Raghav Khandelwal and Tarusha Airan, Students, O.P Jindal Global University, Sonipat, Haryana
Introduction
Article 21 of the Constitution of India[1] guarantees every citizen a right to have a pollution-free environment which includes, right to clean water, right to clean air, etc. To protect this right, the Indian Legislature has enacted a number of legislations for protecting the environment in India which includes Water Act[2], Air Act[3], Environment Protection Act[4], National Green Tribunal Act[5], etc.
But despite having a number of laws, India is facing a serious problem in protecting the environment. According to the 2018 Global Environment Performance Index rankings, India was ranked 177th out of 180[6] for not improving the air quality in the environment and being unable to reduce the greenhouse emissions. The main reason behind this is because of the ‘poor implementation’ of the laws in practice.
This paper will discuss the various reasons behind the poor implementation of the laws and how it can be improved, as a healthy environment to live in is the major concern for the people today.
Constitutional Provisions
In the early 1970s, the environment was not a concern for the country and there were no specific laws to protect the environment. However, after the Stockholm Declaration of 1972, which was one of the major steps at the international level which aims at protection and conservation of Environment, there was a change. After this, the countries were required to enact laws for the protection and conservation of the environment. In 1976, the Parliament inserted two new articles in the Constitution of India, i.e., Article 48A[7] and Article 51A[8]. Article 48A put the duty on the state to protect the environment while clause (g) of Article 51A[9] put the duty on the citizens to protect and improve the environment.
So, there is a constitutional mandate to protect and improve the environment, but still, both citizens and states are failing to protect it.
Reasons behind failure
A 2016 report[10] shows the condition of Air Pollution in the country and it measured that around 1.2 million Indians every year have died because of the air pollution and it has also resulted into the loss to GDP of the country by 3%. Also, the problem is not limited to Air, the condition of water in the country is equally bad as the data shows that around 70% of the country’s groundwater is polluted by toxic pollutants.[11] The debate is not about whether the data mentioned is accurate or not, or whether the methodology used is accurate or not. The conclusion is that the condition of the environment in India is degrading and it is only getting difficult to live a healthy life which is guaranteed under Article 21 of the constitution. The reason behind this is because of the inefficiency of environmental laws to protect the environment, and the reasons behind the inefficiency are:
i. Environmental Governance and Excessive Government Control: In India, Ministry of Environment Forest and Climate Change (MoEF) is the authority which administers the environmental governance and there is no independent regulatory authority for governing the environmental laws. MoEF is the agency which looks at the implementation of environmental legislation. But the excessive control of the Government which leads to excessive interference in the work of MoEF is one of the reasons for poor implementation of the laws. An example for this is the Environmental Impact Assessment notification of 2006, which says that any Environmental Clearance for Category A projects should be given by MoEF, but because of excessive control of Government, there has been a relaxation in the norms of Environmental Impact Assessment and also there has been arbitrary clearance provided for many industries. There is a great influence of the vested interest of the Government in the decision-making process for the environment.
ii. Ineffective Pollution Control Mechanism: The current framework under the Water Act, 1974 and Air Act, 1981, follows the control and command mechanism. Central Pollution Control Board and the State Pollution Control Board are the regulatory bodies which help in protecting the environment. They have set the standards for pollution which are permissible. The industrial units and other entities are also required to take consent of the State Pollution Control Board for discharging the effluents. But there is a failure of this “command and control” mechanism as penalty which levied for non-compliance is not adequate to ensure compliance of the standards set by the Pollution Control Boards.
The report of the Comptroller and Auditor General of India “Performance Audit of Water Pollution in India” (Report of 2011-12)[12] has mentioned that the cost of violations, non-adherence under the Water Act, 1974 is too low that it is even lower than the cost of compliance. This is same for the Air Act, 1981. There is a well-established principle[13] of “Polluter pays principle” which says that the polluter is liable to pay the cost of pollution and the restoration cost, but this principle is hardly followed under the current system. So, there is a need for an increase in the penalty imposed under the act.
Along with the command and control, an incentive-based approach has also been used by the Government which provides for trading schemes and gives incentives to the public for protecting the environment. There was high optimism that the cost of implementation of the schemes will be very low and one approach is not enough for the protection of the environment. But what was ignored was the transaction cost which is involved at the ground level.[14]
iii. Lack of Independence of Pollution Control Board: The Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB) are dependent on the union and state Governments respectively because the appointment of the officials and members for the pollution control boards are dependent on the Government and they can be changed at the will of the Government. Also, the decisions of the Pollution Control Boards can be changed by the Government which makes the process under CPCB and SPCB more ineffective.
iv. Changes and proposals are made by Executive: Some important decisions which include the applicability of EIA notification, and also regularization of the industrial work or projects which are not commenced as per the law are decided by the executive orders. But the problem is, the order passed by the executive are not subject to the same scrutiny as laws made my legislature would be. So, the amendments by the executive body bring instability to the body of law.
v. Interference of Courts: Pollution Control Boards under the Water Act and Air Act are only vested with the powers of ordering for the closure of the industry or withdrawal of the electricity or water, but they do not have the power to impose penalties. If the Pollution control Boards want to impose any penalty on the offender, they must approach the court first. This has been proven to be an ineffective way as the procedure involved in the court is a time consuming one and judges also lack expertise in the specific field.
Also, the decisions given by National Green Tribunal are also ineffective as they can be challenged in the Supreme Court which is again a time-consuming process as the decisions of the Supreme Court take years to be delivered. The aggrieved party are left with ineffective remedies because of the time taken.
vi. Other reasons: Some other reasons for poor implementation of the environmental laws are:
a) One of the reasons for the depleting environment is the absence of public awareness and political will.
b) Most of the laws on the environment focus on the protection of humans and are human-centric rather than protecting the environment itself. The reason behind this can be because of the stage of Anthropocene where humans consider themselves as superior to nature and ecosystem.
c) Lack of funds with Pollution Control Boards and poor infrastructure and laboratories.
d) Only specific types of pollution or hazardous substances are given importance under the laws.
Way Forward
Despite having the issues with the environmental laws and their implementation, it is the duty of every citizen to protect the environment. It is high time when all three organs of the Constitution of India started working on the improvement of the laws and they should make policies which help in better implementation of the laws. Some of the recommendations in the current structure are:
i. MoEF in 2009 has proposed an independent regulatory[15] body which should be established, and which will help in “monitoring, regulation and enforcement” of the environmental clearance. Here, the role of Government should be minimized, and the independent authority should be the sole authority for regulating environmental governance. Also, political interference should be less in authority. Also, the appointment of the officials under the body should not be done by the Government or else it will defeat the purpose of having an independent body.
ii. Polluter pays principle is a well-settled principle but still, it is not completely followed in the country. National Environment Policy, 2006 has indicated that there is a need to levy stronger civil penalties which should be based on the Polluter Pays Principle. So, the amount of penalty should be increased to have deterrent and restoration effect.
iii. The powers with the Board are limited and not enough to protect the environment, as they do not have the power to penalize or punish the offenders but can only prosecute them in the court of law and which eventually defeat the purpose of speedy justice. Thus, Pollution Control Boards should be given more power and the court interference should be reduced to meet the ends of justice effectively.
iv. Fiscal instruments along with the command and control approach and incentive-based approach should also be used which can include environmental tax to be levied upon the taxpayers to prevent environmental degradation.
v. Public awareness should be increased, as for anything to function smoothly, there should be interaction with the public. There is a need to educate the public with environmental issues, which can be done by advertising in cinema houses and television, free of cost. The public should also be made aware of the penalties which will be there if they violate any law and pollute the environment.
vi. Natural resources should be tapped with utmost attention and care so that the environment and ecology are not affected. Central Government should make a long-term plan with the State Government to protect the environment.
vii. Pollution Control Boards should consist of more experts who have the requisite knowledge in the field of environment and can provide with better solutions.
viii. Reward strategies can also be promoted for business, companies, organizations, for protecting and conserving the environment.
Conclusion
We are living in a time, where environmental protection has become necessary for survival on the planet. It is believed that around 21 cities will not have any groundwater left after 2020 if the situation remains the same[16]. The inefficiency of environmental laws is the major reason for environmental degradation. The reason behind the inefficiency of laws is because of poor implementation. Time has come, where ecology should be placed above the economy. Government interference should be minimized, and high penalties should be levied. Laws should be amended, and a new independent body should be made. Public awareness is also necessary, as it is the primary duty of the citizens to protect the environment. We do not have a dearth of legislation, but now their efficiency should also be regularly checked. As the environment is the primary source of oxygen and water, its protection should be done to ensure human survival, endangered species and for the survival of the future generations.
[1] Article 21, Constitution of India, 1950. [2] Water (Prevention & Control of Pollution) Act, 1974. [3] Air (Prevention and Control of Pollution) Act, 1981. [4] Environment Protection Act, 1986. [5] National Green Tribunal Act, 2010. [6] Indian ranks 177 out of 180 in Environmental Performance Index, The Hindu (2018), available at <https://www.thehindu.com/sci-tech/energy-and-environment/india-ranks-177-out-of-180-in-environmental-performance-index/article22513016.ece>. [7] Article 48A, Constitution of India 1950. [8] Article 51A, Constitution of India 1950. [9] Article 51A(g), Constitution of India. [10]Shailesh, How we failed to implement environmental laws in India, Green Clean Guide (2017), available at <http://greencleanguide.com/how-we-failed-to-implement-environmental-laws-in-india/> [11] Sudhakar M. Rao and P. Mamatha ,Paper titled ‘Water quality in sustainable water management', IISc, Bangalore, available at < http://eprints.iisc.ac.in/2390/>. [12] Comptroller and Auditor General of India, Report no. 21 of 2011, available at < https://cag.gov.in/content/report-no-21-2011-%E2%80%93-performance-audit-water-pollution-india-union-government-ministry.> [13] Indian Council for Enviro-Legal Action v. Union of India and Others (Bicchri case) (1996) 3 SCC 212; and Sterlite Industries (India) Ltd v. Union of India and Others (2013) 4 SCC 575. [14] Geetanjoy S., Environmental Regulatory Authorities in India: An Assessment of State Pollution Control Boards (2013), available at <https://www.researchgate.net/publication/322345994_Rethinking_Environmental_Regulation_in_India>. [15] Establishment of National Environment Assessment and Monotoring Authority, Discussion Paper, MoEF, Government of India, New Delhi, 2010. [16] Jacob Koshy, India faces worst water crisis: Niti Aayog, The Hindu (2018), available at <https://www.thehindu.com/sci-tech/energy-and-environment/india-faces-worst-water-crisis-niti-aayog/article24165708.ece >.