EL

1. INDIAN ENVIRONMENTAL
LAW –AN OVERVIEW

2. I LEGAL FRAME FOR DEVELOPMENT &
ENVIRONMENT
• THE SETTING :
• ONE, THE ANTI THESIS OF THE OTHER-
• ENVIRONMENT : RESOURCE , LIFE SUPPORT-
CONSERVATION
• DEVELOPMENT: RESOURCE USE, EXHAUTION-
DEPLETION & LOSS
• NOTION OF SUSTAINABLE DEVELOPMENT
“DEVELOPMENT THAT MEETS THE NEEDS OF THE PRESENT WITHOUT
COMPROMISING THE ABILITY OF THE FUTURE GENERATIONS TO MEET THEIR
OWN NEEDS”
• CONSTITUTIONAL COMMANDS
• RESPONSES OF THE LEGAL ORDER

3. II INDIAN CONSTITUTIONAL SCHEME
- PRESENTS A MODEL THAT ACCOMMODATES ALL THE
POSITIVE ASPECTS OF SD AND MORE- DEMOCRATIC IN
LETTER AND SPIRIT – COMBINATION OF AUTHORITY AND
RESPONSIBILITY IN THE WHOLE SYSTEM OF GOVERNANCE :
1. EQUITY – DPSP: Art.39 (b) and (c)
2. STATE RESPONSIBILITY AND INDIVIDUAL DUTY-
ENVIRONMENTAL STEWARDSHIP:
Arts. 48A & 51A(g)
3.PARTICIPATORY AND DECENTRALIZED RESOURCE MMT.
REGIME:
Communitarian Mmt.:Schedules V & VI;
Third Tier of Governance: 73rd and 74th Amendments

4. • -Most of the Constitutional Developments and judicial
interpretations, that have put Environmental Conservation and
Stewardship at the hub of resource governance, are apost-1970
phenomena - more of an after thought , not having figured in at
the time of the making of the Constitution

5. III POLICY PERCEPTIONS
ENVTL. POLICY THRUST TILL EARLY 1990s’:
• ACCOMMODATIVE OF CONSTITUTIONAL ESSENCE AND
INTERNATIONAL PRINCIPLES-
“CONSERVATION AND DEVELOPMENT AS TWO WHEELS OF THE
CHARIOT”
• NATIONAL ENVTL. ACTION PLAN FOR CONTROL OF
POLLUTION, 1992
• NATIONAL CONSERVATION STRATEGY, 1992
# POLICY THRUST FROM LATE 1990s’: ATTEMPTS TO
INTEGRATE CONSERVATION,EFFICIENT MMT. OF
RESOURCES, ECONOMIC EFFICIENCY AND SOCIAL JUSTICE
AS TANTAMOUNTING TO SD
# ECONOMIC POLICY & PLANS- STEERING NATURAL RESOURCE
MMT. POLICIES & LAWS
• NEP,2006 – COMBINATION OF SUBLIME & THE RIDICULOUS!

6. • ELEVENTH NATL. PLAN – SETS HIGH GROWTH TARGETS AND AT
THE SAME TIME INSISTS ON ENDEAVORING “ TO PROVIDE ACESS TO
BASIC FACILITIES SUCH AS HEALTH, EDN., CLEAN DRINKING WATER
ETC., TO LARGE SECTIONS OF POPULATION WHICH DO NOT HAVE
SUCH ACCESS AT PRESENT”- IDENTIFIES PROTECTION OF ENVT. AS
ONE OF THE SEVEN MAJOR CHALLENGES – OFFERS MARKET
MECHANISMS FOR BETTER ENVTL. MMT.- A LITTLE VAGUE AND, AT
TIMES, INCONSISTENT AS TO ENVTL. MMT.
(-” Rapid economic growth can intensify envtl. Degradation “ , “ The solution does not lie in slowing
growth since slow growth also leads to its own form of envtl. Degradation : , “ With rapid growth we can
also have the resources to prevent and deal with envtl. Problems, but we must also ensure that the rapid
growth is also envtlly. Benign”)
- THE PLAN AND THE POLICY GIVE A CALL FOR DILUTION OF THE
EXISTING PROCEDURES OF ENVTL. CLEARANCES IN ORDER TO
FACILITATE LARGE INVESTMENTS IN ORDER TO ACCELERATE
GROWTH
- HAVE CAST A DENSE SHADOW ON BOTH ENVTL. POLICIES AND LAW

7. IV ENVIRONMENTAL LAWS AND
ADMINISTRATION
• GENERAL LAW & ADMINISTRATION : COMMON LAW & CRIMINAL LAW
– LAW OF NUISANCE NEGLIGENCE & LIABILITY.
• NATURAL RESOURCES MANAGEMENT LAWS : LAND REVENUE,
LAND ACQUISITION, LAND REFORMS ; IRRIGATION,FISHERIES ;
MINES & MINERALS ; FOREST, WILDLIFE , BIODIVERSITY ,PLANT
VARIETIES, GEOGRAPHICAL INDICATIONS
• OVERARCHING LAW : ENVIRONMENT PROTECTION ACT, RULES,
NOTIFICATIONS AND AUTHORITIES
• POLLUTION CONTROL LAWS : WATER AND AIR POLLUTION
• ENVIRONMENTAL JUSTICE : TRIBUNALS, APPELLATE AUTHORITY,
GREEN TRIBUNAL ACT,2010
• DECENTRALIZED GOVERNANCE: PANCHAYATS, CORPORATIONS,
MUNICIPALITIES, TOWN & COUNTRY PLANNING
• HEALTH, SANITATION,HYGIENE, SAFETY : FACTORIES, INDUSTRIAL
ESTABLISHMENTS, HEALTH CARE SERVICES ,FOOD ADULTRATION,
PHARMACEUTICAL DRUGS, CONSUMER INTEREST
ETC.

8. V JUDICIAL GLOSS
• RIGHT TO DEVELOPMENT AND ENVIRONMENT PART OF Art.21
-
• P.U.B.L.I.C. v.State of WB (1993): ‘ Demands of development can not
dominate environmental interests’
• State of HP v.Ganesh Wood Products (1995) :- striking down of state
approvals for production of forest-based products that posed envtl. Threats
• Vellore Citizens Welfare Forum v. UOI (1996): SD as a viable concept to
eradicate poverty and improve quality of life while living with in the carrying
capacity of supporting ecosystems
• Indian Council for Enviro-Legal Action v.UOI (1996): Application of SD as the
basis for calculation of damages for envtl. Wrongs
• N.D.Dayal v.UOI (2003):SD as sine qua non for the symbiotic balance
between the rts. Of envt. And development
• PUBLIC TRUST DOCTRINE-M.C.Mehta v. UOI (1996)
• PRINCIPLE OF PRECAUTION – “ Scientific uncertainty, no excuse” _-
(Vellore)

9. VI EVALUATION
• HIGHLY CENTRALISED AND BUREAUCRATIZED- ( -STATE AS
THE LAW MAKER, ENFORCER, JUSTICE DISPENSER)
• CENTRE AND STATE GOVTS. LAY DOWN POLICIES AND MAKE
LAWS (- LSG- “ ADMINISTRATIVE FUNCTIONS” )-LEGISLATIONS
NOT IN DYNAMIC FERMENT (- Even those, that seem like breaking
away from the past stereo types, hardly get implemented-
Biodiversity and Forest Rights etc.)
• PRIMARILY A COMMAND AND CONTROL REGIME(- SALIENT
FEATURE OF ALL POLLUTION CONTROL AND NATURAL
RESOURCE MMT. LAWS)- EPA, NO LONGER AN
OVERARCHING, ALL ENCOMPASSING , UMBRELLA LAW (-
ENVIRONMENTAL IMPERATIVES NEITHER INFORM NOR
INFLUENCE)
• LEGAL PRESCRIPTIONS SEEN MORE AS HURDLES FOR
DEVELOPMENT- AMENDED, OFTEN, TO DILUTE THEM (- EIA,
CRZ)- ENVTL. CONSERVATION, A CASUALTY

10. • SECTORAL APPROACH- VERY LITTLE HARMONY IN
FUNCTIONING AMONG MINISTRIES AND LINE AGENCIES IN
EVOLVING MANAGEMENT STRATEGIES AND FUNCTIONING.
• THE LEGAL ORDER PRESENTS A DISCONCERTING PICTURE ,
OF A SYSTEM THAT EXCLUDES (-BOTH IN TERMS OF
RESOURCES AND THE ACTORS , WHO DO MATTER A LOT
FOR CONSERVATION AND MANAGEMENT) AND FRAGMENTS
DIFFERENT ASPECTS OF ENVIRONMENT THAN THE ONE THAT
WOULD HELP, ENABLE AND EMPOWER AS TO MAKE
ENVIRONMENTAL CONSERVATION , A RIGHT, DUTY AND
RESPONSIBILITY OF EVERYONE
• INDIAN MODEL OF GOVERNANCE IS, PERHAPS , JUST THE
MICROCOSM OF WHAT THE CLOBAL LEGAL ORDER IS!!!

11. References:
Shyam Divan & Armin Rosencranz, Environmental law & Policy in
India, (2nd.Ed.) OUP,New Delhi,2001