Environmental Science

LESSON 40. EXISTING LEGISLATION

The law governing liability for breach of duty to neighbours in the use of land, for instance, was laid down in the famous Rylands vs. Fletcher case in England way back in 1968. The case concerned the use of one's property which adversely affected the neighbour's enjoyment of his property. The court held that an exercise of property rights which resulted in the curtailment of another's similar rights was actionable and gave rise to strict liability. The uses of the law laid down in this case in the context of environmental issues are obvious.

Under the Indian Penal Code (IPC) which codifies the common law concept of negligence, if someone comits an act or omission which  causes injury to another, the first person is considered guilty of an unlawful and negligent act. Polluting of water of a public spring or a reservoir so as to render it unfit for human consumption is made a criminal offence under section 277 of the IPC. Negligent conduct with respect to poisonous substance endangering human life or likely to cause injury is a criminal offence under section 284. Bhopal disaster revealed several inadequacies in our safety and environment legislation, particularly in its capacity to prevent and deal with the consequences of catastrophic accidents involving hazardous chemicals. The Union Carbide of India could have been held guilty under this section for causing the Bhopal gas tragedy. These and other section under the IPC and the Criminal Procedure Code contain a number of provisions that could be used to combat pollution of land, water and air.

The Constitution of India contains several environmental prescriptions. Before discussing them, however, it is necessary to point out that the power to tackle environmental problems is considerably affected by the federal structure of the Indian polity. The division of legislative and administrative power between the Union and the States is spelt out in three lists, the Union list, the States list and the Concurrent list. The Union is supreme over the subjects mentioned in the first list: the States similarly enjoy complete competence to legislate on any matter mentioned in the second list; and both the Union and States have concurrent jurisdiction on matters contained in the third list. The Union enjoys a certain primacy over states in that, according to Article 246, its legislation in the Union and the concurrent list prevails over state legislation in the event of a clash. Also, under Article 248, the Parliament has residuary powers to legislate on any matter not covered in the three lists.

Most of the constituents of the environment, like land, water, forests etc. are under the purview of the states. For a variety of reasons, principally financial, the states are not usually in a position to take effective action against pollution, or in promoting environmentally sound management strategies for conservation and development of these resources. It has thus become necessary for the Union Government to intervene when the said resources are threatened with serious depletion. As shown in the preceding units, the state of water pollution and forest resource depletion and pollution of the air in India is such that the Union Government had to initiate a series of measures to arrest the damage done to these resources. Two provisions in the Constitution came handy to the Union for this purpose. The first provision is Article 242 under which the Union is empowered to pass legislation on matters mentioned in the state list, if so request by two or more states. the Union government utilised this provision to pass various Acts in order to protect the population, present as well as the future generations, and the environment from what appears to be an inexorable move towards self-destruction.

The Factories Amendment Act, 1987

The Factories Act, 1948 underwent a radical restructuring of its safety and health provisions in 1987, placing increased responsibility on top managements as well as manufacturers and suppliers, a new Chapter regulating hazardous processes, and stipulated workers involvement safety management and disclosure of information on hazards. Under Section 7A, managements are required to prepare and publicise their safety policy as well as back it up with the organization and make arrangements for its implementation. Factory managements have a responsibility to develop a Material Safety Data Sheet (MSDSA) for each chemical in use and disclose information regarding the chemicals in use, health hazards, safety measures to be adopted as well as action to be taken in the event of an accident, not only to the Factory Inspectors and local authorities but also to their workers and the public living in the vicinity of their plant. In hazardous factories  in the event of apprehension of imminent danger to their lives or health, workers have the right to complain to the management, directly or through the Safety Committee and simultaneously to the Factory Inspector.

The Insecticide Act

The pesticides are basically toxic chemicals and their use is inherently accompanied by hazards and ecological consequences. Being aware of the prime responsibility of protecting the health of citizens and the environment, the Government of India enacted the Insecticide Act in 1968. This was enforced from 1971 to regulate import, manufacture, sale, transport, distribution and the use of insecticides with a view to preventing risk to human beings and animals. Several agencies, such as the Central Insecticide Board, the Pesticide Registration Committee, the Pesticide Environment Pollution Advisory Committee, the Central Insecticide Laboratory, the committee to Ban/Restrict the use of Pesticides, were created for effective enforcement of this Act.

The Wildlife(Protection) Act

Expanding agriculture, industry and urbanisation etc. are the most serious cause to wildlife posed by habitat destruction. Realising the importance of the wildlife resource and in order to prevent the gene erosion, India has taken up steps by setting up an Indian Board of Wildlife (1952), creation of Wildlife Parks and Sanctuaries, enactment of an all International trade in Endangered species of Fauna and Flora (CITES,1976), launching a national component of the UNESCO's Man and the Biosphere Programme (1971) and by starting conservation projects for individual endangered species like Hungal (1970), Lion(1972), Tiger (1973), Crocodiles (1974), and Brown-antlered Deer (1981). The Wildlife (Protection) Act governs wildlife conservation and protection of endangered species. The Act prohibits trade in rare and endangered species. the wildlife Act is adopted by all states except Jammu and Kashmir, which has its own Act. The Centre provides financial assistance to states for: (i) strengthening management and protection of infrastructure of national parks and sancturies; (ii) protection of wildlife and control of poaching and illegal trade in wildlife products; (iii) captive breeding programmes for endangered species of wildlife; (iv) wildlife education and interpretation; and (v) development of selected zoos.

WILD LIFE (PROTECTION) ACT, 1972, amended in 1983, 1986 and 1991:

The act is aimed to protect and preserve wild life. Wild life refers to all animals and plants that are not domesticated. India has rich wild life heritage; it has 350 species of mammals, 1200 species of birds and about 20,000 known species of insects. Some of them are listed as ‘endangered species’ in the Wild life (Protection) Act. The Act envisages national parks and wild life sanctuaries as protected areas to conserve wild life. Wild life populations are regularly monitored and management strategies formulated to protect them. The Act covers the rights and non-rights of forest dwellers too,- it provides restricted grazing in sanctuaries but prohibits in national parks. It also prohibits the collection of non-timber forest produce which might not harm the system. The rights of forest dwellers recognized by the Forest policy of 1988 are taken away by the Amended Wild life Act of 1991. The act, a landmark in the history of wildlife legislation in our country by which wildlife was transferred from State list to concurrent list in 1976, thus giving power to the Central Government to enact the legislation. In India, nearly 134 animal species have been regarded as threatened. A National Wildlife action plan has been prepared whose objective is to establish a network of scientifically managed areas such as national parks, sanctuaries and biosphere reserves, to cover representative and viable samples of all significant bio-geographic subdivisions within the country.

The major activities and provisions in the act can be summed up as follows:

1. It defines the wildlife related terminology.

2. It provides for the appointment of wildlife advisory board, wildlife warden, their powers, duties etc

3. Under the Act, comprehensive listing of endangered wildlife species was done for  the first time and prohibition of hunting of the endangered species was mentioned

4. Protection to some endangered plants like Beddome cycad, Blue Vanda, Ladies Sliper Orchid, Pitcher plant etc. is also provided under the Act.

5. The act provides for setting up of National Parks, Wild life Sanctuaries etc.

6. The Act provides for the constitution of Central Zoo Authority.

7. There is provision for trade and commerce in some wildlife species with license for sale, possession, transfer etc.

8. The Act imposes a ban on the trade or commerce in scheduled animals.

9. It provides for legal powers to officers and punishment of offenders.

10. It provides for captive breeding programme for endangered species.

Several conservation projects for individual endangered species like lion (1972),tiger (1973), crocodile (1974), and brown antlered deer (1981) were started under this Act.

The Act is adopted by all states in India except J&K, which has its own Act!

FOREST CONSERVATION ACT (Amended in 1988)

The Indian Forest Act of 1927 consolidated all the previous laws regarding forests that were passed before the 1920s. The Act gave the Government and Forest Department the power to create Reserved Forests, and the right to use Reserved Forests for Government use alone. It also created Protected Forests, in which the use of resources by local people was controlled. Some forests were to be controlled by the village community, and these were called village Forests. The Act remained in force till the 1980s when it was realized that protecting forests for timber production alone was not acceptable. The other values of protecting the services that forests provide and its valuable assets such as biodiversity began to overshadow the importance of their revenue earnings from timber. This led to the Forest Conservation Act of 1980 and its amendment 1988. India’s first Forest Policy was enunciated in 1952. Between 1952 and 1988, the extent of deforestation was so great that it became essential to formulate a new policy on forests and their utilization. The earlier forest policies had focused only on revenue generation. In the 1980’s it became clear that forests must be protected for their other functions such as the maintenance of soil and water regimes centered around ecological concerns. It also provided for the use of goods and services of the forest for its local inhabitants, The new policy framework made conversion of forests into other uses much less possible. Conservation of the forests as a natural heritage finds a place in the new policy, which includes the preservation of its biological diversity and genetic resources. It also values meeting the needs of local people for food, fuel wood, fodder and Non Timber Forest Produce or NTFPs. It gives priority to maintaining environmental stability and ecological balances. It expressly states that the network of Protected Areas should be strengthened and extended.

The Forest Conservation Act of 1980 was enacted to control deforestation, It ensured that forestlands could not be de-reserved without prior approval of the Central Government, This was created as some states had begun to dereserve the Reserved Forests for non-forest use. These states had regularized encroachments and resettled ‘project Affected people’ from development projects such as dams in these de-reserved areas. The need for a new legislation became urgent. The Act made it possible to retain a greater control over the frightening level of deforestation in the country and specified penalties for offenders.

Penalties for offences in Reserved Forests:

• No person is allowed to make clearing or ser fire to a reserved forest. Cattle are not permitted to trespass into the reserved forest, cutting, collecting of timber, bark or leaves, quarrying or collecting any forest products is punishable with imprisonment for a term of six months or with a fine which may extended to Rs 500 or both.

Penalties for offences in protected Forests:

• A person who commits any of the following offences like cutting of trees, stripping the bark or leaves of trees, set fire to such forests or permits cattle to damage any tree, shall be punishable with imprisonment for a term which may extended to six months or with a fine which any extended to Rs 500 or both.

• Any forest officer even without an order from the magistrate or a warrant can arrest any person against whom a reasonable suspicion exists.