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ESD12.Env. Consittutional Provision.pdf
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- 2. Constitutional Provisions Constitutional Provisions Hierarchyof Laws: y Constitution Supreme Constitution Acts p Passed by Parliament/Assembly Acts y / y Rules Ratified by Parliament/assembly N ifi d i f f ll i d Notification Notified in gazette after following due procedures as provided in Act/Rule Govt. Order/Resolution ORDERS OF Govt. must consonance with all the above
- 3. Process of Enactmentof Law Process of Enactment of Law PROCESS OF ENACTMENT OF LAW Concerned department or Concerned Mi i t Public opinion and as per the ‘Draft Act’ or ‘Bill’ is placed in the house of Minister opinion in favors in opposition are taken into account and a committee is formed to draft the Bill t ki i t id ti legislation Bill, taking into consideration. Amendment / Suggestions by members If President / Governor refuses to sign or makes some suggestion or asks to Pass by majority or unaynmous decision the ‘Bill’ is passed after discussion / debate some suggestion or asks to include certain clauses. Sent to President of Governor (as the case may be) for signing After signed by President Notification into Gazetta or Governor
- 4. Constitutional Provisions Constitutional Provisions Alaw can not be passed by parliament if it contradicts the constitution. Acts moved as bills follows the following route form Money Bills Passed by LS gets assent of President & becomes Union Budget Money comes from consolidated fund of India and can be appropriated through budget only.. L k Lok Sabha (LS) Rajaya Sabha (RS) Act (RS) P id A President Assent
- 5. Constitutional Provisions Constitutional Provisions Rules: ¾Rules can be made only if there are Provision in the act to make rules ¾ Any rule has to be laid before the parliament prior to making/after making. ¾ EPA’86 provided that rules made under the act must laid before the parliament within 6 months after making. ¾ Hazardous Waste rules 1989, MSE, BMW made under EPA- 86.
- 6. Constitutional Provisions Constitutional Provisions Notification: ¾120 days public notice is required in EPA – 86 ¾ The notification must be published in the gazette within 365 ¾ The notification must be published in the gazette within 365 days of the draft notification. N ifi i i l id b f h li ¾ Notification is not laid before the parliament. ¾ Govt. orders are passed by govt. to run its affairs.
- 7. Constitutional Provisions Constitutional Provisions SupremeCourt / high court may declare any act/law as ultravires – Anti constitutional - & it is null & void. M h 100 d h b d h More than 100 amendments have been made in the constitution. But One can’t change “basic structure” of the constitution But One can t change basic structure of the constitution.
- 8. Constitutional Provisions Constitutional Provisions 1.Directive Principles of State Policy (DPSP) p y ( ) 2. Fundamental Rights 3 Fundamental Duties 3. Fundamental Duties Here State means any authority in India DPSP should be a guiding principle for the state for enactment of Law or decide about a policy.
- 9. Constitutional Provisions Constitutional Provisions Article48 A is added under fundamental rights of a citizen. It says that a state shall protect forest, wildlife & environment. Fundamental duties are added in 1976 by the 42nd Amendment to the constitution. Article 51 A (g) says that an individual must protect natural l d i t i t ild lif & t & h land, environment, river water, wild life & ecosystem & have compassion to them.
- 10. Constitutional Provisions Constitutional Provisions Thereare many fundamental rights y g The first & fore most is Right to Life under article 21 It states “ No person shall be deprived of his life except in It states No person shall be deprived of his life except in accordance with procedure established by law.” Thi i l f h i i f I di b l f This is not only for the citizen of India but also for any person that included foreigner
- 11. Constitutional Provisions Constitutional Provisions Ifa fundamental right is violated one can approach directly g pp y the Supreme Court/High Court. Earlier Supreme court had quoted. Earlier Supreme court had quoted. Right Life ~ Right to Lively hood S C h d h ld h Ri h lif i l d i h Supreme Court had held that Right to life includes right to good environment. Any environmental issues can directly be taken to Supreme Court/ high Court under Article 21.
- 12. Constitutional Provisions Constitutional Provisions Threelists are three in the constitution distinguishing the powers of Parliament & Assembly to legislate. 1. State List – Home/Law & Order, Water, Land 2. Central List – Defense, foreign Relation Railways 3. Concurrent list – Forest, wild life, education , , Only state legislature can make legislations on the state list Similarly parliament can make law/act under the items Similarly parliament can make law/act under the items covered in their list Both can make legislations on items under concurrent list but Both can make legislations on items under concurrent list but in case of contradiction legislation passed by parliament prevails.
- 13. Constitutional Provisions Constitutional Provisions Wateris covered under state list but still the Parliament enacted Water Act – 1974 under Article 252 of the constitution. Article 252 “If two or more than two state legislatures resolve in their assembly & request the parliament to make a common law for all such state.” This law/act is to be followed & f by the states which has requested & any other state if its assembly passes a resolution to accept that law.
- 14. Constitutional Provisions Constitutional Provisions AirAct 1981 was enacted as per the provisions of Article 248 p p which says that the parliament has a residuary power to enact a law on the topics which are not covered in any of the lists. Article 253 gives the Exclusive power to parliament to enact a law/act to impose any international Agreement/Treaty. EPA – 86 is under the provisions of Article 252. Earlier there were special acts like air act for air/ Water Act for water but EPA – 86 covers all the issues that were not d d i di id l l S it i ll d b ll covered under any individual law. So it is called as umbrella act.
- 15. Constitutional Provisions Constitutional Provisions Constitution Pid /H d f h President/Head of the state Executive Head Legislature Judiciary PM CM Parliament State Legislature Cabinet Legislature Chief Justice of SC Government Other Judges
- 16. Constitutional Provisions Constitutional Provisions Article141 says that “Law declared by the Supreme Court shall be binding on all courts in India”. shall be binding on all courts in India . P li h l h S C (S C ) d l Parliament passes the law where S.C (Supreme Court) declares the law.
- 17. Environment in OtherLaws Environment in Other Laws There are legislations other than Env. Laws but can cover the g issues of Env. They are: 1. IPC ( Indian Panel Code) - 1860 1. IPC ( Indian Panel Code) 1860 2. PLI (Public Interest litigation)- 1991 C PC (C i i l P d C d ) 1878 (A d d i 3. CrPC (Criminal Procedure Code)– 1878 (Amended in 1973) Under Section 133 of CrPC Public nuisance is prohibited and (Sub District Magistrate) SDM can initiate action against d f l defaulters. British Law also addressed public nuisance.
- 18. Environment in OtherLaws Environment in Other Laws Earlier there was a principle of restricted liability:- p p y If there is a negligence, willfully causing harassment. It has two exceptions via accidents & act of God This was first It has two exceptions via accidents & act of God. This was first used in British Law. & Adopted in the Indian Law as our laws were mostly adopted from Britishers were mostly adopted from Britishers.
- 19. Environment in OtherLaws Environment in Other Laws In 19th Century principle of restricted liability used to apply. After Bhopal Gas Tragedy the case went to the Supreme court i hi h h L f i C bid h h i d h in which the Lawyers of union Carbide has emphasized on the principles of Restricted Liability for the Defense of their client. The, then Chief Justice of S.C. Mr. P. N. Bhagavati changed it to the “Principle of Strict or Absolute liability”. the Principle of Strict or Absolute liability . Based on the S.C. Judgement Govt. Of India Brought PLI - Based on the S.C. Judgement Govt. Of India Brought PLI 1991
- 20. Environment in OtherLaws Environment in Other Laws Principle of Restricted Liability: No Negligence + Concentrate only on ensuring proper N N g g y g p p process/Operation in Unit /Industry Principle of Absolute / Strict Liability: p / y Industry Must Plan for exigencies /emergencies. PLI – 1991 Focuses on the industry to have off site PLI 1991 Focuses on the industry to have off site Emergency Plan.
- 21. Environment in OtherLaws Environment in Other Laws Section 133 of CrPC: “It empowers the Sub divisional Magistrate to cause inquiry to his satisfaction, he can pass an order to prohibit/regulate the person causing air ll ti / t ll ti / b t t t fl pollution/water pollution/obstructs water flow. This order can be Conditional. this is mostly used section by the district authority to control Pollution. Order Passed by SDM cannot be challenged in any civil court.
- 22. Environment in OtherLaws Environment in Other Laws IPC & CrPC read together give two sections Section-4 & g g Section-40 says there are twp types of law: Special Law & Local Law. If the special laws are in force then all action be taken according to those provisions. g p Local law prevails if any state govt. passes local law.
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