Home       Top Rated       Submit Article     Advanced Search     FAQ       Contact Us     RSS Feeds     

Register your Copyright Online
We offer copyright registration right from your desktop
click here
for details....

 Latest Articles - Articles 2012 - Articles 2011 - Articles 2010 - Articles 2009 - Articles 2008 - Articles 2007 - Articles 2006 - Articles 2000-05

 Search On:Laws in IndiaLawyers Search

Mutual Consent Divorce in Delhi
We provide fast, cost effective & Hassle free solution...
Contact us at Ph no: 9650499965 (Adv. Tapan Choudhury)

   E-mail login                   Password
        

Free Email Sign Up

Main Categories
 Banking and Finance laws
 Case Laws
 Civil Laws
 Company Law
 Constitutional Law
 Consumer laws
 Contracts laws
 Criminal law
 Dubai laws
 Environmental Law
 family law
 Human Rights laws
 Immigration laws
 Insurance / Accident Claim
 Intellectual Property
 International Law
 Juvenile Laws
 Law - lawyers & legal Profession
 Legal outsourcing
 Media laws
 Medico legal
 Miscellaneous
 Real estate laws
 Tax Laws
 Torts Law
 Woman Issues
 Workplace Equality & Non-Discrimination
 Yet Another Category

More Options
 Most read articles
 Most rated articles

Subscription
Subscribe now and receive free articles and updates instantly.

Name
Email



Copyright Registration

To Copyright Your Books, Videos, Songs, Scripts etc
Call us at: 9891244487 / or email at: admin@legalserviceindia.com

 
Top Law Colleges Click here

Law Updates:
# Income-Tax
# Family law
# Company Law
# Constitutional Law
# Partnership firms
# Immigration Law
# Cyber Law
# Lok Adalat, legal Aid & PIL
# Forms:
# Trademarks
# Woman issues
# Medico Legal
# Consumer laws
# Criminal laws
# Supreme Court Judgments


Published : May 14, 2010 | Author : dhruvesh1989
Category : Environmental Law | Total Views : 9466 | Unrated

  
dhruvesh1989
Dhruvesh Singh Yadav Dr. RML National Law University, Lucknow 3rd Year Student
 

"The Sky is like Father
The Earth is like Mother and
The Space as Their Son
The Universe consisting the Three
is like a Family and
Any kind of damage done to any one of the Three
Throws the Universe out of Balance
"

Environment related rights were conspicuously absent from the original version of the Constitution of India, which was prominently dominated by business and property rights. Consequently, environmental jurisprudence was also an unknown appellation for the Indian judiciary. Chipko Movement and Appiko Movement in Karnataka for saving the trees from exploitation are examples of initiatives taken by public-spirited persons. Among the fundamental duties of the citizens incorporated by 42nd amendment, the duty to protect environment is significant, every citizen has a fundamental duty to protect and improve the natural environment including forest, lake, river and wild life and to have compassion for living creature, forest, wildlife and population control were subjects to which the state had exclusive power to make law, but now the concurrent list enables both the central and state government to make the law on these areas.

The Air (prevention and control of pollution) Act 1981 The Water (Prevention and Control of Pollution) Act, 1974 and the Forest (Conservation) Act, 1980 was passed by parliament with a view to implementing the decision of the Stockholm conference which asked the number states to take appropriate steps, among other things, for the preservation of quality of air and control of air pollution. EPA was enacted for wider purpose of protection and improving the human environments a goal laid down by the Stockholm conference. Stockholm Declaration of 1972 which is called the “Magna Carta” of environment protection and its development. Certain environmental laws were in force in India well before the Stockholm Declaration of 1972, such as the Indian Forest Act etc. Besides, this action could also be taken under Sections 268 and 290 IPC against public nuisance relating to environment.

Constitutional provision of environmental law
Art 252 empowers parliament to enact on state subject if two or more state make such a request. Parliament enacted the water (prevention and control of population) Act 1974 for the control water at the request from states, under art 252 of Indian constitution.

The 42nd constitutional amendment, made in 1976, changed this landscape by inducting Article 48-A[1] and Article 51A (g)[2] into this ‘enviromyopic’ document. Simultaneously, the Supreme Court of India embarked on a ‘creative’ activist phase of constitutional interpretation in the aftermath of the fiasco in A.D.M. Jabalpur v Shivakant Shukla[3] where it found itself helpless in defending the basic civil liberties of the citizens against executive excesses. Starting from early 1980s, the Court has developed a body of ‘green constitutional law’ to safeguard the citizens’ health from the deleterious affects of environmental degradation. In M.C. Mehta v Union of India[4] (Oleum Gas Leakage case), the Supreme Court propounded the standard of ‘absolute liability’ for payment of compensation to those affected by the accident in case of industries engaged in hazardous or inherently dangerous activities as opposed to the prevalent notion of ‘strict liability’ under the Rylands v. Fletcher standard.

Right to healthy environment is a universal acceptance. The right to a healthy environment got entrenched in Art. 21 of the constitution of India, courts in large measure relied on this right in addressing a variety of aspects relating to protection and improvement of environment.

In Ivory traders & Manufacturing Association v. Union of India, the Delhi High Court held that right of an ivory dealer are subject to the paramount right of other people to have healthy and balance ecology. It also held that killing of elephants for procuring ivory should be stopped for a balanced environment.

The Allahabad High court in S.K Garg v. State of Uttar Pradesh, the right of water is part of the right to life guaranteed by Art.21. the use of agricultural land for aquaculture causes pollution of underground water on the neibouring properties.

M.P Rambabu v. Divisional forest officer, the Andhra Pradesh High court observed that under Art. 21 of the constitution of India, the right to live a decent life, a good environment and maintenance of ecology must be held to have primacy over the statutory right to hold and enjoy the property. Population is a consequence of abusing the environment and natural resources by human beings. Though part III of the constitution does not contain any provision to provide right pollution free environment as a fundamental right, but , in view of the liberal interpretation of Art 21 given by Apex Court, right to pollution free environment and protection of ecology came to acquire the status of a fundamental right.

The Court has adopted an expanded view of ‘life’ under Article 21 and enriched it to include environmental rights by reading it along with Articles 47, 48-A and 51A(g) and declaring:

Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environ-ment, ecological balance free from pollution of air and water sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21.

By 1990s, it categorically declared that ‘issues of environment must and shall receive the highest attention from this court’. India’s ‘Green Constitution’ now guarantees a right to healthy environment,[5] right to clean air,[6] right to clean water, enjoins the State and its agencies to strictly enforce environmental laws[7] while disclosing information in respect of decisions which affect health, life and livelihood and disallows inadequacy of funds and resources as a pretext for the evasion of obligations by the State.

Significant environmental principles like polluter pays,[8] precautionary principle,[9] sustainable development,[10] public trust doctrine[11] and intergenerational equity[12] Law, Environment and Development Journal have become entrenched in the Indian law without explicit incorporation in any legislative framework. In Vellore Citizens’ Welfare Forum v Union of India & Ors[13] the Court employed the ‘precautionary principle’ to invent the special principle of burden of proof in environmental cases where burden as to ‘the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo’ viz. polluter or the industrialist. In the process, the apex Court has gone beyond the statutory texts to refer extensively to international conventions and obligations of India and even to the historical environmental values reflected in the edicts of Emperor Ashoka and verses of Atharva Veda.

The Supreme Court has, in clear terms, advised the State to shed its ‘extravagant unbridled sovereign power’ and to pursue a policy to maintain ecological balance and hygienic environment. The activist attitude ranges across a gamut of environmental issues viz. banning aquaculture industries in coastal areas to prevent drinking water from becoming saline, issuing directions for improving quality of air in the National Capital Territory of Delhi and protecting Taj Mahal, prohibiting cigarette smoking in public places, addressing issues of solid waste management, proscribing construction activities in the vicinity of lakes and directing the lower courts to deal strictly with environmental offences.

In respect of forest governance, the Supreme Court has made an enormous contribution through the case of T.N. Godavarman Thirumulpad v. Union of India.[14] The case was set in the backdrop of critical state of national forest cover, appalling apathy of governments towards forest management and conservation and open violations of forest legislations by illegal felling in North-Eastern States.

A three judge bench of the Court, known as the ‘Green Bench’ or the ‘Forest Bench’, issued a ‘continuing mandamus’,[15] operative for past twelve years, and has been using it to deal with prominent issues including conversion of forest land for non-forest purposes, illegal felling, potentially threatening mining operations, afforestation and compensation by private user agencies for using forest land. In pursuance of the orders, the Government has constituted several High Powered Committees, a Compensatory Afforestation Management and Planning Authority and a Central Empowered Committee.

The enormous significance of this single writ petition is evident from the fact that about 2000 interlocutory applications relating to forest issues have been disposed under it.

Of late, the apex Court has been confronted with intricate cases requiring resolution of the tension between the ‘right to development’ and the ‘right to environment’.[16] The anxiety to resolve this tension and adopt a balanced approach is apparent in N.D. Jayal v Union of India,[17] a case involving construction of a large dam at Tehri in Himalayan foothills, where the Court refused to interfere by emphatically declaring the symbiotic relation between both these rights in the following words:

Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to ‘sustainable development’ cannot be singled out. Therefore, the concept of ‘sustainable development’ is to be treated as an integral part of ‘life’ under Article 21. Weighty concepts like intergenerational equity, public trust doctrine and precautionary principle, which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.

However, a gamut of recent cases seemingly projects an impression of Court’s growing pro-industry tilt while dealing with intricate issues of sustainable development. In Deepak Nitrite Ltd. v State of Gujarat & Ors.,[18] a case dealing with determination of standard of compensation in respect of industries which had flouted the norms laid down by the State Pollution Control Board, the Court held that mere non-compliance with these norms does not imply that environmental damage would result thereby; a strange and inexplicable conclusion indeed.

Confronted with the issue of oil pipeline construction through Jamnagar Marine National Park and Sanctuary, the apex Court in Essar Oil Ltd. v Halar Utkarsh Samiti & Ors.,[19]permitted such laying of pipelines on the ground that it cannot invariably lead to the destruction or removal of the wild life in these ecologically sensitive areas. The Court, instead of taking independent expert evidence on the issue like it has done in all other cases, deferred to the State’s judgment of possible damage and the failure of respondent to place any contrary reports before it. Furthermore, given a choice between environment and development, in Research Foundation for Science Technology and Natural Resource Policy v Union of India & Ors., the Court seemed unequivocal of its choice to err on side of development. It clearly displayed that it was in favour of continuance of hazardous industry subject to safeguards being followed and seemingly took India’s economic growth rate of 9 per cent and economic interests in ship wrecking industry as overriding considerations. Lastly, in Karnataka Industrial Areas Development Board v Sri. C. Kenchappa & Ors.[20]Law, Environment and Development Journal the Court overturned a direction by the Karnataka High Court to the appellant to leave a land of one kilometer as a buffer zone to maintain a ‘green area’ around the periphery of a village. In the absence of any evidence, it adjudged that these directions would have hindered land acquisition for industrial development.

Justice P.N. Bhagawati once made a insightful observation: ‘We need judges who are alive to the socio-economic realities of Indian life’.

In L.K Kulwal v. State,[21] The Rajasthan High court directing the municipal authorities to Jaipur to keep the city clean, laid emphasising on the fundamental duty of the citizens under Art. 51A (g). According to the court, the provision renders the citizen the right to move the court to see that state performs its duties faithfully and strives to protect and improve natural environment. It is the primary duty of the municipal council to remove filth, rubbish, noxios odour or any offensive matter, and financial inability cannot be plea.

According to Apex court in M.C Mehta v. Union of India[22] Article 39 (e), 47, 48-A collectively cate duty on the state to secure the health of the people, improve public health and protect and improve the environment, on the premises to protect the health of the people of Delhi, the court issued several direction phase out grossly polluting old vehicles and non-CNG Buses. The Court rightly related the govt.’s plea that CNG was in shot supply. The court observed.

Confirming economic advantage upon industry by making available cheap gas in preference to need for supplying gas for environment reason is inconsistent with settled constitutional position.

Some of the significant principles and guidelines laid down by the Supreme Court in M. C. Mehta cases to bring environmental protection within constitutional framework are as under:

(a) Court's power to grant compensation under Article 32- -"Under Article 32 Jurisdiction and power of the Court is not only injunctive in ambit, i.e. preventing the infringement of a fundamental right, but it is also remedial in scope. . . The power to grant such remedial relief may include the power to award compensation in appropriate cases."

(b) Article 21 - Scope and ambit expanded to include right to clean and healthy environment in the right to life.

(c) Law of Torts: - Strict and Absolute liability of an enterprise engaged in a hazardous and inherently dangerous processes. Rule in Rylands v. Fletcher-- evolved at a time when all these developments of science & technology had not taken place -- cannot afford any guidance consistent with constitutional norms of the present day economy and social structure.

(d) 'Polluter Pays Principle', 'Precautionary Principle' and 'Public Trust Doctrine' have become an integral part of the environmental law and policy in India.

e) Maintainability of Public Interest Litigation – Whether letters addressed to individual judges entertainable - Hyper technical approach to be avoided by this Court - Court must look at the substance and not the form.

(f) Location of Hazardous Industry- National policy should evolve for location of chemical and other hazardous industries in areas where population is scarce. There should preferably be a green belt of 1 to 5 km width around such hazardous industries.

(g) Jurisprudence and law – It should keep pace with the changing socio-economic norms - where a law does not fit into the present context, Court should evolve new law.

(h) Environmental Courts - 'Since cases involving issues of environmental pollution, ecological destruction and conflicts over natural resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to setup special Environment Courts.' On the Supreme Court direction some of the High Courts in India have set up Green Bench to hear environment cases.

The Supreme Court directed the Govt. of India to set up Authorities under Environment Protection act to get enforced orders and to further issue directions for the protection of environment and control of pollution.

This statement explains the gradual shift in the judicial approach while dealing with the issues of sustainable development. These new cases have been set against the backdrop of a radically different socio-economic background of national life. The annual GDP growth rate of the Indian economy has catapulted to the levels of 8 to 9 per cent against a meager 5 to 6 per cent in the previous two decades and the annual growth rate of the industrial sector has skyrocketed from the range of 5 to 7 per cent to 11.6 per cent during the period of 2002 to 2007.

Thus, industrial development has become a pressing need in the current phase of economic transformation. In such a scenario, it is impossible for the higher judiciary to remain oblivious of this critical facet of national life and therefore, there is an increased probability of a pro-development bias creeping into the judgments where courts are required to review choices made between environment and development.

An important ingredient of environmental litigation is the element of procedural convenience. On the procedural side, locus standi requirements have been diluted in environmental actions and courts allow citizens to file Public Interest Litigation (hereafter ‘PIL’) for addressing violations of statutory mandates by the executive and private parties or situations where legal lacunae still persist. PILs have emerged as the most potent tool in the hands of Indian judiciary. The Court has the power to refer scientific and technical aspects for investigation and opinion to expert bodies such as the Appellate Authority under the National Environmental Appellate Authority Act, 1997 and the power to direct the Central Government to determine and recover the cost of remedial measures from the polluter under Section 3 of the Environment (Protection) Act, 1986.

To sum up this section, despite all its downsides the long journey of environmental jurisprudence in India, when viewed in a holistic manner, can be best described in Supreme Court’s own words as: ‘This has been an interesting judicial pilgrimage for the last four decades. In our opinion, this is a significant contribution of the judiciary in making serious endeavour to preserve and protect ecology and environment, in consonance with the provisions of the Constitution’.

The Environment rules
The environment (protection) Rule 1986 came into force on 19 nov. 1986. The EP Rule seek to carry out the provision of EPA, and to meet various specific problems in relation to the protection and improvement of the environment.

The EP Rules specify the standards for emission or discharge of environment pollutant from industries, operations or processes. However, the central pollution control Boad or state pollution control board can stipulate more specific standards for any specific industry, operation or process. The issuance of direction denotes a coercive power procedure safeguards are necessary for its proper use. The Environmental rule provides those safeguards. These safeguards include an opportunity of being heard. However, when the central government is of the opinion that in view of the likely hood of grave injury too the environment, it is not expedient to provide an opportunity to file objection against the proposed direction, it may, or reason, recorded in writing, issue direction without giving such an opportunity.

The provision takes into account emergency situation when quick action is needed. The EP Rules lay down the factors, which the central government should consider while it prohibits or restrict the location of any industry, or carrying on of process and operation in different area, the topographic and climate feature of the area, the biological diversity, which, in the opinion of the central government, needs to be preserved, environmentally compatible land use and proximity to human settlement, are some of the significant factors to be considered. A notice with full detail of the proposed prohibition or restriction could be published, and objection filed within 60 days in writing.

The time limit within which the central government should consider these objections was fixes originally as 120 days. However, the time limit was changed by several amendment notifications, and ultimately fixed at 286 days. The longer period of opportunity is neither reasonable nor in consonance with the objective of protection an improvement of the quality of the environment. The safeguards provided for taking samples and sending them for analysis are recognition of the right to a fair process. The E P Rule also lay down the functions of environment of laboratories qualifications of government analysis, and the manner of giving notice. The discharge of the environmental pollutants in excess of prescribed standards as of grave concern. That is the reason why a person in charge of the place is bound to give information of the actual occurrence apprehension of occurrence. The E. P rule specify the authorities to whom this information has to be given-

The officer in charge of emergency or disaster relief operation in a district the central pollution control board or a state pollution control board, or its authorised regional officer, or any authorities or agencies in the schedule to the E.P Rules.

Environment audit-
The Environment Protection Rule made the submission of an environment audit report compulsory. The originally stipulated to be filed on or before 15 may of every year. The audit report, subsequently worded as audit statement is to be filed on or before September every year to the state pollution control board. Every person carrying on an industry, operation or process requiring consent under the water Act or air Act or authorisation under the Hazardous wastes (management and handling) Rules 1989 has to submit this report for financial year, ending 31 march, to the state pollution control. The benefits of audit an be denied some of the remarkable benefits of audit includes grater industry compliance with environmental law, discloser of data on waste generation, adoption of clean technology for pollution prevention, waste minimisation, recycling any utilization, arrangement for offsite disposal, revealing of data on consumption of water and raw material.

Hazardous substances-
specific provision is made in E P Rule for handling hazardous substances a hazardous substances is defined not only as a substance, but also as a preparation, which by reason of its chemical or physio-chemical properties or handling, is liable to cause harm to human beings, other living creatures. Prior to permitting the handling hazardous substances in a area, the central government has to take into consideration hazardous nature of the substances and its potenta to damage the environment, human being, other living creatures, plants and property. The fact that the government has to apply its mind to the availability of substitute or of the state of technology for developing a sate substitute and the gestation period necessary for gradual introduction of a new substitute is a very significant provision in the E P Rule, the guarantees consideration of all relevant matter before taking decision on prohibition and restriction on the handling of hazardous substances.

The E P Rule also provides the procedural safeguards of effective and meaning full notice and consideration of objection to the proposal.

Control of noise-
The state government can classify the area on the basis of criteria in the schedule. All development authorities, local bodies, and other authorities concerned shall adopt measure in order to avoid noise menace, and to achieve the objective of maintain the ambient air quality standards in respect of noise an area of 100 meters around hospital, education institutions and courts may be declared as silence zone. A loud speaker on a public written permission from a specified a authority. A loud speaker or a public address system shall not be used at night between 10 pm to 6 am except in closed premises for communication within, for instance, auditoria, conference room, communication hall and banquet hall.

Ø No untreated bio medical waste shall be kept stored beyond period of 48 hours.

The ozone rule-
The rule relating to control of ozone depletion provide for prohibition on new investment with ozone depleting substances, regulation of sale, purchase, use of ozone depleting substances and control of production and consumption or ozone depleting substances. There is regulation of import export and sale of products made with or containing ozone depleting substance.

Use of Law Machinery for Environment Protection
The primary effort of the courts while dealing with environmental issues had been to not only punish the offender but also to seek proper enforcement of such laws. In Indian Council for Enviro Legal Action v. Union of India[23] it was observed that:

Even though, it is not the function of the court to see the day-to-day enforcement of the laws, that being the function of the executive, but because of the non-functioning by the enforcement agency, the courts as of necessity have had to pass orders or direction to the enforcement agencies to implement the law for the protection of the fundamental rights of the people.

Here the question is whether civil action against the polluters by applying the precautionary principle and polluter-pays principle is enough or penal action should also be initiated against such offenders. Environment laws besides providing for protection of the environment also provide for penal action against the polluters. For e.g. Section 15 of the Environment (Protection) Act, 1986 provides for contravention of the provisions of the Act and the rules and regulations issued under the Act to be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues.Similar are the provisions provided by the Air (Prevention and Control of Pollution) Act, 1981 as well as the Water (Prevention and Control of Pollution) Act, 1974.

The Pollution Control Boards have powers to initiate action against the polluters. However, these Boards had till the recent past been functioning as record-keepers maintaining statistics regarding pollution and only during the last few years these Boards have taken some initiatives to protect and improve the environment after being directed by the courts. It is a matter of surprise that even where pollution was easily visible or was being felt for e.g. air pollution in Delhi, the Boards acted as silent spectators till the Court intervened.

The environmental laws provide for a certain procedure for taking cognizance of offences for e.g. Section 49 of the Water (Prevention and Control of Pollution) Act, 1974 provides that no court shall take cognizance of any offence under this Act except on a complaint made by a Board or any officer authorised in this behalf by it; or any person who has given notice of not less than sixty days, of his intention to make a complaint, to the Board or officer authorised as aforesaid.Similar are the provisions relating to cognizance under Sections 43 and 19 of the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 respectively.

The procedure for filing complaint should be simplified. The requirement of giving notice to the Board or to the Central Government in case of offences under the Environment (Protection) Act, 1986 should be done away and instead of this, it should be provided that every person should have a right to directly file a criminal complaint against the offender in accordance with the procedure laid down in Section 200 CrPC. However, as a matter of safeguard against malicious prosecution it can be provided that the court shall call for a report from the Pollution Control Board concerned before summoning the accused. But at the same time it should also be provided that the complainant shall have the right to challenge the report of the Board by way of scientific or other evidence.

There are other special or local laws dealing with nuisance. But the Magistrate's power to act under Section 133 is not affected by them.[24] Even the Water (Prevention and Control of

Pollution) Act, 1974 has not taken away powers of the Sub-Divisional Magistrate under Section 133 CrPC. The Sub-Divisional Magistrate has power to close a factory causing pollution, when appreciation certificate from the Pollution Control Board is not produced.[25]

In Lakshmi Cement v. state[26] it was held that Section 133 CrPC does not automatically or impliedly get repealed after the commencement of the Air (Prevention and Control of Pollution) Act, 1981. So proceedings under Section 133 CrPC are not barred. But while passing an order under Section 133 the Magistrate should be very keen about the complaint and also should see the fulfilment of the required conditions as stipulated. Otherwise the order passed by such Magistrate can be held illegal as it was in Chabila Roy v. State [27]where the Magistrate on receiving a complaint regarding the running of a "khatal" did not examine the petitioner and the local people about the physical discomfort or health hazard on account of the "khatal", passed an order. It was held that the order was illegal being in variance with express provisions of Section 133 CrPC.

Indian constitution and international law
India is a member of the United Nations organization since its inception. To some extent environmental problems can be dealt on regional basis but all problems cannot be said to be a local. All the nation on rich or poor, developed or developing, north or south facing the problem of pollution. Thus, the problem of pollution is to a large extent a transboundary problem and some time its effects are widely rampant and recognize no boundaries. It is true that we have ‘one planet to live on’ and ‘ we have common future’.

In this regard, various international conferences have been organized to forge a common strategy to contain and central the pollution problems and many international agreement and regional acts have been entered into for this purpose. The first international conference on environment and development was organized at Stockholm in 1972 (5 Jun 1972) in which 107 nation were participated. But only two heads of states came to address the conference and one of them was the then prime minister of India Mrs Indira Gandhi, 26 principle were propounded which are known as magna-Carta, on human environment.

Similarly, India has also participated in earth summit at Rio-de Janeiro (1992), Nairobi conference(1987), Kyoto Protocol (1997), Basel Conference (1989),convention of law of seas (1969), convention on international trade on endangered species (CITIES, 1973), Convention on Biological Diversity (1992), convention on climate change (1992) and many others.

Effect of international agreements and declarations on Indian constitution
Following are 3 ways in which international agreements, covenants etc. Become the part of the national law in India-
# Art. 51 of Indian constitution provided for promotion of international peace and security. It provides under clause (c) that “the state shall Endeavour to foster respect for international law ad treaty obligations in the dealing of organized people with one another. Thus, the international treaties do not automatically become a part of our national law, it has to be incorporated in to the legal system by an appropriate law passed by Indian parliament. However, India courts while interpreting statues have to maintain harmony with the rule of international law.

# Moreover, national legislation even if contrary to international law has to be respected and given priority.

# An extra-ordinary treaty is to be construed as contact between participating nations and is to be affected.

Art. 253 confers wide and overriding power on ‘ parliament to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country or countries or nay decision made at any international conference, association or body. This, rt. 253 fully authorizes parliament to enact legislation to implement the international treaties etc, even though they fall within the state list II. The power of the central government to enact law for Implementing the international treaty is not free from constitutional restriction such as they are subject to fundamental right.

The supreme court in PUCL v. UOI[28] held that after referring to international covenant of civil and political rights, 1966 and the universal declaration of human rights, 1988 observed that-
“It is almost an accepted proposition of law that the rule of customary international law which are not contrary to the municipal law shall deemed to be incorporated in the domestic law”.

Justice Sekri, C,J also clarified in Keshwanand Bharti v. state of Kerala,[29] that-

It seems that in view of Art. 51 of Indian constitution, this court must interpret the language of the constitution, if not intractable, which is after all a municipal law, in light of the UN charter and the solemn declarations subscribed by India.”
--------------------------------------------------------------------------------
[1] Article 48-A reads as: Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
[2] Article 51A(g) reads as: Fundamental Duties- It shall be the duty of every citizen of India- (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
[3] (1976) 2 SCC 521.
[4] (1987) 1 SCC 395.
[5] Subhash Kumar v State of Bihar, (1991) 1 SCC 598,
[6] M.C. Mehta v Union of India, (1998) 6 SCC 60
[7] Indian Council for Enviro Legal Action v Union of India, (1996) 5 SCC 281
[8] Indian Council for Enviro Legal Action v Union of India, (1996) 5 SCC 281
[9] Vellore Citizens’ Welfare Forum v Union of India, (1996) 5 SCC 647.
[10] Foundation v Diksha Holdings Pvt. Ltd., (2001) 2 SCC 97
[11] K.M. Chinnappa & T.N. Godavarman Thirumulpad v Union of India, AIR 2003 SC 724
[12] State of Himachal Pradesh v Ganesh Wood Products, (1995) 6 SCC 363.
[13] (1996) 5 SCC 647
[14] (1997) 2 SCC 267
[15] Vineet Narain v Union of India, (1998) 1 SCC 226.
[16] Narmada Bachao Andolan case,
[17] (2004) 9 SCC 362.
[18] (2004) 6 SCC 402, 407.
[19] (2004) 2 SCC 392,
[20] (2006) 6 SCC 371.
[21] AIR 1988 Raj 2
[22] AIR 2002 SC 1696
[23] (1996) 5 SCC 281
[24] Shaukat Hussain v. Sheodayal Saksaina, AIR 1958 MP 350
[25] Nagarjuna Paper Mills Ltd. v. SDM and RDO, 1987 Cri LJ 2071 (AP)
[26] 1994 Cri LJ 3649 (Raj)
[27] 1983 Cri LJ NOC 203 (Cal)
[28] (1997) 1 SCC 301
[29] (1973) 4 SCC 225

Authors contact info - articles The  author can be reached at: dhruvesh1989@legalserviceindia.com




1 2 3 4 5
Rate this article!     Poor
Excellent    

Cambridge University Faculty of Law:
Law has been studied and taught in Cambridge since the thirteenth century, when the core subjects of legal study in all European universities were Civil law (the law of ancient Rome) and the Canon law of the Church. Early graduates of the Cambridge Faculty of Canon Law held the highest judicial positions in Europe
Law colleges Click here to see a list of Top law colleges in the world


Most viewed articles in Environmental Law category
Conservation of Natural Resources
Consequences of Over-population in India
Carbon Trading In India
Environmental Legislation & Its Legal Aspect
Decision of Apex Court on Ecology & Air Pollution
Role of Individual & Sustainable Development
Ganesh Idol Immersion & Water Pollution in the State of Maharashtra: an Action Plan
Fundamental Principles of Environmental Protection
Role of Indian Judiciary in Environmental Protection
The role of NGO's in protecting the environment
Indian Judiciary on environment vs. Development conflict
The Dehradun Valley Litigation
Economic Instruments for Controlling Air Pollution
Environmental Tort from Indian Perspective
Environmental Justice - Right To Water
Changing Dimension of Environmental Law
Most recent articles in Environmental Law category
Sustainable Development, Guiding Principles And Values
Notion of Doctrine of Public Trust In India
Impact of Globalization And Its Effect on Society
The Concept Of Environment And Development In The Era Of Globalisation
The role of NGO's in protecting the environment
The Scope of Bio-Fuels as a clean Energy Resource (Sweet Sorghum)
Safeguarding River Ganga through the doors of India and Bangladesh
Environmental Justice - Right To Water
Ganesh Idol Immersion & Water Pollution in the State of Maharashtra: an Action Plan
The Dehradun Valley Litigation
Decision of Apex Court on Ecology & Air Pollution
Will Inadequate Environmental Legislation And Judicial Slumber Allow Future Union Carbides To Get Away With Murder?
Role of Indian Judiciary in Environmental Protection
E-waste management in India
Implementation of the Costal Zone Management Policy in State of Gujarat
Future scope of fuel free bikes and automobiles in India

Article Comments

there are no comments...

Post Your Comments
Name

Email

Your comments

Note : Your email address is only visible to admin, other members / users cannot see it.

You can use following FXCodes


BOLD : [b]
Italic : [i]

[b] Legal Services India [/b] is a [i]nice website[/i].
[url= http://www.legalservicesindia.com/article/ ]click here to visit.[/url]

Legal Services India is a nice website.
Click here to visit

 

Note : Currently, user comments are moderated and will be posted only after approval.



Welcome!
Please login or register a new free account.

Random Pick
An article on the great debate whether euthanasia or mercy killing should be legalized or not. It is written more from the Indian perspective. It explains what are the advantages and drawbacks of legalizing euthanasia in our country and that euthanasia...

Statistics
» Total Articles
898
» Total Authors
2308
» Total Views
4866423
» Total categories
29

Law Books




Legal Articles

Lawyers in India - Click on a link below for legal Services

lawyers in Mumbai
lawyers in Bangalore
lawyers in Pune
lawyers in Pondicherry
lawyers in Jaipur

lawyers in Chennai
lawyers in Ahmedabad
lawyers in Jodhpur
lawyers in Cochin
lawyers in Lucknow

For Mutual consent Divorce in Delhi
Click Here

Ph no: 9650499965
For online Copyright Registration
click here

Ph no: 9891244487
Law Articles

lawyers in Delhi - New Delhi
lawyers in Chandigarh
lawyers in Surat
lawyers in Nashik

lawyers in Janjgir
lawyers in Indore
lawyers in Allahabad
lawyers in Agra

lawyers in Kolkata
lawyers in Hyderabad
lawyers in Rajkot
lawyers in Nagpur

TOP

legal Services India.com is Copyrighted under the Registrar of Copyright Act ( Govt of India) 2000-2013

India's Most Trusted legal information center