New Delhi: The year 1976 is remembered as a landmark for the Indian Constitution, because of the sweeping 42nd amendment.
History often takes note of the introduction of the words secular and socialist to the Preamble, done by the Indira Gandhi government in the midst of the Emergency.
For environmentalists, it stands out for making environment part of the Constitution.
“The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country,” reads Article 48A, part of the Directive Principles of State. reads Article 51A (g), part of the Fundamental Duties.
These two are often read together with Article 21A, the judicially enforceable right to life, by courts.
Three widely different parts of the Constitution come together to not only safeguard the right to the environment but also the rights of the environment, environment lawyer Shibani Ghosh, a fellow with the Centre for Policy Research explained. It is the interpretation of this ‘duty’, that has allowed any citizen, whether they’re personally affected or not, to approach the National Green Tribunal, when they perceive a threat to the environment.
In one of the NGT’s first cases, recounted Ghosh, a group of citizens approached the court against a hydro-power project. However, they were not project affected people, as they didn’t live in the area that would be submerged. The question rose of who could be an aggrieved party. The NGT decided it could be anyone, as it was everyone’s duty.
When the Constitution was drafted, the concept of the environment, as right and as something citizens must take care of, was hardly present. The only laws in existence were British-era ones which sought to manage forests and wildlife.
A paper by scholar Shekhar Singh, that tracks the evolution of environmental laws in post-Independence India, through the Five Year Plans, notes that the British replaced the “traditional systems of managing nature and natural resources” -- for pre-colonial India had a strong environment consciousness -- with a “centralised management system” and “and ‘scientific’ management and classification.”
These laws got a new avatar in the 1980’s Forest Rights Act, when the Congress government took note of the widespread deforestation in the country and made the Centre the authority that decides on environment clearances to use forest land for non-forest purposes.
Much before that, however, Independent India got its first environment law in 1972 – the Wildlife Protection Act – born from India’s international obligations, having signed the international agreement, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
This reflection in domestic law, of international obligations and commitments, Ghosh said, is a recurring theme in India’s environment laws. In fact, India’s most significant environmental legislation, the Environment (Protection) Act of 1986, came about, partly because of the Stockholm declaration of 1972, remembered in India for Indira Gandhi’s often misquoted speech, where she asks “are not poverty and need not the greatest polluters?” However, the 1986 Act was also drafted as after a moment of realisation that the governments -- state and centre -- had no way to respond to environment disasters.
In 1984, the Union Carbide India plant in Bhopal had leaked methyl isocyanate gas killing 3500 people. The gas disaster was followed by another industrial accident in Delhi, 1985, where oleum gas leaked from a Shriram Food and Fertilisers Ltd. complex, killing one. None of the previous laws, of water and air, were of use here.
The 1986 Act, then, came about as an umbrella legislation, “deliberately thin”, said Ghosh, to give the government broadly defined, omnibus powers to respond to disasters and accidents of varying nature. Before this Act, in 1972, came the Water Act, setting up the precursors of the pollution boards as we know them. Even then, said Ghosh, parliamentary debates mentioned the need to regulate air pollution. This saw fruition in 1981, in the Air (Prevention and Control of Pollution) Act that revamped the pollution control boards and expanded their jurisdiction.
After the legislations in the ‘80s, the most important Act came about in 2010, establishing the NGT, and packing up the largely dysfunctional National Environment Appellate Authority, a body well documented, said Ghosh, for dismissing citizen grievances on the most technical of grounds. Beyond the changes of the 42nd amendment, environment doesn’t figure explicitly in the Constitution.
Rather, said Ghosh, it is safeguarded through judicial decisions. The Supreme Court has actively protected it, as a derived right, by liberally interpreting Article 21A, the Right to Life. This has led to a series of landmark judgements, upholding the need to protect the environment and people dependent on it.
The most talked about one, said Ghosh, is the 1996 judgement of the Vellore tanneries case, where citizens approached the court over severe water pollution caused by the tanneries in Vellore, Tamil Nadu. The Supreme Court borrowed from international precedents, and from the Rio Declaration on Environment and Development, 1992, to introduce to Indian law, the concepts of sustainable development, of polluter pays, of precautionary principle. It also set up a Loss of Ecology Authority, which existed till 2017, to attend to the day to day matters of compensation, in the case.