Env policy ppt 2

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Env policy ppt 2

  1. 1. Environmental Policy In Indiaand the Role of Judiciary inImparting EnvironmentalJustice- Justice Hima Kohli, High Courtof Delhi, India1
  2. 2. “What of thee I dig out, let thatquickly grow over, Let me nothit thy vitals, or thy heart.”-Atharva Veda2
  3. 3. The Underlying Causes ofEnvironmentalDegradation in India Social Factors Economic Factors Institutional Factors3
  4. 4. Social FactorsPopulationPovertyUrbanization4
  5. 5. Economic FactorsNon-existent or poorly functioning marketsfor environmental goods and servicesMarket distortions created by pricecontrols and subsidiesThe manufacturing technology adopted bymost of the industries which generally isbased on intensive resource and energy use.Expansion of chemical based industryGrowing transport activitiesExpansion of port and harbour activities.5
  6. 6. Institutional FactorsLack of awareness and infrastructuremakes implementation of most of the lawsrelating to environment, extremely difficultand ineffective.6
  7. 7. Environmental Policy In IndiaAncient IndiaThe Arthashastra by Kautilya, written asearly as between 321 and 300 BC,contained provisions meant to regulate anumber of aspects related to theenvironment.The fifth pillar edict of Emperor Ashokaalso contains such regulations7
  8. 8. Environmental Policy In IndiaDuring the British Reign in India: Shore Nuisance (Bombay and Kolaba) Act, 1853 The Indian Penal Code, 1860 The Indian Easements Act, 1882 The Fisheries Act, 1897 The Factories Act, 1897 The Bengal Smoke Nuisance Act, 1905 The Bombay Smoke Nuisance Act, 1912 The Elephant’s Preservation Act, 1879 Wild Birds and Animals Protection Act, 19128
  9. 9. Environmental Policy In IndiaModern IndiaNational Council for Environmental Policy andPlanning was set up in 1972 which was laterevolved into Ministry of Environment and Forests(MoEF) in 1985.MoEF and the pollution control boards (CPCBi.e. Central Pollution Control Board and SPCBsi.e. State Pollution Control Boards) together formthe regulatory and administrative core of thesector.9
  10. 10. Environmental Policy In India The Policy Statement for Abatement of Pollution and theNational Conservation Strategy and Policy Statement onEnvironment and Development were brought out by theMoEF in 1992. The EAP (Environmental Action Programme) wasformulated in 1993 with the objective of improvingenvironmental services and integrating environmentalconsiderations into development programmes.10
  11. 11. Environmental Policy In IndiaNational Environment Policy, 2006It the first initiative in strategy-formulation forenvironmental protection in a comprehensivemanner.It undertakes a diagnosis of the causativefactors of land degradation with a view toflagging the remedial measures required in thisdirection.It recognizes that the relevant fiscal, tariffs andsectoral policies need to take explicit account oftheir unintentional impacts on land degradation.11
  12. 12. Environmental Policy In IndiaNational Environment Policy, 2006 (contd.)The solutions offered to tackle the problemcomprise adoption of both, science-based andtraditional land-use practices, pilot-scaledemonstrations, large scale dissemination,adoption of Multi-stakeholder partnerships,promotion of agro-forestry, organic farming,environmentally sustainable cropping patternsand adoption of efficient irrigation techniques.12
  13. 13. Constitutional FrameworkArticle 21 - Fundamental RightsArticle 48A - Directive Principles of StatePolicyArticle 51A(g) - Fundamental Duties13
  14. 14. Legislative FrameworkWater (Prevention and Control of Pollution) Act, 1974Water (Prevention and Control of Pollution) Cess Act,1977Air (Prevention and Control of Pollution) Act, 1981Atomic Energy Act of 1982Motor Vehicles Act ,1988The Wildlife (Protection) Act, 1972The Forest (Conservation) Act, 1980Environment (Protection) Act, 1986 (EPA)The National Environment Appellate Authority Act,1997Public Liability Insurance Act (PLIA), 1991National Environment Tribunal Act, 199514
  15. 15. Environment Impact Assessment (EIA)There are two types of EIA models- the statutory modelwhich makes the assessment of impact compulsory underan enacted law, or a delegated legislation, and theadministrative model under which an administrationexercises its discretion to find out whether an impact studyis necessary. Till 1992, India was following theadministrative model of EIA.15
  16. 16. Environment Impact Assessment (EIA) (contd.)On 27thJanuary, 1994 a notification was issued dealing withmandatory EIA. The notification requires project proponent tosubmit an EIA report, and environment management plan,details of the public hearing and a project report to the impactassessment agency for clearance, further review by a committeeof experts in certain cases. By the amendment in the year 1997,public hearing was made compulsory before impact assessmentwas finalized.16
  17. 17. Role of Judiciary in ImpartingEnvironmental Justice The Judiciary has come up with the “judge-driven implementation” of environmentaladministration in India.It has isolated specific environmental lawprinciples upon interpretation of IndianStatutes and Constitution.Public Interest Litigations (PILs) which is theresult of the relaxation of the locus standi rulesby the judiciary, is the characteristic feature ofthe environmental litigation in India.17
  18. 18. Role of Judiciary in ImpartingEnvironmental JusticeDisputes relating to environment are treatedas cases related to violation of fundamentalrights, rather than claims under law of torts.It has been held that the Supreme Court andthe High Courts can be directly approachedunder Article 32 and Article 226 of theConstitution of India in case of matters relatingto environment.18
  19. 19. Role of Judiciary in ImpartingEnvironmental Justice (Contd.)The orders of the Supreme Court and the High Courts cover awide range of areas including air, water, solid waste, hazardouswastes, forests, mining activities, and architectural treasures.Policy Statements of the government, which otherwise are notenforceable in Courts, have been used as aids by the Judges forinterpreting environmental statutes and for spelling outobligations of the Government.19
  20. 20. Doctrines Evolved by Courts:Public Trust Doctrine:M.C.Mehta v. Kamal Nath, (1996) 1 SCC 38:In a case where an attempt was made to divertflow of a river for augmenting facilities at amotel, it was held that State and itsinstrumentalities as trustees have a duty toprotect and preserve natural resources.MI Builders Pvt. Ltd. v. Radhey Shyam Sahu,AIR 1996 SC 2468: a city development authoritywas asked to dismantle an underground marketbuilt beneath a garden of historical importance.20
  21. 21. Doctrines Evolved by Courts:Precautionary Principle:Vellore Citizens Welfare Forum v. UOI, AIR 1996 SC 2718:The principle was adopted to check pollution of undergroundwater caused by tanneries in Tamil Nadu.Narmada Bachao Andolan v. UOI, AIR 2000 SC 375: TheSupreme Court held that the precautionary principle could not beapplied to the decision for building a dam whose gains and losseswere predictable and certain.21
  22. 22. Doctrines Evolved by Courts:Polluter Pays Principle:The object of this principle is to make thepolluter liable for the compensation to the victimsas also for the cost of restoring of environmentaldegradation.Vellore Citizens Welfare Forum v. UOI, AIR1996 SC 2718: It was held that the precautionaryprinciple and the polluter pays principle are partof environmental law of the country.22
  23. 23. Doctrines Evolved by Courts:Absolute Liability Principle:M. C. Mehta v. UOI, AIR 1987 SC 1086 (Oleum Gas LeakCase): The principle was adopted to compensate victims ofpollution caused by inherently dangerous industries.Narmada Bacho Andolan v. UOI, AIR 2000 SC 375: TheSupreme Court held that the precautionary principle could not beapplied to the decision for building a dam whose gains and losseswere predictable and certain.23
  24. 24. Doctrines Evolved by Courts:Sustainable Development:M.C. Mehta v. UOI, AIR 1997 SC 734 (TajTrapezium Case): while taking note of thedisastrous effects that the emissions from theMathura Oil Refinery had on the Taj Mahal, theSupreme Court applied the principle of sustainabledevelopment to the case, and apart from passingvarious directions, stepped in to execute andsupervise the resultant actions.State of Himachal Pradesh v. Ganesh WoodProducts, AIR 1996 SC 149, the Supreme Courtinvalidated forest based industry, recognizing theprinciple of inter-generational equity andsustainable development.24
  25. 25. Contribution of the Delhi High CourtIn a PIL pending before the Delhi High Court challenging thedevelopment of the common wealth games site on the riverbedand floodplain of the Yamuna, a Bench of two Judges hearingthe matter, personally visited the site recently to see as to howmuch of the riverbed and floodplain had been acquired to buildthe Games Village, so that an appropriate order could be passedin the case and the infrastructural needs could be balanced withthe environmental concerns.25
  26. 26. Contribution of the Delhi High CourtDirections have been passed by the High Court in various PILsfor clearing the river Yamuna of all encroachments and fordemolition of the slums on its banks.In Enkay Plastics Pvt. Ltd. Vs. Union of India (UOI) and Ors.,2000(56)DRJ828, the High Court upheld the order of the DelhiPollution Control Committee for closure of certain pollutingindustries, and held that the direction of close down the industrywhich is creating air pollution in residential areas.26
  27. 27. Contribution of the Delhi High CourtIn the case of Vimal Bhai v. UOI & Ors., (W.P.(C) 17682/2005, W.P.(C) 17683/2005, W.P.(C)17684/2005 decided on 29.5.2005), the Union ofIndia and all its concerned functionaries weredirected to take requisite steps for clearing theproposals related to the appointment of theChairman of the Appellate Authority and otherTechnical Members and reconstitute theAuthority within 45 days, under the NationalEnvironment Appellate Authority Act, 1997.27
  28. 28. THE ACTIVIST IS NOTTHE MAN WHO SAYS THERIVERIS DIRTY.  THEACTIVIST IS THE MANWHO CLEANS UPTHERIVER~ROSSPEROT-ThankYou!28

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