Talk delivered by : Dr. V.K. Agarwal, Union Law Secretary on Environmental Law in SAARC on 23.10.96 at Jawaharlal Nehru University in the Conference on Environmental Legislation and Management for SAARC Countries

I am thankful to Professor V. Subramanian for inviting me to give a talk on Environmental Law in SAARC . As countries of the SAARC region share somewhat similar problems, I am sure this forum would be particularly useful for sharing each other s experience. I may be permitted to talk about the Indian experience with which I am more familiar.

Though the present awareness about environment is of rather recent origin, the people of this sub-continent, even in ancient times, were conscious about the need for harmony between man and nature. However, it was in 1972 that an international effort was made for the first time to grapple with the problems threatening the environment. The International Conference on Human Environment held at Stockholm in 1972 marked a watershed in international relations and placed the issue of protection of environment on the agenda of various international fora. As far as the Constitution of India is concerned, understandably it did not initially have any specific provision with respect to the protection of environment. However, certain legislative entries in List II of the Seventh Schedule to the constitution gave legislative powers to the States to enact laws on the subjects of public health, forests and protection of wild life. In pursuance of the decisions taken at the Conference, amendments were made in the Constitution specifically relating to environment. Thus, a new provision viz., Art. 48A was inserted in the Chapter on Directive Principle State Policy. Principles contained in this Chapter are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. According to Art. 48A, the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Another amendment inserted in the Chapter on fundamental Duties provides that it shall be the duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wild life and to have compassion for living creatures. Realising the importance of forests and the need to protect wild animals and birds, entries relating to these subjects were shifted from List II to List III so that Union Parliament could also make laws on these subjects. Even before the Stockholm Conference, India had enacted some laws having bearing on environment. The Wild Birds and Animals Protection Act, 1912 was enacted to protect and preserve certain wild birds and animals. Another legislation, namely, the Forest Act, 1927 was enacted to regulate timber cutting, cultivation, grazing and burning or clearing of vegetation in private forests and to declare certain forests as reserved or protected forests. Subsequently, it was realised that the Act of 1912 had become outmoded and ineffective, and some wild birds and animals had already become extinct and others were in the danger of becoming extinct. Accordingly, the Wild Life (Protection) Act was enacted in 1972. In pursuance of the decisions taken at the Stockholm Conference, a number of further laws, namely, the Water (Prevention and Control of Pollution) Act, 1972, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 were enacted.

The Forest (Conservation) Act was enacted in 1980 to enable the Central Government to ensure that reserve forests were not put to use for non-forests purposes without its prior approval.

Water pollution is one of the major environmental problems the developing countries face. Municipal sewer and industrial effluents are generally discharged into rivers and streams. Wastes from human settlements and things stored on land, for example, raw materials, solid refuse of mines and quarries are washed by rain and carried to streams and rivers. Ground water also gets polluted as a result of under ground dumping of trade and sewage effluents, seepage or percolation of human wastes from land, etc. The Water (Prevention and Control of Pollution) Act, 1974 prohibits disposal of wastes and noxious or polluting matters into streams, wells or sewers or any impediment to natural flow of water resulting in aggravation of pollution. The Act provides for the establishment of a Central Pollution Control Board and State Pollution Control Boards. The main functions of the Central Board are to promote cleanliness of streams and wells, giving advice to the Central Government on matters concerning water pollution, to provide technical assistance to State Pollution Control Boards and coordinate their activities. The State Control Boards prepare comprehensive plans for prevention and control of water pollution of streams and wells in the State and secure their execution. They also advice the State Government on matters relating to water pollution. The State Boards also have the power to take steps in emergencies to tackle water pollution. They have been armed with adequate powers to achieve their objectives. They have thus powers to draw samples of water from any stream, well, sewage or trade effluent, etc. and to get the same analysed. They have powers of entry, search and seizure. No person can, without previous consent of the State Board, established any industry etc. which is likely to discharge sewage or trade effluents into a stream, well, sewer or land. Such consent may be reviewed any time and as a result of such review, may be varied or revoked. The State Boards can give directions to any person, officer or authority for closure, prohibition or regulation of any industry or stoppage or regulation of electricity, water or other services. For violation of any provision of the Act, the State Board can move a competent court for issuing appropriate orders. The right to move a court of law, if necessary, can also be exercised by private individuals. The Act provides for stringent punishments for violation of prohibitions of the Act. Provisions for minimum sentence on convection also exist. Where an offense has been committed by a Government Department, the Head of the Department is deemed to be guilty of the offense. The Air (Prevention and Control of Pollution) Act, 1981 seeks to prevent, control and abate air pollution which may be caused by combustion, automobile emissions, industrial process, etc. The Act provides for establishment of a Central Board and State Board for achieving these objectives. The State Government may, in consultation with the State Board, prohibit the use of any fuel, appliance or burning of any material in such an area. The Act also provides for laying down of standards of emission of air pollutants from industrial plants and automobiles. No person can, without the previous consent of the State Board, established or operate any industrial plant in an air pollution control area. Consent may be given subject to certain conditions. Such a consent could also be revoked if there is a failure to observe these conditions. The State Boards under the Act have been armed with similar powers as in case of Water Pollution Control Boards. The Government Departments are not immune from punishment.

The Environmental Protection Act, 1986 was enacted for the protection and improvement of environment and prevention of hazards to human beings, other living creatures, plants and property. It is a general umbrella legislation which seeks to supplement the existing laws of control of pollution. While Water Act and Air Act deal with prevention and control of specific types of pollution, the Environmental Protection Act is aimed at not only prevention and control of pollution in general, but also protection and improvement of the environment. The Act prohibits carrying on of any industry, operation or process which discharges or emits any environmental pollutants in excess of prescribed standards. It also prohibits handling of hazardous substances, except in accordance with such process and after complain with such safeguards as may be prescribed. The enforcement of this Act has been entrusted to the Central Government. It is the responsibility of the Central Government to take measures for protection and improvement of the quality of environment and prevention, control and abatement of environmental pollution. For this purpose, the Central Government has been empowered to lay down the standard of quality of air, water and soil; the maximum allowance limits of components of various environmental pollutants (including noise); procedure and safeguards for handling of hazardous substances, location of industry, etc. Powers of entry, search, inspection, drawal and analysis of samples, setting up of environmental laboratories, etc. have been provided to the Central Government. Violation of provisions of the Act may attract very stringent penalty of five years imprisonment or fine upto Rs. 1 lakh. In the case of continuing offense, an additional fine of Rs. 5000 per day has been prescribed.

I have a broad overview of the constitutional provisions and laws enacted in India to protect environment. Laws by themselves, however. cannot be useful unless they are implemented by all concerned sincerely and effective remedial steps are taken in case of their breach. The courts in India, particularly the Supreme Court of India, have shown tremendous zeal in the protection of environment and for strict compliance with provision of environment related laws. The Supreme Court has liberally entertained public interest litigation in several matters affecting the environment and effectively intervened with a view to safeguarding its class. To illustrate, the Court closed limestone quarries in Dehradun and held that the price had to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance to ecological balance and without available hazard to them and their cattle, homes and agricultural land and undue effect on air, water and environment. The Court also directed reclamation, afforestation and soil conservation programmes to be implemented in the affected areas. In another case, the Court directed the Rathlam municipality to take immediate actions to stop effluents from the alcohol plant flowing into the streets and to construct sufficient number of public latrines, provide water supply, scavenging services and proper drainage system to achieve sanitation. The plea of the municipality about lack of funds was turned down by the Supreme Court. In yet another case, the Court restrained certain tanneries in Kanpur from discharging trade effluents into River Ganga till such time they put up necessary treatment plants for treating the effluents.

Most of you may be aware of judgement of the Supreme Court of India given on 28th August, 1996 in Vellore Citizens Welfare Forum Vs. Union of India (popularly known as Tamil Nadu Tanneries Case) where it held the precautionary principles and polluter pays principle are not only principles of customary international law but law of the land. It has also directed establishment of green benches at various High Courts to deal with environmental matters. With a country of India s size and population, constant vigil will be required to safeguard the environment. This would be equally true in the case of other countries of the SAARC region.

I am happy that Jawaharlal Nehru University has taken initiative to review the environmental scenario in the SAARC region. I understand that the last Session of the Workshop is devoted to responses from delegates of various SAARC countries. This would not only enrich our knowledge of environmental laws enacted in these countries but also enable us all to improve upon strategies for better environmental protection.

Thank you.

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