ENVIRONMENT AND HUMAN RIGHTS

PROJECT 1

TOPIC- HUMAN RIGHT JURISPRUDENCE AND ENVIRONMENT POLLUTION

SEMESTER 2nd LLM BATCH OF 2020

SUBMITTED TO:

Ms. NEHA KHURANA

ASSISTANT PROFESSOR

SUBMITTED BY:

ARUN PRATAP SINGH

2020 LLM 15
 Table of Contents
Acknowledgment...................................................................................................................................4
RESEARCH METHODOLOGY...................................................................................................................5
HYPOTHESIS...........................................................................................................................................5
RESEARCH QUESTION............................................................................................................................5
LITERATURE REVIEW..............................................................................................................................5
CHAPTER I..............................................................................................................................................6
INTRODUCTION.....................................................................................................................................6
CHAPTER II.............................................................................................................................................8
HISTORICAL BACKGROUND RELATING TO ENVIRONMENTAL POLLUTION............................................8
INDIAN PRESPECTIVE.........................................................................................................................8
KAUTILYAN JURISPRUDENCE.........................................................................................................8
EARLY ENVIRONMENT LEGISLATION.............................................................................................8
INDIA'S NEW AWAKENING TO ENVIRONMENTAL POLICIES AND PROGRAMMES..........................9
INTERNATIONAL PRESPECTIVE..........................................................................................................9
Stockholm Conference-...............................................................................................................10
Nairobi Declaration......................................................................................................................10
World Charter for Nature............................................................................................................10
Basel Convention 1989................................................................................................................11
Earth Summit 1992......................................................................................................................11
Kyoto protocol (1997)..................................................................................................................11
Delhi Declaration on Climate Change (24 Oct. to 1 Nov., 2002)..................................................12
United Nations Commission on Sustainable Development..........................................................12
AGENDA 21..................................................................................................................................12
CHAPTER – III.......................................................................................................................................13
LEGAL FRAMEWORK RELATING TO ENVIRONMENTAL POLLUTION AND ITS CONTROL & PREVENTION
.............................................................................................................................................................13
Constitutional Mandate...................................................................................................................13
PART IV(A).......................................................................................................................................13
Fundamental Duties....................................................................................................................13
Legislation enacted after Stockholm Conference............................................................................15
The Wild Life (Protection) Act, 1972............................................................................................15
The Water (Prevention and Control of Pollution) Act 1974.........................................................16
The Air (Prevention and Control of Pollution) Act 1981...............................................................16
 Forest (conservation) Act of 1980................................................................................................16
The Ecomark Scheme......................................................................................................................16
CHAPTER- IV........................................................................................................................................18
ENFORCEMENT OF LAW OF ENVIRONMENTAL POLLUTION AT NATIONAL AND INTERNATIONAL
SCENARIO............................................................................................................................................18
Position in France............................................................................................................................18
Damage to the Environment and Criminal Liability.........................................................................18
Position in USA................................................................................................................................19
Position in Germany........................................................................................................................20
Position in Australia.........................................................................................................................21
Position in United Kingdom.............................................................................................................21
CHAPTER- V.........................................................................................................................................23
CONCLUSION AND SUGGESTIONS.......................................................................................................23
CONCLUSION...................................................................................................................................23
SUGGESTIONS:.................................................................................................................................24
BIBLIOGRAPHY.....................................................................................................................................25
 Acknowledgment
On the successful completion of this project, we would like to thank to everyone who have helped
me in this attempt. Without their cares, support, help, collaboration and consolation, I would not
have made progress in the venture. I am thankful to Ms. Neha Khurana faculty of Environment and
Human Rights for her valuable suggestions. She has been very helpful for me in understanding the
nature and role of Environment and Human Rights .

I would like to use this opportunity to thank all those who played a role in this project's completion
 RESEARCH METHODOLOGY
This is purely a doctrinal study. As this study is socio-legal in nature, the researcher proposes to adopt
a case study method. The researcher intended to carry out the present study by critically examining
the various constitutional and legislative provisions relating to environment and also the relevant case
laws. The researcher has studied the various international conventions and legislations on
environment and collected the relevant material. The material and information are collected from
various sources like relevant statutes, published national and international books, parliamentary
works, national journals and paper presented at seminars, symposia and workshop, judgments of
Courts and relevant website available on the topic. The researcher also has collected data basically
from secondary source like books by eminent jurists, statutes both national and international, case
laws- Indian and foreign, articles of environ- jurists published in journals of repute and material
collected from various treaties, conventions and covenants, bilateral as well as multilateral.

HYPOTHESIS

RESEARCH QUESTION
The present research runs on the hypothesis that the right to pollution free environment is embedded
and explicitly given in the Article 21 of the Constitution of India. The Judiciary has given a clear
interpretation to this right. The laws in India are quite appropriate and sufficient to protect this right.
The researcher shall on this stand shall prove and disprove the hypothesis with the help of decisions
of Apex and various high courts of India. The views of legal experts shall also be taken into
consideration to examine the said presumptions.

LITERATURE REVIEW
 CHAPTER I

INTRODUCTION

India, like most developing countries, is faced with the daunting challenge of developing itself
rapidly, while at the same time preserving and protecting its environment. Major environmental
problems have resulted in India from the use (and more often the misuse) of its natural resource base.
Legislative and regulatory responses to environmental problems have been adopted in India-
especially in the wake of the Bhopal tragedy which is clearly the world's worst industrial disaster. But
the judicial approaches to environmental problems which have also followed, have been especially
interesting in India for a variety of reasons, which are relevant to the challenges facing courts today,
in developing and developed countries alike. Nature maintains a balance in land. The biosphere and
ecosystem are selfsustaining, water, air and all the living organisms in the world. Any imbalance
therein causes a chain reaction. Any amount of any kind of imbalance in the biosphere is called
environ-mental pollution. Man is going to conquer the universe with the help of technological
development, but this development has resulted in grave danger to the very existence of man.

The foundation for modern international environmental law was lead at the United Nations
Conference on the Human Environment in Stockholm 1972. On this conference, the Stockholm
Declaration on the Human Environment (Stockholm Declaration) was unanimously adopted, albeit
legally not binding.

In 1992, the UNCED was held in Rio de Janeiro. Although environment was, as the title of the
conference suggests, also an issue, UNCED focused rather on development related subjects (mostly
North-South related topics). Indeed, the term ―human rights is only used three times in the Rio
Declaration on Environment and Development (Rio Declaration). According to Diane Shelton, there
is no explicit link between human and environmental rights. At best, Principle 10 of the Rio
Declaration can be considered as participatory right. It suggests that environmental issues are ―at
best handled with participation of all concerned citizens, and further requires the states to provide
―effective access to judicial and administrative proceedings.

In 1994, the Ksentini Report concluded that environmental rights are a part of the existing human
rights The Draft Principles on Human Rights and the Environment, which are included in the
annexure of the report, emphasize this. In particular Principle says that human rights and the
environment are indivisible.

Boyle summarizes that from now on there is a ―shift from environmental law to the [human] right to
a healthy and decent environment. In his words, the Ksentini Report ―greened existing Human
Rights, meaning that existing human rights may already contain environmental rights. Thus, it is
necessary to take a closer look at human rights treaties in order to examine whether humans can claim
a right to a clean environment from its norms.

The Constitution of India, 1950, did not include any specific provision relating to environment
protection or nature conservation. Presumably, the acute environmental problems being faced now in
the country were not visualized by the framers of the Constitution. However, the past five decades
have witnessed two major developments in this connection. The first development took place when
the Constitution (Forty-second Amendment) Act, 1976, was adopted in the mid-seventies. Specific
provisions relating to certain aspects of the environment, more especially for the protection of the
forests and wildlife in the country, were incorporated in Part IV- Directive Principles of the State
Policy – and List III – The Concurrent List – of the Seventh Schedule of the Constitution. As a result,
the Constitution has now the following provisions specifically relating to environment protection and
nature conservation: Part IV: Directive Principles of State Policy (Article 48A): Protection and
improvement and safeguarding of forests and wild life: The State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of the country. Part IV-A:
Fundamental Duties (Article 51-A): It shall be the duty of every citizen of India – (g) to protect and
improve the natural environment including forests, lakes, rivers and wild life, and to have compassion
for living creatures. Seventh Schedule (Article 246) List III - Concurrent List Item no. 17 Prevention
of cruelty to animals, Item no. 17A Forests, Item no. 17B Protection of wild animals and birds.

Some judgments not directly related to environmental cases, also have significant implications for the
struggle to establish environment as a human right. Mention should especially be made of a number
of cases in which the Constitutional Right to Life (Article 21) has been interpreted widely to include a
series of basic rights that include environment and livelihoods. In Francis Coralie v. Union Territory
of Delhi17 Justice Bhagwati observed: ―We think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself
in diverse forms, freely moving about and mixing and co-mingling with fellow human beings.
 CHAPTER II

HISTORICAL BACKGROUND RELATING TO ENVIRONMENTAL

POLLUTION
Since the last two decades, the Supreme Court of India has been actively engaged, in many respects,
in the protection of environment. While conventionally the executive and the legislature play the
major role in the governance process, the Indian experience, particularly in the context of
environmental issues, is that the Court has begun to play a significant role in resolving environmental
disputes. Although it is not unusual for Courts in the Western democracies to play an active role in
the protection of environment, the way Indian Supreme Court has been engaged since 1980s in
interpreting and introducing new changes in the environmental jurisprudence is unique in itself.

Nature is the common heritage of mankind. Ancient Indians understood the importance of
environment and made various measures to protect it so that they could pass the legacy to us.

INDIAN PRESPECTIVE
KAUTILYAN JURISPRUDENCE
The most detailed and perceptive of environmental policy in India are the provisions found in
Kautilya's Arthashastra written between 321 and 300 BC.203 Kautilya was the prime minister of
the Magadha Empire during the reign of Chandragupta Maurya. The Arthashastra is divided into
14 books that discuss a wide range of subjects, including administration, law, industry, commerce
and foreign policy. Although the principal provisions dealing with the environment are in Book
Two, some shlokas (stanzas) are found elsewhere in the work. They serve as a window to the
varying nature and increasingly intense demands on India's natural resources and the
government's policy response.

EARLY ENVIRONMENT LEGISLATION

During the colonial periods, Several factors that have influenced Indian forestry have affected
policy governing other natural resources as well. Short-sighted commercial and industrial policies
that have rapidly reduced the forest cover since independence, have also contributed to erosion
and the decline of India's wildlife. Moreover, the bureaucratic structure of India's forest law,
which excludes citizens (forest dwellers) from participating in the decision-making process, is
characteristic of most other environmental legislation.

The Shore Nuisance (Bombay and Kolaba) Act of 1853, one of the earliest laws concerning water
pollution, authorised the collector of land revenue in Bombay to order the removal of any
 nuisance below the high-water mark in Bombay harbour. In 1857, an attempt was made to
regulate the pollution produced by the Oriental Gas Company by imposing fines on the company
and giving a right of compensation to anyone whose water was 'fouled' by the company's
discharges.

The Indian Penal Code, enacted in 1860, imposed a fine on a person who voluntarily 'fouls the
water of any public spring or reservoir'. In addition, the Code penalized negligent acts with
poisonous substances that endangered life or caused injury and proscribed public nuisances. The
Indian Easements Act of 1882 protected riparian owners against 'unreasonable' pollution by
upstream users. The Indian Fisheries Act passed in 1897, penalised the killing of fish by
poisoning water and by using explosives. Legislative provisions regulating the discharge of oil
into port waters and prohibiting the poisoning of water in forests were also enacted prior to
independence.

Two early post- independence laws touched on water pollution. Section 12 of the Factories Act of
1948 required all factories to make 'effective arrangements' for waste disposal and empowered
state governments to frame rules implementing this directive. Second, river boards, established
under the River Boards Act of 1956 for the regulation and development of inter-state rivers and
river valleys, were empowered to prevent water pollution. In both these laws, prevention of water
pollution was only incidental to the principal objective of the enactment.

INDIA'S NEW AWAKENING TO ENVIRONMENTAL POLICIES AND

PROGRAMMES
The year 1972 marks a watershed in the history of environmental management in India. Prior to 1972
environmental concerns such as sewage disposal, sanitation, and public health were dealt with by
different federal ministries, and each pursued these objectives in the absence of a proper coordination
system at the federal or the intergovernmental level. When the twenty-fourth UN General Assembly
decided to convene a conference on the human environment in 1972, and requested a report from
each member country on the state of the environment, a Committee on the Human Environment under
the chairmanship of Pitambar Pant, member of the Planning Commission, was set up to prepare
India's report. By May 1971 three reports had been prepared: 'Some Aspects of Environmental
Degradation and its Control in India', 'Some Aspects of Problems of Human Settlement in India' and
'Some Aspects of Rational Management of Natural Resources'. With the help of these reports, the
impact of the population explosion on the natural environment and the existing state of environmental
problems were examined. By early 1972 it had been realized (as observed in the Fourth Five Year
Plan earlier) that unless a national body was established to bring about greater coherence and
coordination in environmental policies and programmes and to integrate environmental concerns in
the plans for economic development, an important lacuna would remain in India's planning process.
Consequently on 12 April 1972 a National Committee on Environmental Planning and Coordination
(NCEPC) was established.

INTERNATIONAL PRESPECTIVE
Nature is the common heritage of mankind. To preserve this heritage mankind must make constant
efforts. Pollution marks the man's failure to do so. When voluntary action fails, an involuntary one
must take over. It is this process which gives birth to environmental law. Environmental pollution is
as old as the evolution of homosapieris on the planet. The development of science and technology and
ever increasing industries has brought tremendous changes in the human environment. These did
upset the eco-laws, thereby shrinking the balance between human life and environment. Also other
innumerable problems accompanied which affected the environment. However, pollution is
recognized as most serious problem.

Stockholm Conference-
The UN Conference on Human Environment and Development held at Stockholm is considered as
Magna Carta of environment protection and sustainable development. It was for the first time that the
world community got together to deliberate on an important issue of environmental protection . and
sustainable development. The conference resulted in the 'Stockholm Declaration on the Human
Environment. The Declaration, besides preamble, consists of seven universal truths and twenty-six
principles. It proclaimed that man is both creator and moulder of his environment which gives him
physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth.
Both aspects of man's environment, the natural and man-made, are essential to his well- being and to
the enjoyment of basic human rights even the right to life itself. The basic principles laid down in that
conference included, (i) man has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permitted a life of dignity and well being; and (ii) man
bears a solemn responsibility to protect and improve the environment for present and future
generations.

Nairobi Declaration
The world community of 105 States, assembled in Nairobi from 10 to 18 May 1982 to commemorate
the tenth anniversary of the United Nations Conference on the Human Environment, held in
Stockholm and adopted a special declaration, known as the "Nairobi Declaration on 18 May 1982..
Apart from this Declaration, other signification resolution were adopted, including one for the
creation of special commission to propose long term Environmental Strategies for achieving
`Sustainable development to the year 2000 and beyond' having reviewed the measures taken to
implement the Declaration. An Action Plan adopted at that Conference solemnly requests
Governments and peoples to build on the progress so far achieved, but expresses its serious concern
about the present state of the environment worldwide, and recognizes the urgent necessity of
intensifying the efforts at the global, regional and national levels to protect and improve it.

World Charter for Nature

The United Nation's General Assembly adopted a resolution on a World Charter for Nature on 9
November 1982, recalling its resolution 35/ 7 of 3rd October 1980, which articulated the conviction
that the benefits which could be acquired from nature depended on the maintenance of natural
prceesses and on the diversity of life forms and that those benefits were jeopardized by the excessive
exploitation and the destruction of natural habi'-its. Further in the same resolution it was recognized
that there was the need for appropriate measures at the national and international levels to preset
nature and promote international cooperation in that field. Furthermore in its resolution 36/6 of 27
October, 1981, it again expressed the aim of protecting and safeguarding the balance and quality of
nature and emphasized the significance of the cooperation by the international community for the
promotion and development of nature.

The World Charter for Nature was adopted with a view to follow the principle of conservation which
affects all human conduct in nature. It was reiterated in the charter that the genetic variability on the
earth shall not be compromised; the population levels of all life forms, wild and domesticated, must
be at least sufficient for their survival and to meet this and necessary habitats shall be safeguarded.
Considering the ecosystems and organisms, resources of land, marine and atmosphere which are
utilized by man, an optimum sustainable productivity should be maintained that the ecosystems or
their species should co-exist. To protect the natural systems, the discharge of pollutants shall be
avoided such as radioactive or toxic wastes and each state in the light of their sovereignty over their
natural resources shall give effect to the provisions of the present charter through its competent
organs and in the cooperation with other states.

Basel Convention 1989

In order to check the dumping of hazardous and toxic wastes and resultant damage to the
environment, the United Nations General Assembly: at its 43rd session urged all member states to
take legal and technical measures to halt and prevent the international traffic in dumping and resultant
accumulation of toxic and dangerous products and wastes. Consequently, an expert group was set up
by the United Nations Environment Programme (UNEP) to prepare a global convention in this area
keeping the aforesaid resolution of the Assembly in mind. The A drafting process of the Global
Treaty to control Transboundary movement" of hazardous wastes and their disposal -began in 1987.
More than hundred countries including the members of the OAU and EEC attended the final
negotiation and approved the Convention. The Basel Convention is divided into 29 articles and six
annexure besides preamble.
Earth Summit 1992
The United Nations Conference on Environment and Development (UNCED), popularly known as
Earth Summit, was the most important and largest UN conference ever held and put the world on the
path of sustainable development which aims at meeting the needs of the present, without limiting the
ability of future generations to meet their owe needs. The Earth Summit forced the people worldwide
to rethink how their lives, affect natural environment end their resources.

Kyoto protocol (1997)

The Framework Convention on Climate Change (UNFCC) has been further strengthened by the
adoption of the Kyoto Protocol 1997. The purpose of this Protocol was to prevent" dangerous
interference with the climate system by limiting the emission of green house gases into the
atmosphere. The Protocol adopted at the. third Conference of Parties, held at Kyoto (Japan) on
11.12.1997. It was decided that emission of green house gases from 1990 level would be reduced by
8%, 7% and 6% by European Union, America and Japan respectively.

Delhi Declaration on Climate Change (24 Oct. to 1 Nov., 2002)

The 10-Day UN climate meet in which the representative of government, business and civil society
from 183 countries took part ended here with a Delhi Declaration which failed to break new ground
to stabilise the world's climate but firmly projected the view of the developing countries. Developed
countries, other than the US which endorsed it, passed the Declaration but felt that it lacked vision
and failed to kickstart along-term process for deeper cuts in emission of greenhouse gasses (GNG)
required to stave off global warming. The controversial draft for the Delhi Declaration pleased the
U.S. the principal opponent of the Kyoto protocol but invited sharp criticism from other influential
quarters led by the European Union which lambasted the provisions as a step back from the path of
cleaning up the world's environment which threatened the integrity of the protocol.

United Nations Commission on Sustainable Development

Following the Earth summit, the UNCED, in pursuance of the decision of the United, Nations
General Assembly, established the United Nations Commission on Sustainable Development
(UNCSD) to fulfill a range of functions. The functions are monitoring the implementation of Agenda
21, reviewing the availability of financial and technical resources to determine whether and to what
extent developed countries have honoured their commitment in Agenda 21 and acting as a forum for
discussion, consensus building and decision making, which will include identifying weaknesses in the
International legal and institutional regime.

AGENDA 21
It is a comprehensive plan of action which lays down future course of action in relation to
environment and development. The Agenda 21 sets out specific programmes to make long term
changes in the development activities of all people, in order to put an end to ecological destruction
and economic inequity. Agenda 21 placed emphasis on issues such as poverty, consumption patterns,
health, human settlements, financial resources and technological transfer. It also included the topic
like energy and climate as well as upon a wide range of other issues concerning environment and
development. Agenda 21 is a 900 page document which in the legal sense is not binding on the States,
but it will imply strong political commitments. States at the time of making their policies and
programmes are required to be guided and influenced by the well defined goals laid down in Agenda
21.

CHAPTER – III

LEGAL FRAMEWORK RELATING TO ENVIRONMENTAL

POLLUTION AND ITS CONTROL & PREVENTION
The Indian judiciary adopted the technique of public interest litigation for the cause of environmental
protection in many cases. The Supreme Court & High Courts shaded the inhibitions against refusing
strangers to present the petitions on behalf of poor and ignorant individuals. The basic ideology
behind adopting PIL is that access to justice ought not to be denied to the needy for the lack of
knowledge or finances. In PIL a public spirited individual or organization can maintain petition on
behalf of poor & ignorant individuals.

In international level to protect human environment is a growing concern and is discernible to evolve
an international control mechanism. To examine the process of implementation of various
environmental laws in Indian perspective the main concentration is on the results achieved and:
results not achieved in the field of legal control of environmental pollution.

Constitutional Mandate
India is signatory to practically all international conferences and conventions on environment. The
Stockholm Conference on Human Environment represented by 113 world government was addressed
among others, by our then Prime Minister (Late) Smt. Indira Gandhi. The need for locate action was
envisaged by all the nations participated in the world body. Government of India also took initiative
in this regard and within 2 years of Stockholm Declaration of 1972, Realizing the importance of the
subject Smt. Indira Gandhi's Government decided to introduce this as part of the constitution and in
1976 through constitution (Forty Second Amendment), Act 1976 two new articles were introduced in
the constitution, one as a Directive Principle of State Policy under Article 48-A 261 and another as a
fundamental duty under article 51(A)(g).

These two articles which were made fundamental in the governance of the country runs in essence
like this: Art (48) (A) Protection and improvement of environment and safeguarding of forests and
wildlife. "The state shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country."

PART IV(A)
Fundamental Duties
These directives have been read as Complementary to the Fundamental Rights. In several
environmental cases263 the court have been guided by article 48-A and 51-A(g) of the
constitution. In Sachidanand Pandey Vs State of West Bengal the Supreme Court pointed out
that wherever a problem of ecology is brought before the court the court is bound to bear in mind
Art. 48A and 51A(g) of the constitution. The court observed:

Prior to the 42nd amendment, environmental protection was availed through article 21 of the
constitution. Art. 21 runs thus: No person shall be deprived of his life or personal liberty except
according to procedure established by Law. It ensures to every person the fundamental right to
life and personal liberty.

In Subhash Kumar Vs State of Bihar the Supreme Court observed that Right to live is a
fundamental right under Art. 21 of the constitution and it includes the right of enjoyment of pollution,
free water and air for full enjoyment of life if anything endangers or impairs that quality of life in
derogation of laws, a citizen has the right to have recourse to Art. 32 of the constitution for removing
the pollution of water or air which may be detrimental to the quality of life.

1. Division of Legislative Authority

Parliament has the power to legislate for the whole country, while the State Legislatures are
empowered to make laws for their respective states. Article 246 of the Constitution divides the
subject areas of legislation between the Union and the states. The Union List (List I) in the Seventh
Schedule to the Constitution contains 97 subjects over which Parliament has exclusive powers to
legislate. These include defence, foreign affairs, atomic energy, interstate transportation, shipping,
major ports, regulation of air traffic, regulation and development of oilfields, mines and mineral
development and interstate rivers. The State Legislatures have exclusive power to legislate with
respect to 66 subjects in the State List (List II), such as public health and sanitation, agriculture, water
supplies, irrigation and drainage and fisheries.
Under the Concurrent List (List III), both Parliament and the State Legislatures have overlapping and
shared jurisdiction over 52 subject areas including forests, the protection of wildlife, mines and
mineral development not covered in the Union List; population control and family planning, minor
ports and factories.

Parliament has residual power to legislate on subjects not covered by the three Lists.266 When a
central law conflicts with a state law on a concurrent subject, the former prevails. A state law passed
subsequent to the central law will prevail, however, if it has received Presidential Assent under
Article 254.

2. The Forty- Second Amendment Act

Environmental protection and improvement were explicitly incorporated into the Constitution by the
Constitution (Forty-Second Amendment) Act of 1976. Article 48A was added to the directive
principles of state policy. It declares: 'The State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country' Article 51A(g) in a new chapter
entitled `Fundamental Duties', imposes a similar responsibility on every citizen 'to protect and
improve the natural environment including forests, lakes, rivers and wild life, and to have compassion
for living creatures. ...'Although the language in the two articles differs, the differences appear to
relate to form rather than to substance. Together, the provisions highlight the national consensus on
the importance of environmental protection and improvement and lay the foundation for a
jurisprudence of environmental protection.

3. Article 253 and Environment Legislation

Article 253 of the Constitution empowers Parliament to make laws implementing India's
international obligations as well as any decision made at an international conference, association
or other body. Article 253 states: 'Notwithstanding anything in the foregoing provisions of this
Chapter, Parliament has power to make any law for the whole or any part of the territory of India
for implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association or other body.' Entry 13 of the Union
List covers: 'Participation in international conferences, associations and other bodies and
implementing of decisions made thereat.' In view of the broad range of issues addressed by
international conventions, conferences, treaties and agreements, Article 253 read with Entry 13
apparently gives Parliament the power to enact laws on virtually any entry contained in the State
List.

It is generally considered that the Stockholm Conference on Environment held in Swedes in 1972 was
instrumental in giving rise to the awareness among nations that adequate measures be taken to
safeguard the environment on indeed the health of the human beings. It laid down several principles
that formed basis for subsequent legislation the world over, including developing nation like India.

Legislation enacted after Stockholm Conference

After the Stockholm Declaration of 1972, the need for preservation and improvement of human
environment came to be universally recognized. Efforts at legislative level were also made in India to
translate the objectives of the Stockholm Conference into a reality. Thus, some specific legislations
were passed to protect environment from pollution which are:

The Wild Life (Protection) Act, 1972

Parliament enacted the Wild Life Act 1972 pursuant to the enabling resolutions of 11 states under
Article 252(1) of the Constitution. The Act provides for establishment of State Wild Life advisory
board, regulation for hunting wild animals and birds, developing sanctuaries and national parks
and regulations for trade in wild animals, animal products. An amendment to the Act in 1962
introduced provisions permitting the capture and transportation of wild animals for the scientific
management of animal populations.

The Water (Prevention and Control of Pollution) Act 1974

The Act vests regulatory authority in state boards and empowers these boards to establish and enforce
effluent standards for factories discharging pollutants into bodies of water. A Central board performs
the same functions for union territories and coordinates activities among the states. The boards
control sewage and industrial effluent discharges by approving, rejecting or conditioning applications
for consent to discharge. The state boards also minimize water pollution by advising state
governments on appropriate sites for new industry.

The Air (Prevention and Control of Pollution) Act 1981

To implement the decisions taken at the United Nations Conference on the Human environment held
at Stockholm in June, 1972 Parliament enacted the nationwide Air Act under Article 253 of the
Constitution. The Act's statement of objects and reasons contains the government's explanation of the
contents and the scope of the law, and its concern for the 'detrimental effect [of air-pollution] on the
health of the people as also on animal life, vegetation and property.

Prior to its amendment in 1987, the Air Act was enforced through mild courtadministered penalties
on violators. The 1987 amendment strengthened the enforcement machinery and introduced stiffer
penalties. Now, the boards may close down a defaulting industrial plant or may stop its supply of
electricity or water. A board may also apply to a court to restrain emissions that exceed prescribed
standards. Notably, the 1987 amendment introduced a citizens' initiative provision into the Air Act
and extended the Act to include noise pollution.
Forest (conservation) Act of 1980
In India, deforestation is taking place at a rapid rate, which may cause ecological imbalance and lead
to environmental deterioration. As deforestation had been taking place on a massive scale in the
country and it has caused widespread concern; so with a view to prevent .further deforestation, the
Forest (Conservation) Ordinance of 1980 was adopted which required prior approval of the Central
Government for degeneration of forests for use of forests land for non-forest purposes. The Ordinance
also made the provision for the constitution of an advisory committee to advise the Central
Government with regard to permission of such approval.

The Ecomark Scheme

In 1991, the Department of Environment, Forests and Wildlife announced a scheme for labeling
environment friendly products. The objects of the scheme are to encourage manufacturers to
introduce environment friendly products, reward genuine initiatives to reduce adverse environmental
impacts and assist consumers in making an informed, responsible choice while purchasing goods. The
label known as `Ecomark' may be used by the manufacturers of the consumer goods who meet the
environment criteria notified by the Central Government for the purpose of the scheme. Though
qualification criteria have long been published for a number of goods such as soaps, detergents, paper
and paints the scheme has yet to gain acceptance. Not a single product carries the Ecomark. The
Rules prohibit vendors of foodstuffs from packing their wares in bags or containers made from
recycled plastics. If foodstuffs are to be sold in plastic bags, the carry bag must be made of virgin
plastic. Moreover, the Rules provide that all carry bags must have a minimum thickness of 20
microns. The Rules adopt a novel enforcement strategy by requiring the Plastics Industry Association
to implement self-regulatory measures.
 CHAPTER- IV

ENFORCEMENT OF LAW OF ENVIRONMENTAL POLLUTION AT

NATIONAL AND INTERNATIONAL SCENARIO
To have an overview of environmental laws globally, the researcher has gone though the various laws
enacted for the protection of environment specially for industrial environment protection in developed
countries have France ,USA, Germany, Australia and U.K. The brief account of the various laws
enacted in these countries is as follows:-

Position in France
In France, as in most industrialized countries, environmental law has become a distinct and
independent field of law. Through incremental developments, the right to a safe environment has
joined the category of constitutionally protected individual rights. The status reached by this legal
discipline results without a doubt from the fact that the protection of the environment is a subject of
high concern for the community at large.

The modern approach to environmental protection began in the early "70s with a flood of legislation
and regulations. On January 7, 1971, a Ministry of the Environment was created in France for the first
time, a symbolic step toward the creation of environmental law as a self-sufficient legal discipline.
Another important step was the regrouping of all major environmental laws and regulations in a
single unified code, referred to as the Environmental Code, which now takes its place on the shelves
of French law libraries near other codes such as the Civil Code or the Commercial Code. The
importance of environmental law was stressed recently again when Mr. Jospin, new French Prime
Minister following the parliamentary elections of May/June 1997, chose the leader of the Green Party
as new Minister of the Environment.

Industrial corporations, due to the potential danger of their activities to the environment, are one of
the main targets of the most significant regulations adopted to protect the environment. Because of
the diversity of these regulations, and also as a result of judge-made law, the liability of industrial
corporations for damage to the environment has drastically increased. At the same time, the plethora
of laws and regulations has made it more difficult for industrial corporations to assess their exposure
to environmental liability.

Damage to the Environment and Criminal Liability

Criminal liability for environmental damage is a major risk for industrial corporations. This risk has
increased in the recent years in France due to a new trend in criminal litigation. Recognition of the
rights of associations to initiate criminal proceedings against corporate entities has grown
considerably. As a result, associations which have as their main proceedings goal the protection of the
environment are now fully authorized to join, as civil litigation involving industrial corporations.

France has reformed some aspects of its criminal system with the adoption of the New Criminal Code
(NCC), effective March 1, 1994. The introduction in the French legal system of criminal liability for
legal entities was by, far the most original innovation of the NCC. Before the NCC, legal entities
could not be faced with criminal liability, since according to traditional criminal case laws it was not
conceivable that a legal entity could have the requisite intent to commit a criminal offense. Nor was it
possible to impose upon corporations criminal sanctions such as imprisonment.

The new principle of criminal liability of legal entities is contained in article 121-2 of the NCC,
which provides that "legal entities, to the exclusion of the State, can be faced with criminal liability in
the cases provided for by laws or regulations, and for offenses committed on their behalf by their
officers. Although the NCC sets up the principle of criminal liability for legal entities, this does not
mean that corporate executives will now escape criminal liability, as article 121-2 further provides
that "the criminal liability of legal entities does not exclude that of the individuals who are the
perpetrators or accomplices of the same acts."
Position in USA
USA is a capitalist economy governed by representative federal democracy. It has similar levels of
economic development and energy use and similar types of pollution problems. USA is viewed as
environmental leaders. Public and private spending on environmental protection is high.

The division of regulatory authority in the United States does not mirror accurately the political-
economic concerns raised above. The laws of USA, acknowledge the inter jurisdictional nature of
many pollution problems, but the actual division of authority contains many questionable features.

The United States Constitution contains no detailed assignment of responsibilities to levels of

government. The Tenth Amendment consists of a single sentence: "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people. This sentence has not produced a jurisprudence of regulatory
federalism. The Supreme Court is permissive. It has invoked the Interstate Commerce Clause to
justify a wide range of federal regulation even in cases where the interstate impact is indirect. Federal
regulation of the environment seldom has raised constitutional issues. Comprehensive federal statutes
control air and water pollution, laws on waste, pesticides, drinking water, and the protection of land
and endangered species give the federal government an important role in addressing these problems.

In the area of environmental protection the thrust of the New Federalism is no less perceptible.
Although states currently share the power to develop and implement clean air law with the federal
government in Washington, the New Federalists argue that the balance of power currently tips too
heavily towards the federal government at the expense of the states.

The importance of regional planning in combating air pollution often gets lost in the broader debate
about clean air law and policy. A federalist system requires regional ambient air quality planning, to
deal effectively with the problem of ambient air quality. The mobility of air pollution, its cumulative
effects, the mobility of polluters, and the dangers of uniformity demand such an approach.

Position in Germany
The German constitution explicitly requires the federal government to administer the federal
waterways used for inland shipping. The Constitutional Court held that federal jurisdiction extended
only to commerce between the German Lander, not to the control of water pollution and water
supply. Yet, the justification for a federal presence is the same in both situations because they both
involve the costs one Land may impose on another and on the nation as a whole. Water pollution
control is subsumed under the federal authority to promulgate framework statutes concerning the
"water regime." Such framework laws constitute the weakest form of federal legislative authority.
Weak federal authority exists despite the fact that Germany has a number of long, heavily
industrialized rivers that flow through several Lander and foreign countries.
The environmental policy of Germany often ignore the regional character of pollution. The scope of
the problem and the jurisdictional level at which solutions are developed are mismatched. Pollution
with regional and national impact is frequently regulated by state and local officials, who have no
incentive to look outside their own jurisdiction. Even when a national statute guides lower-level
enforcement, implementation by state and local officials may ignore the policy's broader impact.
Conversely, federal statutes can be overly rigid and insensitive to differing state and local conditions.
Overdelegation is especially prevalent in Germany.

In Germany, too much decentralization has led the federal government to try to induce lower-level
licensing authorities to impose high standards. Unable to enforce strong regional plans effectively,
especially for air pollution, federal authorities must rely on technical standards to guide these
licensing, activities. Even the subsidies provided by federal revenue sharing and tax benefits are
subject to the implementation priorities of lower-level governments. In contrast, too much
centralization in the United States has produced stringent, legally binding regulations for new air
pollution sources and industries that pollute the water. These uniform rules often are poorly adapted
to individual air basins and watersheds, and the exceptions to them, permitted by state officials and
federal courts, are unlikely to reflect the differential cost-benefit tradeoffs.

Position in Australia
The states remain the primary actors in the environmental arena in Australia, important changes
occurred during the 1980s and the early years of the 1990s. During this period, the Australian High
Court consistently sustained the Commonwealth's efforts to protect important natural resources.
Moreover, a recent Memorandum of Agreement between the states and the Commonwealth created a
federal Environmental Protection Authority. The memorandum anticipates the establishment of
national pollution-control standards, although the scope and significance of those standards has not
yet been established.

The recent Memorandum of Agreement between states and the Commonwealth offers a framework
for the future. The memorandum creates an Environmental Protection Authority for the
Commonwealth and envisions the creation of national pollution-control regulations. Because the
Authority is the product of a Commonwealth-State agreement, it offers states a greater opportunity to
participate in the creation of environmental standards, not simply to administer and to enforce them,
which is the primary role of states in the United States.

In Australia, states retain residual powers except as limited by the Constitution. The Australian
Constitution establishes the primacy of federal power. Whenever a state law is inconsistent with a law
of the commonwealth, "the Commonwealth law prevails and the state law is invalid" to the extent of
the inconsistency.
At least two additional constitutional restraints limit the power of Australian states to respond to
environmental problems. First, the Commonwealth Parliament has exclusive power to impose "duties
of customs and of excise." Second, Section 92 of the Australian Constitution forbids the
establishment of any regulations that inhibit the "absolutely free" nature of interstate commerce.

Australia has no environmental statutes that approach the complexity of the federal environmental
statutes, and expansion of Commonwealth legislation protecting the environment will not require
Australia to duplicate the complexity of. Although Australia's system of federalism and the
Commonwealth uses a parliamentary system in which ministers are responsible to Parliament. This
system eliminates the legislative-executive conflicts that have induced Congress to try to control a
president who favors a different environmental policy.

Position in United Kingdom

Environmental Protection Act 1990 makes the provision for the improved control of pollution
arising from certain industrial and other processes. It re-enacts the provisions of the Control of
Pollution Act 1974 relating to waste on land with modifications as respects the functions of the
regulatory and other authorities concerned in the collection and disposal of waste and makes further
provision in relation to such waste. It restates the law defining statutory nuisances and improves the
summary procedures for dealing with them. It provides for the termination of the existing controls
over offensive trades or businesses and provides for the extension of the Clean Air Acts to prescribed
gases. It amends the Radioactive Substances Act 1960; makes provision for the control of genetically
modified organisms; makes provision for the abolition of the Nature Conservancy Council. It confers
powers to obtain information about potentially hazardous substances, amends the law relating to the
control of hazardous substances on, over or under land; amends section 107(6) of the Water Act 1989
and sections 31(7)(a), 31A(2)(c)(i) and 32(7)(a) of the Control of Pollution Act 1974; amends the
provisions of the Food and Environment Protection Act 1985 as regards the dumping of waste at sea;
to make further provision as respects the prevention of oil pollution from ships.

Environment Act 1995 provides for the establishment of a body corporate to be known as the
Environment Agency and a body corporate to be known as the Scottish Environment Protection
Agency; makes provision with respect to contaminated land and abandoned mines; and makes further
provision for the control of pollution, the conservation of natural resources and the conservation or
enhancement of the environment.

Pollution prevention and control act, 1999 The Act makes provision for implementing Council
Directive 96/61/EC and for otherwise preventing and controlling pollution and makes provision about
certain expired or expiring disposal or waste management licenses.
 CHAPTER- V

CONCLUSION AND SUGGESTIONS

CONCLUSION
The principles of Indian environmental law are resident in the judicial interpretation of laws and the
Constitution, and encompass several internationally recognized principles, thereby providing some
semblance of consistency between domestic and global environmental standards. For overall
development and welfare of the country the health of labour is of primary importance it is essential
for the backbone of the healthy economy of the nation. To meet such needs organized efforts are
needed to be made. Almost all the countries have understood the importance of healthy environment.
Safe and healthy environment ensure the well being of the labour, which in turn by effective work
show increase in productivity of the nation.

The United Nations Conference on the Human Environment states the common conviction that Man
has the fundamental right to freedom equality and adequate conditions of life, in an environment of a
quality that permits a life of dignity and wellbeing, and he bears a solemn responsibility to protect and
improve the environment for present and future generations. In this respect, policies promoting or
perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and
foreign domination stand condemned and must be eliminated. The environmental policies of all States
should enhance and not adversely affect the present or future .development potential of developing
countries, nor should they hamper the attainment of better living conditions for all, and appropriate
steps should be taken by States and international organizations with a view to reaching agreement on
meeting the possible national and international economic consequences resulting from the application
of environmental measures.

Parliament has used its power under Article 253 read with Entry 13 of the Union List to enact the Air
(Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act of 1986.578
The preambles to both laws state that these Acts were passed to implement the decisions reached at
the United Nations Conference on the Human Environment held at Stockholm in 1972. At the
conference, members of the United Nations agreed to work to preserve the world's natural resources,
and called on each country to carry out this goal.

Judiciary has played a very important role as the custodian for protecting the environment. It has
emerged as the most powerful organ of the government. Through its judgment‘s the court‘s have tried
to give new parameters for setting up environmental standards. Judiciary through its judgment and
it‘s enforcement is trying to protect the environment. This approach of judiciary to protect
environment by its judicial activism needs to be commended upon and appreciated. The judiciary
through its various landmark judgments have set up new standards for protection of environment.

Judiciary through its various landmark judgments has always emphasised upon the need for
controlling of industrial environment pollution. The role of judiciary is very positive and towards a
better and greener world, which is free from pollution. It is for the legislature and the executive to
carry the torch forward which has been lit by judiciary through its judgments. Judicial activism as far
as environmental law goes is towards a positive step where common good has been thought and
individual greediness is curbed.

The struggle to preserve, protect and promote human rights is as old as human civilization. The roots
of this concern may be traced to humanitarian traditions and to the increasing struggle for freedom
and equality in all parts of the world; and in as far as more recent developments are concerned, to the
historic pronouncements of statesmen, philosophers and political leaders of the last four centuries.
And the rights of people came to be recognized. The notion of right was found since antiquity
everywhere, though with varying degree of emphasis. While at times in some societies individual‘s
rights got prominence, at others, duties of government were emphasized to respect individual‘s rights.

SUGGESTIONS:
It has been observed that, because of lack of articulate specifications of the nature and scope of
certain human rights, which are in the form of fundamental rights under the Constitution, the courts
had to interpret them as inclusive of certain other rights which emanate from the existing human
rights under the Constitution. As the rights which emanate from the existing human rights have no
concrete constitutional foundation and depend on the judicial interpretation and enforcement, one
witnesses many variations in their scope and applications.

Judicial recognition and enforcement of human rights has become necessary as the rights are intruded
upon by state authorities directly or indirectly. When they are violated by individuals and the state
fails to prevent, then state becomes responsible for such violation. Legislative pronouncement of
these rights clearly defining these rights with delimiting their scope is very much needed. Then their
enforcement through courts becomes easy.

Proper implementation of human rights needs a full co-operation of the government and the
governmental agencies, with the people and organization working for the protection of human rights.
Social organizations and public activists have a vital role to play in this regard. They must come
forward to create awareness in the people about the human rights and help them out when their
human rights are violated. This should be continuous process and not dependant on whether court is
more willingly receptive of such public interest petitions.

BIBLIOGRAPHY
BOOKS

 Ashish Kothari, Anuprita Patel Environment and Human Rights

 Basu, Durga Das Introduction to the Constitution of India -New Delhi: Wadhwa and Company
Law Publishers, 2006

 Datar, Arvind P. Datar on Constitution of India -Agra : Wadhwa & Co.,2001.

 Dr. H.N. Tiwari, Environmental Law Ed. 2015

 Dr. S. C. Tripathi , Environmental Law , CLP, Ed. 2015

 Jain, M.P. Indian Constitutional Law Vol- 1, 2 2006

ARTICLES AND JOURNALS

 Ashish Kothari, Anuprita Patel - Environment and Human Rights An Introductory Essay and
Essential Readings.
 Ole W. Pedersen : Climate change and human rights: amicable or arrested development?

 Paramjit S. Jaswal, Nishtha Jaswal – Right to live in healthy environment 1996

 Roma mukherjee -Environmental management and awareness issues

ACTS

 The Air (Prevention and Control of Pollution) Act,1981

 The Air Pollution (Prevention and control) act 1981

 The Biodiversity Act, 2002

 The Environment (Protection) Act, 1986

 The Forest (Conservation) Act, 1980

 The National Environment Tribunals Act, 1995

 The Water (Prevention and Control of Pollution) Act, 1974

 The Water Pollution (Prevention and control) act 1974

 The Wild Life (Protection) Act, 1972

 The Wild Life (Protection) Amendment Act, 2006