In this article, You will read Environmental Legislations & Environmental Legislations in India – for UPSC IAS.
In the recent past, numerous environmental problems have become threatening for human welfare. An important aspect of environmental problems is that their impact is not confined to the source area but spills over far and wide area.
Effective legislation is needed in order to prevent misuse and degradation of the environment. To curb the destructive practices of unscrupulous people, forest mafia groups, poachers, polluters, and over-exploitation of environmental resources, effective legislation is necessary. Pollution is an important factor and it does not observe political territories or legislative jurisdictions. Thus environmental problems are intrinsically global in nature. Therefore, to prevent such problems environmental legislation is not needed only at the national level but also at the international level.
There is no international legislation body with the authority to pass legislation similar to national legislations, nor are there international agencies with the power to regulate resources at a global scale. As a result, international legislation must depend on the agreement of the parties concerned. Certain issues of multinational concern are addressed by a collection of policies, agreements, and treaties that are loosely called International Environmental Legislations.
Most of the international legislations are international agreements to which nations adhere voluntarily. These agreements are generally finalized through international conventions or treaties. Nations that have agreed to be bound by the convention are known as Parties. Convention provides a framework to be respected by each party, which has to adopt its own national legislation to make sure that convention is implemented at the national level. To support the conventions, sometimes protocols are also to be framed.
A protocol is an international agreement that stands on its own but is linked to an existing convention. This means that the climate protocol shares the concerns and principles set out in the climate convention. It then builds on these by adding new commitments-which are stronger and far more complex and detailed than those in the convention.
Wetland Convention (Ramsar Convention)
It is an international convention came in force in 1975. The convention provides the framework for international cooperation for the conservation and wise use of wetland habitats. The United Nations Educational, Scientific and Cultural Organisation (UNESCO) serves as the Depositary for the Convention, and its secretariat, the Ramsar Bureau, is in Gland, Switzerland. India became signatory to this convention on in 1981.
The Convention aims to halt the loss of wetlands and to ensure the conservation of fauna and flora and their ecological processes. Obligations of parties include:
- Designating one or more wetlands for inclusion in the list of Wetlands of International Importance (e.g. six Ramsar wetlands in India).
- Promoting wise judicious use of wetlands, including mangroves.
- Promoting conservation of wetlands through establishment of nature reserves.
- Irrespective of their listing under the Convention and managing wetlands for the benefit of water fowl.
- Promoting training in the field of wetland research, managing and warding.
- Consulting with other parties about implementation of the convention, especially with regard to trans frontier wetlands, shared water systems, shared species, and development of wetland projects.
The United Nations Environment Programme (UNEP) has been addressing this issue since 1977. Under the auspices of UNEP, the nations of the world arrived at The Convention for the Protection of the Ozone Layer in Vienna in 1985. Through this convention, nations committed themselves to protecting the ozone layer and to co-operate with each other in scientific research to improve understanding of the atmospheric processes and serious consequences of ozone depletion. The convention provides for future protocols and specified procedures for amendment and dispute settlement.
To pursue the objectives of convention for the protection of ozone layer the Montreal Protocol on Substances that deplete the Ozone layer was agreed to by nations in 1987 and has since been amended five times so far. Its control provisions were strengthened through five amendments to the Protocol adopted in London (1990), Copenhagen (1992), Vienna (1995), Montreal (1997), Beijing (1999) and 2016 (Kigali, adopted, but not in force). The Protocol aims to reduce and eventually eliminate the emission of man-made ozone depleting substances. The Vienna Convention and Montreal Protocol are considered as highly effective regime for reducing and possibly, in the future, eliminating emissions of ozone depleting chemicals into the atmosphere.
Global warming (greenhouse effect) is probably the greatest threat to the future of the planet. It is mainly caused by gases (gases like carbon dioxide, methane, nitrous oxide, CFCs, water vapors) emitted by industrialized countries on the burning of fossil fuels (coal, oil and gas) for electricity, heating and transport. Because of gases that have been emitted in the past, and are still pouring into the atmosphere it is already too late to prevent some climate change. However, if we start reducing emissions now, we may be able to avoid some of the worst effects.
Today, action occurs at every level to produce, to avoid, and to understand the risks associated with climate change. Many nations have prepared national plans and are actively pursuing programmes and policies that will result in green gas emission reduction. At the global level, countries, around the world have expressed a firm commitment stop climate change and strengthen international action and broader participation under the auspices of the UN Framework Convention on Climate Change (UNFCCC).
UN Framework Convention on Climate Change (UNFCCC) is the landmark international treaty unveiled at the United Nations Conference on Environment and Development in Rio de Janeiro in June 1992. The UNFCCC commits signatory countries to limit anthropogenic (i.e., human-induced) greenhouse gas emissions to levels that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure the food production is not threatened, and to enable economic development to proceed in a sustainable manner.
In pursuance with the objectives of the Convention on Climate Change the Kyoto Protocol was agreed upon in December 1997 in Kyoto, Japan.
The Protocol calls on all parties – developed nations and developing nations to take a number of steps to formulate national and regional programmes to improve ―local emission factors‖, activity data, models, and national inventories of greenhouse gas emissions and sinks that remove these gases from the atmosphere. All parties are also committed to formulate, publish and update climate change mitigation and adoption measures, and to cooperate in promotion and transfer of environmentally sound techniques and in scientific and technical research on the climate system.
The Protocol’s first commitment period started in 2008 and ended in 2012. A second commitment period was agreed on in 2012, known as the Doha Amendment to the Kyoto Protocol. Negotiations were held in the framework of the yearly UNFCCC Climate Change Conferences on measures to be taken after the second commitment period ends in 2020. This resulted in the 2015 adoption of the Paris Agreement, which is a separate instrument under the UNFCCC rather than an amendment of the Kyoto Protocol.
The Paris Agreement is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC), dealing with greenhouse-gas-emissions mitigation, adaptation, and finance, starting in the year 2020. The agreement’s language was negotiated by representatives of 196 state parties at the 21st Conference of the Parties of the UNFCCC in Le Bourget, near Paris, France, and adopted by consensus on 12 December 2015. As of November 2018, 195 UNFCCC members have signed the agreement, and 184 have become party to it.
The Paris Agreement’s long-term goal is to keep the increase in global average temperature to well below 2 °C above pre-industrial levels; and to limit the increase to 1.5 °C, since this would substantially reduce the risks and effects of climate change. Under the Paris Agreement, each country must determine, plan, and regularly report on the contribution that it undertakes to mitigate global warming.
The aim of the agreement is described in its Article 2, “enhancing the implementation” of the UNFCCC through:
- Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;
- Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production;
- Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.
Countries furthermore aim to reach “global peaking of greenhouse gas emissions as soon as possible”. The agreement has been described as an incentive for and driver of fossil fuel divestment. The Paris deal is the world’s first comprehensive climate agreement.
Biological Diversity Convention
The Convention on Biological Diversity (CBD) was adopted during the United Nations Conference on Environment and Development (UNCED – or the ―Earth Summit‖) in Rio de Janeiro on 5 June 1992. CBD has been instrumental in highlighting conservation of biodiversity on the international agenda and its implementation on national level. More than 150 states have signed the Convention, and it entered into force on 29 December 1993. India ratified the Convention in 1994. The CBD places emphasis on decision making at the national level.
Environmental Legislations in India
At the national level, serious efforts have been made for the improvement and protection of the environment by incorporating changes in the constitution of India. Our constitution, originally, did not contain any direct provision regarding the protection of the natural environment. However, after the United Nations Conference on Human Environment, held in Stockholm in 1972, the Indian constitution was amended to include protection of the environment as a constitutional mandate.
The forty second amendment Clause (g) to Article 51Aof the Indian constitution made it a fundamental duty to protect and improve the natural environment. “It shall to be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and have compassion for living creatures.”
There is a directive, given to the State as one of the Directive Principles of State Policy regarding the protection and improvement of the environment. Article 48A states “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife
of the country”.
The department of Environment was established in India in 1980 to ensure a healthy environment for the country. This later became the Ministry of Environment and Forests in 1985. This Ministry has overall responsibility for administering and enforcing environmental legislation and policies. The constitutional provisions are backed by a number of legislations – Acts and rules. Most of our environmental legislations are Acts of the Parliament or the State Legislatures.
These Acts generally delegate powers to regulatory agencies, to make rules for the purpose of their implementation. The Environment Protection Act of 1986 (EPA) came into force soon after the Bhopal Gas Tragedy and is considered umbrella legislation as it fills many lacunae in the existing legislation. Thereafter, a large number of environmental legislations have been passed to deal with specific environmental problems. For example, in the recent past, the use of CNG for public transport vehicles has been made mandatory in Delhi. This has reduced air pollution in Delhi at that time.
Pollution Related Acts
Among all the components of the environment air and water are necessary to fulfill the basic survival needs of all organisms. So, to protect them from degradation the following acts have been passed.
- Water Acts
- Air Acts
- Environment Act
The Water (Prevention and Control of Pollution) Act of 1974
The main objective of this act is to provide prevention and control of water pollution and maintaining or restoring of wholesomeness and purity of water (in the streams or wells or on land). Some important provisions of this Act are given below:
- The Act vests regulatory authority in State Pollution Control Boards and empowers these Boards to establish and enforce effluent standards for factories discharging pollutants into water bodies. A Central Pollution Control Board performs the same functions for Union Territories and formulates policies and coordinates activities of different State Boards.
- The State Pollution Control Boards control sewage and industrial effluent discharges by approving, rejecting or impose conditions while granting consent to discharge.
- The Act grants power to the Board to ensure compliance with the Act by including the power of entry for examination, testing of equipment and other purposes and power to take the sample for the purpose of analysis of water from any stream or well or sample of any sewage or trade effluents.
- Prior to its amendment in 1988, enforcement under the Water Act was achieved through criminal prosecutions initiated by the Boards, and through applications to magistrates for injunctions to restrain polluters. The 1988 amendment strengthened the Act‘s implementation the pollution provisions. Board may close a defaulting industrial plant or withdraw its supply of power or water by an administrative order; the penalties are more stringent, and a citizen‘s suit provision supports the enforcement machinery.
The Air (Prevention and Control of Pollution)Act of 1981
To implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, Parliament enacted the nationwide Air Act.
The main objectives of this Act are to improve the quality of air and to prevent, control and abate air pollution in the country. Important provisions of this Act are given below:
- The Air Act‘s framework is similar to that of the Water Act of 1974. To enable an integrated approach to environmental problems, the Air Act expanded the authority of the central and state boards established under the Water Act, to include air pollution control.
- States not having water pollution boards were required to set up air pollution boards.
- Under the Air Act, all industries operating within designated air pollution control areas must obtain “consent”(permit) from the State Boards.
- The states are required to prescribe emission standards for industry and automobiles after consulting the central board and noting its ambient air quality standards.
- Act granted power to the Board to ensure compliance with the Act including the power of entry for examination, testing of equipment and other purposes and power to take the sample for the purpose of analysis of air or emission from any chimney, fly ash or dust or any other outlet in such a manner as may be prescribed.
- Prior to its amendment in 1987, the Air Act was enforced through mild court administered penalties on violations. The 1987 amendment strengthened the enforcement machinery and introduced stiffer penalties. Now, the boards may close down a defaulting industrial plant or may stop its supply of electricity or water. A board may also apply to the court to restrain emissions that exceed prescribed limits.
Notably, the 1987 amendment introduced a citizen‘s suit provision into the Air Act and extended the Act to include noise pollution.
The most important legislation in this category is The Environment (Protection) Act of 1986. Through this Act Central Government gets full power for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating pollution.
The Environment (Protection) Act of 1986
In the wake of the Bhopal tragedy, the government of India enacted the Environment (Protection) Act of 1986. The purpose of the Act is to implement the decisions of the United Nations Conference on the Human Environment of 1972, in so far as they relate to the protection and
improvement of the human environment and the prevention of hazards to human beings, other living creatures, plants and property. The Act is an “umbrella” for legislations designed to provide a framework for Central Government, coordination of the activities of various central and state
authorities established under previous Acts, such as the Water Act and the Air Act.
In this Act, main emphasis is given to “Environment”, defined to include water, air, and land and the inter-relationships which exist among water, air, and land and human beings and other living creatures, plants, microorganisms, and property. “Environmental pollution” is the presence of pollutants, defined as any solid, liquid or gaseous substance present in such a concentration as may be or may tend to be injurious to the environment.
“Hazardous substances‖ include any substance or preparation, which may cause harm to human beings, other living creatures, plants, microorganisms, property or the environment.
The main provisions of this Act are given below:
Section 3 (1) of the Act empowers the centre to “take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution‖. Specifically, the Central Government
is authorized to set new national standards for the quality of the environment (ambient standards) as well as standards for controlling emissions and effluent discharges; to regulate industrial locations, to prescribe procedures for managing hazardous substances; to establish safeguards preventing accidents, and to collect and dismantle information regarding environmental pollution.
- By virtue of this Act, Central Government has armed itself with considerable powers which include coordination of action by the state, planning and execution of nationwide programs, laying down environmental quality standards, especially those governing emission or discharge of environmental pollutants, placing restriction on the location of industries and so on.
- The coverage of powers includes handling of hazardous substances, prevention of environmental accidents, an inspection of polluting units, research, the establishment of laboratories, dissemination of information, etc.
- The Environment (Protection)Act was the first environmental legislation to give the Central Government authority to issue direct orders, included orders to close, prohibit or regulate any industry, operation or process or to stop or regulate the supply of electricity, water or any other service to the industry, operation and process. Another power granted to the Central Government was to ensure compliance with the Act which included the power of entry for examination, testing of equipment, and other purposes and power to analyze the sample of air, water, soil or any other substance from any place.
- The Act explicitly prohibits discharges of environmental pollutants in excess of prescribed regulatory standards. There is also a specific prohibition against handling hazardous substances except those in compliance with regulatory procedures and standards. Persons responsible for the discharge of pollutants in excess of prescribed standards must prevent or mitigate the pollution and must also to report the governmental authorities.
- The Act provides provisions for penalties. Any person who fails to comply with any of the provisions of the Act or the rules, orders, or directions issued under the Act shall be punished. For each failure or contravention, the punishment included a prison term of up to five years or a fine of up to Rs. 1 lakh or both. The Act imposed an additional fine of up to Rs. 5,000 for every day of a continuing violation. If a failure or contravention occurs for more than one year after the date of conviction, an offender may be punished with an imprisonment term, which may be extended to seven years.
- The Environment (Protection) Act contains significant innovations for its enforcement, not contained in any other pollution control legislation at the time of the Act‘s adoption. Section 19 provides that any person, in addition to authorized government officials, may file a complaint with a court alleging an offense under the Act. This “Citizens‘ Suit provision requires that the person has to give notice of not less than 60 days of the alleged offense of pollution to the Central Government or the competent authority. Under the Act, the Central Government may, by notification in the office Gazette, make rules for the enforcement of the Act.
BIODIVERSITY RELATED ACTS
India is one of the few countries, which had a forest policy since 1984. To protect forest and wild life following legislations have been enacted.
The Wild Life (Protection) Act of 1972
In 1972, Parliament enacted the Wild Life Act (Protection) Act. The Wild Life Act provides for state wildlife advisory boards, regulations for hunting wild animals and birds, the establishment of sanctuaries and national parks, regulations for trade in wild animals, animal products, and trophies, and judicially imposed penalties for violating the Act. Harming endangered species listed in Schedule 1 of the Act is prohibited throughout India. Hunting species, like those requiring special protection (Schedule II), big game (Schedule III), and small game (Schedule IV), is regulated through licensing. A few species classified as vermin (Schedule V), may be hunted without restrictions. Wildlife wardens and their staff administer the act.
An amendment to the Act in 1982, introduced a provision permitting the capture and transportation of wild animals for the scientific management of animal population.
India is a signatory to the Convention of International Trade in Endangered Species of Fauna and Flora (CITES 1976). Under this convention, export or import of endangered species and their products are governed by the conditions and stipulations laid down therein. Indian government has also started some conservation projects for individual endangered species like Hungal (1970), Lion (1972), Tiger (1973), Crocodiles (1974), Brown-antlered Deer (1981) and Elephant (1991-92).
The Forest (Conservation) Act of 1980
First Forest Act was enacted in 1927.This is one of the many surviving colonial legislations. It was enacted to consolidate the law related to forest, the transit of forest produce and the duty livable on timber and other forest produce. Subsequently, the Forest (Conservation) Act was promulgated in 1980 to make certain reforms over the preceding Act of 1927.The 1927Act deals with the four categories of the forests, namely reserved forests, village forests, protected forests and private forests.
A state may declare forestlands or waste lands as reserved forest and may sell the produce from these forests. Any unauthorized felling of trees quarrying, grazing and hunting in reserved forests is punishable with a fine or imprisonment, or both reserved forests assigned to a village community are called village forests.
The state governments are empowered to designate protected forests and may prohibit the felling of trees, quarrying, and the removal of forest produce from these forests. The preservation of protected forests is enforced through rules, licenses, and criminal prosecutions. Forest officers and their staff administer the Forest Act. Alarmed at India‘s rapid deforestation and resulting environmental degradation, Centre Government enacted the Forest (Conservation) Act in1980. Under the provisions of this Act, prior approval of the Central Government is required for the diversion of forestlands for non-forest purposes. An Advisory Committee constituted under the Act advises the Centre on these approvals.
Biodiversity Act 2000
India‘s richness in biological resources and indigenous knowledge relating to them is well recognized. One of the major challenges is in adopting an instrument that helps realize the objectives of equitable benefit sharing enshrined in the Convention. Towards this, legislation on biodiversity was developed following an extensive consultative process. The legislation aims at regulating access to biological resources so as to ensure equitable sharing of benefits arising from their use.
The Biological Diversity Bill 2002 has been passed by the Lok Sabha on 2ndDecember, 2002 and by the Rajya Sabha on 11th December, 2002.
Salient features of the biodiversity legislation
The main intent of this legislation is to protect India‘s rich biodiversity and associated knowledge against their use by foreign individuals and organizations without sharing the benefits arising out of such use, and to check bio-piracy. The Act provides for setting up of a National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs) and Biodiversity Management Committees (BMCs) in local bodies. NBA and SBB are required to consult BMCs in decisions relating to use of biological resources or related knowledge within their jurisdiction and BMCs are to promote conservation, sustainable use and documentation of biodiversity.
All foreign nationals or organizations require prior approval of NBA for obtaining biological resources and associated knowledge for any use. Indian individuals /entities require approval of NBA for transferring results of research with respect to any biological resources to foreign nationals/organizations. Collaborative research projects and exchange of knowledge and resources under these projects are exempted provided they are drawn as per the policy guidelines of the Central Government and have its approval the objectives of conservation, sustainable use and benefit sharing. However, Indian citizens/entities/local people including vaids and hakims to have free access to use biological resources within the country for their own use, medicinal purposes and research purposes.
While granting approvals, NBA will impose terms and conditions to secure equitable sharing of benefits. Before applying for any form of IPRs (Intellectual Property Rights) in or outside India for an invention based on research or information on a biological resource obtained from India, prior approval of NBA will be required. There is an enabling provision for setting up a framework for protecting traditional knowledge. The monetary benefits, fees, royalties as a result of approvals by NBA to be deposited in National Biodiversity Fund, which will be used for conservation and development of areas from where resource has been accessed, in consultation with the local self-government concerned.
There is provision for notifying National Heritage Sites important from standpoint of biodiversity by State Governments in consultation with local self-government. There also exists provision for notifying items, and areas for exemption provided such exclusion does not violate other provisions. This is to exempt normally traded commodities so as not to adversely affect trade.