favors. National Green Tribunalacts as a check and balance on this. The Principal bench of Delhihas given many significant orders relating to protection ofenvironment. Apart from this, National Green Tribunal has givenhope for the common man to receive relief and compensation forhis loss of peaceful environment. Right to a safe and healthyenvironment is a fundamental right and need. Finally, the NationalGreen Tribunal seems to have encouraged a number of lawyers allover India to specialize in environmental law.

(Footnotes)1Greentribunal, August 11,2017,

http://www.greentribunal.gov.inFileDisplay.aspx?file_id=hp6pqcrv0hY1hc2OYG8Sk8xCFfwF7gv7AbtSt83%2fRxrgXufTbWXFcg%3d%3d

2 Id

3 1986(2)SCC 176

4 AIR 1446

5 AIR 1999 SC 812

6 Section 4; The National Green Tribunal Act,2010

7 Section 14; The National Green Tribunal Act,2010

8 Section 20; The National Green Tribunal Act,2010

9AIR 1996 SC 2715

10(1997)1SCC 388 141987 SC 1086

11 AIR 1997 SC 811

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12 AIR 1987 SC 359

13 1997(11) SCC 327

14 1997(3) SCC 715

15 Section 19; The National Green Tribunal Act,2010

16 Supra 8

17 Supra 19 22 Ibid

18 Appeal Number 12 of 2012 dated 13-3-2014.

19 Application No. 278 of 2013 and MA No. 110 of 2014 dated 5-8-2014.

20 Original Application No. 16 of 2013(CZ) dated 17-07-2014

21 Application No. 299 of 2013 dated 31-05-2014

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19 FAMOUS DOCTRINES OF ENVIRONEMNTAL

LAW AND CASE LAWS

Yashashri Nalluri

1. IntroductionEnvironment is a very extensive term. It includes a wide

variety of things in it. It is a dynamic concept. Environment hasdifferent meanings or understandings in different areas. The wordEnvironment has several definitions provided by National andInternational Legal Instruments. The Declaration of the UnitedNations Conference on the Human Environment, states, “Man isboth creature and moulder of his environment, which gives himphysical sustenance and affords him the opportunity forintellectual, moral, social and spiritual growth.”

‘Environment’ is defined in Environment Protection Act 1986,Section 2(a) defines as, “environment includes water, air and landand the interrelationship which exits among and between water,air and land, and human beings, other living creature, plants microorganism and property”. By the above mentioned definition wecan understand that Environment has relationship between air,land, water, human beings, plants etc. The word ‘Environment’ isderived from French word ‘Environ’ which means “surroundings”.Surrounding consists of air, water, human beings, plants, land etcand there is a relation between them. This Environment is gettingpolluted day by day, therefore, protection of surroundings isimportant. Different principles are laid down regarding protectionof Environment.

Environmental Law is a body of law, which is a system ofcomplex and interlocking statutes, common law, treaties,

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conventions, regulations and policies which seek to protect thenatural environment which may be affected, impacted orendangered by human activities. Many doctrines have come upand people are getting aware of it. In recent years, environmentallaw has become a means of promoting sustainable development.Principle such as the precautionary principle, public trust doctrine,environmental justice, and the polluter pays principle haveinformed many environmental law reforms in this respect.

Environmental pollution is the major concern of this period.Human beings have relationship with air, water, land, plants etcbut still being part of the environment they are damaging it byseveral harmful activities. The harmful substances from factoriesare thrown in water bodies’ i.e. creating water pollution. Theharmful release of gases from vehicles and factories is creating airpollution. So to bring this under control Environment ProtectionAct 1986 is enacted. In Indian Constitution there are severalprovisions regarding Environment Protection.

2. Constitutional ProvisionsSome important Provisions of Constitution of India are as

follows:

ARTICLE 48A:- Protection and improvement of environmentand safeguarding of forests and wild life. “The State shallendeavour to protect and improve the environment and tosafeguard the forests and wild life of the country”.

Article 48-A says that State shall protect the environment andwild life of the country. As it is mentioned in Part IV ofConstitution, it is state’s responsibility to protect our environment.Environmental pollution may damage the monuments of nationalimportance, the protection of which is a duty of the State underArticle 49 of the Constitution. Article 49 of the Directive Principlesof State Policy provides for the obligation of the State to protectmonuments, places and objects of national importance.

ARTICLE 49: Protection of monuments and places and objectsof national importance. “It shall be the obligation of the State toprotect every monument or place or object of artistic or historicinterest, 2 [declared by or under law made by Parliament] to be ofnational importance, from spoliation, disfigurement, destruction,removal, disposal or export as the case may be”.

In M.C Mehta vs Union of India case, famously known as (Taj

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Mahal case), the Supreme Court of India seems to have gotinspiration from Article 49 while protecting the Taj Mahal, amonument protected under the Ancient Monuments andArchaeological Sites and Remains Act, 1958, from harmfulIndustrial emissions originating in and around Agra.

ARTICLE 21: “No person shall be deprived of his life orpersonal liberty except according to procedure established by law”Life cannot be possible without clean drinking water therefore;right to clean water is one of the attributes of the right to life inArticle 21 of the Constitution . The Supreme Court has recognizedanother aspect of the right to life enshrined under Article 21 ofthe Constitution, viz. the right to livelihood.

The right to livelihood has been given by the Supreme Courtin the case of Olga Tellis v. Bombay Municipal Corporation. TheCourt issued directions to the Municipal Corporation to providealternative sites or accommodation to the slum and pavementdwellers near to their original sites; and to provide amenities toslum-dwellers.

ARTICLE 51: “Promotion of international peace and security,The State shall endeavour to—

(a) Promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) Foster respect for international law and treaty obligations inthe dealings of organized peoples with one another; and

(d) Encourage settlement of international disputes by arbitration”

Therefore, in view of the range of international treaties lawand treaty obligations in Article 51 (c), read to conjunction withthe specific treaty provision, may also serve to strengthen the handsof pro-conservation judge.

ARTICLE 51A: “Fundamental Duties. It shall be the duty ofevery citizen of India—

(a) to abide by the Constitution and respect its ideals andinstitutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired ournational struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of

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India;

(d) to defend the country and render national service when calledupon to do so;

(e) to promote harmony and the spirit of common brotherhoodamongst all the people of India transcending religious,linguistic and regional or sectional diversities; to renouncepractices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment includingforests, lakes, rivers and wild life, and to have compassionfor living creatures;

(h) to develop the scientific temper, humanism and the spirit ofinquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual andcollective activity so that the nation constantly rises to higherlevels of endeavour and achievement;

*[(k) who is a parent or guardian to provide opportunities foreducation to his child or, as the case may be, ward betweenthe age of six and fourteen years.]”.

So according to Article 51A, every citizen of India has to protectthe environment. And not just protect the but also improve thenatural environment which consists of forest, lakes, rivers, wildlife, and living creatures.

3 Famous Doctrines of Environmental LawRight to wholesome environment is a fundamental right

protected under Article 21 of the Constitution of India. To solvethe environment problems several doctrines have been introducedin environment. The following are some of the famous doctrines ofenvironmental law.

1. Sustainable Development

2. Precautionary Principle

3. Polluter Pay Principle

4. Public Trust Doctrine

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5. Principle of Absolute Liability

1. Sustainable DevelpomentThe concept of sustainable Development is not a new concept.

The doctrine had come to be known in 1972 in Stockholmdeclaration. It had been stated in the declaration that;

“Man has the fundamental right to freedom, equality andadequate conditions of life, in an environment of a quality thatpermits a life of dignity and well being and he bears a solemnresponsibility to protect and improve the environment for presentand future generation” The concept was given a shape in a reportby World Commission on Environment, which was known as ‘ ourcommon future’ (the Brundtland Report).Brundtland defined“Sustainable Development”. It is defined as follows: “Sustainabledevelopment is development that meets the needs of the presentwithout compromising the ability of future generations to meettheir own needs”.

This concept was then in agenda 21 of UN conference onenvironment and development held in June 1992 at Rio de Janerio,Brazil. There are various principles of sustainable development:

1. Inter- generational principle

2. Precautionary principle

3. Polluter pays principle

The simple meaning of Sustainable Development is balanceddevelopment or growth. When a country is developing it shouldbalance the development of citizen with right to environment. It isa process in which development is done. but the resouces aresustained for generations. It means improving the quality of humanbeings’s life in harmonious construction with the environment orthe ecosystem where we live in. sustainable development is theability of people to fulfill their needs or requirements withoutcreating situation where are next generation are unable to meettheir own needs.

The concept of Sustainable Development is well establishedprinciple of environmental law and is accepted world-wide. Thisconcept is incorporated as “Section 20 of National Green TribunalAct, 2010. It is as follow;” “The Tribunal shall, while passing anyorder or decision or award, apply the principles of sustainabledevelopment, the precautionary principle and the polluter pays

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principle”. The concept was then discussed under agenda 21 ofUN conference on environment and development held in June 1992at Rio de Janeiro, Brazil and later on in the JohannesburgConference held in 2002. For achieving economic growth of acountry people should not exhaust the resources.

In past, Indian courts did not refer to this concept butimpliedly gave its effect. The first case in which Supreme Courthad applied this doctrine was Vellore citizens welfare forum vsunion of India . Dispute arose over some tanneries in the state ofTamil nadu. These tanneries were discharging effluents in theriver palar, which was main source of drinking water in the state.The hon’ble Supreme Court held that: “Remediation of the damagedenvironment is part of the process of “Sustainable Development”and as such polluter is liable to pay the cost to the individualsufferers as well as the cost of reversing the damaged ecology.”

Before vellore citizens case, In Rural litigation and entitlementKendra dehradun vs state of up , which was also known as (doonvalley case), dispute arose over mining in the hilly areas, thesupreme court after investigation , said to stop the mining activitesand held that; “This would undoubtedly cause hardship to thembut it is a price that has to be paid for protecting and safeguardingthe right of the people to live in healthy environment with minimaldisturbance of ecological balance and without avoidable hazard tothem and to their cattle, homes and agricultural land and undueaffectation of air, water and environment.”

Another case in which doctrine of sustainable developmentwas applied is State of Himachal Pradesh and others v. GaneshWood Products and others , A writ petition was filed by GaneshWood Products against the decision of the Government of the Stateof Himachal Pradesh to refuse the establishment of katha factoriesin the State. The Government submitted that such establishmentwould lead to indiscriminate felling of the so called khair treeswhich would have a deep and adverse effect upon the environmentand ecology of the State. The raw material available in the State,namely the khair trees, for manufacturing katha was not sufficientto sustain the proposed industries.

The High Court allowed the petition. The Governmentappealed to Supreme Court of India. The Respondent, Ganesh WoodProducts, submitted that according to the New Industrial Policyintroduced by the Government of India, a citizen of India had anunquestioned and absolute right to establish a small-scale industry

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at any time, at any place and of whatever capacity he may choose.The Government was bound to register any and every applicationfor establishing a small-scale industry and it had no power to cancelor disapprove such registration. The supreme court held that; “theSupreme Court invalidated forest based industry, recognizing theprinciple of inter-generational equity and sustainabledevelopment.”

2. Precautionary PrincipleThe doctrine of sustainable development has two other

principles they are: precautionary principle and polluter paysprinciple.

The principle is used for making the environment and humanlife better. By the word itself we can understand its meaning, takingcare or precaution before the issue comes up rather than managingit after the issue has aroused. It is a duty to prevent harm. Thisprinciple aims to prevent the harm to environment, human lifeand even the ecosystem. There are several definitions of thisconcept.

The precautionary principle is the most important principleof sustainable development. One of the important definition isdefined under principle 15 of Rio Declaration of 1992 as follows;

“In order to protect the environment, the precautionaryapproach shall be widely applied by States according to theircapabilities. Where there are threats of serious or irreversibledamage, lack of full scientific certainty shall not be used as a reasonfor postponing cost-effective measures to prevent environmentaldegradation.”

The principle has come up by the shift of assimilative capacityprinciple to precautionary principle. Principle 6 of StockhlomDeclaration states; “The discharge of toxic substances or of othersubstances and the release of heat, in such quantities orconcentrations as to exceed the capacity of the environment torender them harmless, must be halted in order to ensure thatserious or irreversible damage is not inflicted upon ecosystems.The just struggle of the peoples of ill countries against pollutionshould be supported”.

The principle looks for safety before any harm is caused. ThePrecautionary Principle encourages “action taking” to antedateand prevent damage to the environment.

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Features of the precautionary principle:

1. Anticipatory action

2. Right to know

3. Alternative assessments

4. Participatory decision process

1. Anticipatory action means taking precaution beforehand.Precaution is better than cure. People shall always takeprecaution related to environment then later taking actions.

2. Right to know, it means people have right to know anyinformation regarding environment ecosystem etc.

3. Alternative assessments means rather to choose differentalternative that will not harm the environment.

4. Decisions applying the precautionary principle should betransparent.

There is a need for implementation of this principle becausepeople are carrying out harmful activities that are harming theenvironment. Warning signals like climate change, ozone layerdepletion, dying of plants and extinction of animal species. Becauseof all this precautionary principle shall be implemented. In Indiathere are many acts enacted by the legislature relating toenvironment but the precautionary principle is not directlymentioned in any of the environmental laws in India.

But the Supreme Court has applied the precautionaryprinciple in several cases. In vellore citizen welfare forum vs unionof India, the precautionary principle was explained. Dispute aroseover some tanneries in the state of Tamil Nadu. These tannerieswere discharging effluents in the river palar, which was mainsource of drinking water in the state.

The hon’ble Supreme Court held that: “Some of the salientprinciples of “Sustainable Development”, as culled-out fromBrundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Nature Resources,Environmental Protection, the Precautionary Principle, PolluterPays principle, Obligation to assist and cooperate, Eradication ofPoverty and Financial Assistance to the developing countries. Weare, however, of the vies that “The Precautionary Principle” and

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“The Polluter Pays” principle are essential features of “SustainableDevelopment”. The “Precautionary Principle” - in the context ofthe municipal law - means.

(i) Environment measures - by the State Government and thestatutory Authorities must anticipate, prevent’ and attackthe causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damagelack of scientific certainly should not be used as the reasonfor postponing, measures to prevent environmentaldepredation.

(iii)The “Onus of proof” is on the actor or the developer/industrialto show that his action is environmentally benign.”

In M.C Mehta vs Union of India, “the Supreme Court hasapplied the precautionary principle and held that the pollutioncreated as a consequence of development so the state mustanticipate, prevent and attack the harm caused to the environment.The ‘onus of proof’ is on the industry to show its activities areenvironmentally benign. The court ordered the industries to changeover to natural gas as an industrial fuel or stop the industrialactivities near taj trapezium or relocate themselves as thedirections of court.”

In S. Jagannath vs Union of India & Ors , “Supreme Court heldthat sea coasts and sea beaches are gift of nature and the activitypolluting the same cannot be permitted. The intensified shrimp(prawn) farming industry by modern method in coastal area wasdegrading the mangroves ecosystem and polluting potable anddrinking water. The authority had to implement “the PrecautionaryPrinciple” and “the Polluter Pays” principles.”

3. Polluter Pays PrincipleBy the word itself we can understand the meaning of the

principle. It means whoever does the pollution is responsible tofix it up. The popular catchphrase is “if you do the mess, it’s yourresponsibility to clean it up”. Same thing goes with theenvironment too, whoever tries to pollute the environment its hisduty to clean it.

The polluter pays principle is defined in the Rio Declaration,principle 16 of the Declaration states;

“National authorities should endeavour to promote the

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internalization of environmental costs and the use of economicinstruments, taking into account the approach that the pollutershould, in principle, bear the cost of pollution, with due regard tothe public interest and without distorting international trade andinvestment”.

Polluter pays principle is another important principle ofsustainable development. Most of the factory owners do notperceive an improvement in environmental conditions to be in theirinterest. If that interest is to be promoted it is not enough to merelyremind them of their social responsibilities. The polluter shall payto the extent of the damage caused and shall reverse the damagecaused to the environment. The objective of this principle is tomake the polluter responsible for the compensation to the victimsor the people who are suffered by the damage and also for the costof resorting the environmental degradation.

The principle polluter pays was first invoked in the case Indiancouncil for enviro legal action v. union of India and others Facts ofthe case: The petitioner, the Indian Council for Enviro-Legal Actionbrought this action to prohibit and remedy the pollution caused byseveral chemical industrial plants in Bichhri village, UdaipurDistrict, Rajasthan. The Respondents operated heavy industryplants there, producing chemicals such as oleum (a concentrateform of sulphuric acid), single super phosphate and the highly toxic“H” acid (the manufacture of which is banned in western countries).“The Supreme Court gave its verdict on the long impendingjudgment on the Bichhri case, Writ Petition No. 967 of 1989. Itimposed a fine of Rs 38.385 crores on Hindustan Agro ChemicalsLtd (HACL) with compound interest since 1997 for the remediationof over 350 hectares of land in Bichhri. The Court also slapped afine of Rs 10 Lakh on HACL for keeping the litigation alive foralmost 15 years even though the court had disposed the petitionin 1997, imposing Polluter Pays Principle according to whichpolluter must pay for the damage done to the human beings andenvironment.”

In this case the principle polluter pay was invoked “This caseis a classic illustration where even after decade and a half of thepronouncement of the judgment by this court based on the principleof `polluter pays’, till date the polluters (concerned industries inthis case) have taken no steps to ecologically restore the entirevillage and its surrounding areas or complied with the directionsof this court at all”.

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Another important case in which polluter pay principle wasrecognized was vellore citizen welfare forum vs Union of India,The precautionary principle and polluter pay principle wasaccepted as law of land. It was held by the Supreme Court that,“The Polluter Pays” principle has been held to be a sound principleby this Court Indian Council for Enviro- Legal Action vs. Union ofIndia J.T. 1996 (2) 196. The Court observed, “We are of the opinionthat any principle evolved in this ‘behalf should be simple practicaland suited to the conditions obtaining in this country”. Theprecautionary principle and the polluter pays principle have beenaccepted as part of the law of the land. Article 21 of the Constitutionof India guarantees protection of life and personal liberty. Articles47, 48A and 51A (g) of the Constitution are as under:

“47. Duty of the State to raise the level of nutrition and thestandard of living and to improve public health. The State shallregard the raising of the level of nutrition and the standard ofliving of its people and the improvement of public health as amongits primary duties and in particular, The State shall endeavour tobring about prohibition of the consumption except for medicinalpurposes of intoxicating drinks and of drugs which are injuriousto health. 48A. (g) Protection and improvement of environmentand safeguarding of forests and wild life. The State shall endeavourto protect and improve the environment and to safeguard theforests and wild life of the country.

51A.(g) To protect and improve the natural environmentincluding forests, takes, rivers and wild life, and to havecompassion for living creatures.”

In view of the above mentioned constitutional and statutoryprovisions we have no hesitation in holding that the precautionaryprinciple and the polluter pays principle are part of theenvironmental law of the country.

Even otherwise once these principles are accepted as part ofthe Customary International Law there would be no difficultly inaccepting them as part of the domestic law. It is almost acceptedproposition of law that the rule of Customary International Lawwhich are not contrary to the municipal law shall be deemed tohave been incorporated in the domestic law and shall be followedby the Courts of Law”.

4. Public Trust DoctrineThe doctrine of public trust has evolved from Roman Empire.

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The objective of public trust doctrine is that certain resources likeair, water, sea and forest have importance in the life of public andhence it shall not be subject to private ownership. These resourcesare the nature’s gift to common people hence the Government shallprotect the resources for the enjoyment of common public.

Public trust doctrine has two-fold effect; 1. This doctrine makesmandatory for the state to take action for effective management ofresources 2. The public can question if the resources not managedeffectively. The Stockholm declaration also states the public trustdoctrine under principle 2; “The natural resources of the earth,including the air, water, land, flora and fauna and especiallyrepresentative samples of natural ecosystems, must be safeguardedfor the benefit of present and future generations through carefulplanning or management, as appropriate”.

This conception of public rights has two ancient bases. “First,under Roman law the air, running water, the sea, and consequentlythe sea shore’ were the property of no man but rather were commonto all.” “Second, early English common law provided that title totidelands had two components”: “the King’s right ofjus privatum,which could be alienated, and thejus publicumrights of navigationand fishing, which were held by the King in inalienable trust forthe public. Even in Unites States, the public trust doctrine is usedbut still its scope is uncertain. This doctrine puts a duty on stateto hold the environmental resources for the benefits or enjoymentof common public.

The doctrine of public trust came after this case, M.C Mehtavs Kamal Nath. The facts of the case; certain forest land whichwas given on lease to the company called ‘Span Motel’ by the stategovernment situated at the bank of River Beas. The area whichwas ecologically fragile and full of scenic beauty should not havebeen permitted to be converted into private ownership and forcommercial gains. Span Motels had also encroached upon anadditional area of land adjoining this leasehold area, and this areawas later leased out to Span Motels. The motel had usedearthmovers and bulldozers to turn the course of the River Beas,create a new channel and divert the river’s flow. The course of theriver was diverted to save the motel from future floods.

Judgment: Here the Justice Kuldeep singh had relied uponthe doctrine of public trust, that certain resources like air, water,sea and forest are not subject to private ownership and it is dutyof the state to look after the resources. It is for the enjoyment of

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common public and not for any private entities.

Justice Kuldeep Singh had explained the doctrine of publictrust, “The ancient Roman Empire developed a legal theory knownas the “Doctrine or the Public Trust. It was founded on the ideasthat certain common properties such as rivers, sea- shore, forestsand the air were held by Government in trusteeship for the freeand unimpeded use of the general pubic. The Public Trust Doctrineprimarily rests on the principle that certain resources like air sea,waters and the forests have such a great importance to the peopleas a whole that it would be wholly*** onjustilled to make them asubject of private ownership. The said resources being a gift ofnature, they should be made freely available to everyoneirrespective of the status in life. The doctrine enjoins upon theGovernment to protect the resources for the enjoyment of thegeneral public rather than to permit their use for private ownershipor commercial purposes. According to Professor Sax the PublicTrust Doctrine imposes the following restrictions on governmentalauthority.

“Three types of restrictions on governmental authority areoften though to be imposed by the public trust: first, the propertysubject to the trust must not only be used for a public purpose, butit must be held available for use by the general public; second, theproperty may not be sold, even for a fair cash equivalent; and thirdproperty must be maintained in particular types of uses”.

Another important case in which the doctrine of public trustwas explained and used was M.I. Builders Pvt. Ltd. v. RadheyShyam Sahu & Ors , The facts of the case: The appeal was for theconstruction of underground shopping complex in a park by thepetitioner. The respondent was complaining that it was violationof building plans. Supreme Court in this matter had applied thePublic trust doctrine as the park was of historic importance.Because of the construction of underground shopping complex andparking irreversible changes had already been made. It wasviolation of the doctrine. It was held that “It therefore held, amongothers, that a part of the underground shopping complex had to bedismantled and demolished and on these Places Park had to berestored to its original shape. The public authority was responsiblefor maintaining the park and the part for parking purposes inproper and efficient manner”.

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5 Principle oF Absolute Liability For understanding the principle of absolute liability we shall

know what is strict liability? Strict liability principle evolved inthe case Rylands v Fletcher . Strict liability means the person whokeeps the hazardous materials in his premises will be liable if thesubstance escapes and causes the loss or damage. The essentialingredients for applying the principle of strict liability is hazardousmaterial in premises, escape of that material and non natural use.The exceptions of strict liability are:

Plaintiff’s default Act of God Act of third party Consent of plaintiff

The principle of absolute liability means the principle of strictliability minus its exceptions. In this principle the person who hashazardous substance in his premises when it escapes and causesharm or damage to others then the person is liable. In principle ofabsolute liability there are no exceptions. It is the duty of the personto compensate.

The famous case in which the principle of absolute liabilitywas applied was M.C Mehta vs Union of India, “The petitioners, inthis writ petition under Art 32, sought a direction for closure ofthe various units of Shriram Foods & Fertilizers Industries onthe ground that they were hazardous to the community. Duringthe pendency of the petition, there was escape of oleum gas fromone of the units of Shriram. The Delhi Legal Aid and Advice Boardand the Delhi Bar Association filed applications for award ofcompensation to the persons who had suffered harm on account ofescape of oleum gas.”

J.Bhagwati thereafter stated that, “We in hold our hands backand I venture to evolve a new principle of liability which EnglishCourts have not done. We have to develop our own law and if wefind that it is necessary to construct a new principle of liability todeal with an unusual situation which has arisen and which is likelyto arise in future on account of hazardous or inherently dangerousindustries which are concomitant to an industrial economy, thereis no reason why we should hesitate to evolve such principle ofliability merely because it has not been so done in England. Weare of the view that an enterprise which is engaged in a hazardousor inherently dangerous industry which poses a potential threat

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to the health and safety of the persons working in the factory andresiding in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results toanyone on account of hazardous or inherently dangerous nature ofthe activity which it has undertaken. The enterprise must be heldto be under an obligation to provide that the hazardous orinherently dangerous activity in which it is engaged must beconducted with the highest standards of safety and if any harmresults on account of such activity, the enterprise must beabsolutely liable to compensate for such harm and it should be noanswer to the enterprise to say that it had taken all reasonablecare and that the harm occurred without any negligence on itspart. Since the persons harmed on account of the hazardous orinherently dangerous activity carried on by the enterprise wouldnot be in a position to isolate the process of operation from thehazardous preparation of substance or any other related elementthat caused the harm the enterprise must be held strictly liablefor causing such harm as a part of the social cost for carrying onthe hazardous or inherently dangerous activity”.

The principle laid down in the case of MC Mehta v UOI wasalso followed by the Supreme Court while deciding the case ofBhopal Gas Tragedy case. To ensure that victims of such accidentsget quick relief through insurance, the Indian Legislature passedthe Public Liability Insurance Act in the year 1991.

4 Conclusion:As it is rightly said “Every coin has two sides”, similarly

development and environment are two sides of a coin. Both of themare equally important for the growth of the country. But we cannotsacrifice anyone for the other. So both shall go simultaneously inharmony. In recent years, the environmental degradation isincreasing rapidly so we shall use the resources wisely. The aboveexplained principles are important part of environmental law andshall be followed by all to curb the environmental degradation.

Thus, the responsibility lies on the Supreme Court and thevarious High Courts to deal with these cases cautiously. Then onlywe can have pollution free country. India is making its way towardsbeen called as developed country and also pollution free country.It is the responsibility of everyone to protect our environment.Let us fulfill our responsibility, creating healthy ecologicalenvironment and sharing wonderful green living together.

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20A BIRDS EYE VIEW OF NATIONAL GREENTRIBUNAL AND ITS FUNCTIONAL ETHOS

Dr.Madhumita Dhar Sarkar

IntroductionIt is the matter of common knowledge that the higher

judiciary in India is overburdened with a large back log of cases.It may be appreciated that in order to have effective prevention ofenvironmental pollution, environmental complaints should bedecided expeditiously which is not possible in the present contextof judicial administration. Therefore, there was an urgent needfor an alternative forum so that environmental cases were decidedwithout much delay and as fast as possible.

The Indian Apex Court opined that it would be desirable tohave the setting up of “environmental courts on the regional basiswith a professional judge and two experts taken from the EcologicalScience Research Group.” A similar view was expressed by someof the prominent jurists of the country. The Principle 13 of the RioDeclaration on Development and Environment states that “statesshall develop the national law regarding liability and compensationfor the victims of Pollution and other environmental damage”.

To give effect to the directive mentioned above and to providefor a forum for effective and expeditious disposal of cases arisingfrom any accident occurring while handling any hazardoussubstance, the Indian Parliament enacted the National GreenTribunal Act, 2010. It may be appreciated that the StockholmDeclaration 1972 which has been described as International “MagnaCarta” of our environment and the Rio declaration, 1992 haveexhorted the members of the International Community including

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India, to take appropriate steps for the protection, safeguard andimprovement of human environment. To give effect to theseexhortations contained in the global declarations on environmentand to provide for a specialized forum for effective and expeditiousdisposal of cases arising out of enforcement of environmental lawsin the country, the Indian Parliament has enacted, recently, theNational Green Tribunal Act, 2010 which has come into force on 2June 2010. The Act seeks to replace the National EnvironmentTribunal Act, 1995 and the National Environment AppellateAuthority Act, 1997 which have been in operation for sometime inthe country. The Act has been enacted in response to therecommendations of the Law Commission of India and the IndianSupreme Court which highlighted the large number ofenvironment – related cases pending in the courts.

The Union Government was scheduled to introduce the “TheNational Green Tribunal Bill”. The bill provides for the setting upof the National Green Tribunal and its four regional counterparts,as suggested over the years by the Supreme Court and the LawCommission. The National Green Tribunal will replace theNational Environmental Appellate Authority (NEAA), constitutedunder the NEAA Act, 1997 and the National EnvironmentalTribunal to be set up under the National Environment TribunalAct, enacted by Parliament in 1995, which has never beenimplemented.

In light of the short comings of the NEAA, there is clearly needfor a new environment tribunal with enhanced powers. TheParliamentary Standing Committee in its report on the NationalGreen Tribunal bill dated November 24, 2009 notes that “Theenvironment has assumed immense importance during the lastfew years not only because of significant climatic changes that havestarted manifesting in various forms, but also because of ever-sharpening conflict and contradictions between economicdevelopment and conservation and protection of environment. Suchconflicts have led to a large number of litigation pending in variouscourts throughout the country.” Given that courts in the countryare increasingly burdened with civil and criminal cases, the Billproposes the setting up of a National Green Tribunal, which shallconsist of a full time Chairperson and such other full time JudicialMembers and full time Expert Members as the Central Governmentmay from time to time notify. The Expert Members shall be expertsin physical and life sciences, engineering and include persons

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having practical knowledge and administrative experience inenvironmental matters. The Chairperson shall be appointed bythe Central Government, in consultation with the Chief Justice ofthe Supreme Court of India while the Judicial Members and ExpertMembers of the tribunal shall be appointed by the CentralGovernment in the manner prescribed. Unlike the NEAA, thetribunal will hear initial complaints as well as appeals fromdecisions of authorities under various environmental laws.However, the Tribunal shall hear only ‘substantial questionsrelating to the environment’. Substantial questions are those which(a) affect the community at large and not just individuals or groupsof individuals, or (b) cause significant damage to the environmentand property, or (c) cause harm to public health which is broadlymeasurable. The Parliamentary Standing Committee Report hasalso highlighted several flaws in the bill and made somerecommendations. It is not clear whether the Standing Committeerecommendations have been incorporated in the bill so far. Onehopes that the next avatar of the bill provides for increased powers,jurisdiction, independence and accessibility of the green tribunals.However, the experience with the NEAA makes clear that a stronglegislative framework is a necessary but not sufficient conditionfor an effective environment tribunal. Executive will, to implementthe legislative framework and consistency of judicialpronouncements, both severely lacking in the environmental arenaare similarly indispensable.1

Aims and Objectivies of the Paper

1. To find out the efficacy of National Green Tribunal Act, 2010 inIndia.

2. To find out the extent and causes for which National GreenTribunal Act, 2010 has been established.

3. Focusing on various areas where National Green Tribunal works.

4. To find out the legislative steps or measures taken on this behalf.

5. To find out how much compliance has been made in this regard.

National Green Tribunal- A Brief DescriptionThe National Green Tribunal (‘NGT’) was established on 18th

October, 2010 under the National Green Tribunal Act 2010. TheTribunal is dedicated to the effective and expeditious disposal of

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cases relating to the subject of forest, environment, biodiversity,air and water. It is a specialized body equipped with the necessaryexpertise to handle environmental disputes involving multi-disciplinary issues. The National Green Tribunal startedfunctioning since 4th July, 2011. The Principal Bench is at NewDelhi with circuit benches at Chennai, Bhopal, Pune and Kolkataso that it can reach remoter parts of India. The principal benchand the regional benches are all currently functional. This courtcan rightly be called ‘special’ because India is the third countryfollowing Australia and New Zealand to have such a system. TheNational Green Tribunal is India’s first dedicated environmentalcourt with a wide jurisdiction to deal with not only violations ofenvironmental laws, but also to provide for compensation, reliefand restoration of the ecology in accordance with the ‘Polluter Pays’principle and powers to enforce the ‘precautionary principle’.

The commencement of this Tribunal is a giant step forwardtowards achieving environmental democracy, which functions withan objective of disposing off the case within six months of filing.The members of this Tribunal have adhered to this rule, therebyensuring disposal of cases in a timely manner and earning the courtits reputation of being a special ‘fast-track’ court. It is the missionof the Judges and the Expert Members of the National GreenTribunal to maintain this unstable balance between theenvironment and sustainable development.

The Law Commission in its 186th Report recommended forsetting up of environmental courts in each State or for a group ofStates for exercising all powers of a civil court in its originaljurisdiction and with appellate judicial powers against orderspassed by the concerned authorities under the Water (Preventionand Control of Pollution) Act, 1974, the Air (Prevention and Controlof Pollution) Act, 1981, the Environment (Protection) Act, 1986,the Public Liability Insurance Act, 1991. The Law Commission’sReport was considered in the Ministry. In view of the growingenvironmental challenges, it was decided to set up a green tribunalas a specialized body equipped with the necessary expertise tohandle environmental disputes involving multi-disciplinary issues.The Tribunal shall not be bound by the procedure laid down underthe Code of Civil Procedure, 1908, but shall be guided by principlesof natural justice.2

The National Green Tribunal (NGT) Bill, 2009 was introducedby Ministry of Environment and Forests in July 2009 with the

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objective to provide for the establishment of a National GreenTribunal for the effective and expeditious disposal of cases relatingto environmental protection and conservation of forests and othernatural resources including enforcement of any legal right relatingto environment and giving relief and compensation for damages topersons and property and for matters connected therewith orincidental thereto.

The Bill was passed by Lok Sabha in May 2010 as NationalGreen Tribunal Bill 2010 and got President’s assent as NationalGreen Tribunal Act of 2010 on June 2, 2010. This Act envisages thesetting up of a National Tribunal, a judicial body exclusively todeal with environmental laws and to provide citizens a right toenvironment.3

Highlights of the National Green Tribunal Act, 2010

The Tribunal has the same powers as are vested in a civilcourt under the Code of Civil Procedure, 1908.

The Tribunal shall not be bound by the procedure laid downunder the Code of Civil Procedure, 1908, but shall be guidedby principles of natural justice.

The Tribunal’s dedicated jurisdiction in environmentalmatters shall provide speedy environmental justice and helpreduce the burden of litigation in the higher Courts.

The Tribunal is mandated to make an endeavor for disposalof applications or appeals finally within 6 months of filing ofthe same.

Initially, the NGT is proposed to be set up at five places ofsittings and will follow circuit procedure for making itselfmore accessible. The five places of its sitting are at Delhi,Bhopal, Pune, Kolkata and Chennai.

The sanctioned strength of the tribunal is currently 10 expertmembers and 10 judicial members although the act allows forup to 20 of each. The Chairman of the tribunal who is theadministrative head of the tribunal also serves as a judicialmember.

The Tribunal has the original jurisdiction over all civil caseswhere a substantial question relating to environment,including enforcement of any legal right relating to

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environment is involved.

The Tribunal shall hear disputes arising out of theimplementation of environmental laws mentioned in ScheduleI of the NGT Act, 2010.

The Government is empowered to add any Act of Parliamenthaving regard to objectives of environmental protection andconservation of natural resources.

The Tribunal is competent to provide relief over and aboveas is admissible under the Public Liability Insurance Act, 1991.In order to ensure access to justice, pollution control boardsand local authorities have also been empowered under theNGT Act to file an application or appeal before the Tribunalon behalf of the affected person.

Appeal against any order of the Tribunal shall lie to theSupreme Court.

The NGT follows a very simple procedure to file anapplication seeking compensation for environmental damageor an appeal against an order or decision of the Government.The official language of the NGT is English.

For every application/appeal where no claim for compensationis involved, a fee of Rs. 1000/- is to be paid. In case wherecompensation is being claimed, the fee will be one percent ofthe amount of compensation subject to a minimum of Rs.1000/-.

No application for grant of any compensation or relief orrestitution of property or environment shall be entertainedunless it is made within a period of five years from the dateon which the cause for such compensation or relief first arose.

No civil court shall have jurisdiction to entertain any appealin respect of any matter which the Tribunal is empowered todetermine under its appellate jurisdiction.

No injunction shall be granted by any civil court or otherauthority in respect of any order passed by the Tribunal.

While passing Orders/decisions/awards, the NGT will applythe principles of sustainable development, the precautionaryprinciple and the polluter pays principles.

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If the NGT holds that a claim is false, it can impose costsincluding lost benefits due to any interim injunction.

Members- The sanctioned strength of the tribunal is currently10 expert members and 10 judicial members although the actallows for up to 20 of each. The Chairman of the tribunal whois the administrative head of the tribunal also serves as ajudicial member. Every bench of the tribunal must consist ofat least one expert member and one judicial member. TheChairman of the tribunal is required to be a serving or retiredChief Justice of a High Court or a judge of the Supreme Courtof India. Members are chosen by a selection committee (headedby a sitting judge of the Supreme Court of India) that reviewstheir applications and conducts interviews. The Judicialmembers are chosen from applicants who are serving orretired judges of High Courts. Expert members are chosenfrom applicants who are either serving or retired bureaucratsnot below the rank of an Additional Secretary to theGovernment of India (not below the rank of PrincipalSecretary if serving under a state government) with aminimum administrative experience of five years in dealingwith environmental matters. Or, the expert members musthave a doctorate in a related field.

Some Recent Decisions Of National Green Tribunal

In The National Green Tribunal (Western Zone) Pune, MISCApp No. 37/2013.

Mr. Bhungase And others(original applicants) vs TheGangakhed Sugar and Energy Ltd.and others( OriginalRespondents).

Fact and law points— The application is filed under section14,15,17 of National Green Tribunal act,2010. It was complainedby the applicants that “Mannath Lake” was leased out to its societyfor fishing rights. However the respondent the sugar factory iscontinuously discharging effluent and thus damaging environmentand ecology of the lake. The stock of fish is already depleted andlivelihood of fishermen affected. The NGT said that litigationrelated to environment are not adversial but quasi adversial innature. There is no need to follow the strict procedural formalitiesof C.P.C 1908. Under section 19(2) of the NGT Act it is said thatthe tribunal shall have power to regulate its own procedure.

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Tribunal is empowered to apply polluter pay principle as laid downin section 20 of the NGT Act. Considering the relevant materialsand submissions from both sides NGT directed Respondent 1 and2 to pay 50 lakh with the office of collector Parbhani, and beavailable for disbursement.

Before the National Green Tribunal (Western Zone) Bench,Pune

Application No.22/2013(WZ).

Lokmangalsanthan (Applicant) vs Shri Sanjay Wadettiwarand Others (Respondent)

Fact and Law points—-This application arises out of civilaction originally initiated as civil suit 55/2013 against therespondents. However in view of Section 29(2) the jurisdictionalbar of Civil Courts the matter was transferred NGT. Lokmangalsanstham a social organization for women prayed for permanentinjunction against the respondent from operating rice mill unitwhich allegedly cause noise and air pollution or alternatively totake measures to stop such pollution. It was found by the tribunalat paragraph 20 of the judgment, due to proximity of the mill withthe applicants premises there is a possibility that the huskseparated from the grain after the process of paddy may flow awaytowards applicants training institution and create actionablenuisance. The running of the mill creates a constant poundingsound. Thus there is air and noise pollution created by respondent.

Thus it was directed that concerned authority shall not grantconsent unless adequate measures has been taken by therespondent to stop pollution. There should be payment of Rs 5000/by the respondents to the applicant for the air and noise pollutionalready caused. Legal action can be taken by the concernedauthority under Section 31-A of Air Act, 1981 if the mill is runwithout consent of authority or in violation of conditions mentionedthere in.

In the National Green Tribunal (Principal Bench) New Delhi.Appeal No. 43 (T.H.C.) / 2013.

Biswanath Mondal and others (Applicant) vs. State of WestBengal and others (Respondent)

Fact and Law Points:- The applicants challenged the fixationof lower noise label impulse 90 db (A) at 5 meters(03.10.1997 by

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W.B.P.C.B) from source of manufacturing and sale of fire crackersinstead of 125 db (A) at 4meters from source which is prescribedby Ministry of Environment and Forest vide notification 05.10.1999.

WBPCB has power to lower down the bench mark of thedecibels for fire crackers under rule 3(2) of EnvironmentalProtection Rules, 1986. However the stringency of the standardmust be based sufficient reason depending upon quality of recipientsystem. There is requirement of scientific study.

However MOEF (Ministry of Environment and Forest)Notification 05.10.99 has been issued in the exercise of powerconferred under section 6 and 25 of Environment Protection Act1986. The Environment Protection Rules are subordinatelegislation must give way to power exercised under section 6 and25 of Environment Protection Act, 1986 that is MOEF Regulation05.10.99. We know Article 19(1)g cannot give free license orfundamental right to carry any trade of business to create soundpollution. Also the WBPCB while issuing the said order 03.10.97has not mentioned any provision of Air Act. Under section 17 ofthe Air Act WBPCB can declare any noise label for maintainambient air quality but it must consult CPCB.

Thus NGT said that MOEF Regulation shall prevail overWBPCB Regulation. But in view of increase urbanization,Industralisation new scientific “noise label ambient air qualitystudy” should be initiated.

Before the National Green Tribunal (South Zone, Chennai).Appeal NO. 46 and 47 of 2013(SZ) Shree Consultants and others(Appellant) vs. The Member Secretary, Central Pollution ControlBoard (Respondent) And M/s. GIPS Biotech(Respondent)

Fact and Law Points:- A consent to establish Biomedicalwaste treatment plant was given by KSPCB (Karnataka StatePollution Board) to the respondent M/s. GIPS Biotech. Howeverappellant Shree Consultant challenged the consent of KSPCB,which permitted establishment of biomedical waste treatmentplant in addition to the already functioning plant of the appellant.

The challenge was denied by the NGT because if it succeeds itwill create monopoly which is indefensible and impermissibleunder Article 19(g) read with 19(6) as laid down in State of Rajasthanvs. Mohanlal Vyas (1971)3SCC705.There is immediate need toestablish more biomedical waste treatment plant, as it is consistentwith the provisions of EP Act 1986 and also the rules made there

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under. It is not proper that biomedical waste treatment plant ofappellant shall only operate in the 150km radius area.

Conlusion and SuggestionsThe National Green Tribunal is a special fast-track court that

aims to provide speedy environmental justice and help reduce theburden of litigation in the higher courts. Despite all the hurdlesincluding financial and administrative bottlenecks, the NGT hassucceeded in bringing an environmental revolution in the country.Protecting our environment from degradation is of vitalimportance, which may otherwise affect our livelihoods, healthand access to food. Environmental struggles mostly aim at ensuringthat information about proposed projects (Environment ImpactAssessment reports), air and water quality data is shared with thepeople. NGT has got a significant power to do “merit review” asopposed to only “judicial review.” Under the writ jurisdiction ofthe High Court or Supreme Court, the courts are essentiallyconcerned with the “decision making process” and not the “merits”of the decision. As a merit court, the NGT becomes the primarydecision maker and therefore can undertake an in-depth scrutinyinto not just the law but also the technical basis of a particulardecision.

The NGT has five places of sittings with New Delhi being thePrincipal Place of Sitting of the Tribunal. This is the first body ofits kind that is required by its parent statute to apply the “polluterpays” principle and the principle of sustainable development. TheNGT Act is considered a significant step in capacity developmentbecause the Act strengthens the framework of globalenvironmental governance. The judiciary has been the backbonefor developing a large body of environmental jurisprudence, eventhough policy enforcement has been weak. A National EnvironmentProtection Authority is also to be established shortly to monitorthe implementation of environment laws. However, it is expectedthat the National Green Tribunal will play a lead role inenvironmental protection, enforcement and compliance.

National Green Tribunal Act, 2010 is an Act which was enactedunder India’s constitutional provision of Article 21, which assuresthe citizens of India the right to a healthy environment. The statedobjective of the Central Government was to provide a specializedforum for effective and expeditious disposal of cases pertaining toenvironment protection, forests conservation and for seeking

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compensation for damages caused to people or property due toviolation of environmental laws or conditions specified whilegranting permissions. From its inception in the year 2010 to tilldate the NGT has delivered numerous judgments in respect ofenvironmental matters. It started working in the year 2011. TheNGT bill 2009 and the 186th Law Commission report have madethe establishment of the tribunal possible. The implementation ofits orders and maintaining the guidelines set by the tribunal areto be managed by the government. Its establishment confirms thecommitment of the Indian legal system to environmentalprotection, pursuing a long-lasting engagement of the State throughseveral constitutional reforms and a panoply of legislative Actsand, first of all, of the judiciary. The Supreme Court, especially,has played a proactive role in protecting the environmental rightsenshrined in the Constitution, by means of an expansivejurisprudence that has determined a significant growth in theaccess of Indian citizens to environmental justice.

In the Asian context India has a leading role to play, being“the world’s largest democracy” able to influence positively notonly the other States of the sub-continent but the entire of Asiandemocracies. With reference to the judicial enforcement ofenvironmental law, an important condition for sustainabledevelopment but also for the sustainability of the legalenvironmental order, the National Green Tribunal of India seemsto be the most comprehensive and promising among the specializedenvironmental Courts created in Asia over the last decade. In theFar East, while democracies like Japan and Korea have opted forthe settlement of environmental disputes through administrativebodies (the Environmental Dispute Resolution Commissions), whileChina, in its ongoing institutional development process, has setup an articulate system of Environmental Tribunals at the regionaland local levels. Other Asian States have organized systems ofinternal specialization in the matters related to environment: thisis the case of the Philippines, with an extremely articulate systemof 117 local and regional trial (environmental) Courts, establishedby the Supreme Court’s rules, or of Indonesia through an informalspecialization of single judges, dating long back. Other countieshaving developed a rich and interesting environmentaljurisprudence still rely on the ordinary Courts system andespecially on proactive Supreme Courts (this is the case of SriLanka, Thailand and, to a certain extent, Malaysia). The Indian

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subcontinent, having an established tradition of public interestenvironmental proceedings, appears today to be a very active area,with the Environmental Tribunal and other Environmental Courtsset up in Pakistan and some reforms still going on in Bangladesh(where the government announced in 2010 the intention to set up64 Environment Courts at the local level).

The establishment of the National Green Tribunal of India in2010 has marked some interesting achievements of the trendtowards the affirmation of environmental courts. The firstachievement concerns the relations between environmental lawand scientific evidence. Environmental law scholars have indicatedthat in environmental matters often the use of technical evidenceshelters behind a reference to its objectivity. According to oneenvironmentalist, for instance, a major task of environmental lawis the exposure of this false objectivity and therefore the searchfor effective and transparent measures aimed at integrating thediverse elements (scientific, political, administrative or legal,according to the public function performed) of normative andjudicial decisions. The recognition of the role of technical experts,becoming stable members of the judicial benches, meets thisrequirement of effectiveness and lucidity. The composition of theNational Green Tribunal, with technical experts being assigned50% role, appears satisfactory, even if the criteria for eligibilityraise some doubts and, as it has been rightly noticed, “the protocoldemands that only high placed experts with eminence must accessthe office”. Moreover, for developing countries, another importantaspect to emphasize is “that scientific expertise on the Tribunalitself produces an equality of arms and prevents powerful, corporateinterests from outgunning claimants in producing expertise whichclaimants cannot match in what is often public interest litigation”.

Another significant aspect of the establishment of the NationalGreen Tribunal is that its creation is not a reform imposed to thejudiciary; on the contrary, it was requested by the Supreme Courtitself. As such, the chances of conflicts had minimized and it wasreadily accepted by the judicial system already in activity and thenew judges could easily integrate with the other judicial authoritieswithout major conflicts. The unambiguous reference to a list ofenvironmental statutes to define the original jurisdiction of theTribunal should avoid controversies regarding the definition of“environmental matters”, an argument often raised in the westagainst the establishment of environmental courts, and overlapping

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jurisdiction. For the sake of maintaining harmony in the judicialsystem, the Green Tribunal has the Supreme Court at the top (asappellate judge), capable of playing the role of coordinator andsupervisor of the entire system. This is a further element for theintegration of Environmental Courts in the general judicialorganization.

An additional achievement from the Indian experienceconcerns the necessity to liberalize the rules made for the accessto environmental courts, as it was made by section 18 of the Act.Along with the reasonably fast time-frame to dispose thejudgments, section 18 justifies the conclusion that this legislation“ensures the fundamental right to speedy environmental justice”.

One can have a clear idea of the effective role played by theNational Green Tribunal by going through and analyzing itsjudgments, elements that will also disclose the extent to whichenvironment related issues can be ring-fenced from wider socialand economic concerns, in an era of sustainable development.Moreover, the new Indian system cannot be considered as a “cookiecutter” or a “fit-for-all model”, but it represents already a point ofreference for other Asian democracies, in the perspective of anevolution of their system of environmental enforcement, and achallenge against the traditional reticence of Europe and USAtowards “green judges”.

In the year that the National Green Tribunal has functioned,it has delivered a number of significant judgments on a wide rangeof issues from across the country. This Tribunal is therefore anessential step in the access to justice on matters pertaining to theenvironment and its mandate is much wider than earlierenvironmental Courts and Authorities and other such Courts. Anew jurisprudence on the environment is gradually emerging inthe country and is an example for the rest of the world. At a timewhen Environment Impact Assessments reports are blind copy-paste works, job where public hearings are a mockery and non-compliance with environmental rules and regulations are the orderof the day, the NGT serves to restore faith in the “Rule of law”.Thus the National Green Tribunal Act is a crucial step in capacitydevelopment as it strengthens the framework of globalenvironmental governance.

The National Green Tribunal has been working endlessly eversince its birth. It has succeeded to a great extent to meet thepromises done during its establishment and fulfill the motive of

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its formation. But there have been some drawbacks, which ifrectified, the NGT would be able to prove itself to be the savior ofmankind, and environment as well, in this age of global warmingand prevailing environment hazards.

Below are some of the suggestive measures that if considered,the NGT could overcome its existing difficulties and challengesand could function more effectively.

1. The NGT Act in its emerging form is explicit of the compositionof Tribunal and adequate qualification is required to be amember of the Tribunal. It proposed a 20 member Tribunal,out of which half will have legal background and the rest halfwill be technical experts. The Act states clearly that desirablequalification is required to become a member of tribunal. Thisclause in the bill has led to certain conflict among civil societywho believes this will facilitate back-door entry for retiredbureaucrats. The bill should have opted for a transparentprocedure for the selection of its expert members.

2. The NGT Act must have a provision for an open panel of ExpertMembers of the Tribunal without limiting it to some specifictechnical professions. The Act considers higher degrees inScience, Engineering, Technology and experience inAdministration only as technical qualifications. It has alsogone one step ahead and mentioned that degree should befrom a reputed national level institution. On the flip side,there is no provision for environmentalists, ecologists,sociologists, expert in public health, occupational health andcivil society / NGO’s who have also been equally proactive inthe field of environment protection since time immemorial.

3. The NGT has reduced access to justice in environmental mattersby taking away the jurisdiction of civil courts. Setting up fivebenches with principal bench in Delhi and other sitting placesat four other cities like Bhopal, Pune, Kolkata and Chennaiwhile barring the jurisdiction of all civil courts will createhuge distance for the poor community members and tribalsto seek justice and thus the Tribunal will not achieve thedesired result. The ministry needs to reassess its approachto make sure access to justice is not denied. Ministry ofEnvironment and Forests (MoEF) needs to reconsider andincrease the number of sitting places by establishing one ineach district of the country.

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4. The NGT orders must be implemented without fail. There havebeen instances where either the orders passed have not beenimplemented fully or its implementation has been delayed toa great extent, thereby bringing an obstacle in the path ofachieving its goals.

The National Green Tribunal is thus a new beginning for India’sstruggle between its development and environmental progress.Despite some inherent flaws, NGT is a significant initiative by theGovernment and the appropriate implementation of the law woulddefinitely lead the country towards the path of SustainableDevelopment and guarantee a harmonious relationship betweenthe environment and society.

(Footnotes)1 Namita Wahi, “Environmental Tribunals in India: From the NEAA

to the National Green Tribunal”, available at: http://lawandotherthings.blogspot.in/2010/01/environment-tribunals-in-india-from.html_(visited on January 26, 2015)

2 Law Commission of India, 186th Report on Proposal to ConstituteEnvironmental Courts (September, 2003)

3 The National Green Tribunal Bill 2009, India, available at: http://envfor.nic.in/sites/default/files/division/national-green-tribunal-bill-2009. pdf_(visited on April 19, 2015)

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21NATIONAL GREEN TRIBUNAL: A ROADTOWARDS ENVIRONMENTAL JUSTICE?

Sadaf Moosa

IntroductionThe Constitution of India through its directive principles of

state policy (DPSP) mentions that “it is the duty of the state toprotect and improve the environment and to safeguard the forestsand wildlife of the country and bestow upon the citizens the dutyto protect the environment”. In reality the implementation ofDPSPs immediately after independence was a difficult task forgovernment as there were many other problems that were givenpriority over the environment. To overcome the basic problems ofpoverty, illiteracy, unemployment and to provide basic health carefacilities, environment issues were not given that much importance.In order to increase the production in the economy more and moreindustries were set up. This has led to degradation of environmentat a large scale in India and the priority in the last decade hadgradually shifted to the protection of environment. The SupremeCourt of India suggested that there should be environmental courtson regional basis with professional judges and 2 experts keepingin mind the kind of expertise needed to deal with such issues.This was emphasized by the Supreme Court as there was a needfor speedy justice for environmental protection and to reduce theburden on the High Courts which were not able to do quick disposalof cases involving environmental issues as they were overburdened by cases.1 As a result of this dire need for speedy justiceThe National Green Tribunal (NGT) was founded on 18th October,2010 under the National Green Tribunal Act, 2010. The NationalGreen Tribunal is a statutory tribunal which was enacted by the

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parliament specially for hearing the matters concerning toenvironmental issues. It was a result of long procedure and thedemand for such tribunal started

1. 186Th Report on Proposal to Constitute Environment Courts.

long back in the year 1984 after the Bhopal gas tragedy.2 Thenthe Supreme Court specifically mentioned the need for suchtribunals in the four landmark judgements, namely, M.C.Mehtavs.Union of India3, Indian Council for Environmental-Legal Actionvs Union of India4, A.P.Pollution Control Board vs. M.V. Nayudu5and A.P.Pollution Control Board vs. M.V. Nayudu6. The SupremeCourt then in a number of cases highlighted the difficulty faced byjudges in adjudicating on complex environmental cases and laidemphasis on the need to set up a specialized environmental court.The Law Commission in its 186th Report had recommended to setup “multifaceted” Environmental Court in each state of India, withjudicial and technical/scientific experts, as they exist in Australia,New Zealand and other countries. Having regard to complex issuesof fact of science and technology which arise in environmentallitigation and in particular, in the elimination of pollution in airand water, it is now recognized in several countries that Courtsmust not only consist of Judicial members but must also have astatutory panel of members comprising Technical or Scientificexperts. The Supreme Court had in M.V.Nayudu cited the exampleof the Land and Environment Court of New South Wales as a modelwhich could be followed. Though the credit for enacting the NGTAct, 2010 goes to the then Environment Minister Jairam Ramesh,it became functional only because of repeated directions of theSupreme Court while hearing the Special Leave Petition titledUnion of India v. Vimal Bhai7.

National Green Tribunal: An OverviewThe National Green Tribunal was established on October 18,

2010 under the National Green Tribunal Act 2010, passed by theCentral Government “ for the effective and expeditious disposalof cases relating to environment protection and conservation offorests and other natural resources including enforcement of anylegal right relating to environment and giving relief andcompensation for damages to persons and property and for mattersconnected with it”

2. SLP (civil) No(s). 12065/2009

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3. 1986(2) SCC176

4. 1996(3) SCC212

5. 1999(2) SCC718

6. 2001(2) SCC62

7. Appeal No. 5 of 2011, Order dated 14 December 2011.

The National Green Tribunal is quasi- judicial body which cantake environmental violation cases from public spaces and penalizethe perpetrator party and divert the fund towards victims forrehabilitation, damages of property, etc due to environmentaldegradation. It is a specialized body equipped with the necessaryexpertise to handle environmental disputes involving multi-disciplinary issues. The Tribunal is not bound by the procedurelaid down under the Code of Civil Procedure, 1908, but it is guidedby principles of natural justice. The NGT is also not bound by therules of evidence as enshrined in the Indian Evidence Act, 1872.While passing Orders/decisions/awards, the NGT will apply theprinciple of sustainable development, the precautionary principleand the polluter pays principles.

The main focus for National Green Tribunal was to providerelief to High Court and Supreme Court of environmental casesand litigation and to provide fast and speedy trial by setting 6months deadline. Some of the important judgements of NationalGreen Tribunal are as follows:

• Banning any diesel vehicle of more than 15 years old in Delhiand NCR region

• Penalising the construction companies in Bellandur wetlandin Banglore.

• Proposed plan for rejuvenating the Yamuna river for 52 kmstretch in Delhi and UP region

• Cancelling clearance of CG coal mine, Vedanta and POSCOin Orissa

• Imposing a complete ban on burning of waste in the openincluding garbage, leaves, plastic and crop residues.

• Cancelling clearance of a Mining project by Gogte Mineralsin Maharashtra

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The decisions of above mentioned cases shows that NationalGreen Tribunal played a vital role in addressing environmentalpollution and environment degradation in India.

StructureThe Tribunal’s dedicated jurisdiction in environmental matters

shall provide speedy environmental justice and help reduce theburden of litigation in the higher courts. The Tribunal is mandatedto make and endeavour for disposal of applications or appealsfinally within 6 months of filing of the same. Initially, the NGT isproposed to be set up at five places of sittings and will follow circuitprocedure for making itself more accessible. New Delhi is thePrincipal Bench of NGT of with regional benches in Pune (WesternZone Bench), Bhopal (Central Zone Bench), Chennai (SouthernBench) and Kolkata (Eastern Bench). Each Bench has a specifiedgeographical jurisdiction covering several States in a region. Thereis also a mechanism for circuit benches. For example, the CentralZone bench, which is based in Bhopal, can decide to have sittingsin other places like Gwalior or Jaipur.

CompositionThe tribunal shall consist of minimum of 10 members and not

more than 20 members. This will be in accordance with thenotification given by the central government. The members willbe a mix of judges and expert members on environmental issues.The chairperson of the tribunal is required to be a serving or retiredSupreme Court Judge or Chief Justice of a High Court and tobecome eligible for becoming a judicial member of the tribunal theperson should have been a judge of the High court. To be qualifiedas an expert member of the tribunal a person shall possess a degreeof master of sciences whether physical sciences or life scienceswith a doctorate degree or masters of technology or masters ofengineering having fifteen years of experience in that field with afive year experience in fields of environment and forest.7

PowersThe NGT has the power to hear all civil cases relating to

environmental issues and questions that are linked to theenforcement and implementation of laws listed in Schedule I ofthe NGT Act. These include the following:

1. The Water (Prevention and Control of Pollution) Act, 1974

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2. The Water (Prevention and Control of Pollution) Cess Act, 1977

3. The Air (Prevention and Control of Pollution) Act, 1981

4. The Environment (Protection) Act, 1986

5. The Public Liability Insurance Act, 1991

6. The Biological Diversity Act, 2002.

This means that any violations pertaining only to these laws,or any order / decision taken by the Government under these lawscan be challenged before the NGT.

Procedure For Filing an Application or AppealThe NGT follows a very simple procedure to file an application

seeking compensation for environmental damage or an appealagainst an order or decision of the Government. The officiallanguage of the NGT is English. For every application / appealwhere no claim for compensation is involved, a fee of Rs. 1000/- isto be paid. In case where compensation is being claimed, the feewill be one percent of the amount of compensation subject to aminimum of Rs. 1000/-.

A claim for Compensation can be made for:

1. Relief/compensation to the victims of pollution and otherenvironmental damage including accidents involvinghazardous substances

2. Restitution of property damaged

3. Restitution of the environment for such areas as determinedby the NGT.

No application for grant of any compensation or relief orrestitution of property or environment shall be entertained unlessit is made within a period of five years from the date on which thecause for such compensation or relief first arose.

8. http://www.conservationindia.org/resources/ngt (retrieved on 04/02/2016)

Review and AppealUnder Rule 22 of the NGT Rules, there is a provision for

seeking a Review of a decision or Order of the NGT. If this fails, anNGT Order can be challenged before the Supreme Court withinninety days.

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CriticismThe National Green Tribunal (NGT) is performing well. Those

who can reach it now believe that their cases will be heard speedily.Today, there is a fear among industry and environment regulatorsthat some action would be taken if a case is heard by NGT. Butthere are many challenges that NGT faces and there are manyissues that people have with NGT.

Despite having solved a lot of problems it still has a manypending cases and since it has no suo-moto powers, it restricts itsscope in the area of environment.

• InaccessibilityThe biggest challenge that people face is the access to justice.

According to the website of the NGT,” New Delhi is the principalplace of sitting of the tribunal and Bhopal, Pune, Kolkata andChennai shall be the other four place of sitting of the Tribunal”.The Law Commission in its 186th Report recommended that onesuch court should be established in every state. But the NGT hasonly 5 benches. This has created problem for common people aswell as poor and disadvantaged communities living in remote partsof the country. The NGT took away the right of the civil courts toadmit cases regarding environmental issues. So it is nowcompulsory to file the case before the NGT in these cases. Noweven a PIL cannot be filed in the High Court of the state forenvironmental issues as well as all environmental litigation shallbe dealt only by the five benches of NGT.

For a tribal trying to stop pollution from an iron ore mine inBastar, this means filing and fighting a case in Bhopal. For a villageraffected by oil pollution in Nagaland, this means coming to Kolkataand hoping to be heard quickly. The procedure to access to justiceis neither easy nor affordable.

• Matter of JurisdictionThe NGT’s subject matter of jurisdiction is another issue. As

of now, the NGT has both appellate powers and original powers.Its appellate powers are exercised against orders passed bystatutory authorities under various environmental legislation suchas the Air Act and the Water Act. In pursuance of its originalpowers, the NGT can award damages for death or injury to anyperson or property if the same has resulted from “an accident orthe adverse impact of an activity or operation or process,” under

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any of the environmental legislation specified in Schedule 1 of theNGT Act. While consolidating the appellate power in the tribunalis not per se problematic, concentrating all powers to grantdamages under environmental legislation with the NGT alone is arecipe for throttling access to justice because Section 29(2) of theNGT Act, 2010 completely bars the jurisdiction of civil courts inall such matters.

• Lack of Judicial IndependenceThe NGT lacks judicial independence from the government.

Under the NGT Act, the government officials can be appointed tothe tribunal while holding their post in the government. Agovernment officials will never rule against the governmentbecause he is also a part of government and faces various kinds ofpressure to not to rule against the central government.

• Ministrial ControlThe National Green Tribunals are funded by the parent

ministry and hence it exercises control over the tribunal and itsdecisions. This makes the decision of the NGT impartial andineffective.

• Exper Knowledege not NeededThe NGT has to decide the question of law and does not have

to do fact finding. The expert knowledge is not needed in grantingcompensation or awarding punishment. For this there need to beknowledge of law. The Indian Evidence Act, provided specificallyfor the statement of expert witness in cases where some specialknowledge is required than what is need for appointing experts inthe tribunal itself.9

• Lack of ResourcesThe NGT faces lack of resources for its proper functioning.

NGT was operating from a guest house earlier. The members ofthe tribunal were not given house and were living in governmentguest house. The funds were decreased further without taking intoconsideration the fact that the NGT is already suffering from lackof adequate funds.

• Backlog of CasesThe backlog of cases in NGT is another reason for the

institution’s failure to address environmental matters. Despite the

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high percentage of cases being disposed of, there is also anincreasing backlog of cases in NGT. The pendency indicates boththe resources available at different Benches and the number ofcases filed. All zonal Benches are handled by just one judicial andone expert member. The principal Bench, however, has four judicialmembers, including the chairperson and six expert member.

The number of cases being instituted each year is alsoincreasing phenomenally. The number of cases filed has increasedfrom just 548 in 2012 to 3,116 in 2013 to 2,348 in the first threemonths of 2014. This has put enormous pressures on NGT. Thisalso reflects an increasing environmental crisis in the country anda growing trust people have in NGT.

NGT targets to dispose of cases within six months. It has beenbroadly successful in achieving this aim. However, there have beensome high profile cases where NGT has not been able to deliver ontime.

Activist Ramesh Agrawal from Chhattisgarh, who was recentlyawarded the Goldman Environment Prize, also called the “GreenNobel”, commented that NGT has not always been able to grantspeedy justice. He cited the case of a 2,400 MW power plant inTamnar, Chhattisgarh, owned by Naveen Jindal, industrialist andformer member of Parliament, the environmental clearance ofwhich he had challenged. The case has been with NGT for almosttwo years . Another case in point is Singrauli. The case relating topollution problems in central India’s Singrauli district due to coalmining activities and thermal power plants came under NGT’sscanner in September, 2013, following a petition filed by AshwaniDubey, a lawyer and resident of Singrauli. NGT has been hearingthe case for over a year now. No conclusive judgement has beenpassed till date, though most past studies have shown thatSingrauli is a critically polluted area.10

Sudhir Paliwal, of Vidarbha Environment Action Group inNagpur, thinks that NGT keeps major issues dragging, whilehyping up minor ones. “It has not issued any strong orders in majorair pollution cases related to power plants or automobile pollution.For instance, a case filed by Mahadula-based social activistRatnadeep Rangari where Rangari alleged that the MaharashtraState Power Generation Company (Mahagenco) was flouting coalquality norms, has been dragging for a year without NGT givingany clear order, says Paliwal. However, recently, in a case relatingto Diwali crackers, NGT has ordered the setting up of committees

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to visit cracker manufacturers.”11

• Substantial Question of LawUnder Section 14(1) NGT is empowered to address all civil

cases where a “substantial question relating to environment” isinvolved. It is alleged that this term is very ambiguous. NGT has,however, construed it very liberally and expanded its jurisdiction.In the Kalpavriksh case, the tribunal commented that thejurisdiction of NGT must be examined in the backdrop of the factthat the protection of environment has been raised to the pedestalof a fundamental right by the Supreme Court (Article 21 of theConstitution). Based on this, the tribunal held that “the jurisdictionof the tribunal is thus, very wide. Once a case has nexus with theenvironment, the tribunal’s jurisdiction can be invoked. Even caseswhich have indirect adverse impact on the environment can beconsidered by the tribunal.” However, although environment is apart of Article 21 of the constitution, NGT cannot use it to strikedown any legislation/order.

• Time to Claim Relief is LimitedThe NGT Act has put an unrealistic time limit for filing a case.

The limit of a maximum of 5 years within which the complaint hasto be filed is akin to a denial of justice. If the right to cleanenvironment is an integral part of the right to life in ourConstitution, can this right be neglected and overlooked. Itrestricts the role of tribunal because various diseases and outcomeof pollution takes time to show its results e.g. Asbestosis disease.For nearly 30 years Parmila washed her husband clothes, littleknowing she would one day contact a fatal disease. Her husbandwas a sweeper in an asbestos factory in a Mumbai suburb. Pramilawas diagnosed with asbestosis, a fatal disease, which has a latencyperiod of 10 to 15 years. The asbestos fibres from her husband’scloths were the culprit. Goa based lawyer Krishnendu Mukherjeewho is dealing with a case on behalf of the victim argues thatPramila and others like her will find it difficult to approach theNational Green Tribunal. Under section 15(3) of the Act,applications for compensation, relief or restitution of propertyhave to be made within a period of five years from the date onwhich the cause for such compensation or relief first arose. Pramilawhose disease took over ten years to manifest probably, has nochance before this specially created Tribunal.

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• Limited JurisdictionThe NGT has not been vested with powers to hear any matter

relating to the Wildlife (Protection) Act, 1972, the Indian ForestAct, 1927 and various laws enacted by States relating to forests,tree preservation etc. For instance NGT cannot admit a suit forcutting of trees even though it is related to environment or matterspertaining to National Parks, Sanctuaries and Tiger Reserves.Therefore, specific and substantial issues related to these lawscannot be raised before the NGT. A person has to approach theState High Court or the Supreme Court through a Writ Petition(PIL) or file an Original Suit before an appropriate Civil Judge ofthe taluk where the project that intend to be challenged is located.

• Implementation of Ngt OrdersThe NGT lacks teeth to implement its order in full force due

to lack of coordination by Centre, State Government and PollutionControl Boards etc. Non implementation of decisions leads todenial to justice.

• Restricts Positive DiscriminationThe NGT Act is far from ideal. The single most damaging aspect

of the Act is the fact that aggrieved industries too can approachthe Tribunal against Ministry to get green clearances. Nowwhenever the Ministry of Environment and Forests (MOEF) rejectsenvironmental clearance, it can be challenged under section 16 (i)of the NGT Act. Less than one per cent applications for clearanceare rejected by the MOEF in any case. The whole purpose ofpositive discrimination gets defeated.

• Lack of Proper Research BodyThe NGT lack proper Research and investigative body for

giving judgement for environment and pollution related caseswhich have some technical grounds too. For instance in case ofbarring diesel vehicle older than 15 years, the judgement lacksthe scientific basis.

• Absence of Important Powers In the absence of important powers such as those relating to

judicial review, suo moto cognizance, A.227/226, NGT is ill-equippedto do complete justice. It fails to qualify as an efficacious alternateremedy, more so because of the nature of cases that come before it.And so, the solution is to reconstitute them as benches of the HC

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or in the alternative, restore environmental jurisdiction of the HCs.

• Concentration of PowerA corollary of such an arrangement is that environmental

jurisprudence is now concentrated with just seven judges. This isnot necessarily good news because such an arrangement vests toomuch judicial power in the hands of only a few judges.

ConclusionDespite the prompt steps taken by the National Green

Tribunal, there has been little change in the ever rising pollutionlevels. The most important reason for this is the lack of supportand inefficiency on part of central and state government. Thisresults in delay in implementing the decision of NGT with itsrestricted capacity. The staff of NGT it is unable to make muchmovement without support of either. In the present scenario thepoor and the disadvantaged are the worst sufferers ofenvironmental degradation and now their route to getting justiceis being blocked. This must be change, and quickly. For this, NGTmust be strengthened and not weakened. On its part, NGT mustput internal checks and balances for efficient and transparentdelivery of justice. NGT needs the support of various institutionsto achieve its objective. It can’t operate in isolation. The reality ofjustice is important, but so is its perception.

SuggestionsDespite all these criticism NGT is a step in positive direction

and is needed to be further strengthened by legislative andinvestigative powers. It will help ensuring clean environment forall citizens of India.

1. In the case of environmental PILs, any person could file a petitionin the High Court for relief. With the creation of the NGT,this access to justice has been throttled because it has onlyfive benches mainly in cities and under the NGT Act no othercourts can entertain any environmental litigation. For acountry like India, just five benches serve little purpose. Atthe very least, India needs district level forums, especiallysince access to justice is already such a big problem for theunderprivileged. There is a need for environmental tribunalon district bases but the present system is not even providingit on state basis. Dayamani Barla, a tribal leader who has led

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campaigns against displacement and mining. “I do not knowabout NGT,” she laments. She questions why someone shouldtravel all the way to Kolkata to fight a legal case. “A greentribunal should have been based in a place that has the highestforest cover or large mineral deposit. That is where thedispute is and that is where the extremely poor live,” shesays.12

2. There is a need for the central and state governments to work incollaboration with the NGT for an effective outcome. Therecently launched National Air Quality Index can be used inmonitoring pollution levels.

3. The major drawback of NGT is that a person cannot approach itfor every environmental issue. The Wildlife (Protection) Act,1972, the Indian Forest Act, 1927 and various laws enactedby States relating to forests, tree preservation etc. are notwithin the jurisdiction of NGT. So in a way it is ambiguousfor a common person to comprehend when to go and whennot to go to NGT to seek remedy. This is a reform which NGTneeds that there should be inclusion of all acts related toenvironment degradation within its ambit. This is requiredfor effective delivery of justice and environmental protection.NGT also needs to put certain systems in place for transparentdecision-making.

4. The National Green Tribunal has started putting financialpenalties on polluters, but so far, it has not come out with aguideline on this. NGT needs to establish principles andcriteria to estimate fines, damages and compensation. Itshould also identify institutions and experts who can help itto scientifically estimate environmental damages/compensation/fines on a case-to-case basis. These will bringin objectivity in its judgements.

5. The NGT must strengthen by giving it more powers and byinvesting in strengthening its infrastructure. Judicial reviewis an important power that must be given to NGT since thereare a lot of problems with our laws.

6. There should be involvement of environmentalists, ecologists,sociologists, expert in public health, occupational health andcivil society / NGO’s who always played an important role inthe protection of environment.

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Above mentioned are some of the measures by the adoption ofwhich the NGT could overcome its existing difficulties andchallenges and could function more effectively.

The only way forward, if we are going to improve the qualityof the environment, is to get everybody involved.

Richard Rogers

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22THE CANOPY OF NGT AND THE PROTECTION

OF BIODIVERSITY: A NEXUS

Riddhi Karmakar

IntroductionLife, definition of which might be easier to find out than to

live with it. Danny Kaye said that life is a big canvas to be paintupon, and Lillian Dickson saw it like a coin to be spent uponaccording to wish and some compared it with incurable disease.Apart from its versatility and magnitude the more we go in deep,more it becomes complex. In simple sense life is the relationbetween what we do and what we think. From the medical aspectlife means ‘Vitality, the essential condition of being alive; the stateof existence characterized by such functions as metabolism, growth,reproduction, adaptation, and response to stimuli.’ From legal pointof view in the year of 1924, United States v. 24 Live Silver BlackFoxes . 1924, Neterer J. of the United States District Court wrote,“Life is said to be a state in which energy of function is ever resistingdecay and dissolution, and commences for many legal purposes atthe period of quickening.” William Blackstone, in Book 1 of his1756 treatise, ‘The Commentaries on the Laws of England’, at page129, defined Life as “... the immediate gift of God and a rightinherited by nature in every individual.... a state in which energyof function is ever resisting decay and dissolution.”

From the eye of one environmenta list life becomes adependent variable, it does not stand by own self, it always needto depend upon other supporting factors. Harmoniously sustaining,developing and reproducing life coupled with other supportingfactors, by different diversified groups and segments is generallycalled Biological Diversity, commonly known as Biodiversity. It is

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the variety of different types of life found on the Earth and thevariations within species. “Biological diversity’ means thevariability among living organisms from all sources including, interalia, terrestrial, marine and other aquatic ecosystems and theecological complexes of which they are part: this includes diversitywithin species, between species and of ecosystems.” The termbiological diversity was used first by wildlife scientist andconservationist Raymond F. Dasmann in the year 1968, lay book ‘ADifferent Kind of Country’, advocating its conservation.Biodiversity is generally considered an umbrella term referringto organisms found within the living world, i.e. the number, varietyand the variability of living organisms. It may thus be assumed tobe synonym for ‘Life on Earth’ and ‘variety of life and its processes’.Biodiversity generally categorized in terms of Genes, Species andEcosystems diversities.

Statutory definition of biodiversity is “biological diversity”means the variability among living organisms from all sources andthe ecological complexes of which they are part, and includesdiversity within species or between species and of eco-systems’

Kinds of BiodiversityFrom the structural point of view generally three kinds of

biodiversities are found in the environment. These are categoricallyseparated to include all the separate biodiversities to make adefinite stratified list of biodiversity, these kinds are-

• Genetic DiversityDiversity within species is called Genetic Diversity. Every

individual species possesses definite genes which are the sourceof its own unique features. Suppose in human beings, the hugevariety of people’s faces reflects each person’s genetic individuality.Genetic diversity also covers distinct populations of a singlespecies, viz. the thousands of breeds of different dogs or thenumerous varieties of roses.

• Species DiversityDiversity between species or diversity within an ecological

community that incorporates both species richness (The numberof species that live in a certain location) and the evenness of species’abundances is called Species Diversity. It may also be called asthe number of species and abundance of each species that live in aparticular location, like 20 bird species, 50 plant species or 10

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mammal species, in a particular forest.

• Ecosystem DiversityDiversity at the Ecological or Habitat level is called Ecosystem

Diversity. Ecosystem diversity is also called Community diversity.The ecosystem encloses those previously mentioned (geneticdiversity and species diversity), along with non-biotic factors andthe interactions between biotic and non-biotic elements.Community diversity is again can be divided into three types, viz.

• Alpha Diversity, which means biodiversity within a particulararea, community or ecosystem, e.g., families, genera, andspecies.

• Beta Diversity which is a measurement of biodiversity bycomparing the species diversity between ecosystems. Betadiversity gives an idea of quantitative measure of diversityof communities in the changing environments.

• Lastly Gamma Diversity which is the measure of overalldiversity for the different ecosystems within a particularregion. It indicates the total species richness over a largearea or region.

There are many others who have included a fourth form ofdiversity which they called Landscape Diversity or PatternDiversity, which means and includes diversity in differentlandscapes. For example grassland, ponds, meadows, streams,forests are the different patters where biological diversity grows.These various biodiversities are like the life cell of the ecosystemon Earth, if thee diversities fall, total ecosystem will collapse.Valuing the biodiversity is very urgent and most mandatory workof the hour, eventhough it is really beyond valuation.

Biodiversity ValuesThe most precious gift of nature to the mankind is biodiversity.

All the organisms in an ecosystem are interlinked andinterdependent. That is why the importance of the biodiversitybecomes more valuable, mismanagement of which can bring themost devastative future on our entire world. Amongst others, theaspects on which the valuation of biodiversity can be figured outare as follows:

1. Environmental Value,

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2. Ecosystem Services,

3. Economic Value,

4. Social Value,

5. Consumptive use value,

6. Productive Use Value,

7. Ethical and Moral Value, and

8. Aesthetic Value.

Biodiversity can be used as a direct source for food, fiber, fueland other extractable resources. In addition to that it is having animportant role in ecosystem processes i.e. the regulating, culturaland supporting services.

Importance of Biodiversity in medical systemNatural resources traditionally remained one of the reliable

and effective source of medicine. We can get the mentioning ofAyurveda i.e. use of plants, trees and bi-products of natural herbsin the century old books, even of the first human civilization. InEgypt there was a medical book called ‘Kahoun Papyrus’, it datesfrom 1950 B.C. And has on its back an account from the time ofAmenemhat III. It consists of three sections, one dealing withhuman medicine, the second with veterinary science, and the thirdwith mathematics. In human medicine section, the first two pagescontain 17 gynecological prescriptions and instructions withouttitles. No surgery is prescribed; substances recommended are beer,milk, oil, dates, herbs, incense and sometimes repulsive substances.Use is often made of fumigations, pastes, and vaginal applications.There was describes 260 medical cases, in all of which medicineprescribed was the natural resources. The Indian medical booksalso carrying the legacy of Ayurveda from the age of Atharva-veda,to the modern books of herbal medicine. In the field of medicinealone, approximately 50% of current prescription medicines arederived from or modelled on natural substances. As per the WorldHealth Organization estimation 80% of people in developingcountries obtain their primary health care in the form of traditionalmedicines.

Importance of Biodiversity in food systemIn domesticated system human rely heavily on the biodiversity.

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Only about 150 species of plants have entered world commerce,and 103 species of plants supply 90% of the food in the form ofweight, calories, protein, and fat for most of the world’s countries.Roughly 60% of the calories coming just from three crops- wheat,rice, and maize. And 56% of the protein consumed directly fromplants. Few species that have not already been used as foods arelikely to enter our food supply, and there are many species whichis being consumed only by local or tribal people, are likely to beintroduced into larger markets.

Lives of human being are not dependant only on food comingfrom the plants, the also dependent on from animal protein. Fishcontribute only 5% of the protein consumed worldwide, but theproportion can be much higher locally. For example in Japan,Philippines, Seychelles, and Ghana, fish account for more than 20%of protein intake. In rural Alaska, more than 90% of the peopleharvest and use wild animals for both food and clothing.

Importance of Biodiversity in tourismIn almost every country throughout the world tourism

remained the sector where the country can get the highest revenue.This obvious fact raised the value of biodiversity all over the world,because biodiversity creates the natural beauty which attracts thetourists. More than half of the visitors in Costa Rica, state that thenational parks are their “principal reason” for traveling to thecountry. Costa Rica’s protected areas are estimated to account for$87 million annually in tourism revenues.

Importance of Biodiversity in BioremediationGenerally Bioremediation means the act of treating waste or

pollutants by the use of microorganisms (as bacteria) that can breakdown the undesirable substances. It is a modern process ofprotecting the environment by producing some useful microorganisms, the work of which is to destroy the pollutants of theenvironment, which results less affected environment. Someexamples of bioremediation related technologies are phytoremediation, bioventing, bioleaching, landfarming, bioreactor,composting, bioaugmentation, rhizofiltration, and biostimulation.The role of microorganisms both in the prevention the pollution,and in environmental restoration is growing in day by day. Modernform of biotechnology is providing advanced tools that will enhancethe role of microorganisms in protecting the environment and thistrend should be accelerated for the betterment of environment in

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its entirety.

Importance of Biodiversity and Ecosystem ServicesVarious benefits in a multitude of ways towards humankind

from ecosystems collectively known as ecosystem services. Thisecosystem services include clean drinking water and thedecomposition of wastes. Ecosystem services are mostly dependenton biodiversity. Ecosystem services are degraded or diminished ifthe biodiversity of an ecosystem is substantially diminished. Mostecosystem services are provided freely by natural systems. Theconversion of one type of habitat to another, such as a conversionof natural forest to agriculture or of agricultural land to suburbandevelopment, can dramatically affect a wide variety of ecosystemservices.

Convention of Biological Diversity and Protection ofEnvironmentHistory of Convention of Biological Diversity

In May 1989, in response to the ‘United Nations EnvironmentProgramme’ an Ad Hoc Working Group of Technical and LegalExperts prepare an international legal instrument for theconservation and sustainable use of biological diversity. Two thingswere taken into account: “the need to share costs and benefitsbetween developed and developing countries” and “ways andmeans to support innovation by local people”.

Later on by February 1991, the Ad Hoc Working Group hadbecome known as the ‘Intergovernmental Negotiating Committee’.On 22nd May 1992 the initiation of working took place with the‘Nairobi Conference’ for the adoption of the agreed text of theConvention on Biological Diversity.

On 5th June 1992 CBD was opened for signature at the UnitedNations Conference on Environment and Development . Itremained open for signature until 4th June 1993, by which time ithad received 168 signatures. The Convention entered into forceon 29th December 1993. The first session of the Conference of theParties was scheduled for 28th November to 9th December 1994 inthe Bahamas.

CBD, Protection of Environment and SustainableDevelopment: The relation The CBD was mostly inspired by theconcept and ideology of ‘Sustainable Development’ which demandsthe greatest possible equipment for the protection of environment

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by not hampering the growth of physical development of thesociety. Sustainable Development and Protection of Biodiversityare inter-dependant on each other, without fulfillment of oneaspect the very existence of the other will come under seriousthreat. It seems that protection of biodiversity and the sustainabledevelopment are the two sides of a same coin. The CBD in itsessence became a dramatic step forward in the conservation ofbiological diversity, the sustainable use of its components, and thefair and equitable sharing of benefits arising from the use of geneticresources, without compromising the ability of the futuregeneration to use and exploit the natural environment for meetingtheir own needs.

The preamble of the CBD as the key to open the very intentionof the makers and supporters of the convention revels that theintrinsical value of biological diversity and of the ecological,genetic, social, economic, scientific, educational, cultural,recreational and aesthetic values of biological diversity and itscomponents are priceless. It is also to be noted that the importanceof biological diversity for evolution and for maintaining lifesustaining systems of the biosphere are even more valuable thanthe lives of the human being, because if the life sustaining systemsof the biosphere are destroyed then the life on earth becomes theutopian fiction.

Article I of CBD is telling about the objectives of the conventionwhich include;

First, the most important one i.e. conservation of biologicaldiversity,

Secondly, the sustainable use of the components of thebiodiversity,

Thirdly, fair and equitable sharing of the benefits, arising outof the utilization of genetic resources,

Fourthly, appropriate access to genetic resources for fair andequitable sharing of the benefits arising out of the utilization ofgenetic resources,

Fifthly, appropriate transfer of relevant technologies for fairand equitable sharing of the benefits arising out of the utilizationof genetic resources,

All these objectives are to be fulfilled by taking into account -

- all the rights over all those resources of biodiversity and

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technologies, and

- by appropriate funding.

The CBD has conferred on the shoulder of every signatorycountries the solemn responsibility to legislate their respectivedomestic laws and by-laws for the protection and promotion ofbiodiversity as well the components of the biodiversity. This isalso to be noted that the solemn responsibility is not only on theshoulder of the Legislators, but mostly dependent upon themorality, reasonability, ethical and prudent consciousness, positivethinking and working according to the positive thinking of thegeneral and common people of the world at large. The commonpeople are having the primary and the most importantresponsibility to protect and improve the natural environment,because the environment pollution starts from one ill-intention orone mismanagement of any single person. This will added withother’s pollution and thus multiply gradually and becomes the mostdevastating catastrophe. So if the pollution is to be stopped orcontrolled it is to be controlled by the hands of that fist user of anycommercial product or the first exploiter of the environmentalresources. The enactments will prove to be nothing if the solutionsare not confined, cribbed and cabined into the four corners of theprovisions, rather if it could be applied on the ground level reality,with a futuristic and positive bent of mind can become more fruitfuland sustainable.

National Green Tribunal: An Umbrella on EnvironmentIn India, Article 253 of Indian Constitution has given to the

Indian Parliament the power to legislate and enact laws forimplementing any treaty, agreement and convention and also thedecisions made at international conferences. Thus towards theimplementation of the decision taken in Stockholm Conference,1972 and Rio Conference in 1992, for the establishment of GreenTribunal for adjudication of multidisciplinary issues relating tothe environment, India has enacted The National Green TribunalAct, 2010, for the establishment of one National Green Tribunalalong with its four branches, in four zones of India with an intentionto bring all the environment related disputes under one umbrellaand to provide uniformity of judgment. Here we need a shortdiscussion regarding the National Green Tribunal.

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Background of National Green TribunalThe National Green Tribunal was established on October 18,

2010 under the National Green Tribunal Act 2010 , passed by theCentral Government. One of the objectives of the CentralGovernment is to constitute a specialized forum for effective andspeedy disposal of cases relating to the protection of theenvironment, conservation of forests and providing compensationfor the damages caused to the people or to the property due toviolation of environmental laws.

Structure of National Green TribunalAfter the enactment of the said NGT Act, 2010, Indian

Government established the Principal Bench of the NGT in theNational Capital, i.e. in New Delhi, on 18.10.2010. There are otherregional branches established in-

1. Pune, for Western Zone Bench,

2. Bhopal, for Central Zone Bench,

3. Chennai, for Southern Bench and,

4. Kolkata, for Eastern Bench.

Each Bench is having a specified geographical jurisdictioncovering several States in a region. There is also a mechanism forcircuit benches. For example, the Southern Zone bench, which isin Chennai, is having the jurisdiction to decide the dispute arisingin the places like Bangalore or Hyderabad. Likewise the other zonalbenches are also having their own jurisdiction to adjudicate theissues relating to environment protection.

A mandatory responsibility is upon the shoulder of CentralGovernment to establish the National Green Tribunal to exercisethe jurisdiction power and the authority in conformity with theNGT Act, 2010. The Chairperson of the NGT is a retired Judge ofthe Supreme Court, Head Quartered in Delhi. Other Judicialmembers are retired Judges of High Courts. Each bench of theNGT will comprise of at least one Judicial Member and one ExpertMember. Expert members should have a professional qualificationand a minimum of 15 years experience in the field of environment/forest conservation and related subjects.

Powers of National Green TribunalThe Chairperson of the tribunal shall exercise all

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administrative and functional powers as are provided by the NGTAct, 2010. The Chairperson can delegate his power to the otherJudicial or Expert member of the tribunal if the situation sorequires. The NGT has the power and jurisdiction to hear all thecivil cases where the substantial question related to protection ofenvironment from pollution and is also having the power andauthority for implementation of enactments listed in Schedule I ofthe NGT Act, 2010. These enactments are as following:

1. The Water (Prevention and Control of Pollution) Act, 1974;

2. The Water (Prevention and Control of Pollution) Cess Act, 1977;

3. The Forest (Conservation) Act, 1980;

4. The Air (Prevention and Control of Pollution) Act, 1981;

5. The Environment (Protection) Act, 1986;

6. The Public Liability Insurance Act, 1991;

7. The Biological Diversity Act, 2002.

We can find that three important legislations of environmentallaw are missing from the list of the Schedule I, one is Wildlife(Protection) Act, 1972, second one is the Indian Forest Act, 1927,and the other one is The Prevention of Cruelty to Animals Act,1960. Which means that for specific and substantial issues relatedto these laws cannot be raised before the NGT. The Act is also notcovering certain rules like, Hazardous Waste (Management andHandling) Rules, 1989 and Hazardous Wastes (Management,Handling and Transboundary Movement) Rules, 2008. Thereforeone will have to approach the State High Court or the SupremeCourt for filing a writ Petition (in the form of PIL) or file an OriginalSuit before an appropriate Civil Judge within the local jurisdictionwhere the project that you intend to challenge is located.

Principles of Justice adopted by NGTThere is no exception with regard to NGT in the case of

application of rule regarding the procedure of disposal of issues,as the tribunals are not governed by the law of Evidence. Section19 is telling about the non-application of Indian Evidence Act,1872 during the trial of any issue before this tribunal. In additionto that it is also telling about the non-application of Civil ProcedureCodex, 1908. The tribunal is guided by the rules of natural justiceand equity. While passing orders, decisions or awards, the NGT

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will apply the principles of sustainable development, theprecautionary principle and the polluter pays principles . However,the NGT can impose costs including lost benefits due to any interiminjunction. Although the tribunal is having the same power like aCivil Court, under the Civil Procedure Code, 1908, during thedischarge of its functions under this Act, while trying any suit . Itis again to be noted that all the procedures before the tribunal willbe deemed to be treated like a judicial proceeding. This also to benoted that the tribunal shall be deemed to be a Civil Court whiledischarging its function .

ConclusionSo National Green Tribunal is an umbrella under which all

the issues relating to the protection of environment, itsdevelopment and sustainable use of the components of theenvironment are resolved, protected and nurtured. The reason forwhich the Tribunal has been established is to provide speedyenvironmental justice and help to reduce the burden of litigationin the higher courts. The Tribunal is mandated to make andendeavour for disposal of applications or appeals finally within 6months of filing of the same. To role of the NGT is not only to givejustice to the environment but also to maintain such a balancedsituation where the resources of the environment can be used upto that extent where the integrity of the environment shall notcome at a stake. In a unique feat, the National Green Tribunal on10th December, 2015, Thursday pronounced 56 judgments,disposing 209 cases relating to pollution in Ganga river and banningcrop burning across the nation, among others. The disposal of 209cases, 82% of which were pending in 2014, makes it anextraordinary feat for any judicial forum in such a short time,considering that legal cases usually drag on for years.

So the NGT is providing the justice to the society and itsdevelopments of the hour along with justice to the nature. NGT isevolving to be a protector, guardian and survivor of thedevelopment and society on one side, and also becoming the voiceto the voiceless nature on the other side. Although it has manywork to do, many issues to resolve and many responsibility todischarge.

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THE ROLE OF JUDICIARY IN PROTECTINGENVIRONMENT

THE ROLE OF JUDICIARY

Introduction:In developing countries like India, there has been

environmental degradation due to over exploitation of resources,depletion of traditional resources, industrialization, urbanizationand population explosion. Since, man is the creator and moulderof his environment, his conduct can be regulated through theinstrument of law. In fact, India has always been in the fore-frontof taking all possible steps for the protection and improvement ofthe environment and aiming at sustainable development. However,neither the law nor the environment static. The changing pace ofthe environment is so fast that in order to keep the law on thesame wave-length either laws have to be amended quite frequentlyto meet the new challenges or it has to be given new direction bythe judicial interpretation.

India has enacted various laws at almost regular intervals todeal with the problems of environmental degradation. Apart fromthe provisions under the Water Act and the Air Act, there existsa clear constitutional mandate for protection of environmentincluding prevention of air and water pollution. By an activistinterpretation of these provisions, the High Courts havesubstantially enriched environmental jurisprudence in India.Extricating itself from the principles of locus standi and using theinstrument of public interest litigation to the maximum effect, theapex court has laid down that sustainable development is a legalobligation of every government.

In the first environment case before the Supreme Court itself,it was held that no municipality could put forth lack of money as aground for not discharging its primary duty of looking after thehealth and safety of its residents . The High Courts were the firstto come up with direct and specific pronouncements on citizens‘Fundamental Right to Pollution Free Environment. Thus, theAndhra Pradesh High Court ruled in 1987 that nature‘s giftswithout which the life cannot be enjoyed. The slow poisoning bythe polluted atmosphere caused by environmental pollution andspoliation should also be regarded as amounting to violation ofArt.21 of the Indian Constitution . On the same lines, the Karnataka

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High Court pointed out that Entitlement to clear environment isone of the recognized human rights‘ and further held that Right tolife inherent in Art.21 of the Constitution of India does not fallshort the requirement of quality of life which is possible only in anenvironment of quality‘ .

The Kerala High Court reiterated the position by holding thatthe Right to Sweet Water and the Right to Free Air are attributesof the Right to Life, for, these are the basic elements which sustainlife itself. Following these pronouncements, the Supreme Courtalso recognized and asserted the Fundamental Right to CleanEnvironment under Art.21 of the Constitution in very categoricalterms. At the same time the judiciary in India has played asignificant role in interpreting the laws in such a manner whichnot only helped in protecting environment but also in promotingsustainable development. In fact, the judiciary in India has createda new environmental jurisprudence. The problem of environmentaldegradation is a social problem. It is now well-settled principle oflaw that socio-economic conditions of the country cannot be ignoredby a court of law because the benefit of the society ought to be theprime consideration of law courts. Thus the courts must takecognizance of the environmental problem.

In pursuance of United Nations Conference on HumanEnvironment convened at Stockholm in 1972, the nations of theworld decided to take appropriate steps to protect and improvehuman environment. The sequel to this, in India 42nd Amendmentto the Indian constitution inserted articles 48-A directing the stateto protect and improve the environment and to safeguard theforests and wildlife of the country and Article 51-A (g) mentioningfundamental duties of the citizens to protect and improve thenatural environment including forests, lakes, rivers and wildlifeand to have compassion for living creatures. The 42nd Amendmentto the Indian Constitution also made certain changes in the seventhSchedule to the Constitution. Originally forest was a subjectincluded in list II, entry 19.

Since no uniform policy was being followed by the State inrespect of protection of forests, now this subject has beentransferred to List III and hence, now the parliament and stateLegislature both may pass legislations. Protection of wild animalsand birds has also been transferred from List II, Entry 20 to ListIII, Entry 17-B. 42nd Amendment Act for the first time insertedEntry 20-A in the List III which deals with population control and

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family planning because enormous increase in population is maincause for environmental problems. Under Article 253 of the IndianConstitution, the parliament is empowered to make any law forimplementing any treaty, agreement or convention with any othercountry or countries or even any decision made at internationalconference, association or other body, this power is limited toimplantation of decision and that too for a limited period.

The broad language of Article 253 suggests that in the wake ofStockholm Conference in 1972, Parliament has the power tolegislate on all matters linked to the preservation of naturalresources. This 42nd Amendment to Indian Constitution andinsertion of Article 48-A and 51-A (g) marked the beginning ofEnvironmental protection in India. Environmental Jurisprudenceincludes the laws, both statutory and judicial, concerning variedaspects of environmental protection and sustainable development.In India various laws have been enacted for the protection ofenvironment. But the movement to protect environment gotmomentum with the judicial vigil in 1980s and 90s. Armed withthe power of judicial review and constitutional scheme ofindependence of judiciary the Indian judiciary has performed astellar role in protecting the environment and spreadingenvironmental awareness among the Indian people.

India has not only enacted various specific laws to control theenvironmental pollution but has also incorporated significantprovisions for the protection of the environment into itsconstitution. Within the last three decades, the development ofenvironmental jurisprudence in India, following theseconstitutional law changes, has been remarkable in the sense thatit has led to the virtual creation of a fundamental right to a cleanenvironment in Indian law. This forms part of the public law regimeestablished by the constitution and appears to be based not onlyon modern concepts of fundamental human rights but also onindigenous notions of social justice, constituting a unique humanrights approach adopted through affirmative action.

The main aim to analyze this chapter is to focus the distinctnature of the outstanding contribution of Indian judiciary to preventand protect water from pollution and the control of pollution withina broader constitutional and jurisprudential framework. In fact,the emerging Indian environmental jurisprudence had relied onthree interconnected elements. First, it manifests the new IndianConstitutional law rationale which now clearly accords importance

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to public concerns rather than to protecting private interests.Secondly, it reflects certain aspects of Indian legal culture throughimplicit and explicit reliance on autochthonous values based onancient, pre-colonial indigenous notions and concepts of law.Thirdly, it bears testimony to the uniquely activist role of thehigher Indian Judiciary in promoting this new rationale. Thesethree interconnected elements characterizes role of higher judiciaryin the recent development of Indian environmental jurisprudence.

It is a paradox that despite the presence of such diverse laws,the pollution rate has crossed the dead line. This is probablybecause of the reason that the law is so complicated and vaguethat even the experts may not know the intricacies of it. TheJudiciary in India has been taking steps for directing stateagencies, to strictly adhere to the legislations in protecting theenvironment and totally arresting the various manmade disasters.The Judiciary has taken such steps especially, because of thevarious public interest litigations arisen out of manmade disasterssuch as Bhopal Gas tragedy etc. It was held in MC Mehta v. Unionof India and others, that one of the principles underlyingenvironmental law is sustainable development. This principlerequires development to take place which ecologically sustainable.It was further held that there are two essential features ofsustainable development such as precautionary principle andpolluter pays principle.

The precautionary principle was elucidated by the SupremeCourt in Vellore Citizens’ Welfare Forum v. Union of India andother states that the state government and its agencies muchanticipate, prevent, and attack the causes of environmentaldegradation. States should not take up any activity and measurewhich is not environmentally benign. It seems that lack of sufficientfunds allocation to the Ministry of Environment and Forests, lackof sufficient number of qualified and trained staff such asacademicians, legal professionals, medical experts andtechnologists in the Ministry and its subordinate offices all overthe country, lack of commitment of the people and awareness aboutthe environment protection and improvement, complicatedprocedures for approvals and authorizations of the PollutionControl Boards, are the main reasons for ineffectiveimplementation of environmental laws. If proper reforms are madein this area, probably the environmental laws will be implementedeffectively thereby ensuring problem free environment.

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Right to Water:Various courts have upheld that the right to clean and safe

water is an aspect of the right to life. For instance, in NarmadaBachao Andolan v. Union of India , the Supreme Court said that¯water is the basic need for the survival of human beings and ispart of right to life and human rights as enshrined in Article 21 ofthe Constitution of India . Pollution caused by tanning industry,existed in M.C.Mehta cases . Though there is no reference to theright to life, the main judgment took for granted that thefundamental right is violated by the alleged pollution, and thatthis violation entails the court to interfere and issue directionsfor a remedy despite the mechanisms available in the Water Act.

In the supporting judgment, however, KN Singh J noted thatthe pollution of river Ganga is affecting the life, health and ecologyof Indo-Gangetic plain and concluded that although the closure oftanneries might result in unemployment and loss of revenue; life,health and ecology had greater importance. The first time whenthe Supreme Court came close to declaring the right toenvironment in art 21 was in the early nineties. In ChhetriyaPardushan Mukthi Sangarsh Samati v. State of Uttar Pradesh ,Sabyasachi Mukerjee CJ observed: Every citizen has a fundamentalright to have the enjoyment of quality of life and living ascontemplated in Art 21 of the Constitution of India.

In Subhash Kumar v. State of Bihar K.N.Singh J observedthat Right to live… includes the right to enjoyment pollution freewater and air for full enjoyment of life‘. However, in both the cases,the court did not get an opportunity to apply the principles becausethe petitioners had made false allegations due to personal towardsthe respondent companies alleged to be polluting the environment.The real opportunity came before the Supreme Court in the year1991 in Bangalore Medical Trust v. B S Mudappa , the court laidemphasis on the constitutional mandate for the protection ofindividual freedom and dignity and attainments of a quality of life,which a healthy and clean environment guarantees.

In Indian Council for Enviro-legal Action v. Union of India ,remedial action was sought for the loss received by the villagers ofBichari where the chemical industries for manufacture of toxicH‘acid were located. Although the respondents stopped producingthe toxic material, they did not comply with various orders of thecourt in completely removing the sludge or storing them in a safe

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place . All facts and materials were brought to the notice of thecourt. The Court categorically fixed the responsibility on the errantindustry and asked the Central Government to recover, in casethe industry failed to take effective remedial action, the expensesfor the action . Further, it was stated that, it was a social actionlitigation on behalf of the villagers, whose right to life was seriouslyinvaded and infringed by the respondents. When the industry isrun in blatant disregard of the law to the detriment of life andliberty of the citizens living in the vicinity, it is self-evident thatcourt shall intervene and protect the fundamental right and libertyof the citizens .

In MC Mehta v. Kamal Nath, it was made clear that anydisturbance of the basic environmental elements, namely, air, water,and soil, which are necessary for life‘, would be hazardous to life‘within the meaning of art 21 of the Constitution‘. But judgmentsdo not constitute law or policy; at best, they provide directions forthe formulation of laws and policies.

As yet, no laws or policies have been formulated asserting thatwater is a fundamental and inviolable right enjoyed by every citizenof the country. The right to water‘ can therefore be obtained inIndia only on a case-by-case basis, by going to court.

Right to Water and the Supreme Court of India:The Supreme Court in Subhash Kumar v. State of Bihar , held

that, ¯The right to live is a fundamental right under Article 21 ofthe Constitution and it includes the right of enjoyment of pollutionfree water and air for full enjoyment of life.

In State of Karnataka v. State of Andhra Pradesh , the SupremeCourt had pointed out that, ¯There is no dispute that under theconstitutional scheme in our country right to water is a right tolife and thus a fundamental right.

Right to Water and the High Courts of various States:

F.K. Hussain v. Union of India:The right to life is much more than the animal existence and

its attributes are many folds, as life itself. A prioritization of humanneeds and a new value system has been recognized in these areas.The right to sweet water, and the right to free air, are attributesof the right to life, for, these are the basic elements which sustainlife itself [Para 7].

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Hamid Khan v. State of Madhya Pradesh:The state ¯is also covered by Article 21 of the Constitution of

India and it is the right of the citizens of India to have protectionof life, to have pollution free air and pure water. Therefore, it wasthe duty of the state towards every citizen of India to provide puredrinking water [para 6].

Vishala Kochi Kudivella Samrakshana Samiti v. State ofKerala:

The failure of the state to provide safe drinking water to thecitizens in adequate quantities would amount to a violation of thefundamental right to life enshrined in Article 21 of the Constitutionof India and would be a violation of human rights. Therefore, everygovernment, which has its priorities right, should give foremostimportance to providing safe drinking water even at the cost ofother development programmes [para 3]. Besides the judgmentsof courts, however, there is relatively little in the legal and policyframework that recognizes the fundamental right to water.

The National Water Policy, 2002 calls water a basic humanneed‘ rather than a right‘ . The National Rural Drinking WaterProgramme is concerned with the provision of safe water for basicneeds‘ rather than water as a fundamental right‘. There are a largenumber of laws relate to water and water-based resources but theypay scant attention to the implementation of the right to water.Therefore, it may not be possible to hold the government legallyliable for the failure to respect protect and fulfill the fundamentalhuman right to water.

Unlike India, however, the constitutions of some countriesexpressly include access to water as a fundamental human right.South Africa (1996): Everyone has the right to have access tosufficient food and water (Article 27(1)). Uruguay (1967) (amendedin 2004): Access to drinking water and access to sanitationconstitute fundamental human rights (Article 47).

Environment Protection and the JudiciaryThe right to live in a clean and healthy environment is not a

recent invention of the higher judiciary in India. The right hasbeen recognized by the legal system and the judiciary in particularfor over a century or so. The only difference in the enjoyment ofthe right to live in a clean and healthy environment today is that ithas attained the status of a fundamental right the violation of

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which, the Constitution of India will not permit. It was only fromthe late eighties and thereafter, various High Courts and theSupreme Court of India have designated this right as a fundamentalright. Prior to this period, as pointed out earlier, people had enjoyedthis right not as a constitutionally guaranteed fundamental rightbut as a right recognized and enforced by the courts under differentlaws like Law of Torts, Indian Penal Code, Civil Procedure Code,Criminal Procedure Code etc. In todays‘ emerging jurisprudence,environmental rights which encompass a group of collective rightsare described as third generation rights.

Principle 1, 1972 Stockholm Declaration affirms that ¯Man hasthe fundamental right to freedom, equality and adequate conditionsof life, in an environment of quality that permits a life of dignityand well-being, and he bears a solemn responsibility to protectand improve the environment for present and future generations.This shows that it has been internationally recognized that man’sfundamental rights embraces the need to live in an uncontaminatedenvironment but it also puts forth man’s obligation to protect theenvironment for posterity.

The Supreme Court has laid down that the ¯PrecautionaryPrinciple” and the “Polluter Pays Principle” are essential featuresof “Sustainable Development”. These concepts are part ofEnvironmental Law of the country. The “Precautionary Principle”establishes that a lack of information does not justify the absenceof management measures. On the contrary, management measuresshould be established in order to maintain the conservation of theresources. The assumptions and methods used for thedetermination of the scientific basis of the management should bepresented.

The polluter pays’ principle came about in the 1970’s whenthe importance of the environment and its protection was takenin world over. It was subsequently promoted by the Organizationfor Economic Cooperation and development (OECD). The polluterpays’ principle as interpreted by the Court means that the absoluteliability for harm to the environment extends not only tocompensate the victims of pollution but also the cost of restoringthe environmental degradation.

The Court has also evolved the special burden of proof inenvironmental cases. In the case of Vellore Citizens Welfare Forumv. Union of India , the Court has stated that:”The onus of proof ison the actor or the developer/industrialist to show that his action

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is environmentally benign”. For the first time in the case of SubhashKumar v. State of Bihar , the court declared that the right to lifeunder Art 21 includes the right to clean water and air. In the samecase, the rule of locus standi was enlarged so that the court couldtake cognizance of environmental degradation and regulate theprevention of the same in an effective manner.

In Virender Gaur v. State of Haryana , the Apex Courtconfirmed that for every citizen, there exists a constitutional rightto healthy environment and further conferred a mandatory dutyon the state to protect and preserve this human right. Anotherlandmark and revolutionary judgement is Indian Council forEnviro-Legal Action vs. Union of India , a case concerned seriousdamage by certain industries producing toxic chemicals to theenvironment of Bichchari District in Rajasthan. Directions for theclosure of the industry were given and the decision in the OleumGas Leak case regarding absolute liability for pollution byhazardous industries was reaffirmed. Moreover, the polluter paysprinciple was explicitly applied for the first time in the Bichcharicase.

A foundation for the application of the Precautionary Principle,the Polluter Pays Principle and Sustainable Development, havingbeen laid down, the three principles were applied together for thefirst time by the Supreme Court in Vellore Citizens Welfare Forumv. Union of India , a case concerning pollution being caused due tothe discharge of untreated effluents from tanneries in the state ofTamil Nadu. The Court, referring to the precautionary principle,polluter pays principle and the new concept of onus of proof,supported with the constitutional provisions of Art.21, 47, 48A and51A (g) and declared that these doctrines have become part of theenvironmental law of the country.

The Public Trust Doctrine, evolved in M.C. Mehta v. KamalNath , states that certain common properties such as rivers, forests,seashores and the air were held by Government in Trusteeshipfor the free and unimpeded use of the general public. Grantinglease to a motel located at the bank of the River Beas wouldinterfere with the natural flow of the water and that the StateGovernment had breached the public trust doctrine.

The Patna High Court in Rajiv Ranjan Singh v.State of Bihar ,held that failure to protect the inhabitant of the locality from thepoisonous and highly injurious effects of the distillery’s effluentsand fumes amounted to an infringement of the inhabitants’ rights

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guaranteed under Arts. 14 and 21 read with Arts. 47 and 48-A ofthe Constitution of India. The Court further directed in this casethat if any person has contracted any ailment, the cause of whichcan be directly related to the effluent discharged by the distillerythe company shall have to bear all the expenses of his treatmentand the question of awarding the suitable compensation to thevictim may also be considered.

Following a long course of active interpretation ofconstitutional and legislative clauses by the judiciary and vigorousefforts of some green citizens, the Indian environmental scenariohas undergone a positive change. The Indian environmentaljurisprudence was in a deep slumber. But today, the environmentalconsciousness imported by the courts, mingled with subsequentlegislative efforts in the later years, introduced the right toenvironment as a fundamental right. The law relating toenvironment under Article 21is thus evolving in a phase wisemanner and is getting shaped into a well defined commandment.The extended view of Article 21 recognizes an individual’s right tolive in a pollution free environment as it contributes towardsimproving one’s quality of life. Thus any citizen can resort to filingwrit petitions under Article 226 or Article 32 to take recourseagainst environmental pollution as it is detrimental to the qualityof life.

Doctrines and Principles Evolved by Courts:The doctrines evolved by courts are a significant contribution

to the environmental jurisprudence in India. Article 253 of theConstitution of India indicates the procedure on how decisionsmade at international conventions and conferences areincorporated into the legal system. The formulation andapplication of the doctrines in the judicial process forenvironmental protection are remarkable milestones in the pathof environmental law in India. It is interesting to note that allsuch cases arose out of public interest litigation. The importantdoctrines evolved are,

Public Trust Doctrine.

Doctrine of Sustainable Development

Polluter Pays Principle.

Precautionary Principle.

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Public Trust Doctrine:Indian legal system is essentially based on common law, and

includes the public trust doctrine as part of its jurisprudence. Thestate is the trustee of all natural resources, which are by naturemeant for public use and enjoyment. Public at large is thebeneficiary of seashore, running waters, airs, forests, andecologically fragile lands. The state as trustee is under a legal dutyto protect the natural resources. These resources meant for publicuse cannot be converted into private ownership.

In M.C.Mehta v. Kamal Nath , the Supreme Court applied thisdoctrine for the first time in India to an environmental problem. Ittook notice of a news item in the Indian Express newspaper dated2 February 1996. The respondent‘s family had direct links withSpan Motel, which owned a resort, Span Resorts. The family floatedanother venture, Span Club, encroaching upon a land, includingforestland. It is reported that regularization of this encroachmentwas made when the first respondent was the Minister ofEnvironment and Forest in the Central Government. Span Resortsmanagement used bulldozers and earthmovers to control the courseof river Beas, and to keep the high intensity of flow away from themotel. It is feared that this change caused landslides and floods.Once the diversion of the river is complete, the Span managementhas plans to go in for landscaping. In his counter affidavit, theMinister had denied the allegations against his involvement, anddescribed the allegation as exaggerated and mischievous.

According to the Supreme Court, the public trust doctrineprimarily rests on the principle that certain resources like air,sea waters and forests have such a great importance to the peopleas a whole that it would be wholly unjustified to make them asubject of private ownership. The court continued that the saidresources being a gift of nature, they should be made freely availableto everyone irrespective of the status in life. The doctrine enjoinsupon the government to protect the resources for the enjoymentof the general public rather than to permit their use for privateownership or commercial purposes.

The court reiterated the principal that one who pollutes theenvironment must pay to reverse the damage caused by his acts.The court directed that the motel shall pay compensation by wayof cost for the restitution of the environment, and ecology of thearea. Kamal Nath case is not confined to ordering removal of

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hindrance to the environment. It went a step further, andemphasized that violators of the environment should be asked torestore it to the original position. In certain cases, these two stepsmay perhaps be part of the one and the same measure, but thereare violations beyond redemption.

In MP Rambabu v. Divisional Forest Officer , interestingquestions were dealt with. To whom does deep sub-soil and waterbelong? Is it a no-man‘s land or a region that belongs to everybody?In this case, Andhra Pradesh High Court had to deal with theproblem of salinity of underground water. It was feared that diggingbore wells and excessive usage of agricultural lands for aquaculturecaused salinity. The court said that deep underground soil andwater belong to the state in the sense that the doctrine of publictrust extends to them. Manifestly, their use is subject to the stateregulation even in the absence of a specific law. The undergroundwater can be used only for a purpose for which the superjacentland is held. If it is used for a different purpose and causes pollutionof underground water or soil, the state can interfere and preventcontamination. Applying the proposition to a person, who holdslands for agricultural purpose, the court held that under nocircumstances, he can be permitted to restrict flow of water to theneighboring lands or discharge the effluents in such a manner soas to affect the right of his neighbor to use water for his ownpurposes. On the same analogy he does not have any right tocontaminate the water to cause damage to the holders of theneighboring agricultural fields.

According to the court, not only the owner or occupier, butalso anybody who makes the adjoining property defective can beproceeded against in an action for nuisance.

The applicability of the public trust doctrine to groundwaterwas discussed in a recent case Perumatty Grama Panchayat v. Stateof Kerala , and Hindustan Coca-Cola Beverages (P) Ltd. v.Perumatty Grama Panchayat .The issue is not yet resolved andthe appeal against the decision of the High Court of Kerala ispending before the Supreme Court.

Plachimada and Coco Cola CaseThe Plachimada panchayat decided not to renew the

exploitation license granted to the Coca Cola Company because ofthe lowering of the water table and decreasing water quality. ThePanchayat has refused to renew the license of the company by

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exercising its power under the Kerala Panchayat Raj Act, 1994.The panchayat also ordered the closure of the plant on the groundthat over-exploitation of water had resulted in acute shortage ofdrinking water. The company challenged the panchayat‘s authoritybefore the High Court of Kerala. The major legal issue was theright of a landowner to extract groundwater from his land and thepower of the panchayat (or local bodies in general) to regulate theuse of groundwater by private individuals. The Single Judgeobserved that even without groundwater regulation, the existinglegal position was that groundwater is a public trust and the statehas a duty to protect it against excessive exploitation. The judgealso made a link between the public trust and the right to life andthus recognized that a system which leaves groundwaterexploitation to the discretion of landowners can result in negativeenvironmental consequences. However, on appeal, the DivisionBench asserted the primacy of landowners‘ control overgroundwater in the absence of a specific law prohibiting extraction.The issue is now pending before the Supreme Court.

The issue in Plachimada remains unsettled. The victims arewaiting for remedial action. The deterioration of groundwater inquality and quantity and the consequential public health problemsand the destruction of the agricultural economy are the mainproblems identified in Plachimada. An examination of all theseissues exposes several lacunae in the legal regime such as theabsence of a specific and comprehensive groundwater laws, anefficient implementation of the pollution control laws or any desirein the judiciary to appreciate the legal transformation ofdecentralization of power. Despite the existence of the morecompetitive authority, that is, the Pollution Control Board, thePanchayat was the only authority that took some actions againstthe company. The victims of Plachimada have to wait for theSupreme Court decision for legal remedies. At the same time thereis a need for strengthening the existing laws and the efficientimplementation of the laws as the viable methods to regulate thegroundwater use in the future and to avoid another Plachimada.

Doctrine of Sustainable Development:Environmental pollution and degradation is a serious problem

nowadays. Judiciary to being a social institution, has a significantrole to play in the redressal of this problem. The progress of asociety lies in industrialization and financial stability. But,

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industrialization is contrary to the concept of preservation ofenvironment. These are two conflicting interests and theirharmonization is a major challenge before the judicial system of acountry. The judiciary, in different pronouncements, has pointedout that there will be adverse effects on the country‘s conomic andsocial condition, if industries are ordered to stop production.Unemployment and poverty may sweep the country and lead ittowards degeneration and destruction. At the same time, pollutingindustries impend the stability of the environment.

The judiciary was, therefore, of the opinion that the pollutionlimit should be within the sustainable capacity of the environment.In fact, Roscoe Pound‘s concept of social engineering whichadvocates for the resolution of conflicting interests, whereby therewill be maximization of interest with minimum fiction and waste,is quite appropriate in these cases. The court further added thatthere should be a balanced approach in the fulfillment of the socialneeds, through industrialization and preservation of environment,because the polluted environment is the major cause of healthhazards, especially of persons working in the factories or residingin the surrounding areas. It, may, therefore, be asserted that theJudiciary in India has found its appropriate answers in the conceptof sustainable development.

In Vellore Citizens Welfare Forum v.Union of India , theSupreme Court opined, the traditional concept that developmentand ecology are opposed to each other, is no longer acceptable,sustainable development‘ is the answer‘. The genesis of the conceptof sustainable development was in the Stockholm Declaration in1972. Subsequently, the World Commission on Environment andDevelopment 1987 (known as the Brundtland Report) in its report,called Our Common Future‘, gave a definite shape to this concept.In 1992, at the Rio Conference it was reaffirmed and contendedthat the implementation of this concept of sustainable developmentis the true mode of achievement of development. The courtaccepted the definition of sustainable development given by thiscommission. It reads as, Sustainable Development that meets theneeds of the present without compromising the ability of the futuregeneration to meet their own needs‘.

The court ascertained that sustainable development is abalancing concept between ecology and development. Its salientfeatures were yet to be finalized by the jurists. However, theydeliberated upon that aspect and said that from the Brundtland

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Report and other international documents, it appears thatsustainable includes the following features:

Inter-generational Equity;

Use and conservation of Natural Resources;

Environmental Protection and Precautionary Principles;

Polluter Pays Principle;

Obligation to assist and co-operate;

Eradication of poverty and financial assistance to the developingcountries.

The Supreme Court, in the instant case, enumerated thatprecautionary principle‘ and polluter pays principle‘ are the twomost essential features of sustainable development. As it is a wellsettled principle of law that if a rule of customary internationallaw does not contradict with the municipal law, it could beincorporated in the domestic law of the land , the court, therefore,tried to read these principles in constitutional and statutoryprovisions of this country.

It said that, Art 21 of the Constitution of India guarantees theprotection of life and personal liberty. The fundamental duties,Art 51A(g), and the directive principles, Arts. 47 and 48A, providethat it is the duty of the citizen as well as the state, to protect thematerial environment and ecology of the country. The other post -independent legislations and precisely the antipollution lawsmandate the state to protect the environment and prevent itsdepletion. The latter have established implementing machineriesin the form of Central and State Pollution Control Boards toobviate the possibility of environment degradation.

Polluter Pays Principle:The countries moving towards the industrial development had

to face the serious problems of giving adequate compensation tothe victims of pollution and environmental hazards. That thepolluter must pay for the damage caused by him is a salutaryprinciple evolved very early in Europe when that continent washaunted by a new specter, that of unprecedented pollution. In thepost Bhopal Gas Leak case, this principle was received greatattention by and it has almost pushed the government and itsinstitutions, including the judiciary.

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In M.C.Mehta v. Union of India , a petition was filed underArticle.32 of the Constitution of India, seeking closure of a factoryengaged in manufacturing of hazardous products. While the casewas pending, oleum gas leaking out from the factory injured severalpersons. One of the persons died. Applications were filed for awardof compensation. Although the court avoided a decision on theseapplications by asking the parties to file suits before thesubordinate courts; the significance of the case lies in its formulationof the general principle of liability of industries engaged inhazardous and inherently dangerous activity.

The rule in Rylands v. Fletcher , was evolved in the year 1866.It provides that a person who for his own purpose brings on to hisland and collects and keeps there anything likely to do mischief ifit escapes, must keep it at his peril, and if he fails to do so, isprima facie liable for the damage which is the natural consequenceof its escape. The liability under this rule is strict liability. TheSupreme Court was quite sure that the exceptions evolved inEngland to Rylands rule of strict liability in subsequent decisionsare not applicable at present in a rapidly developing country likeIndia. These principles were formulated at a time whendevelopments of science and technology had not taken place.Science and technology could not afford any guidance for evolvingstandards of liability consistent with constitutional norms, andthe needs of current economy and social structure. Observing thatlaw has to grow in order to keep abreast with the economicdevelopments taking place in the country, the Supreme Courtemphasized on their responsibilities in the following words,“Wehave to evolve new principles and lay down new norms, whichwould adequately deal with the new problems, which arise, in ahighly industrialized economy. We cannot allow our judicialthinking to be constructed by reference to the law as it prevails inEngland or for the matter of that in any other foreign country. Weno longer need the crutches of a foreign legal order.‘ The courtthought that it should not hold its hand back and it ventured toevolve a new principle of liability known as absolute liability, whichEnglish courts had not done.”

In Indian Council for Enviro-Legal Action v. Union of India , itwas held that the Central Government is empowered under theEnvironment Protection Act , to take all measures as it deemsnecessary or expedient for the purpose of protecting and improvingthe quality of environment‘. In the present case, the said powers

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will include giving directions for the removal of sludge, forundertaking the remedial measures on the offending industry, andto utilize the amount so recovered for carrying out remedialmeasures.

The court did so by reiterating the MC Mehta case principleof absolute liability of hazardous and inherently dangerousindustry. The court explained the polluter pays principle ,according to which the responsibility for repairing damage is thatof the offending industry. In the circumstances, the task ofdetermining the amount required for carry out remedial measuresis placed upon the Central Government.

Precautionary Principle:The precautionary principle or precautionary approach states

that if an action or policy has a suspected risk of causing harm tothe public or to the environment, in the absence of scientificconsensus that the action or policy is harmful, the burden of proofthat it is not harmful falls on those taking the action. This principleallows policy makers to make discretionary decisions in situationswhere there is the possibility of harm from taking a particularcourse or making a certain decision when extensive scientificknowledge on the matter is lacking. The principle implies thatthere is a social responsibility to protect the public from exposureto harm, when scientific investigation has found a plausible risk.These protections can be relaxed only if further scientific findingsemerge that provide sound evidence that no harm will result.

Principle 15 of the Rio Declaration states, In order to protectthe environment, the precautionary approach shall be widelyapplied by states according to their capabilities. Where there arethreats of serious or irreversible damage, lack of full scientificcertainty shall not be used as a reason for postponing cost effectivemeasures to prevent environmental degradation.‘

Thus, the precautionary principle got international recognitionin the Rio Conference on Environment and Development 1992 andit has been reiterated in Rio Declaration, 2012 also. In IndianCouncil for Enviro-Legal Action v. Union of India case discussedabove accepted this principle along with the polluter pays principleas part of the legal system. In Vellore Citizens Welfare Forum v.Union of India and Andhra Pradesh Pollution Control Board v.MV Nayudu , the Supreme Court applied the precautionaryprinciple directly to the facts of the cases.

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In Vellore Citizens Welfare case the Supreme Court wasappraised of the pollution caused by the enormous discharge ofuntreated effluent by tanneries and other industries in the stateof Tamil Nadu. The petitioner highlighted the evil on the strengthof reports from Tamil Nadu Agricultural University ResearchCentre, an independent survey conducted by nongovernmentorganizations, and a study by two lawyers deputed by the LegalAid and Advice Board of Tamil Nadu. The main allegation wasthat the untreated effluents contaminated the underground waterresulting in non-availability of potable water, thereby causingimmense harm to agriculture. Despite the persuasion of the TamilNadu Government and the Board, and despite the CentralGovernment‘s offer of subsidy to construct common treatmentplant, most of the tanneries hardly take any steps to controlpollution. The court referred to its earlier orders. It also quotedextensively from the report of NEERI to bring to light theseriousness of the problem.

Petitioner, the Vellore Citizens Welfare Forum, filed thisaction to stop tanneries in the State of Tamil Nadu from discharginguntreated effluent into agricultural fields, waterways, open landsand waterways. Among other types of environmental pollutioncaused by these tanneries, it is estimated that nearly 35,000hectares of agricultural land in this tanneries belt has becomeeither partially or totally unfit for cultivation, and that the 170types of chemicals used in the chrome tanning processes haveseverely polluted the local drinking water. It was considered bythe court that the industry is a Foreign Exchange Earner. It doesnot mean that this industry has the right to destroy the ecology,degrade the environment or create health hazards.

Also it was considered that one moot point is whether all thecost of the lives of lakhs of people with increasing humanpopulation the activities of the tanneries should be encouraged onmonetary considerations. They found that the tanners haveabsolutely no regard for the healthy environment in and aroundtheir tanneries. The effluents discharged have been stored like apond openly in the most of the places adjacent to cultivable landswith easy access for the animals and the people. Sustainabledevelopment, and in particular the polluter pays principles andthe precautionary principle, have become a part of customaryinternational law. Even though Environment Protection Act allowsthe Central Government to create an authority with powers to

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control pollution and protect the environment, it has not done so.Thus, the Court directed the Central Government to takeimmediate action under the provisions of this act.

The Court ordered the Central Government to establish anauthority to deal with the situation created by the tanneries andother polluting industries in the State of Tamil Nadu. This authorityshall implement the precautionary principle and the polluters paysprinciple, and identify the

(1) Loss to the ecology/environment;

(2) Individuals/families who have suffered because of the pollution;

and then determine the compensation to reverse thisenvironmental damage and compensate those who have sufferedfrom the pollution. The Collector/District Magistrates shall collectand disburse this money.

If a polluter refuses to pay compensation, his industry will beclosed, and the compensation recovered as arrears of land revenue.If an industry sets up the necessary pollution control devices now,it is still liable to pay for the past pollution it has generated. Eachtannery in the listed district is subject to a Rupees 10,000 finewhich will be put into an “Environment Protection Fund”. Thisfund will be used to restore the environment and to compensateaffected persons. Expert bodies will help to frame a scheme toreverse the environmental pollution. All tanneries must set upcommon effluent treatment plants, or individual pollution controldevices, and if they do not, the Superintendent of Police and theCollector/District Magistrate/Deputy Commissioner in each of therespective districts is authorized to close the plants down. No newindustries shall be permitted to be set up within the listedprohibited areas.

The court also explained the Precautionary Principle in thecontext of the municipal law as under –

Environmental measures by the state government and statutoryauthorities. They must anticipate, prevent and attack thecauses of environmental degradation.

Where there are threats of serious and irreversible damage, lackof scientific certainty should not be used as a reason forpostponing measures to prevent environmental degradation.

The onus of proof is on the actor or developer/industrialist to

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show that his action is environmentally benign.

It was directed that a Green Bench ‘would be constituted todeal with this case and other environmental matters. In AndhraPradesh Pollution Control Board case the court relied on theVellore case before pondering over the various dimensions of theprecautionary principle. The court pointed out that earlier, theconcept was based on the assimilative capacity’, which assumedthat science could provide the information and means necessaryto avoid encroaching upon the capacity of the environment toassimilate impacts, and that relevant technical expertise wouldbe available when environmental harm was predicted. In the UNGeneral Assembly Resolution on World Charter for Nature, theemphasis shifted to the precautionary principle’.

This was reiterated in the Rio Declaration in its Principle 15.The principle of precaution involves the anticipation ofenvironmental harm and taking measures to avoid it, or to choosethe least environmentally harmful activity. It is based on scientificuncertainty. Environmental protection should not only aim atprotecting health, property, and economic interest, but also protectthe environment for its own sake; precautionary duties must notonly be triggered by the suspicion of concrete danger, but also by(justified) concern or risk potential.

In an article , it is commented that the precautionary approach’is a principle meant to avert environmental disaster. The SupremeCourt was of the view that it is better to err on the side of cautionand prevent environmental harm than to run the risk of irreversibleharm. The principle involves anticipation of environmental harm,adoption of preventive measures, and choice of the leastenvironmentally harmful activity. The commentators went on tosay that the Stockholm Declaration in 1972 laid emphasis on theassimilative principle, which assumed that the environment hasthe capacity, to some extent, to assimilate substances so as to renderharmless the much quoted epigram the solution to pollution isdilution’. The Rio Conference in 1992 has recognized theprecautionary approach as a norm for various nations to pursue.The precautionary approach is said to promote development ofclean technology.

Looking at its acceptance in the past, the precautionaryapproach is said to be a principle born before it was conceived’.Indian courts started tending the principle with great care andenthusiasm as soon as it was born. As early as in 1993, reclamation

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of wetlands for building a trade Centre was prevented as thebenefits of wetlands to the society could not be weighed onmathematical nicety. Extensive, semi-intensive, and intensiveaquaculture was ordered to be dismantled to prevent possibledisaster on coastal eco-system. Closure of tanneries in certaindistricts of Tamil Nadu was directed with a view to preventing,among other things, serious damage to groundwater.

In Vijayanagar Education Trust v. Karnataka State PollutionControl Board, Karnataka the Karnataka High Court acceptedthat the precautionary doctrine is now part and parcel of theConstitutional mandate for the protection and improvement of theenvironment. The court referred to Nayudu cases which laid downthat the burden to prove the benign nature of the project is on thedeveloper if it is found that there are uncertain and non-negligible’risks.

However, Andhra Pradesh High Court made an attempt todistinguish Nayudu case from Vijayanagar case. In Nayudu case,the Apex Court had every reason to believe that the potentialdangers to be environment were non-negligible’. In the presentcase, the Board had not examined whether the risk involved couldbe said to be non-negligible’. In applying the precautionaryprinciple, it is absolutely necessary to identify the nature of thepollutant, and to find out whether it would cause non-negligible‘environmental risk. When it refused consent, the Board did notadopt such an analysis, nor did it make a reference to any pollutantsthat be emitted by the hospital, which would have caused non-negligible risk. The court held that it is impossible to drawinference of non-negligible danger to the environment.

Precautionary Principle and Sustainable Development:In Narmada Bachao Andolan v.Union of India, the

precautionary principle came to be considered by the majorityjudges in this case. The court took the view that the doctrine is tobe employed only in cases of pollution when its impact is uncertain,and non-negligible. The majority is of the view that the doctrinehas to be put on back burner when the impact of a developmentproject is certain and can be quantified. Sustainable Developmentmeans what type or extent of development can take place, whichcan be sustained by nature/ecology with or without mitigation. TheCourt noted that the question in the Narmada Bachao Andolancase is not concerned with the polluting industry, and the effects

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of the project are already known .

Contribution of Doctrines to Environmental Jurisprudence:The application of the doctrines in the judicial process for

environmental protection are remarkable milestones in the pathof environmental law in India. It is interesting to note that allsuch cases arose out of public interest litigation. Undue influenceof political bigwigs who make environmentally malign decisions isblocked. Skeletons in the governmental and administrativecupboards were revealed. Illegal contracts with adverse impacton ecology will be invalidated. The court directed to apply thisjurisprudence when an entire village in Rajasthan was under anecological catastrophe from non-disposal of hazardous wastes.

Judicial Activism:The term judicial activism is used to refer to the extended

arm of judiciary’ or the increasing active interest that the judiciaryis taking in our everyday life. This activism’ on the part of thejudiciary derives its constitutional legitimacy from Art. 141 of theConstitution which lays down that the Supreme Court’s declarationof law is final and Art.13 which empowers the judges to declareany law null and void if it was found to be against the provisions ofPart III of the Constitution. Its areas of activity are widening suchas Public Interest Litigation, Writ Petitions under Art. 32,interpretation of Arts. 12, 14, 19, 21 etc.

Different interpretations are being given to the term judicialactivism. Justice Kuldip Singh has said that the term judicialactivism was a misnomer as the judiciary was only doing what theConstitution had enjoined upon it. P.P. Rao, a Supreme Courtlawyer and a jurist felt that the basic cause of judicial activism isthe non-existence of effective government, whereas Rajeev Dhawanfelt that activist judiciary was one which was dedicated to mouldthe law and its interpretations to achieve social justice and rule oflaw aims of the Constitution. Meera Sapatnekar, on the other handfeels that the object of the judiciary is to clear out all social, politicaland national maladies of the country as the executive has failed toperform its duties and made it necessary for the judiciary tointervene to give justice to the people and the nation. The Vice-President of India , has attributed the over-activism of the judiciarymainly to the downward spiral’ of the rule of law and malfunctioningof the institutions of the State, particularly the executive.

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Governance, as we all know, is a decision making process,which has always existed since the dawn of human civilization.The role of judiciary lies in protecting the interest of individualsand others against the misuse of power by public authorities.Despite judicial review and Public Interest Litigation, there is anerosion of public confidence in the system itself due to lack ofeffective access to justice, huge backlog of cases and long delay indecisions. “The keys to good governance, as articulated by theUnited Nations Development Programme, are rule of law,participation, and accountability and transparency.” The role ofthe judicial branch of government is critical in ensuring theimplementation of the principles of both the rules of law andaccountability. Firstly, the functioning of a society according tothe rule of law is based on the judiciary. Secondly, the judiciaryensures the accountability of other institutions of government andindividuals.

In the case of environmental governance, the judiciary alsohas the difficult role of considering not only environmentalinstruments, but also economic, developmental and political as wellas social instruments. The compliance and enforcement ofsustainable development instruments also serves in the promotionof synergies or inter-linkages among multiple issues, also knownas the inter-linkages approach. This is because compliance andenforcement requires cooperation and coherence in policies acrossmultiple departments and branches of government.

On environmental law interpretation and law making,although most people would argue that judges are there merely tointerpret legislation and not to make laws, several distinguishedjurists have pointed out that the judiciary also contributes to defacto“law making” through precedents. On the capability of jurists,several issues need attention, but one possible solution is theenhancement of their awareness and knowledge of global andregional environmental issues viewed from a wider context ofsustainable development .

Judicial awakening and activism for protection of theenvironment in India began formally after the 1972 StockholmConference on Human Environment. The term judicial activismdenotes a process where at one end there are the logicallyprincipled rules in the hands of court and at other end there aredemands, desires for expectations of society pressing it toaccommodate with the framework of law. This process of

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accommodation by court is called the civilization of law and in termis known as activism. Environmental provisions are introduced inthe Constitution of India by its 42nd amendment in 1974 underArticle 48 (A) and 51-A (g) as a ¯fundamental duty for every stateand citizen of India to protect and improve the natural environment.Several laws pertaining to the protection of the environment wereenacted in India prior to it. There were a number of public lawsexisted which had environmental overtones. The Indian PenalCode, 1860 and the Code of Criminal Procedure, 1973 dealing withpublic nuisance assume special significance in this regard.

The Environmental Protection Act, (EPA) of 1986 againstindustrial pollution and the Conservation of Forest and NaturalEcosystems Act of 1994 to stop deforestation and habitatdestruction are, among others, good pieces of legislation for theprotection of the environment in India. Public Interest Litigation(PIL) to prevent environmental degradation has been increasingin India and the judiciary has come to rescue the people on a numberof occasions. There are several historic judicial decisions servingboth man and environment in India. It can be seen that the SupremeCourt of India has moulded a far-reaching and innovativeenvironmental jurisprudence which no other constitutional courtanywhere in the world has ever given shape to.

The High Courts have also contributed their bit in developingthis jurisprudence. In fact due to its proactive role in administeringenvironmental law, the higher judiciary in the country has emergedas the exclusive dispenser of environmental justice. By doing so,they have succeeded to a great extent in altering the common man‘sperception of law courts as being mere fora for dispute adjudicationthereby carving out a niche for itself as a unique human rightfriendly institution in justice dispensation.

The ever increasing number of PILs being filed in the SupremeCourt and in the High Courts over every conceivable environmentalproblem by public interest groups and individuals, bear testimonyto this unshaken faith which the public has reposed in the systemand in this context, the role essayed by the superior judiciary canbe gauged at two levels . The increasing intervention of Court inenvironmental governance, however, is being seen as a part of theproactive role of the Supreme Court in the form of continualcreation of successive strategies to uphold rule of law, enforcefundamental rights of the citizens and constitutional proprietyaimed at the protection and improvement of environment. Unlike

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other litigations, the frequency and different types of orders/directions passed periodically by the Supreme Court inenvironmental litigation and its continuous engagement withenvironmental issues has evolved a series of innovative methodsin environmental jurisprudence.

A number of distinctive innovative methods are identifiable,each of which is novel and in some cases contrary to the traditionallegalistic understanding of the judicial function. These innovativemethods, for instance, include entertaining petitions on behalf ofthe affected party and inanimate objects, taking suo motto actionagainst the polluter, expanding the sphere of litigation, expandingthe meaning of existing Constitutional provisions, applyinginternational environmental principles to domestic environmentalproblems, appointing expert committee to give inputs andmonitoring implementation of judicial decisions, making spot visitto assess the environmental problem at the ground level,appointing amicus curiae to speak on behalf of the environment,and encouraging petitioners and lawyers to draw the attention ofCourt about environmental problems through cash award. It isimportant to note that these judicial innovations have become partof the larger Indian jurisprudence ever since the Court has startedintervening in the affairs of executive in the post emergency period.

The innovative methods initiated in resolving environmentallitigation, however, have been almost entirely dominating theenvironmental jurisprudence process for more than the last thirtyyears. The expansion of judicial activism through environmentalcases, in particular, is widely debated and discussed in India. Onthe one hand, critics of the theory of separation of power view thiskind of judicial activism as a sign of hope to correct shortcomingson environmental issue. On the other hand, the advocates of theoryof separation of power argue that the intervention of Court in theaffairs of implementing agency to protect the environment andenforce fundamental rights is violating the principle of separationof powers as the theory of separation of power suggests that eachorgan of the government has to perform within the prescribed limitsas designed by the Constitution of India.

In a number of cases, the Court has gone beyond itsadjudication function to protect the environment thereby violatingthe principle of separation of powers and creating problems forother organs of the State. Its continuous intervention in the affairsof executive, questioning the validity of government policy and

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resuming administrative powers to protect the environmentaggressively has invited steadfast resistance from administrativebranches. The examination of the implications of Supreme Court’sinnovations for environmental jurisprudence reveals that theapplication of innovative methods to resolve environmentaldisputes and implement Court orders is certainly a deviation fromthe usual adjudicating function of the Court.

While the procedural innovations have widened the scope forenvironmental justice through recognition of citizens’ right tohealthy environment, entertaining petitions on behalf of affectedpeople and inanimate objects and creative thinking of judges toarrive at a decision by making spot visit, substantive innovationshave redefined the role of Court in the decisionmaking processthrough application of environmental principles and expandingthe scope of environmental jurisprudence. The judicial activism inenvironmental issues has increased people’s faith in the judiciaryof the county. Though there are number of laws dealing withvarious environmental issues, the judiciary has to perform the roleof executive by issuing orders The credit goes to the Supreme Courtfor implementation of principles of sustainable development inIndia.

The words of laws were mere letters but the judicialinterpretation of these laws has given life and blood to them. Wealso cannot deny the criticism leveled against this activism thatthe judiciary has forgotten its role of adjudicator and taken theresponsibility of executive and legislature as a law maker and lawenforcer in India. These questions compel us to assess the criticalrole of Indian judiciary in development of environmentaljurisprudence in India and legitimacy of judicial activism inenvironmental jurisprudence.

Despite the absence of a concise environmental regulatoryframework with respect to soil and groundwater contamination inIndia, progress in protecting the environment has been madethrough application and expansion of existing environmental laws,use of proactive concepts including the polluter pays principle andthe precautionary principle, and aggressive use of public interestlitigation (PIL).

Public Interest Litigation:Public Interest Litigation has had a profound effect on the

development of environmental law in India. PIL allows any bona

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fide person to take a matter of public interest to the higherjudiciary, even when the person who is supporting the cause is notpersonally or directly affected by the interest that is being broughtto the courts.

The concept of public interest litigation (PIL) is wellentrenched in India contrary to thepast practices, today a personacting bonafide and having sufficient interest can move the forenforcement of environmental laws and judicial orders for theprotection of rights of people.

courts for redressing public injury, enforcing public duty,protecting social and collective rights and interests, and vindicatingpublic interest. In the eighties and nineties, a wave ofenvironmental litigation was witnessed. Most of such cases werein the form of class action and PIL, as environmental issues relateto diffusing of interests, rather than to ascertainable injury toindividuals.

The concept of class action is embodied in the Code of CivilProcedure 1908, where if numerous persons have common interests,one or more of such persons can file a suit. A recent example ofclass action is the Bhopal Gas Leak disaster litigation. Thiscommunity interest can also be agitated under the law of publicnuisance incorporated in the CrPC. An individual, a group ofindividuals, or an executive magistrate, suo motu, can move thecourts. This provision has proved to be a potent weapon forregulatory measures, as well as affirmative action by thegovernment and local bodies for protection of the environment,provided that the executive magistrates exercise their discretionindependently without undue influence from their bureaucraticor political superiors.

These PILs have given the judiciary enormous scope forintervening in environmental matters. Indian courts have beencategorical in their adoption of the values of sustainabledevelopment and the precautionary principle, which asserts thata lack of scientific certainty should not be used as a reason forpostponing measures to prevent environmental degradation wherethere are threats of serious and irreversible damage if the actionis not taken. The range of issues addressed by PIL has been verybroad. It extends from compassion to animals , privileges of tribalpeople and fishermen, to the ecosystem of Himalayas and forests,ecotourism, land use patterns, and vindication of an eco-malady ofa village. The cause of environment being taken up through PIL

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was championed by a wide spectrum of people in society. Lawyers,association of Lawyers, environmentalists, groups and centresdedicated to environmental protection and forest conservation,welfare forum including those for tribal welfare, societiesregistered under the Societies Registration Act and consumerresearch centres have successfully agitated environmental issuesbefore courts. Urban social activist, the women’s wing of a societyfor animal protection, chairman of rural voluntary associations andresidents of housing colonies533 were also involved in advocatingenvironmental issues. While in some cases letters534 wereconsidered as writ petitions and in some others paper reportsinduced judicial action. The powers of the Supreme Court to issuedirections under Article 32 and those of High Courts to issuedirections under Article 226 have attained great significance inenvironmental litigation.

To summarize the environmental issues that have beenbrought to the courts under PILs in the past include,

Riverine pollution by tanneries, industrial effluents, anduntreated sewage;

Soil and groundwater pollution;

Indiscriminate mining;

Protection of forests;

Fencing of parks and sanctuaries;

Preservation of monuments of archaeological and historicalsignificance and their protection from vandalism andindustrial pollutants; and

Automobile pollution. The judicial prescriptions have included

Remedial measures offered by cleanup technologies;

Liability measures based on application of the polluter paysprinciple;

Monetary penalties; and

Revised environmental standards.

Tanneries and Discharge of Effluents:Under the laws of the land the responsibility for treatment of

the industrial effluents is that of the industry. However, it has

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been noticed that various tanneries operating in different parts ofthe country have not been complying with the laws of the land.They have been discharging effluents without any treatment andthus becoming one of the major sources of pollution. The courts insuch cases have issued directions to such tanneries to either installprimary treatment plant or stop working. The judiciary in Indiahas followed the path of sustainable development in such case aswell.

In M.C. Mehta v. Union of India, (popularly known as GangaWater Pollution case or Kanpur tanneries case), a public interestlitigation was filed for the issuance of directions restraining thetanneries from discharging trade effluent into the river Ganga tillsuch time they put up necessary treatment plants for treating thetrade effluents in order to arrest the pollution of water in the saidriver. The tanneries discharging effluents in the river Ganga didnot set up primary treatment plant in spite of being asked to do sofor several years. Nor did they care to put up an appearance in theSupreme Court expressing their willingness to set up pre-treatment plant. Consequently, the Supreme Court directed themto stop working.

K.N.Singh, J., who delivered concurring but separatejudgement in this case, issued directions for the closure of thosetanneries which have failed to take minimum steps required forthe primary treatment of industrial effluent. It was further pointedout that closure of tanneries may bring unemployment, loss ofrevenue, but life, health and ecology have greater importance tothe people. Thus, the concern of the Court for the life and healthof the people and the ecology is evidence from the aboveobservation.

Vellore Citizens Welfare Forum v. Union of India538,(popularly known as T.N. Tanneries case), is a landmark judgementof the Supreme Court where the principle of sustainabledevelopment has been adopted by the court as a balancing concept.This case was also filed as public interest litigation (PIL) and wasdirected against the pollution which was being caused by enormousdischarge of untreated effluents by the tanneries and otherindustries in the State of Tamil Nadu. The Supreme Court pointedout that the traditional concept that development and ecology areopposed to each other is no longer acceptable. SustainableDevelopment is the answer.

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The Supreme Court after explaining the salient principles ofsustainable development expressed the view that ThePrecautionary Principle and The Polluter Pays Principle areessential features of sustainable development and that they havebeen accepted as part of the law of the land. The Supreme Courtalso held that in view of the constitutional provisions contained inArticles 21, 47, 48-A, 51-A (g) and other statutory provisionscontained in the Water (Prevention and Control of Pollution) Act,1974 and Air (Prevention and Control of Pollution) Act, 1981 andthe Environment (Protection) Act, 1986, it had no hesitation inholding that the Precautionary Principle and the Polluter PaysPrinciple are part of the environmental law of the country 541.The Court further observed:

Even otherwise once these principles are accepted as part ofthe Customary International Law there should be no difficulty inaccepting them as part of the domestic law. It is almost an acceptedproposition of law that rules of Customary International Law whichare not contrary to the municipal law shall be deemed to havebeen incorporated in the domestic law and shall be followed bythe courts of law542. The Supreme Court issued so many directionsin this case and also requested the Madras High Court to constitutea special Bench-Green Bench to deal with this case and otherenvironmental matters. Finally the Supreme Court also directedthe State of Tamil Nadu to pay Rs. 50,000 towards legal fee andother out p of pocket expenses incurred by Mr. Mehta who was thepetitioner in this case.

The Supreme Court in continuation of the Kanpur TanneriesCase, took up the issue of Calcutta tanneries which weredischarging untreated noxious and poisonous effluents into Gangariver and thus polluting the land and the river. In the case of MCMehta v. Union of India , (popularly known as Calcutta Tanneriescase), it was found that the Calcutta tanneries were not co-operating in their relocation to new complex even after giving clearundertaking in that behalf to the Supreme Court.

The Court held that even otherwise, these tanneries had beenoperating in violation of the mandatory provisions of the Water(Prevention and Control of Pollution) Act, 1974 and Environment(Protection) Act, 1986. The Court applied one of the essentialprinciple of sustainable development, ie., the Polluter PaysPrinciple and accordingly issued various directions including forunconditionally closure of the tanneries on 30-9-97, their relocation,

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payment of compensation by them for reversing the damage to theecology and for rights and benefits to be made available by them totheir workmen. In view of the comprehensive directions issuedfor achieving end result and the fact that Green Bench was alreadyfunctioning in the Calcutta High Court, the Supreme Courtdirected that the further monitoring of the case was to be done bythe Calcutta High Court. The Supreme Court also imposed thecost of Rs.25,000 on the Calcutta tanneries.

In M.C.Mehta v. Union of India , the Supreme Court directedthe State of West Bengal to file an affidavit indicating the stepstaken by them to comply with the directions issued earlier by theSupreme Court in the Calcutta Tanneries Case and to specify thenames of the defaulters, if any. In Ambuja Petrochemicals Ltd. v.A.P.Pollution Control Board, The effluent treatment plant of theindustry was not in operation and thereby causing water pollutionresulting in danger to public life. The Pollution Control Boardordered the industry to be closed. It was held that the order of theBoard was neither disproportionate nor excessively severe.

In order to treat the effluents from the industries the SupremeCourt has always stressed that Central Effluent Treatment Plant(CETP) should be established wherein the effluents from thedifferent industries could be treated. In M.C.Mehta v. Union ofIndia, the Supreme Court clarified that towards the constructionof Central Effluent Treatment Plant, contribution must be madeby all industries in the area concerned and construction o of SewageTreatment Plants (STP) by individual industries cannot be asubstitute for CETP.

The Supreme Court had been passing orders from time to timeto control the pollution due to industrial effluents. In News item¯Hindustan Times A.Q.F.M.Yamuna v. Central Pollution ControlBoard, the Supreme Court considered the affidavit filed by theCentral Pollution Control Board, which showed continuousdischarge of polluting effluent/sewage into the river Yamuna, whichindicated that the dissolved oxygen in the water was nil. The Courtpointed out that the Government is expected to take curative aswell as preventive measures. If any such measures had been takenthen they clearly were not enough to ensure water of quality, whichwould justify the river Yamuna being classified as Class C whichmeans whose water is fit for drinking with conventional treatmentfollowed by disinfection. Therefore, the Court issued notice to theNational Capital Territory Delhi to show cause as to why

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appropriate fine should not be levied for non-compliance of theorder of the Court.

In U.P.Pollution Control Board v. Mohan Meakins Ltd., thecompany was polluting the streams and rivers by discharging tradeeffluents into river Gomati and raising pollution level beyondpermissible limits. Managers and Director of the company werealso included in array of accused as it was alleged that they wereresponsible for contamination of the river water. In this case morethan 17 years had elapsed after the filing of the complaint. TheSupreme Court held that lapse a very long time is no reason toabsolve the accused from the trial. The Court also held that themanagers and the Director of the company if found liable can alsobe prosecuted under the Water Act of 1974.

An analysis of the above cases shows that the Supreme Courthas not only developed the essential principles of sustainabledevelopment but also actually applied them while dealing withenvironmental litigations. In view of the above cases, the conceptof ¯Sustainable Development has become a part of our NewEnvironmental Jurisprudence and the law of the land.

Environmental Ethics:The first international conference on human environment was

held in 1972, and since then it takes place after every ten years.The focal theme of the first international conference based onanthropocentric approach which was the crux of the declarationhas been repeatedly followed in all other international conferenceswhich were held during last four decades.

According to the anthropocentric approach other componentsor natural things are being maintained, preserved or protected asthey are essential for the existence of human beings. The need’ formankind is the sole criterion to safeguard the natural resourcesand to maintain the quality of them. This approach to maintainthe ecological balance and prevent environmental degradationsafeguarding Homo sapiens was adopted worldwide and theSupreme Court of India also reiterated it in many of itspronouncements.

The Supreme Court has always emphasized on the need topreserve the quality of the various components of environment-vegetation cover, air, water, fauna, underground water, etc. It wasfrom the M.C. Mehta case to till Vellore Tanneries case or eventhereafter the approach of the Supreme Court was only on

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anthropocentricism. But, recently there is a paradigm shift fromanthropocentricism to eco-centricism. This eco-centric approachstresses on the intrinsic values of all the naturally present thingsand that they, if preserved and protected, would preserve andprotect other forms of life on earth. The Supreme Court of Indiahas adopted and implemented this eco-centric approach recently.

The court also stated the necessity to change the approachfrom anthropocentric to ecocentric keeping in mind thevulnerability of the species. Therefore, this approach must beadopted to safeguard the existence of vulnerable, endangeredspecies on the verge of extinction. Enormous number of specieshave been destroyed by human activities, but whatever is left mustbe preserved and looked after by this generation and for progeny.Thus the apex court has pronounced various landmark judgmentsfor protecting the environment for the sake of preserving theinterests of human beings. However, the Supreme Court’spronouncements in the above stated cases revealed that it comeout with the new philosophy for the protection of environmentwhich includes water, a precious natural resource.

Summary:The formulation and recognition of various doctrines and

strategies signify a judicial awareness on the need for reconciliationof the developmental, socio-economic, and ecological conflicts inthe present day Indian society. This awareness is reflected in thecases that came before the courts for review. Man must live and hemust live well, in a healthy and safe atmosphere – this has beenthe judicial dictum and its entire efforts have been directedtowards achieving that goal. It has, therefore, evolved diverseprinciples such as absolute liability, and public trust doctrine topreserve the human environment and to uphold man’s right to livein a wholesome environment. It has ordered the closure ofhazardous industries, the shifting of the place of industrialoperation and the imposition of criminal responsibility on directors,for their failure in taking necessary anti-pollution measures.

The court has also directed the payment of compensation tovictims of environmental calamities. It has clearly specified thatthere can be no compromise with environmental preservation; ithas to be done to ensure the survival of the coming generationsand to give them a life with human dignity. The Apex Court hasalso opined that the High Court has the proper authority to

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consider what should be the appropriate remedy for such type ofcases. The ecisions of the Apex Court, while strengthening theapplication of the principle of polluter pays, also adds newdimension regarding the qualification of punishment under thisprinciple, though, the Apex Court has been silent about developingsound principles of quantification of pecuniary liability.

On the whole, one may appreciate the bold attempts made bythe Indian Judiciary to ensure the establishment of a clean,pollution-free environment. The recent pronouncements of theSupreme Court have stated about its new approach based on eco-centricism for the purpose of maintaining environmental ethics.However, the problem of locus standi is still to be sorted out.Protection and improvement of the environment is theconstitutional commitment. It is pity if this public cause is lost onthe ground of bias, prejudices and malafides of the litigantapproaching the court. In several instances proponents make heavyinvestments for eco-unfriendly projects and attempt to raise theplea of fait accompli. Although the courts have expressed concernon this aspect, a more bold and consistent judicial policy has toemerge for the purpose of strengthening the regime of environmentin the country. The problem of environmental justice cannot besolved only by giving the opportunity to access the court for seekingjustice unless and until the judicial pronouncements are enforcedeffectively to provide environmental justice and put justice in placeof injustice done to the public. Therefore, there is a need for fair,honest, competent and responsive enforcement machi

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23STATISTICAL ANALYSISY OF CLIMATIC

VARIABLES IN TWOGROUNDBASEDMETEOROLOGICAL STATIONS OF

ASSAM (INDIA)

UjjalProtimDutta, Hemant Gupta, Dr.ParthaPratimSengupta

Introduction:Assam, the North eastern state of India, is one of the highest

rainfall-receiving states of India. Due to its huge water andhydropower potential, analysis of rainfall and temperature trendswould be of interest to water and energy planners. Present Studyis an attempt to examine annual rainfall and temperature trendson two selected station of Assam. TheMann–Kendall test has beencarried out to analysis the trend of mean rainfall andtemperaturedata series during the period of 1901–2013.In case ofrainfall, results of the Mann–Kendall test have shown no cleartrend for both the stations. In case of both the stations, computedp-values are greater than the significance level á = 0.05. However,in case of meteorological data analysis of temperature data, wehave found increasing trend for both the stations. The results ofMann–Kendall test clearly indicates increasing trends for both thestations and their computed p-values are less than the significancelevel á = 0.05.

Climate change significantly affects different aspects of life.According to the IPCC, 2014 human influence on the climate systemis clear and recent anthropogenic emissions of greenhouse gasesare the highest in the history. They have also observed that recentclimate change have had widespread impacts on life and lifesupport systems. Availability of adequate amount of water and

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conducive climate are the significant determinants of agriculturaland related sectors. Climate changes have tremendous impacts onrainfall and temperature patterns. It may bring some undesirableconsequences such as droughts and floods. In addition to this, itwould have a huge impact on agricultural production, waterresource management and overall economy of the country.

Against this backdrop, this paper is an attempt to analyse thetrend of two significant variables namely, rainfall and temperature.The changes in the pattern of rainfall and temperature due to globalwarming will influence the hydrological cycle and the pattern ofstream flows. The trend analysis of temperature, rainfall and otherclimatic variables significantly help in the construction of futureclimate scenarios. Containing more than 7000 species of floweringplants and more than 500 spices of orchids, the north-eastern (NE)region of India is one of most important bio-diversity rich regionsof world (Rao, 1994; Jhajharia and Singh, 2011).The findings of thestudy will help policy planners and government developmentagencies to assess the change of monthly and annual rainfall andtemperature in Assam. It helps them in their decision makingprocess to protect precious natural resources and its rich bio-diversity.

Changes in rainfall intensity or amount have tremendousimpacts on the livelihood of the rural people, since their sole meansof livelihood, i.e., agriculture largely depends on summer monsoon.In order to protect the vulnerable communities from theundesirable consequences of climate change, it is essential to adoptwidely accepted adaptation measures. To come up with successfuland effective adaptation strategy it is crucial to examine the trendsof critical climatic variables such as rainfall and temperature.

This paper is divided into five thematic sections. Given theintroduction, Section two focuses on data and methodology adoptedfor this study. In section three we interpret and analyse the resultsof the study. The final section comprises the concludingobservations obtained from the initial inquiry.

Methodology:

Description of the study area:In this study we have analysed two stations (1 urban and 1

rural) from the state of Assam. The Assam is one of eight states ofthe North-Eastern India lying between 24° and 28° north latitude,

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89.5°–96° east longitude (see the figure 1). It is situated to the southof the Himalayas along the Brahmaputra and Barak River valleys.Covering an area of 30,285 sq mi (78,440km2), Assam’s capitalGuwahati beholds itself as the commercial hub for all the othernorth-eastern states of India. The state is bordered by Bhutan andthe state of Arunachal Pradesh to the north; Nagaland and Manipurto the east; Meghalaya, Tripura, Mizoram, and Bangladesh to thesouth; and West Bengal to the west via the Siliguri Corridor, a 22kilometres (14 mi) strip of land which connects the state to therest of India. This study was conducted in the Brahmaputra valleyof Assam that is designated as adevelopment corridorof the countryand huge amount of investments are being incurred to promotevarious small scale as well as large-scale projects. With the rapidrate of urbanization in the cities, climate change has been the vitalfactor responsible for all the socio-economic challenges that thepeople have encountered.

Figure 1: Study area with the stations

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Data Collection:Out of the 36 meteorological subdivisions that are categorised

based on climate homogeneity, the North Eastern Region (NER)of India encompasses the following five subdivisions- ArunachalPradesh, Assam and Meghalaya, Nagaland, Manipur, Mizoram, andTripura (NMMT), Sub-Himalayan West Bengal and Sikkim(SHWBS), and last one thegangetic West Bengal. Our study isconfined to the state of Assam only. In our study we have used twometeorological parameters: a) Yearly averaged temperature (0C)and b) Yearly accumulated rainfall (cm). We have used DalewareUniversity gridded datasets which is of 50 km spatial resolution.As we are dealing with stations, the grid point very near to thestation coordinate is considered as the representative of the stationfrom the dataset. In this regard we have used MATLAB (2015) forextracting the datasets with respect to the coordinates of thestations from the gridded dataset (https://www.esrl.noaa.gov/psd/data).

Rainfall and TemperatureThe station wise yearly accumulated rainfall datasets have been

extracted from University of Daleware’s monthly global griddedhigh resolution station (land) data for air temperature andprecipitation from 1900-2014 (0.50 x 0.50 ). The Daleware Universitydataset have been put together from a large number of stations

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both from the GHCN2 (Global Historical Climate Network) andfrom the archive of Legates & Willmott. It is land-only in coverage,and complements the ICOADS (International ComprehensiveOcean-Atmosphere Data Set) data set well. As we know rainfall isalways counted as the total accumulation and not on the mean, wehave quantified the yearly accumulated rainfall from 1900-2014with the help of CDO (Climate Data Operator). CDO helps incarrying out the mathematical operations very easily as thedatasets used are in NETCDF format.

Similarly yearly averaged temperature datasets for eachstation are extracted from the Daleware University’s monthlyaveraged gridded datasets using the same method as used in caseof rainfall. However, in case of temperature datasets we are usingyearly averaged datasets from 1900-2014 for each stations. Themathematical operations are carried out using MATLAB (2015)and CDO. As the maximum and minimum temperature datasetsare not freely available we are using only monthly meantemperature dataset for our analysis.

Data Analysis:The Mann–Kendall (MK) test Majority of the researcher

(Kumar & Jain, 2011; Burn et al., 2004; Yue et al., 2003;Douglas etal., 2000) have employed Mann–Kendall (MK) test (Mann, 1945;Kendall, 1975) to examine the presence of significant trend inclimatological variables such as temperature, rainfall etc. It is arank-based nonparametric test for exploring the trend in a timeseries without specifying whether the trend is linear or nonlinear.Following the literature, we have conducted MK test to analysethe trend of rainfall and temperature in Assam. The Mann–Kendallstatistics (S)(Modarres&da Silva, 2007) is explained as follows:

Where

n is the length of the time series

and

sign ) = -1 if) < 0

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sign) = 0 if) = 0

sign) = 1 if) > 0

The mean and variance of the statistics are follows:

Where is the number of ties for the th value and n is the numberof tied values.

A normalised test statistics (Z-score) is computed (Hirsch etal., 1993) as followsto conform statistical significance of theincreasing or decreasing trend of rainfall and temperature values:

Z =

The null hypothesis ( of no trend is rejected if the calculatedvalue of at á level of significance in a two sided test. Opposite willbe the case (alternative hypothesis of the existence of increasingor decreasing trend) if computed value of. In this study, we havetested null hypothesis at 95% confidence level.

We have employed XLSTAT computer software program toanalyse the trend of selected variables namely rainfall andtemperature.

Result and Discussion:Here we have taken one urban and one rural station for a

comparative analysis. Guwahati is considered as the urban stationwhile Udalguri which is not so much developed is considered asthe rural station. Delaware University datasets for the past 115years (1900-2014) has been analysed and observed that thetemperature trend in the urban station (Guwahati) is increasingat a faster rate than the rural station (Udalguri). However, from1980 onwards which we consider as the starting of Indianurbanization or development shows much more increasing ratethan the overall past 115 years. From here it is clear that rapidincrease of temperature during 1980-2014 is surely impacted byurbanization. It is observed that temperature of Guwahati hasincreased by ~0.530 C during 1900 to 2014 whereas;Udalguri has

ĦĦĦ

ĦĦ ??- 1

Ħ??????(??) ???? ??> 0

0 ???? = 0(??+ 1)/v (??????(??) ???? ?? < 0

??????Ħ??Ħ=??Ħ?? - 1ĦĦ2?? + 5Ħ- Ű ????Ħ???? - 1ĦĦ2???? + 5Ħ??

??=1

18 (3)

??(??) = 0 (2)

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increased by ~0.40C in the same period (Table 2). However, it isinteresting to note that during the period 1980 to 2014 the increasein temperature over Guwahati is ~0.90C against Udalguri’s increaseof only ~0.60C during 1980 to 2014(Table 2). It is also found thatthe datasets are statistically significant with a significance ofgreater than 95 percent.

Figure-2: Temperature trend over Guwahati(1900-2014)

Table-1: Rate of change of temperature

Slope (Rate of change) 1900-2014 1980-2014

Guwahati (Urban) 0.0046 0.026

Udalguri (Rural) 0.0036 0.0178

Table-2: Increase of temperature (degree Celsius)

Increase of temperature (deg C) 1900-2014 1980-2014

Guwahati (Urban) 0.53 0.91

Udalguri (Rural) 0.4 0.62

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Figure-3: Temperature trend over Udalguri(1900-2014)

From Figure-2& Figure-3, it is established that impact ofurbanization on the climate is discernible. However, other factorsthat should be studied apart from temperature, rainfall and LULCchange are Green House Gas Emissions, Aerosols, Dust Particlesetc. It should be kept in mind that global warming is another factorwhich may impact the urban temperature rise. There are varioustechniques and models by which all these affects can be separatedout and the impacts be studied one by one. Several scientists haveevolved various techniques to tackle this problem already.

Trend Analysis of Rainfall:Table-4 displayed the results of Mann–Kendall’s test (MT) on

annual rainfall data. The results in table-4 are obtained from thetwo stations data of Assam. The MT is based on the calculation ofKendall’s tau (measures of connection between two successiveannual rainfall years). The test result shows that the nullhypothesis of no trend is accepted for both the selected stationsnamely, Guwahati (U) and Udalguri (R).

Table-3: Descriptive statistics for the annual rainfall data of Guwahati and Udalgiri

Variable Observations Minimum Maximum Mean Std. deviation

Guwahati(U) 115 108.380 214.980 157.808 24.047

Udalguri(R) 115 90.460 233.960 170.038 31.254

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Figure-4: Annual Rainfall Mann–Kendall’s trendtest Results

Table 4: Annual Rainfall Mann–Kendall’s trend?test analysis of Guwahati and Udalgiri

Station Mann–Kendall stat (S) Kendall's tau p-value Sen's slope α

Guwahati(U) 47.000 0.007 0.911* 0.008 0.05

Udalguri(R) -21.000 -0.003 0.961* -0.008 0.05

* As the computed p-value is greater than the significance level alpha = 0.05, one cannot reject

the null hypothesis H0 .

** As the computed p-value is lower than the significance level alpha = 0.05 reject the null

hypothesis H0.

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Trend analysis of Temperature DataIn case of temperature data also we have used MK test to

analyse the trend. The test results revealed that there has beenincreasing trend of the mean temperature in all the selectedstations. We have found clear trend in all the stations as thecomputed p-value is lower than the significance level alphaequalto 0.05 (see the table-6). Thus, we can reject the null hypothesis ofno trend. On the basis of the result of MK-test, we can concludethat the mean temperatures in the ten selected stations, duringthe period of 1901-2014, are showing an increasing trend and theincrease is notably signiûcant in statistical terms. Increasingtemperature trend for all stations are shown in the figure-5.

Table 5. Descriptive statistics for the annual temperature data of Guwahati and Udalgiri

Variable Observations Minimum Maximum Mean Std. deviation

Guwahati (U) 115 23.383 25.492 24.214 0.375

Udalguri (R) 115 22.758 24.550 23.583 0.321

Table-6: Annual temperature Mann–Kendall’s trend?test analysis of Guwahati and Udalgiri

Series\Test Mann–Kendall stat (S) Kendall's tau p-value Sen's slope α

Guwahati (U) 1594.000 0.244 0.000** 0.004 0.05

Udalguri (R) 1415.000 0.217 0.001** 0.003 0.05

* As the computed p-value is greater than the significance level alpha = 0.05, one cannot

reject the null hypothesis H0

** As the computed p-value is lower than the significance level alpha = 0.05 reject the null

hypothesis H0

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Figure-5: Annual Temperature Mann–Kendall’s trendtest Results

Conclusion:Like other North-eastern states, Assam is also vulnerable to

climatic variability. Most of the people in Assam are dependent onprimary activity such as agriculture for their livelihood. As thissector is very sensitive to climate changes, it may create seriousproblem to the livelihood of the rural people if systematicadaptation strategies are not properly implemented. Undesirableconsequences of climate change may worsen the existing socio-economic condition of the whole state. In order to reduce the riskof economic, social and human damage created by climate changeand weather extremes, it is crucial to increased capacity to tackleadverse impact of climate change in future. Among many critical

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climatic variables in Assam, rainfall and temperature are the mostcommon and important for the rural peoples’ livelihoods.Thus, thisstudy has analysed the trend of rainfall and temperature in twoselected meteorological stations of Assam during the period of 1901to 2014.In the case of rainfall,results of the Mann–Kendall testhave shown no clear trend for both the stations. In case of both thestations, computed p-values are greater than the significance levelá is equal to 0.05.

However, in case of meteorological data analysis of temperaturedata, we have found increasing trend for both the stations. Theresult of Mann–Kendall test clearly indicates increasing trendsfor both the stations and their computed p-values are less thanthe significance level á is equal to 0.05.Thus, it is very essential forthe policy makers and development planners to take into accountof decreasing rainfall trend and increasing temperature trend forformulating constructive policies.

References:

Burn, D.H, Cunderlik, JM., Pietroniro, A. (2004).Hydrologicaltrends and variability in the Liard river basin.HydrologicalSciences Journal, 49, 53–67.

Dore MHI. (2005). Climate change and changes in globalprecipitationpatterns: what do we know? EnvironmentalInternational, 3,1167–1181.

Douglas, E.M., Vogel, R.M., Knoll, C.N. (2000). Trends in ûood andlow ûows in the United States: impact of spatial correlation.Journal of Hydrology, 240, 90–105.

Hare, W. (2003).Assessment of Knowledge on Impacts of ClimateChange, Contribution to the Specification of Art, 2 of theUNFCCC, WBGU.

Hirsch, R.M., Helsel, D.R., Cohn, T.A., Gilroy, E.J. (1993). Statisticaltreatment of hydrologic data. In Handbook of Hydrology,Maidment DR (ed). McGraw-Hill: New York, 17.1–17.52.https://www.esrl.noaa.gov/psd/data.

IPCC.(2007). Summary for policymakers. In Climate Change2007:The Physical Science Basis, Solomon S, Qin D, ManningM,Chen Z, Marquis M, Averyt KB, Tignor M, Miller HL(eds).Intergovernmental Panel on Climate Change, Cambridge

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UniversityPress: UK.

Jhajharia, D., Shrivastava, SK., Sarkar, D., Sarkar, S. (2009).Temporalcharacteristics of pan evaporation trends under thehumid conditionsof northeast India.Agricultural ForestMeteorology, 149, 763–770.

Kendall, M.G. (1975). Rank Correlation Methods. Charles Grifûn:London, UK.

Kumar, V., Jain, S.K. (2011).Trends in rainfall amount and numberof rainy days in river basins of India (1951–2004).HydrologyResearch,42(4), 290–306.(DOI: 10.2166/nh.2011.067).

Mann, HB.(1945). Nonparametric tests against trend.Econometrica, 13, 245–259.

Parthasarathy, B., Sontakke, N.A., Munot, A.A, Kothawale,D.R.,(1987).Droughts/floods in the summer monsoon seasonover differentmeteorological subdivisions of India for period1871–1984. Journal of Climatology, 7, 57–70.

Procter, J., Haridasan, K., Smith, G.W. (1998). How far doeslowlandtropical rainforests go? Global Ecology andBiogeography Letters, 7, 141–146.

Rao, Y.P. (1981). The climate of the Indian subcontinent. In:WorldSurvey of Climatology, vol. 9, Takahasi K, Arakawa H(eds). Elsevier: Amsterdam, 67–182.

Thapliyal, V. &Kulshrestha, S.M. (1991).Decadal changes andtrends overIndia.Mausam, 42,333–338.

Vinnikov, K., Graisman, P.Y., Lugina, K.M. (1990). Empirical dataoncontemporary global climatic changes (temperature andprecipitation).Journal of Climate, 3, 662–677.

Winstanley, D. (1973). Recent rainfall trends in Africa, the MiddleEastand India. Nature, 243, 464–465.

Yue, S., Pilon, P., Phinney, B. (2003). Canadian streamuow trenddetection: impacts of serial and cross-correlation.Hydrological Sciences Journal, 48, 51–63.

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24ARTICLE-21-HUMAN RIGHTS ON

ENVIROMENTAL LAWS

ENVIROMENT AND HUMAN LIFE:

APARNA SINGH

Introduction.Life and Environment are always co-related in many ways.

The life existence on this planet depends on the relationshipbetween ecosystem and environment. Especially humans have veryclose interaction with nature. Human beings actually are the centreof concerns for sustainable development and that they are entitledto a productive and healthy life in harmony with nature.

Humans have the ability to transform its surroundings, if usedin a proper way and with respect to the ways of nature, can bringto all communities the opportunity to enhance the quality of life.Wrongly applied the same power can do incalculable harm tohuman beings and also it’s environment. We always see thingsaround us which gives the proof of human-caused harm in manyareas and regions of the earth the threathed levels of pollution inearth, air, water and living beings; depletion of non- renewalnatural resources and life forms; major and undesirabledisturbances in the earth’s climate and protective layers; grossdeficiencies, harmful to mental, physical and social health, in theliving and working environments of humans, especially inindustrial sectors and populated cities.

Natural resources are fundamental for our living and alsomuch important then money. They are base of our survival.

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‘Ecosystem people’ (people who depends on the naturalenvironments for their own locality to meet most of the materialneeds) [1], natural resources are actually the basis of livelihoodand survival. Their economic and livings sustenance largelydepends on these. Given this close interdependence of humansand environment, it is not surprising that the society’s culture isso too deeply influenced by their environment. They seekinspiration, spirituality, knowledge, within these all naturalenvironments.

Life and Environment: Life, culture, livelihood and society arefundamental building blocks of human existence– hence theirmaintenance and enhancement is a fundamental human right.Destruction and loss of environment is therefore, a violation andcan even leads to the violation of human rights– directly byundermining the above aspects of human existence, or indirectlyby leading to other human rights violations, for example throughsocial conflicts, disruption and even war. Conversely, human rightsviolations of such kinds cause environmental loss, for instance,displacement by social war can cause environmental damage inareas of relocation; or breakdown in sustainable common propertymanagement. Several hundred million people have beenincreasingly forced to live much below the minimum levels whichis required for a decent human living and existence, deprived ofadequate water, clothing, food, shelter, health, education andsanitation [3]

Environment and Indian Constituton:The main backbone of this is important provisions in India’s

Constitution. The Constitution of India, 1950, did not put anyspecific rules and regulations relating to environment protectionor even on nature conservation. Presumably, the acuteenvironmental problems which are faced now in the country arenot visualized by the framers of the Constitution. However, in thepast five decades two major developments. The first developmenttook place when the Constitution (Forty-second Amendment) Act,1976, was adopted in the mid-seventies.

Specific provisions which were related to certain aspects ofthe environment, more especially for the protection of the forestsand wildlife in the country, were made and allowed to incorporatedin Part IV- Directive Principles of the State Policy– and List III –The Concurrent List – of the Seventh Schedule of the Constitution.

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Hence, the Constitution has now the following provisionsspecifically relating to environment protection and natureconservation: Part IV: Directive Principles of State Policy (Article48A): Improvement, Protection and safeguarding of forests and wildlife: The State shall endeavour to protect and improve theenvironment and also to take care and safeguard the forests andwild life of the country. Part IV-A: Fundamental Duties (Article51-A):

According to that it is the most important duty of every Indiancitizen to improve and protect the natural environment includingforests, lakes, rivers and wild life, and to have compassion for livingcreatures. Seventh Schedule (Article 246) List III - Concurrent ListItem no. 17 Prevention of animals against cruelity, Item no. 17AForests, Item no. 17B Protection of wild animals and birds.[5]

Article-21:Article 21 and Right to Pollution free environment: The second

most major development which helped the lot was thejurisprudence which was arising from certain remarkable andpointed judicial pronouncements in recent years, more speciallywhich are related to Article 21 of the Constitution which are dealingwith ‘the right to life’. The most important is the Article 21, whichsays none of the persons shall be deprived of his liberty and life –which is the most important guiding light of India. In other wordsall articles have been formulated for keeping up this theme songof the Indian Constitution— ‘life and liberty’ — no person - notjust a citizen— no person in India shall be deprived of life andliberty.[6] Article 21 is the most important development for theIndian Constitution and holds and occupies a unique and mostimportant place as a people’s fundamental right. It protects thepersonal liberty and the life. It envisages and aims that no personshall be deprived of his personal liberty except to a procedureestablished by law or only in certain cases given by the law. Here,right to life includes right to health, right to food, right to pollutionfree environment, etc. In simple words, Article 21 provides aninbuilt guarantee to a person for right to live with human dignity.

Article 21 is the heart of all other fundamental rights. Article21 has very broader and vast scope and areas and has deep contentinto of with lesser words. Law is never still, it keeps on mutating,evolving and ever changing topics accordingly to meet the timechallenges. Therefore constitution provisions, especially

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fundamental rights and in particular Article 21 has been broadlyconstrued by the judiciary. The court attempted to expand thereach and ambit of Article 21 rather than accentuate their contentand meaning by judicial construction. Thus the judiciary broadenedthe concept of life, extended the scope of personal liberty so thatthey can include within itself all the varieties of rights which go tomaking the personal liberties of man. Basic principles werecompiled to understand procedure established by law. Thejudiciary has resolved most of the environmental cases where itwas considered that the right to good environment as fundamentalfor life and upheld as fundamental right. Thus we can considerarticle 21 as important part for life saving environment. This articleemphasis on some of the landmark cases that have a bearing onthe person’s right to life and right to pollution free environment.

The constitution makes themselves the fundamental rights inits much wider area especially to right to life. The Supreme Courtof India has given importance to the right so that every humanscan enjoy it’s life. The Indian Supreme Court had provided impetusand expanded the horizons of the fundamental right to life andpersonal liberty which is guaranteed in Article 21. Two methodswere used by Supreme Court to increase the power and tostrengthen Article 21 and to interpret unenumerated rights underArticle 21, it required laws affecting personal liberty to pass thetests of Article 14 and 19 of the constitution, there by ensuringthat the procedure depriving a person of his or her personal libertybe reasonable, fair and just.

The court knew about several matriculated rights that wereimplied by Article 21. It is by this method only that the SupremeCourt interpreted the right to life and personal liberty to approvethe right to wholesome environment and all other rights. ThusCourts have undertaken to explicate the development of ideologyof environment as being part of the right to life by various judicialpronouncements.

Thus the judiciary broadned the concept of life. Thus helpedin increasing the view of personal liberty so as to approve withinitself all the varieties of rights and make the personal liberties ofman. Right to life also include right to wholesome environmentand right to sustainable development. Indian democracy made therule of law aims not only to protect fundamental rights of its citizensbut also to establish an order. Law being an instrument and serveas a medium of social engineering which obliges the judiciary to

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carry out the process established.

Environmental deterioration eventually endanger life ofpresent and future generations. Therefore, the right to life hasbeen used in a well manner in India. It includes the right to surviveas a species, quality of life, the right to live with dignity, right togood environment and the right to livelihood. In India, these rightshave been implicitly recognized as constitutional rights. The rightto healthy environment has been incorporated, directly orindirectly, into the judgments of the court. Thus it is clear thatarticle 21 has a multidimensional interpretation. Any arbitraryand fanciful act on the part of any state, exploiting the life orpersonal liberty would be against Article 21 of the Indianconstitution.

In Subash Kumar, [8] the Court observed that ‘right to lifeguaranteed by article 21 which includes the right of gettingpollution-free water and air for the welfare of the life.’ Throughthis case, the court concluded the right to a wholesome environmentwhich is also included as part of the fundamental right to life. Thiscase also signified the importance of municipalities, organisationand other concerned governmental agencies which could no longerrest content with unimplemented measures for the prevention ofpollution. They may be compelled to take positive measures forimprovement of environment. This was reaffirmed in the case ofM.C. Mehta v. Union of India. The case concerned the deteriorationof the environment and the duty of the state government, accordingto 21, to ensure a better quality of environment. the Supreme Courthas held that life, public health and ecology have priority overunemployment and including the loss of revenue. The SupremeCourt ordered the Central government to show guide them helpthem to achieve the goal through national policy and to bring theenvironment quality. In another case,[7] the Supreme Court alsobought the problem of air pollution caused by motor vehicleoperating in Delhi.

Case Studies Related to Enviroment Issues.It was a petition which was done for the public benefits and

interest and the court made several directions and decisionstowards the Ministry of Environment and Forests. Decisions suchas this indicate a new trend of the Supreme Court to fashion novelremedies to reach a given result, although these new remediesseem to encroach on the domain of the executive.

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In Shanti Star Builders vs. Narayan Totame.[5], the SupremeCourt according to the law of right to life in a society would takewithin its sweep the right to food, the right to decent environment,the right to accomodation and a right to live.

In Indian Council of Enviro-Legal Action vs. Union of India,1996 3 SCC 212 (the Bichhri pollution case), which was taken forthe decision in the leakage of Oleum Gas case and also on the basison the polluter pays principle, it was decided that all the industrieswho were involved in the pollution were also given order and werealso told to compensate and find a new and better way for bringingback the original condition to the villagers and the other peoplewho suffered due to them, most specifically to the undergroundwater and soil. Enunciating the doctrine of ‘Public Trust’ in M. C.Mehta vs. Kamal Nath (1997) 1 SCC 388, the SC held that resourcessuch as air, waters, forests, sea are very important resources tothe people as a whole that by leasing ecologically fragile land tothe Motel management, the State Government had committed aserious breach of public trust.

Active judicial participation led in then by NGOs and manyother community groups helped in environment protection.. Thesewere beginnings and initiatives in Public Interest Litigation (PIL).Some of cases are against the building of the Tehri Dam (TehriBandh Virodhi Sangharsh Samiti vs. State of Uttar Pradesh, 1992SUP (1) SCC 44); against deforestation (T. N GodavarmanThirumulpad vs. Union of India, 2000 SC 1636, a case that has sincepertaining to forests in India); and even Narmada Dams (NarmadaBachaoAndolan vs. Union of India AIR 1999 SC 3345); againstmining in the DehraDun hills (Rural Litigation and EntitlementKendra, Dehradun vs. State of Uttar Pradesh, 1985 SC 652); againstmining in the Aravallis (Tarun Bharat Sangh, Alwar vs. Union ofIndia 1992 SC 514, 516); against mining in Andhra Pradesh whichis an adivasi lands (Samatha vs. State of Andhra Pradesh, 1997, onimplementation of the Wild Life (Protection) Act 1972 (WWF vs.Union of India, WP No 337/95); on implementation of CoastalRegulation Zone measures (Indian Council for Enviro-Legal Actionvs. Union of India, 1996(3) 579);

The WWF vs Union of India and the Godavarman cases havealso came which passed the orders that no forest, Sanctuary orNational Park can be de-reserved without the prior permission ofthe Supreme Court, and even non-forest activity are not permittedin any National Park or Sanctuary under the Forest (Conservation)

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Act, 1980 had been obtained, New committees, authorities andagencies have been set up such as the Central EmpoweredCommittee (CEC) and the Compensatory AfforestationManagement and Planning Agency.

The people who suffer a lot were poor and disprivileged peoplewho unfortunately takes the burden of the main problems causedby the environmental destructions. The main problem is actuallyrooted deep in social and political structures and economic morein relations of inequity of three kind’s Intra-generational inequity,Intra-generational inequity, and Inter-species inequity. Inequitiesand money difference in the relations between people and countrieshave also allowed the unsustainable and destructive models of‘development’. The resource demand for the economic progress ofa minority of people has lead to the narrowing of the naturalresource base for the living of the economically poor and powerless.This has happened either by direct resources transfer into citiesand industrial complexes, and even by destruction of life-supportsystems for rural communities everywhere.

In Research Foundation for science Technology and Naturalresources Policy v. Union of India[7] hazardous and toxic wastehad created a huge problems in the environment loss, whetherdirections were issued with a view to protect environment and,precautionary principles are fully applicable to facts andcircumstances of the case and only appropriate course to protectenvironments is to direct destruction of consignments byincineration as recommended by Monitoring Committee.

Conclusion:These types of changes in Article 21 by the Supreme Court

over the years become the vital of environmental jurisprudence,which finally helped in serving the India’s environment protectionand eve on livelihood. On the other hand there are huge number oflaws which are related to environment, made in the recent years.However, a number of groups have also pointed out that theConstitution is deficient in that it does not explicitly provide forthe citizen’s right to a clean and safe environment. In a recentsubmission to the committee set up to Constitution review, thesegroups have proposed a number of changes to the Constitution,for ensuring environment, nature conservation and too protection.These include: Recognition and further incorporation ofEnvironmental Rights as independent and separate Fundamental

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Rights in the Constitution of India. These follow from the above-mentioned interpretation to the term ‘Right to Life’, as given bythe Supreme Court.

Article-21 thus plays a very important role in the environmentprotection and gives every person the right to live, equally, withdignity and to use the natural resources properly.

The laws should come up and join with the smaller partieslike Panchayats and all to prevent the natural destruction of theforests and environment.

Thus a chronological analysis of mission for environmentprotection of the courts has been undertaken for the developmentof environment as being part of this world where right to life inthe Indian context is justified from the above discussion. Thereforeit is important that article 21 is mandate for life savingenvironment.

Refrences:

1). Ashish Kothari, Anuprita Patel, Environment and Human RightsAnIntroductory Essay and Essential Readings NATIONALHUMAN RIGHTS COMMISSION Faridkot House,Copernicus Marg, New Delhi 110 001, India Document ofStockholm Declaration Also see: Rio Declaration, Agenda 21,Chapter 8 – Integrating Environment and

2) Development in Decision Making (adopted at the United NationsConference on Environment and Development, 1992) SeeShyam Divan and Armin Rosencrantz, Environmental Lawand Policy in India: Cases, Materials and Statutes.

3) Intellectuals Forum v. State of A.P. (2006) 3 SCC 549

4). M.C. Mehta v. Union of India (1991) AIR SC 813 (VehicularPollution Case); (1992) Supp. (2) SCC 85; (1992) Supp. (2) SCC86; (1992) 3 SCC 25.

5) M/S. Shantistar Builders vs Narayan Khimalal Totame And ...on 31 January, 1990

6). Noise Pollution Vs In Re {(2005) 5 SCC 733/Pr 10}

7). Research Foundation for science Technology and Naturalresources Policy v. Union of India and Another SC 2005

8) The address of Justice Shri. K T Thomas (former judge of

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supreme court of India) on the inauguration of the AsianHuman Rights Council in 1998, in New Delhi.

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25RENEWABLE ENERGY AND ITS FUTURE ROLE

IN INDIA A CRITICAL ANALYSIS

-Roopali Mishra

IntroductionUnlike fossil fuels, which are finite or limited, renewable

energy sources regenerate. In general, renewable energy is moreexpensive to produce and to use than fossil fuel energy. Favorablerenewable resources are often located in remote areas, and it canbe expensive to build power lines from the renewable energysources to the cities that need the electricity. In addition,renewable sources are not always available. For instance, Cloudsreduce electricity from solar power plants. Days with low windreduce electricity from wind farms. Droughts reduce the wateravailable for hydropower. There are five commonly used renewableenergy sources: 1. BIOMASS (which includes wood and wood waste,Municipal solid waste, Landfill gas and Biogas, Ethanol andBiodiesel), 2. Hydropower 3. Geothermal 4. Wind and 5. Solar.

India has 150GW of renewable energy potential, about almosthalf in the form of small hydropower, biomass, and wind and theother half in solar, cogeneration, and waste-to-energy. Developingrenewable energy is the only way India can increase its energysecurity, reduce the adverse and dangerous impacts on the localenvironment, lower its carbon intensity footprint, contribute tomore balanced regional development, and realize its aspirationsand ambitions for global leadership in high-technology industries.

Since 2005 the energy and climate change agenda has to theforefront of domestic and international policy arena. India is well

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placed to build on this momentum. It has tripled its renewableenergy generation capacity in the past five years (Source:MNRE2009) now ranking fifth in the world in total installed renewableenergy capacity, and it has established a legal and regulatoryframework to oversee the sector.

The government is not resting on its oars and has set someambitious targets. It aims to increase the capacity to generaterenewable energy by 40GW to 55GW by the end of the 13th Five-Year Plan (2022). The National Action Plan on Climate Change(NAPCC) has set the even more ambitious goal of a 1 percent annualincrease in renewable energy generation which stands at about3.5 percent in 2008. Meeting this goal may require 40–80GW ofadditional capacity in renewable energy capacity by 2017,depending on India’s demand for power and plant capacity. TheJawaharlal Nehru National Solar Mission (JNNSM) has set its ownambitious target of adding 1GW of capacity between 2010 and 2013.It seeks to increase combined solar capacity from 9MW in 2010 to20GW by 2022.

To achieve these goals, India needs an order-of-magnitudeincrease in renewable energy growth in the next decade. To add40GW by 2022, India will have to meet the ambitious target of theJNNSM, double its wind capacity, quadruple its small hydropowerpower capacity, fully realize co-generation capacity, and increasebiomass realization by a factor of five to six. These ambitious targetshave made creation of an enabling environment for renewableenergy development particularly urgent and topical.

The Why, What and How Much of Renewable Energy

Why: Role of renewable energy in IndiaIndia has a severe electricity shortage. It needs massive

additions in capacity to meet the demand of its rapidly growingeconomy. The country’s overall power deficit—11 percent in 2009—has risen steadily, from 8.4 percent in 2006. About 100,000 villages(17 percent) remain unelectrified, and almost 400 million Indiansare without electricity coverage. India’s per capita consumption(639 kWh) is one of the lowest in the world.

The Integrated Energy Policy Report, 2006, estimates thatIndia will need to increase primary energy supply by three to fourtimes and electricity generation by five to six times to meet thelifeline per capita consumption needs of its citizens and to sustain

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a 8 percent growth rate. The government plans to provide universalaccess and to increase per capita consumption to 1,000 kWh by2012. This translates into a required generation capacity of 800GWcompared to 160GW today. The need to bring on new generationcapacity—and to improve operational efficiency in transmissionand distribution—is clear.

Renewable energy can be an important part of India’s plan notonly to add new capacity but also to increase energy security,address environmental concerns, and lead the massive market forrenewable energy. More than three-fourths of India’s electricityproduction depends on coal and natural gas. At current usage levels,India’s coal reserves are projected to run out in 45 years. Indiaalready imports 10 percent of its coal for electricity generation,and the figure is projected to increase to 16 percent by 2011.

Like coal, gas and oil have witnessed considerable pricevolatility in recent years. Development of renewable energysources, which are indigenous and distributed and have lowmarginal costs of generation, can increase energy security bydiversifying supply, reducing import dependence, and mitigatingfuel price volatility.

Accelerating the use of renewable energy is also indispensableif India is to meet its commitments to reduce its carbon intensity.The power sector contributes nearly half of the country’s carbonemissions. On average, every 1GW of additional renewable energycapacity reduces CO2 emissions by 3.3 million tons a year. Localancillary benefits in terms of reduced mortality and morbidity fromlower particulate concentrations are estimated at 334 lives saved/million tons of carbon abated.

How much: Economic and financial potential of renewableenergy

India could produce about 62GW—90 percent of technicallyfeasible renewable capacity in wind, biomass, and smallhydropower—in an economically feasible manner, if the local andglobal environmental premiums of coal-based generation arebrought into consideration. About 3GW of renewable energy iseconomically feasible at the avoided cost of coal-based generationof Rs 3.08/kWh, all of it from small hydropower. About 59GW ofrenewable energy in wind, biomass, and small hydropower isavailable at an avoided cost of less than Rs 5/kWh. The full capacityof 68GW in these three technologies can be harnessed at a price of

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less than Rs 6/kWh.

Although the global pricing of carbon is still variable, theeconomic value of local environmental and health impacts is moreclearly understood. In the absence of a global agreement on climatechange mitigation efforts, the global economic benefits cannot beinternalized. The estimate presented in this report provides alower bound of benefits, as it compares renewable energy againstthe opportunity cost. Internalization of other externalities, suchas the impact on economic development and energy security, willonly increase the economic potential.

Small hydropower is the most economically viable form ofrenewable technology, with an average economic cost of Rs 3.56/kWh. This resource is the most attractive in Andhra Pradesh,Haryana, Himachal Pradesh, Punjab, and Uttaranchal. In all of thesestates, the cost of producing energy through small hydropowertechnology is less than the average economic cost of Small HydroPower (SHP). The average economic costs are Rs 4.6/kWh forbiomass-based generation and Rs 4.9/kWh for wind-basedgeneration. However, biomass fuel availability and price fluctuationunder a regulated market pose a significant risk to scaling-upbiomass-based generation. The economic cost of biomass-generatedpower ranges between Rs 3.9 and Rs 5.7/kWh. The generation costof wind projects is highly sensitive to the capacity utilization factor,which is quite low at about 23 percent. The economic cost of windpower ranges between Rs 3.8 and Rs 5.2/kWh. A substantialproportion of wind capacity (about 37GW) is available in the fourstates of Andhra Pradesh, Gujarat, Karnataka, and Tamil Nadu.Solar is the most expensive renewable resource, with estimatedunit costs of Rs 12/kWh for solar thermal and Rs 17/kWh for solarphotovoltaic.

The financial incentives for state utilities to buy renewablepower are substantial only compared with short-term powerprocurement cost. The feed-in tariffs for wind, small hydropower,and biomass are typically lower than the short-term powerpurchase charges, such as trading and unscheduled interchange(UI). Reallocating the money that would have been spent buyingshort-term power to investment in renewable energy can yieldsignificant savings. However, the core of electricity procurementby utilities still rests with power purchase agreements (PPAs) withcoal- or gas-fired plants. At the financial cost of coal-basedgeneration, renewable capacity is not financially viable. About 5GW

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of capacity is viable at the cost of gas-based generation; the entirecapacity of wind, biomass, and small hydropower is viable at thecost of diesel-based generation. Solar energy is not financiallyviable at any of these opportunity costs and will require subsidiesin the short to medium term particularly if renewable purchaseobligations are enhanced rapidly in line with the targets of theNAPCC.

What: Establishment of an enabling environment forrenewable energy development

Significant barriers to renewable energy development remainin India. Given the high upfront capital costs of renewable energytechnologies, financial barriers are substantial. But nonfinancialbarriers are equally important in limiting the growth of renewableenergy.

Barriers can be grouped into three categories: financialviability, support infrastructure, and regulatory approval:

-The cost plus approach to tariff setting—along with thetechnology-specific focus—has led to incentives that hinder theeconomic development of India’s renewable energy resources. Indiacurrently offers a wide variety of incentives, including feed-intariffs; generation-based incentives; renewable purchaseobligations (RPOs); central, state, and regional capital subsidies;accelerated depreciation; and tax incentives. The lack ofcoordination between incentives and state programs makes itdifficult to adopt an economics-based least-cost developmentapproach to tapping the country’s renewable energy potential.

-The limited availability of evacuation infrastructure and gridinterconnections is one of the biggest obstacles to harnessingrenewable energy potential. Much economically attractive windand small hydropower potential remains untapped because of lackof adequate grid evacuation capacity and approach roads. The lackof good-quality data on renewable resources also remains a problem,despite heavy investment by the MNRE in collecting data onrenewable energy. The lack of support infrastructure in the formof a strong indigenous supply chain remains a major barrier.

-Existing mechanisms—including single-window clearances,facilitation by state nodal agencies, and simplified regulation forsmaller renewable energy projects—have proved to be of limitedeffectiveness. In some cases multiple bottlenecks have been

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replaced by single, larger, and more powerful roadblocks, andsignificant delays remain the norm. In addition, speculativeblocking of land has become common, leading to unsustainable priceincreases.

To reduce financial barriers, policymakers need to considerways to bridge the higher costs that ensure least economic costdevelopment of India’s plentiful renewable resources. There is aneed to simplify the numerous and overlapping financial incentivesinto a cogent set of synchronized policies established on a soundeconomic and market foundation. Policies could be based on short-and long-term national targets and broken down into state-levelRPOs that are mandatory and enforced. Technology-specificincentives could be supported by earmarked funding andincreasingly allocated on a competitive basis.

India needs to make renewable energy evacuation a hightransmission priority—as high a priority as village electrification.This is especially true for large-scale renewable energy plants.Dedicated funding should be allocated as part of existing programs,such as the government’s rural electrification initiative - RajivGandhi Grameen Vidyutikaran Yojana (RGGVY), or new greenfunds.

Steps also need to be taken to address nonfinancial barriersthat increase the cost of doing business. Like informationtechnology and telecommunications, clean technology andrenewable energy have enormous growth potential and cantransform the trillion dollar energy markets across the world. Torealize this potential, India needs to streamline bureaucraticprocesses for clearances and approvals through the use of light-touch regulation. State nodal agencies, which are supposed to playa leading role in guiding renewable energy projects through theregulatory maze, need to be strengthened. A comprehensivecapacity-building program on emerging regulatory, legal, andfinancing issues to facilitate grid-connected renewable energyshould be structured.

Types of Renewable Energy Sources

Wind EnergyWind energy dominates India’s renewable energy industry,

accounting for 70 percent of installed potential. The sector hasreceived more support than any other renewable energy sector to

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date. Wind will continue to be the biggest renewable energy sectorin India, in terms of both current installed capacity (11GW) andtotal potential (45GW).15 Significant tax incentives––offering 100percent (and later 80 percent) accelerated depreciation in the firstyear—have induced substantial investments by corporations andhigh net worth individuals in wind energy projects. State-levelactions, such as preferential tariffs and special directives for wind,have also accelerated the development of the industry. Investmentsby the MNRE in the Wind Resource Assessment Program andestablishment of the Centre for Wind Energy Technology, whichserves as a focal point for the MNRE’s research and developmentwork in the wind energy sector, have also helped develop newwind projects. As a result, many strong private integratedtechnology and project development firms have emerged in thesector.

Although more than 99 percent of all investments in windenergy have come from the private sector, strong competition islacking, and technology improvements and economies of scale havenot reduced costs in the industry. On the contrary, the averagecapital costs increased from Rs 4/MW to Rs 6/MW between 2003and 2008.16 The increase can be at least partially attributed tocontinued use of accelerated depreciation, which has attractedinvestors who buy completed turnkey projects from equipmentvendors and take profits from the accelerated depreciation andfeed-in tariff.17 Under the turnkey model, wind equipmentmanufacturers act as project developers; they do not facecompetition (as players in solar,small hydropower, and biomassdo) in the supply of equipment. Although this model has enabledrapid growth of the sector and creation of strong domesticchampions, it has discouraged a competitive equipment andtechnology selection. There are few established global technologyleaders in the Indian market. As a result, the performance ofcommissioned projects has suffered and the cost of equipmentsoared. More important, there is no competition for the allotmentof sites with good wind resources; investors who acquire the landcontrol the resource, effectively blocking any competition. Windenergy installations in many other countries are provided a fixedfeed-in tariff, which provides predictability but does not necessarilyencourage competition with other power producers. Promotingcompetition might be an appropriate option for a sector that hasreached maturity.

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Small HydropowerSmall hydropower—one of the least expensive and most

attractive forms of renewable energy—lies largely untapped. It isa very attractive renewable energy source because it uses matureand largely indigenous technology and its maximum powerproduction is in the summer, which coincides with peak seasonaldemand in India. India has an estimated small hydropowerpotential of about 15GW, of which about 2.5GW has been developed.The pace of small hydropower development, which increasedsignificantly during the 11th Plan period (2008–2012), has nowstabilized. Development has been relatively slow because of longdelays in getting clearances and acquiring access to evacuationinfrastructure, lack of clear policy for private sector participationin some states, and issues associated with land acquisition. Smallhydropower–rich north and northeastern states have lagged intapping this resource. With their perennial Himalayan rivers,Himachal Pradesh, Jammu and Kashmir, and Uttarakhand have65 percent of India’s small hydropower resource and among thelowest generation costs. Despite these advantages, resourceutilization is only in the low to mid teens. 18 Raising the utilizationrate requires immediate attention.

BiomassBiomass has huge potential in an agrarian economy like India.

Generation costs for biomass are similar to those of wind.Like smallhydropower, biomass remains largely underdeveloped. Accordingto the MNRE, India has nearly 700 million tons a year of biomassagri-residues, of which about a fifth can be used for electricitygeneration. (The rest goes to alternative usages, includinghousehold and small business heating, animal fodder, andpackaging.) This biomass could produce about 17GW of power.19The MNRE estimates that another 34GW of power could beproduced from wood and energy plantations on wasteland. 20 Inaddition, India has 61GW of additional capacity of bioenergy, whichincludes agri-residues and biomass, from plantations.21 Despitethese resources, the sector is the least developed in India, withonly about 0.8GW (less than 5 percent) of potential realized to date.

Biomass has two unique characteristics. First, biomass plantsrequire large quantities of fuel input for operations (biomassfeedstock), which requires a well-developed supply chain. Thisdisadvantage is also a strength, because biomass is the only

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renewable energy technology that can serve as a reliablealternative to diesel. However, the presence of multiplemiddlemen, difficulties in administering and enforcing agriculturalcontracts, and the development of wastelands have led tounderdeveloped fuel supply chains.

Second, the sector suffers from lack of reliable resourceassessment. The development of the biomass industry has beenlimited to only a few states, such as Andhra Pradesh and TamilNadu. Significant potential exists in economically underdevelopedstates like Uttar Pradesh for developing biomass. Developingbiomass in such states is a win-win strategy, as it can both reducethe electricity shortage and provide farmers with reliable additionalsources of income.

Co-GenerationCo-generation is a highly cost-effective and industrially

attractive generation source that is gaining industry attention. Withthe ready availability of low-cost and abundant fuel supply, thelevelized costs are lower than those of even small hydropower.22The potential to reach higher efficiencies in heat recovery and usagealso make it an attractive energy source. India has about 5GW ofestimated co- generation potential from sugarcane, paper making,and other agriprocessing industries, of which only about 0.2GWhad been realized as of December 2009. 23 Interest in this sourcehas been growing.

SolarSolar power represents a strategic long-term solution for India.

An extensive program is planned as part of the JNNSM. India hasan estimated 50 MW/km2 of potential solar power,24 of which onlyabout 9 MW had been developed as of December 2009, becausegeneration costs are even higher than those for diesel. There is ahuge potential for solar energy applications in grid-interactivesolar power generation plants, solar thermal industrialapplications, rural electrification, roof top–based applications andmobile towers in off- grid areas, and domestic water heating. Asone of the eight missions under the National Action Plan on ClimateChange (NAPCC), the JNNSM pursues ambitious goals ongeneration capacity additions from solar technology (solar thermaland solar photovoltaic) in terms of both grid-connected and off-grid applications. Implementation will take place in three phases—Phase I (2009–13), Phase II (2013–17), and Phase III (2017–22)—to

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achieve the target of deploying 20GW of solar power by 2022.Milestones to reach this target include ramping up the currentcapacity of grid-connected solar power generation to 1GW by theend of Phase I and adding 3GW of capacity through mandatoryrenewable purchase obligations (RPOs) by utilities coupled withpreferential tariffs by 2017.

Meeting the targets set by the JNNSM will be a challenge.Solar plants have high capital costs because of expensive inputmaterial and the high cost of components. Adequate solar radiationlevels for large-scale solar generation also require the availabilityof transmission infrastructure to evacuate power from the projectlocation; large stretches of flat land, particularly for parabolictrough systems; and continual water supply to generate steam andcool turbines, in the case of solar thermal plants. Solar technologyalso requires high precision–engineered components, such asparabolic mirrors and receiver tubes, which are not availablelocally. Because of limited field experience and data, processstandardization and quality benchmarks are not uniform acrossprojects under preparation, with each manufacturer imposing itsown standard. The level of customization means that equipmenthas to be commissioned on a project-by- project basis, preventingmanufacturers from enjoying economies of larger scale production.The problem is accentuated by the lack of a learning curve anddata gained from ground-level experience for simulating capitaland operating costs for potential projects.

ConclusionAny discussion on untried and new approaches to achieve an

order-of-magnitude change in renewable energy should firstrecognize the existing risks or risk being derailed not long beforegaining traction. The despicable financial state of and lack ofincentives faced by utilities as well as the weak institutionalcapacity of public sector institutions, especially at the state level,are among the key risks that will have to be first worked upon andstrengthened. Concerns from existing players, experts andinstitutions should be listened to and addressed to head offimplementation resistance, which is what rendered previousreform attempts ineffective. Implementation will have to be gradualin scale and sequencing and tolerant of the chance of failure.

Early adoption of ¯quick wins and gains could build momentumfor high-effort, high-impact structural reforms. Some solutions take

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substantial time to design and implement and may requireconsiderable resources. Achieving and demonstrating some quickresults is important to gain political support for longer-termsolutions. Policy initiatives such as enforcement of state-levelRPOs could provide an immediate boost to the sector. Initiativeson financial sector capability and awareness building,strengthening of state nodal agencies, and investment in high-quality resource information system can also be implementedrelatively quickly.

Perhaps the best way to create substantive change is toimplement comprehensive pilot models in a few states. Onepotential quick win that could yield high impact would be to createrenewable energy parks, which can serve as integratedimplementation platforms on which the solutions could be testedand refined. Such parks could be established as joint national andstate government initiatives in a few selected pilot states. Theycould serve as concentrated zone of renewable energydevelopment, including generation and/or manufacturing. Thecentral government could commit substantive financial andadministrative resources to attract states rich in renewable energyresources. The states could be selected based on theirdemonstrated commitment for such a program, including co-financing and capacity to implement.

Creating renewable energy parks could acceleratedevelopment of resources and address multiple issuescomprehensively. India is already familiar with special economiczones and technology parks, which create an enabling environmentto promote certain industries. Renewable energy parks are a goodexample of private-public partnerships that allow aggregation ofprojects, create economies of scale, and enable the formation ofsupporting supply chains. Such parks can be attractive to bothsmall and large players. They can offer ready-to-bid projectpipelines; provide prefeasibility studies, including resourceassessment data; access to land and transmission infrastructure;and preferential open access policies. They can be used to craftsimplified light-touch regulations, including acceleratedenvironmental and social clearances and package clearances.IREDA could pilot new risk guarantee and financing schemes, andstate and central funds could catalyze R&D and supply chaininnovations in renewable energy parks. Examples include solar,wind, or river basin–based special purpose vehicles for small

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hydropower projects. Initially, the parks would require specifickick-off grants or subsidies from the MNRE and other agencies,which could be recovered from developers as projects reach criticalmass. The parks could serve as testing grounds for new policies,which if proven successful could be then replicated across thecountry.

As always, Rome cannot be built in a day. But also as always,the courage to take the first step in the right direction can makeall the difference in the journey and the destination.

References.

1. This essay has relied on the following sources for informationand statistics.

2 World Bank (World Development Indicators, 2010)

3. Ministry of Power, June 2009 (http://powermin.nic.in/JSP_SERVLETS/internal.jsp.)

4. World Energy Outlook 2007.

5. National Sample Survey Organization, Ministry of Statistics andProgram Implementation 2007.

6. Central Electricity Authority 2009.

7. Central Electricity Authority, April 2009.

8 planningcommission.nic.in/reports/genrep/rep_intengy.pdf

9. Integrated Energy Policy, Planning Commission, 2006, p. 20.

10. Planning Commission, India 2006.

11. World Bank, 2010. Energy intensive sectors of the Indianeconomy: Path to low carbon development. South AsiaSustainable Development. See discussion in chapter 2.

12. The Herfindahl index, a measure widely used to describe theconcentration of firms in an industry, is used here to quantifythe diversity of the generation mix.

13 Bussolo, Maurizio, and D. O’Connor, 2001. Clearing the Air inIndia: The Economics of Climate Policy

14. REN21 (2009) Renewables Global Status Report: 2009 Update,REN21 Secretariat, Paris, www.ren21.net/pdf/

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RE_GSR_2009_update.pdf, p. 11.

15. MNRE figures of estimated renewable energy potential,achievement as of December 31, 2009.

16. The estimation of capital cost in this note is based on a reviewof wind tariff orders by SERCs and review of about 50 wind-based power projects in India (UNFCC).

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26OVERVIEW OF HUMAN RIGHTS AND

SUSTAINABLE DEVELOPMENT IN NATONALAND INTERNATIONAL PERSPECTIVES

Suyash Shanker

Introduction“Poverty eradication without empowerment is unsustainable.

Social integration without minority rights is unimaginable. Genderequality without women’s right is illusionary. Full employmentwithout worker’s right is no more than a promise of sweatshops,exploitation and slavery. The logic of human rights in developmentis inescapable.”

Mary Robinson

United Nations High Commissioner for Human Rights

Why should human rights issue concern itself aboutenvironment protection? There are several possible answers tothis question, however the most obvious, and in divergence to therest of international environmental law, environment has a directemphasis on life, health and property of an individual thus aredirectly associated to human rights issue. It would probably serveto secure higher standards of environmental eminence, by basingit the states obligation to take measures that control pollution thatare affecting health and life. The rule of law is also well promotedas governments are made directly accountable if they fail toregulate and control environmental nuisances, not excluding thosecaused by any corporation, and for availing access to justice andenforcement of environmental laws and judicial machinery. Lastly,

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the idea of a right to a decent environment was formed by thebroadening of economic and social rights in order to enhance thescope of public interest, in some form, by protecting theenvironment.

In the recent years it has been increasingly recognised thatthe proper implementation of the human rights is essential in orderto achieve sustainable development. In 1972, during the PrimeMinisterial rule of Ms. Indira Gandhi, at the UN Conference onHuman Environment at Stockholm she emphasized that it shouldbe a global strategy to eradicate poverty as a part of environmentalstrategy. History has created huge inequalities, leaving almostthree-fourths of the world’s population sustaining in less-developedcountries and about one-fifth below the poverty line.Industrialisation has led to a long term effect that is exploitationand environmental damage which one cannot get rid of easily.Therefore it is essential that the new developmental phase forthis new century be even more conscious of creating a long-termimpact. The problem is complex and the choices are going to bedifficult. The common future can only be achieved with a betterunderstanding of our common concerns and shared responsibilities.

The concept of ‘Sustainable Development’ is not a new concept.The Doctrine had invented in as early as in 1972 during theStockholm declaration. It had been stated in the declaration that:“Man has the fundamental to freedom, equality and adequateconditions of life, in an environment of a quality that permits a lifeof dignity and well being and he bears a solemn responsibility toprotect and improve the environment for present and the futuregeneration.”

The Rio Declaration on Environment and Development,1992,formed a direct link between human rights and environmentalprotection largely in terms of procedure. According to principle10: “Environmental issues are best handled with the participationof all concerned citizens at the relevant level. At the national leveleach individual shall have appropriate access to informationconcerning the environment that is held by the public authorities,including information on hazardous materials and activities in theircommunities and the opportunity to participate in decision makingprocesses.”

The most recent example of an overview of Human rights withregards to sustainable development can be witnessed With the

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adoption of the 2030 Agenda the world leaders unprecedentedlycommitted to a coherent and comprehensive global agenda forsustainable development. The Agenda builds on and connects theoutcomes of numerous international processes and decisions, andunites the environmental, social and economic dimensions thatconstitute sustainable development. The Agenda is grounded inthe Universal Declaration of Human Rights and other internationalhuman rights treaties. The commitment to “leaving no one behind”is a further reflection of this foundation in human rights.

NATIONAL PERSPECTIVEThe concept of sustainable development in India is not

something unheard of, and the fact that the Constitution of Indiaprovides for human rights with regards to environmental protectionand sustainable development. The United Nation Conference onHuman Environment in 1972 exerted a major influence onenvironmental policy in India. The government set up a NationalCommittee on Environmental Planning and Coordination in 1972.

‘Article 21’ provides the right to life and personal libertywhereas right to life implies the right to live in pollution free andecologically balanced environment.

‘Article 48A’ (Directive Principles) states that the state shallendeavor to protect and improve the environment and to safeguardthe forests and wildlife of the country.

‘Article 51 A (g)’ (Fundamental Duties) aims to protect andimprove the natural environment including forests, lakes, rivers,wild life and to have compassion for living creatures.

The UN Conference on Environment and Development in 1992and its Agenda 21 influenced pollution prevention and control andnatural resource management policies.

The following legislations were introduced on environmentalmatters in order to promote sustainable development:

• The Environment (Protection) Act, 1986

• The Water (Prevention and Control of Pollution) Act, 1974,as amended up to 1988

• The Water (Prevention and Control of Pollution) Cess Act1977, as amended by Amendment Act, 1991

• The Air (Prevention and Control of Pollution) Act, 1981, as

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amended by Amendment Act, 1987

• National Forest Policy, 1988

• Forest (Conservation) Act, 1980

• The National Environment Tribunal Act, 1995

• The Public Liability Insurance Act, 1991

• Re-cycled Plastics Manufacture and Usage Rules, 1999

• Manufacture, Use, Import, Export and Storage of HazardousMicro-Organisms

• Genetically Engineered Organisms or Cells rules, 1989

• Hazardous Wastes (Management and Handling) Rules, 1989

• Bio-Medical Waste (Management and Handling) Rules, 1998

• Municipal Solid Wastes (Management & Handling) Rules,2000

• Noise Pollution (Regulation and Control) Rules, 2000

• Ozone Depleting Substances (Regulation) Rules, 2000

• New Biodiversity Bill - 2000

• The Prevention and Control of Pollution (Uniform ConsentProcedure) Rules, 1999

The following policy initiatives were taken by the Ministry ofEnvironment and Forests towards sustainable development:

• National Environmental Action Plan for Control of Pollution

• Urban Pollution

• Vehicular Pollution

• Environmental Epidemiological Studies

• Environmental Management System (EMS)

• Uniform Consent Procedure

• City Afforestation Programme for Mitigating Pollution

• National Biodiversity Strategy and Action Plan (NBSAP)

• Biosafety Protocol

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• Rules on the management of Lead acid Batteries

• Regional Development Strategy based on Carrying Capacityconcept

• Development of Management Tools for preventingenvironmental degradation

• Establishment of Indian Centre for Promotion of CleanerTechnologies (ICPC)

• Water Quality Standards for Sewage

• Technology for Sewage Treatment

• Water Conservation through recycling

• Joint Forest Management

• National Forest Action Programme

• National Forestry Research Plan

Environment is a national asset. It cannot be treated as anasset to be exploited by the Govt(s) for revenue purposes. Itincorporates the principles – “Polluters Pay” and “Precautionary”principles.

Supreme Court and High Courts of India have played anessential part with the preservation of the Doctrine of SustainableDevelopment. Legislature has enacted various laws to preventenvironment degradation in India. In this situation, superior courthas played a pivotal role in interpreting those laws to suit theDoctrine of Sustainable Development.

Indian Judiciary has played an important role in maintainingsustainable development and encouraging public and privateindustrialization without giving least opportunities to incurirreparable damage accrued to natural environment essential tomaintain healthy flora and fauna of the planet and in Indiaparticular. It is to be noted that, every cases on environmentalissue have come before the court through Public Interest Litigation(PIL) either by the Article 32 or by Article 226 of the Constitutionof India.

There have been many interesting judgements pertaining toprotection of environment and sustaining human rights. Some ofthe landmark judgements are mentioned below:

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Vellore Citizens Welfare Forum v. Union of India & others

Background:An NGO by the name of Vellore Citizens Welfare Forum filed

a petition – a Public Interest Litigation (PIL) – under Article 32 ofthe Constitution of India which guarantees the Right to move theSupreme Court by appropriate proceedings for the enforcementsof rights conferred by the constitution. The petition was aimedagainst the pollution that was being caused because of the dischargeof enormous amounts of untreated effluents by certain industriesand tanneries in the state of Tamil Nadu, which led to the mainsource of potable water for consumption and irrigation, the Palarriver, being polluted, and which consequently led to non-availability of clean water.

A report submitted to the Supreme Court noted that 176chemicals were found in the tannery effluents and that nearly35,000 hectares of land around the tannery belt and especially insome 59 villages in the districts of Vellore, Thiruvanthapur andRanipat had been made unfit for cultivation. It was found that 350out of 467 wells in the area were unfit for consumption or irrigation.It also noted the non-compliance by the tanneries regarding theGovernment order to put up Common Effluent Treatment Plants(C.E.T.P’s) for the proper disposal of effluents.

Order: The salient points of the order by the Supreme Courtare:

1. The Central Government was ordered to set up an authorityunder the Environmental Protection Act, which was to dealwith the situation created by the polluting industries andtanneries in the state of Tamil Nadu.

2. This authority was to implement the ‘precautionary principle’and the ‘polluter pays principle’, and was to identify the lossto the environment and to the individuals/families whosuffered because of the pollution, and to assess the amount ofcompensation to be recovered from the polluters both forreversing the ecology and for payment to individuals.

3. It directed the closure of all tanneries which failed to complywith the Government order to set up individual or commonEffluent Treatment Plants, within a given time frame.

4. Highly polluting industries were henceforth not allowed to

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set up in the prohibited areas.

Subhash Kumar vs. State of BiharThis public interest case was filed by the petitioner demanding

a direction to the Director of Collieries in Hazaribagh and the TataIron and Steel Co. Ltd. to stop immediately the discharge of slurryfrom its washeries into the Bokaro River. The effluents get settledon agricultural land, including that of the petitioner’s, and reducethe fertility of the soil. 1-he river water was rendered unfit fordrinking or agriculture and was a health hazard. Despite complaintsto the State Pollution Control Board and the various provisions oflaw, the company was not restrained from polluting the waters;instead it was given fresh licences.

In reply, the State Pollution Control Board marked varioussteps taken by them in order to prevent pollution of the river andthe directions to the Tata Company. The company was complyingwith them, and there was no discharge of effluents into the river.The company also in detail denied of the charges.

Order: In its judgement the Supreme Court has commentedas quoted:

“Right to live is a fundamental right under Art 21 of theConstitution and it includes the right of enjoyment of pollutionfree water and air for full enjoyment of life. If anything endangersor impairs that quality of life in derogation of laws, a citizen hasright to have recourse to Art, 32 of the Constitution for removingthe pollution of water or air which may be detrimental to the qualityof life. A petition under Art.32 for the prevention of pollution ismaintainable at the instance of affected persons or even by a groupof social workers or journalists.”

M.C Mehta v Union Of India or famously known as the‘Oleum Gas Leak Case’Facts:

A five-judge bench of the Supreme Court heard the case aftera three-judge bench had referred it to a higher bench because ofcertain questions which were of pioneer importance and highconstitutional significance. These were raised in the course ofarguments when the writ petition was originally heard.

1. The Bench of three Judges gave permission to Shriram Foodsand Fertilizer Industries to restart its power plant and also

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plants for manufacture of caustic chlorine including its by-products and recovery plants like soap, glycerine and technicalhard oil, if they adhere to the guidelines mentioned in thejudgement.

2. The original writ petition which was filed, was done so inorder to obtain a direction for closure of the some units ofShriram on the fact that they were causing peril to thecommunity.

3. During the pendency of the writ petition there was anaccident where oleum gas had escaped from one of the unitsof Shriram on 4 and 6 December 1985 and applications werefiled by the Delhi Legal Aid & Advice Board and the DelhiBar Association for award of compensation to the people whosuffered harm on account of escape of oleum gas.

4. The Court thought that these applications for compensationraised certain important issues and those issues should beaddressed by a constitutional bench.

Order:The Supreme Court set up a new concept which created

liability on the manager i.e. ‘absolute and non-delegable’ – fordisasters arising from the storage of or use of hazardous materialsfrom their factories. The corporation or company must ensure thatno harm results to anyone irrespective of the fact that it was dueto negligence or not.

M. C. Mehta v. Kamal NathFacts:

The Indian Express published an article stating that SpanMotels Private Limited, which is also the owner Span Resorts,had floated another venture, Span Club. It was also stated thatKamal Nath, an Indian political figure’s family had direct linkswith this company. The club was built by encroaching upon 27.12hectares of land, including a vast part of forestland, in the year1990. The land was later declared to be a regular piece of landleased out to the company on April 11, 1994.

The regularization was done when Nath was Minister ofEnvironment and Forests. This encroachment led to the swellingof the Beas River, and the affected river changed its course andencroached upon the Span Club and the adjoining lawns, washing

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all of it away. For almost five months now, the Span Resortsmanagement has been moving bulldozers and earth movers to turnthe course of the Beas for a second time.

The fact that the river was eating into the mountain leadingto landslides became a regular occurrence in that area which wasworrying the local community and authority. In September, onesuch occurrence caused floods in the Beas River and property ofan estimated worth of Rs.105 crore was destroyed. The Governmentof India, Ministry of Environment and Forests by a letter dated24.11.1993, was addressed to the Secretary, Forest, Governmentof Himachal Pradesh, Shimla which conveyed its prior approval interms of Section 2 of the Forest (Conservation) Act, 1980 for leasingto the Motel 27 bighas and 12 biswas of forest land adjoining to theland already on lease with the Motel. An expert committee wasformed to assess the situation of the area had arrived at thefollowing conclusion that, “The river is presently in a highlyunstable regime after the extraordinary floods of 1995, and it isdifficult to predict its behaviour if another high flood occur in thenear future. A long-term planning for flood control in the KulluValley needs to be taken up immediately with the advice of anorganization having expertise in the field, and permanentmeasures shall be taken to protect the area so that recurrence ofsuch a heavy flood is mitigated permanently.”

Order:The court kept in the view the public trust doctrine and gave

the following order

• The prior approval granted in favour of the Motel was quashed.by the Government of India, Ministry of Environment andForest and the lease-deed dated 11.04.1994

• The lease granted to the Motel was cancelled and set asideby the said lease-deed in respect of 27 bighas and 12 biswasof area.

• The area was to be taken over and restored to its originalnatural conditions by Himachal Pradesh Government.

• The Motel was made liable to pay the cost of the damage andthe restitution of the environment and ecology of the area.

• The pollution which was caused by various changes made bythe Motel in the riverbed and the river bank of Beas had to

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be removed and reversed.

Narmada Bachao Andolan v Union Of India on 15 October,1999Facts:

Sardar Sarovar Project (SSP) is one of the most ambitiousmultipurpose projects which on completion is expected to produce1450 MW of power and supply water for irrigation and drinkingpurposes to areas not only in the riparian States including Kutchin the State of Gujarat but even in areas belonging to non-riparianState like Rajasthan. The multiple project by way of constructionof a dam over the River Narmada began its journey in 1961. A largenumber of residents of the States of Madhya Pradesh, Maharashtraand Gujarat are affected by the said construction.

The Narmada Bachao Andolan (NBA), a Non-GovernmentalOrganization which has been in the front of the agitation againstthe construction of the Sardar Sarovar Dam filed a writ petitionbefore this Court raising several issues including relief andrehabilitation.

Order:The court initially ruled for Andolan, and ordered an immediate

halt of the work at the dam and directed the concerned states tocomplete the rehabilitation and replacement process. The last lineof the Court’s order was:

“Every endeavour shall be made to see that the project iscompleted as expeditiously as possible”.The Press InformationBureau post the verdict wrote in an article: “The Narmada BachaoAndolan has rendered a yeoman’s service to the country by creatinga high-level of awareness about the environmental andrehabilitation and relief aspects of Sardar Sarovar and otherprojects on the Narmada. But, after the court verdict it is incumbenton it to adopt a new role. Instead of ‘damning the dam’ any longer,it could assume the role of vigilant observer to see that theresettlement work is as humane and painless as possible and thatthe environmental aspects are taken due care of.” The GoaFoundation & Anr v. The Conservator of Forest; ForestDepartment, Panaji, Goa & Ors. (AIR 1999 Bombay 177)

Facts:A public interest litigation was filed by the Goa Foundation

challenging the permission granted by the Conservator of Forests

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contrary to the Forest (Conservation) Act 1980 for carrying ourcertain developmental activities in the forest area of village Penhede Frana of Bartez Taluka of Goa. According to the petitioner, theland in question was being used for activities not permissible bylaw. The land was declared as a forest and was being used for nonforest activities, which is permissible only after prior permissionis taken from the Central Government under the ForestConservation Act 1980. The petition states that there were certainchanges made in the survey record for facilitating the residentialcomplex work in the area of 11.275 sq metres. The Court viewedthe opposite party’s contention that is the Forest Department, byscrutinizing the past record of the land. It also verified the ForestDepartment’s instructions for application of Forest (Conservation)Act 1980 to private forest.

Order:

• We are inclined to stay the removal of the developmentalwork done in the area of 11275 sq. metres as well asrestoration of the hill to its original vegetation for a period ofsix weeks

• An undertaking by the responsible parties within a week thatno further development, construction and any other activityshall be carried out by them.

• No stay is granted in relation to restraint on carrying outfurther development, construction and any other activitywhich have been ordered to be stopped forthwith and thesame shall be immediately stopped.

• A compliance report shall be filed by respondents to this effectalong with the undertaking to be filed by them in a period ofone week from the day of the judgement.

International PerspectiveThe world government along with the United Nations after 3

years of negotiations and consultation adopted and launched the2030 Agenda for Sustainable Development on 25 September, 2015.This new Agenda in the preamble mentions a plan of action forpeople, planet and prosperity. It also seeks to strengthen universalpeace in larger freedom. It recognises that eradicating poverty inall its forms and dimensions, including extreme poverty, is thegreatest global challenge and an indispensable requirement for

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sustainable development.

The Agenda plans to eradicate tyranny of poverty from theHuman race and wants to heal and secure the planet. The agendaannounced 17 Sustainable Development Goals and 169 targetswhich were announced demonstrates the scale and ambition ofthis universal agenda. The agenda seeks to provide basic humanrights to all, gender equality and empowering all women and girls.

The Agenda mentions that the plan of action involves people,planet and prosperity by which they mean that:

People: The agenda aims to end poverty and hunger of anyform and enable fellow humans to realize their potential in dignityand equality while surviving in a healthy environment.

Planet: The fellow countries are displaying their resolve toprotect the planet from degradation by sustainable consumptionand implementing efficient production measures. The agenda alsoaims at managing its natural resources and undertake drasticmeasures on the changing climate.

Prosperity: The agenda is determined to make sure that allhumans can relish a prosperous and fulfilling lives and thatprogress co-exists with the nature.

The 2030 Agenda is clearly present in the UN Charter, TheUniversal Declaration of Human Rights, international human rightstreaties and other instruments including Declaration on the Rightto Development. It states that the SDGs aim to “realize the humanrights of all” (preamble) and emphasises “the responsibilities ofall States… to respect, protect and promote human rights andfundamental freedoms for all, without distinction of any kind as torace, colour, sex, language, religion, political or other opinion,national or social origin, property, birth, disability or other status”.Importantly, the new Agenda is “to be implemented in a mannerthat is consistent with the… obligations of states underinternational law.”. This means that any gaps or ambiguities shouldbe resolved in accordance with the requirements of internationalhuman rights law.

The 2030 agenda reaffirms the responsibility of all States, to“respect, protect and promote human rights, without distinctionof any kind as to race, colour, sex, language, religion, political orother opinions, national and social origin, property, birth, disabilityor other status”. The SDGs include two dedicated goals oncombating inequality and discrimination. The goals and targets

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aim to “leave no one behind” and “reach those furthest behind first”.The Agenda calls for the follow-up and review processes for theSDGs to be based upon evidence and data disaggregated by “income,gender, age, race, ethnicity, migratory status, disability, geographiclocation and other characteristics relevant in national contexts”.

Like the human rights agenda, the 2030 Agenda is a universalagenda and is universally applicable for all people in all countries,including developed and developing countries. The new Agendarecognises the different levels of development of countries butexpects each country to implement the new Agenda in accordancewith their different national realities, resources and capacities.

The high ambitions of the 2030 Agenda must not be diluted inthe development of SDG indicators. The indicator framework mustgive effect to the 2030 Agenda’s strong commitment to the collectionand disaggregation of data to measure progress in “leaving no onebehind,” especially individuals and groups suffering discrimination.Data should be collected and disaggregated by all grounds ofdiscrimination prohibited under international human rights law,which will require developing new partnerships, methods and datasources, including non-traditional data sources and data gatherersincluding civil society.

The following lists only highlights the goals which are aimedat both human rights and sustainable development.

Goal 6.To Ensure the availability and sustainable managementof water and sanitation for all, By 2030,the plan is to improve waterquality by reducing elements of pollution, elimination of dumpingand minimizing the release of hazardous chemicals and materials,reducing the portion of untreated wasted water and graduallyincreasing recycle and safe reuse globally

Goal 7. Ensure access to affordable, reliable, sustainable andenergy for all By 2030, gain substantially a part of renewable energyin the global energy mix

Goal 8. Promote sustained, inclusive and sustainable economicgrowth, full and productive employment and decent work for allEnhance progressively, through 2030, global resource efficiencyin consumption, yield and endeavour to decouple economic growthfrom environmental degradation, in accordance of rights with the10-year framework of syllabus on sustainable consumption andproduction, with developed countries taking the lead

Goal 11. Make cities and human settlements inclusive, safe,

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resilient and sustainable Take initiatives to protect and safeguardthe world’s cultural and natural heritage

Goal 12. Ensure sustainable consumption and productionpatterns By 2030, achieve the sustainable management and efficientuse of natural resources and By 2020, achieve the environmentallysound management of chemicals and all wastes throughout theirgrowth period, in lieu with agreed international guidelines, andsignificantly reduce their release into the environment to minimizetheir adverse impacts on human health and the environment

Goal 13. Take urgent action to combat climate change and itsimpacts Strengthen defence and the capacity to adapt to theclimate-related hazards and natural disasters in every nation.

Goal 14. Conserve and sustainably use the oceans, seas andmarine resources for sustainable development By 2025,significantly reduce pollution in all kinds of water bodies,specifically from land activities, including marine debris andnutrient pollution

Goal 15. Protect, restore and promote sustainable use ofterrestrial ecosystems, sustainably manage forests, combatdesertification, and halt and reverse land degradation and haltbiodiversity loss By 2020, prepare for the preservation, restorationand sustainable use of terrestrial and freshwater ecosystems, incertain forests, wetlands, mountains and dry lands, in line withobligations under international agreements

Goal 17. Build a strong means of implementing and revitalizingthe partnership amongst carious nations for sustainabledevelopment

ConclusionHuman Rights and Sustainable development are not some very

distant terms. It can easily be inferred that with the provision ofhuman rights it is necessary to sustain the environment. Humansand the environment are part of the same cycle and if one getsdisrupted the other will be unable to survive.

Similarly with various added diseases and health conditionswith no cure available to the current population it is causing astressful environment for the human beings, thus the cry forsustainable development has arose in the recent past and the worldgovernment has started to settle upon a system of review in orderto monitor the global ecological conditions. The term sustainable

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development in the most simplest of words means the growth ofhuman beings while also protecting and enhancing the growth ofthe ecology that surrounds us.

Humans are dependent on the environment for various reasonsand thus it becomes imperative that necessary measures shouldbe placed in order for the present and the future generation tolive their lives to the maximum extent without being burdenedwith the stress of their survival at stake.

India is not far off in the race for implementing measures forenabling sustainable development among its citizen which can bewitnessed with the various statutes, articles and judgements. Itcan be directly inferred that the government along with its citizenhave started to actively participate in ensuring that their futuredoes not look bleak.

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