2. Constitutional Provisions
Constitutional Provisions
Hierarchy of 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 Enactment of 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
A law 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:
¾ Rules 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:
¾ 120 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
Supreme Court / 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
Article 48 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
There are 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
If a 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
Three lists 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
Water is 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
Air Act 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.
16. Constitutional Provisions
Constitutional Provisions
Article 141 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 Other Laws
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 Other Laws
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 Other Laws
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 Other Laws
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 Other Laws
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 Other Laws
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.
