Post Stockholm and post Rio, Nations across the world have adopted a number of laws pertaining to the three pillars of sustainable development. India too has implemented a plethora of laws. However, as far as the implementation of the laws is concerned the State often falters in the implementation of laws.
The Supreme Court of India has upheld in a number of instances that the Indian law is bound by international treaties and conventions of which India is a signatory.
The judiciary in India has often taken the lead in implementing the laws. Indian laws on Sustainable Development can broadly be seen to have developed in four distinct but overlapping phases. These are as follows:
First Phase (1972-1983)
The focus in this phase was to protect the environment. This phase came largely in the wake of the Stockholm Conference of 1972 which required all signatories to adopt measures to protect the environment. The highlights were the constitutional amendments and the enactment of legislations to protect the wildlife and to arrest water and air pollution.
There are certain important constitutional provisions which give the citizens the right to approach the High Courts as well as the Supreme Court of India to protect their fundamental rights.
Article 226 of the Constitution gives the right to citizens to approach the High Court to enforce their fundamental rights and the High Courts are given the power to issue various writs. Article 32 of the Indian Constitution could be invoked by the citizens for enforcement of the Fundamental Rights.
Article 21 of the Constitution guarantees one of the important Fundamental Right to the citizens and says that no person shall be deprived of his life and personal liberty, except according to procedure established by law.
This “right to life” contained in Article 21 has been given a very wide interpretation by the Supreme Court of India. Article 48-A, which is one of the Directive Principles of State Policy, states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
India implemented the 42nd amendment to the Constitution in 1976.Through this amendment Article 48-A was implemented through which protection and promotion of the environment, forests and wildlife became a part of the Directive Principles of State Policy. Through Article 51A (g) protection of the environment was made a fundamental duty of all citizens.
In addition, several Acts pertaining to the environment were formulated namely the Wildlife (Protection) Act of 1972,the Water (Prevention and Control of Pollution) Act of 1974, the Forest Conservation Act of 1980 and the Air (Prevention and Control of Pollution) Act of 1981.
The Second Phase (1984-1997)
The focus in this phase was on ensuring social equity and justice. In response to the ‘Bhopal Gas Disaster’ in 1984, there was a growth in ‘judicial activism’ which led to a reinterpretation of existing laws and legislations.
The Air (Prevention and Control of Pollution) Act of 1981 underwent a major modification in 1987. In 1991 the Public Liability Insurance Act, was enacted to provide for immediate relief to persons affected by accidents from handling of notified hazardous substance, on a ‘no fault basis’.
Under this Act it is mandatory for all industries handling hazardous material to take Public Liability Insurance cover for immediate relief to victims or damage to property.
In response to the ‘Rio Declaration’ that called upon Nations to develop laws regarding liabilities and compensation to victims of pollution and other environmental damages two Acts were formulated
1. the National Environment Tribunal Act, 1995 (Repealed)
2. the National Environment Appellate Authority Act.
These have been subsequently repealed and replaced by the new National Green Tribunal Act of 2010.
The Environment (Protection) Act (EPA) was enacted in 1986. The scope of this Act is very wide and it operates on the principle of arresting pollution at the source, polluter pays and also focusses on involvement of the public in decision making.
Under the EPA, Environmental Impact Assessment (EIA) Notification was introduced in 1994, it was modified in 2006 and the latest amendment was in 2009. Under the EIA it has become mandatory to seek environmental clearance for several activities and industries with the involvement of the public as per procedure.
Significantly after ‘Rio’ many of these environmental principles have been accepted as a part of Article 21 (Right to Life).
Other legislations that have been introduced for the protection of the environment and prevention of pollution are the Motor Vehicles Act, 1988, to control air pollution due to vehicles.
Third Phase (1998-2004)
The third phase coincides with India’s membership of the WTO in 1998. The focus is on combining economic development with social and environmental issues. Legislations and amendments to the existing legislations have been done to achieve compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) keeping in mind the principles of the ‘Convention on Biological Diversity’ (CBD).
The Biological Diversity Act 2002 was framed keeping in mind the principles of CBD. The legislations are directed towards ensuring the sovereign rights of countries over their genetic and biological resources and the acceptance of the need to share benefits flowing from the commercial utilization of biological resources with holders of indigenous knowledge.
The Patents (Amendment) Act of 2005 has a provision to prevent misappropriation of indigenous knowledge of communities by making it non- patentable. The Geographical Indications of Goods (Registration and Protection) Act, 1999 facilitates protection of the collective rights of the rural and indigenous communitiesin their unique products.
In this phase under the EPA several secondary legislations dealing with waste management and recycling of substances like plastics were also formulated. These include:
Municipal Solid Wastes (Management and Handling) Rules, 2000;
Recycled Plastics Manufacture and Usage Rules,1999;
Manufacture, Storage and Import of Hazardous Chemical (Amendment) Rules, 2000;
Batteries (Management and Handling) Rules, 2001;
Ozone Depleting Substances (Regulation and Control) Rules,2000;
A series of notifications delegating power to State, River Conservation Authorities to deal with water pollution; and
The Noise Pollution (Regulation and Control) Rules, 2000
The emphasis in this phase was also on energy conservation and use of renewable sources of energy. Consequently the Energy Conservation Act, 2001 was enacted, which also set up the Bureau of Energy Efficiency. The Electricity Act of 2003 has tried to ensure better development in the power sector and also emphasise the use of renewable energy.
Under the orders of the Supreme Court, Compensatory Afforestation Management and Planning Agency (CAMPA), was set up in 2004, to compensate for deforestation for development work through afforestation.
Fourth Phase (2005 and beyond)
This phase is marked by a proactive rights based approach. A rights based approach is one in which the focus is on ensuring the rights of all sections of community particularly the marginalised.
These include legislations like the Human Rights Act 1993 with Amendment Act, 2006; The Right of Children to Free and Compulsory Education Act, 2009 and Commission for the Protection of Child Rights Act, 2005; Maintenance and Welfare of Parents and Senior Citizens Act, 2007; People with Disabilities Act, 1995.
For instance the rights of the traditional forest dwellers have been codified in the Forest Rights Act, 2006. The Act seeks to reconcile the needs of the forest dwellers with the need to conserve wildlife and forests.
The Wildlife (Protection) Act of 1972 was amended in, 2002 and it seeks to provide for participatory management of the buffers around the National Parks and Sanctuaries and introduces the concept of ‘Community Reserves’.
This phase also continued to focus on the environment through the Environment Impact Assessment Notification of 2006 and the Hazardous was notified Wastes (Management, Handling and Transboundary Movement)Rules, 2008.
In 2011, the E-Waste (Management and Handling)Rules, for environmentally sound practices for management of electronic waste were notified.
The National Green Tribunal Act of 2010 seeks to give effect to the promise made at Rio and to provide for the effective and expeditious disposal of cases related to environmental protection, forests and natural resourcesand provide relief and compensation for damages.
The Judiciary in India has had to take on the role of the interpretation and implementation of the law through public interest litigations.
Indian Judiciary in general have relied on the public trust doctrine, precautionary principle, polluter pays principle, the doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine principle and inter-generational equity principle apart from the existing law of the land.