Taking Environmental Law Seriously: An Indian Perspective
The present framework of environmental law in Indiaprimarily consists of legislations related to preventing water and air pollution (Water Prevention and Control of Pollution Act, 1974; Air Prevention and Control of Pollution Act, 1981), environmental protection (Environment Protection Act,1986), forest conservation (Forest Conservation Act, 1980) and biodiversity protection (Biological Diversity Act,2002). These laws areexpected to provide a strong legal framework for environmental protection. However, in practice,environmental law in India faces a major ‘implementation crisis’. This is underscored by the fact that India is rated as one of the most polluted country in the world. Moreover,the Environmental Protection Index 2016 (EPI) score has found environmental governance in India to be abysmally low with India ranked 141st out of the 180 countries studied.The causes for the environmental law implementation crisis in India and what should be the agenda for effective environmental law in the country is analysed in this article.
Environmental Governance and Excessive Government Control
One of the major reasons for the implementation crisis arises from the fact that environmental governance in India is administered by the Ministry of Environment Forest and Climate Change (MoEF) and not by an independent regulatory body. The MoEF is designated as the administrative agency for overseeing implementation of environmental legislation and policies in India. Excessive control of the government over the environmental governance in India leads to the lack of proper implementation of existing environmental laws. An example for excessive governmental control is the implementation of the Environmental Impact Assessment Notification in India. The ‘Environmental Impact Assessment Notification, 2006’ provides authority to the MoEF for clearance of the large-scale projects requiring prior environmental impact assessment. As the MoEF is completely controlled by the ruling government, there has been constant relaxation of Environmental Impact Assessment norms as well as arbitrary clearance being provided for many projects. In this process, the vested interest of the ruling government influences environmental decision-making.
Ineffective Pollution Control Mechanism
The existing institutional mechanisms for pollution control, which includes the Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCB),are devoid of powers to effectively penalizethose involved in water and air pollution. The present framework under the Water Prevention and Control of Pollution Act, 1974 and the Air Prevention and Control of Pollution Act, 1981 follows the command and control structure. The industrial units and other entities discharging effluents and causing emissions are mandated to take consent or permit from the SPCB. But a costly failure in the present command and control mechanism is lack of adequate penalty measures to ensure compliance. Comptroller and Auditor General(CAG) of India in its report ‘Performance Audit of Water Pollution in India’ (Report 21 of 2011-12) has pointed out that the penalty for contravention of the Water Prevention and Control of Pollution Act, 1974 is too low and has highlighted that “costs of defiance, non-adherence and violations are lower than the costs of compliance”. The same holds true for air pollution control in India. The present mechanism clearly fails to follow the much accepted ‘polluter pays principle’, which requires the cost of pollution as well as the restoration to be imposed upon the polluter. There is a pertinent need for stepping up the penalty and liability mechanism.
Another important reason for the ineffectiveness is the lack of independence of pollution control boards. The appointment process to SPCB’s and CPCB is clearly dependent on the state and central governments respectively and the members of the pollution control boards are changed at the whims and fancies of the government. The SPCB’s and CPCB do not function as independent regulatory bodies. This could also be understood from the fact that government can even supersede the decision of the pollution board at anytime.
Need for an Independent Environmental Regulatory Body
A major step towards effective environmental law in India is setting up an independent environmental regulatory body. The independent environmental regulatory body should be enabled to function without political interference and arbitrariness.Existing pollution control bodies could be made part of the independent environmental regulatory body. The pertinent functions of implementing the environmental impact assessment, pollution control, waste management and eco-system protection have to be placed upon the independent regulatory body for environmental governance. Lack of effective expertise to deal with increasing complexities attached with environmental law also points towards the need for an independent environmental regulator in India. A discussion paper released by the MoEF in the year 2009 has proposed for a ‘National Environmental Protection Authority’, which would act as an independent body in the environmental governance field for ‘regulation, monitoring and enforcement’. It is high time the proposed National Environmental Protection Authority is brought into existence.
Need to Step up the Penalty and Liability Mechanism
The National Environmental Policy, 2006 clearly identifies and indicates the need to move away from the criminal penalty mechanism existing in the case of environmental legal framework in India and move towards a stringent civil liability mechanism based on polluter pays principle. The Polluter Pays Principle has been used in pollution control by the Indian judiciary extensively.
One example of this is the Vellore Citizen Forum (VCF) v. Union of India(AIR 1996 SC 2715). In this case,public interest litigation was filed by the VCF alleging that the tanneries and other industries were discharging untreated effluents into the agriculture fields, waterways and open lands and finally it reaches river Palar which was the main source of water supply. This led to non-availability of potable water in that region. The Supreme Court of India specially relied on the polluter pays principle and asked the industries to compensate the harm caused to villagers as a result of the water source and soil contamination. The Supreme Court also asked the industries to compensate for restoration of the environment.
Civil liability and pecuniary penalties for environmental pollution following the polluter pays principle should be monitored and enforced by the proposed independent environmental regulatory authority in India. A positive step towards enhancing the civil liability penalty is in the pipeline with the Indian government proposing the Draft Environment Laws Amendment Bill, 2015. This bill seeks to introduce civil liability to the tune of 50 to 100 million Indian rupees for causing substantial damage to the environment.
Focusing upon the Environmental Law Principles
Apart from introducing an independent regulator for environment, it is also necessary to emphasize on the need to follow certain framework principles of environmental law. The relevance of the polluter pays principle is discussed earlier for an effective environmental law in India. Additionally there is the need for an effective payment for eco-system services legal framework. Payment for eco-system as a conservation approach has not received adequate attention from the environmental law perspective in India. The precautionary principle is another significant environmental law principle, which could help in risk regulation in the Indian context. The bio-safety regulation, eco-sensitive area regulation as well as emerging technology (nanotechnology, biotechnology) regulation would require a strong precautionary principle based environmental standards in India. It is to be emphasized that only with the help of these environmental principles and standards that an effective environmental law could be evolved in India. The requirement for an independent regulatory body for plugging the loopholes and addressing the lacunae with structural changes detailed above would serve Indian environmental law to more effectively protect depleting environmental resources of the country.
Dr. Deva Prasad M is currently working as Assistant Professor of Law ,
Humanities and Liberal Arts in Management Area
Indian Institute of Management(IIM) Kozhikode
Views are personal only