Climate Crisis: Public and Private Areas of Law

Author: Tanmaya Sharma

LL.M. in Criminal and Security Laws
Enrolled at Bar Council of Rajasthan, Jaipur

The world has witnessed major changes in the environment and climate due to various factors. Most of us are a live audience to the current pandemic and have also seen various other casualties due to climate change. Human beings are considered the most evolved species, consuming one and all the available resources. Our planet Earth has given us the most beautiful place to dwell on with all the possible resources necessary for livelihood. But these natural resources are being exploited by humans. There are some resources which are even exhausted. Climate change became one of the major issues of the current time leading to the climate crisis. India, in particular, is facing a real hard time to cope up with the current climatic situation. The current climate crisis is quite evident indicating upcoming threats. Global warming is a considerable reason for the current climatic conditions. Some of the developing countries are dealing with the serious issues raised because of global warming. India is one of the developing countries which will confront some major issues due to global warming.  Climate crisis has overblown normal human life along with the social and economic development of the nation. The national and international authorities are concerned of the major decline in growth of nations due to climate change and therefore, have signed up various treaties and are a party to multilateral climate change negotiations which is done under the United Nations Framework Convention on Climate change. India is also a party to the multilateral climate change negotiation.

Urbanisation and Industrialization are the two main reasons for which every nation has joined the race. The rapid increase in urbanisation and industrialisation has put more pressure on the developing countries for socio and economic development. This resulted in overburdening of the ecological systems. India has learned from all the current going and has stepped onto making environmental laws to safeguard climate change and for sustainable development. Legislation has enacted some firm laws for the protection of the environment. But these laws were supposed to impose a penalty, making it punitive. Later as time passed, the nation realised that laws enacted must not be punitive, rather they should be preventive in nature. This altered the objective of environment laws from punitive to preventive.

Global warming is the major issue leading to the climate crisis to which the Central Government and State Government is combating together in coordination and has established environmental laws within the framework of India’s development agenda. 

SAFEGUARDING ENVIRONMENT

Earlier there were no specific provisions in the Constitution of India regarding Environment. Though, for the proper organisation of the agricultural sector and their rights, there were certain provisions related to agricultural and animal husbandry, improvement in public health, protection of national monuments for the protection of those which shows a connection with the environment. The Constitution of India contains certain provisions which specifically states the concern towards the public health, a better living standard of people and also raising nutrition level. Article 47 of the Constitution of India states all the above mentioned to be the duty of the state. To secure public health, it is important to protect and safeguard the environment.

The words ecology and environment were added to the Constitution of India under Article 48A and 51A(g) for the first time after the 42nd Amendment in the Indian Constitution. Directive Principles of State Policies also emphasised the environment protection and Article 48A was added to Part IV of the Indian Constitution for the same. Article 48A is concerned to protect and improve the environment and to safeguard forests and wildlife. The state is given the statutory mandate to protect and improve the environment, the natural habitats and wildlife, also to show respect towards all living creatures.

Not only Directive principles of State Policies but Fundamental Rights envisaged in Part III of the Indian Constitution also safeguards the environment. Part III ensures the protection of the Rights of every individual but also puts a responsibility on people to preserve and protect the environment because every individual has the right to live in a healthy environment at present and in future.

Judiciary has also played a vital role in environmental protection. A wider interpretation is given to Article 21 of the Indian Constitution to provide a better environment to dwell in without interruption of pollution, noise and other detrimental interferences in ecological balance. Other constitutional amendments include the two entries 174A Forests and 175B Wildlife Protection.  Therefore, in current conditions, the legal system is required to embed certain legal provisions centring socio-economic framework.

Climate Change will be a crisis for all and one. This will affect all the living and incidental things to it like- life, livelihood and health guaranteed by the Indian Constitution. India’s economic development will be hampered along with the fundamental rights of people. Adding certain strict environment protection laws in the Constitution will not only protect the climate but will create a deterrent effect on the faulted party and will provide compensation to the victims of climatic conditions due to human activities.

The Environment (Protection) Act was introduced in 1986 and at present, it regulates areas like land, air, water and wildlife abroad. There are some National policies and International Treaties made by the Government of India to protect the climate change and its effects.

National Policies along with Constitutional mandate includes National Policy on Pollution Abatement, 1992 and the National Conservation Strategy and Policy Statement on Environment and Development, 1992. Economic instruments and certain guiding principles are incorporated to control the emission of hazardous gases and substances degrading the environment quality.

LEGAL PROVISIONS IN OTHER LEGISLATIONS

A potential solution to the climate crisis is to speed economic development without adversely affecting the environment or tilting the ecological balance. Being a developing country, India, in particular, will be in trouble in such a scenario. With the slowing down of economic development in India due to environmental issues, to regulate the socio-economic development various policies were formulated for the conservation and protection of the environment and ecological balance. This has become a priority of legal thought in the present era. Currently, there are approximately two hundred (200) laws dealing with environmental protection and security in India, both pre-independence and post-independence. To combat the climate crisis both public and private areas of law are working simultaneously. Along with constitutional provisions, many other legislative enactments are playing a major role to achieve constitutional objectives for a sustainable wholesome environment for human living. To name a few, Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Environment (Protection) Act, 1986; Motor Vehicle Act, 1988. Also, there are several provisions under the Indian Penal Code, 1860, on occasion where a person sustained an injury for which he is claiming some damages or punishment or both. Other common law remedies for the same are also provided under Tort.

1. The Forest Conservation Act, 1980

Deforestation is one of the main causes of the climatic crisis and the Central Government is shocked at the rapid increase in cutting of trees in India for constructing industries which leads to further environmental depletion. Henceforth, the Central Government in India enacted The Forest Conservation Act, 1980. This Act aims to protect and preserve the forests and living wildlife therein. The present Act in force also limits the power of the State to de-reserve forests and exploits the forests for non-forest purposes. The Act was further amended in 1988 with more subsequent effective changes. This Act was introduced to prevent deforestation and prohibit the use of forests for non-forests purposes without the prior permission of the Central government.

2. The Air Prevention and Control of Pollution Act, 1981

In environmental issues, to allow an integrated approach, the Air Prevention and Control of Pollution Act, 1981 extended the power and reach of central and state boards established under Water Act to cover air pollution control and those states which do not have water pollution boards were required to establish the Air pollution boards.

Air pollution is another hazard causing trouble to many living beings and socioeconomic health to deplete. It created an alarming situation that needs attention and henceforth such boards are established for prevention, control and reduction of pollution.

3. The Environment Protection Act, 1986

After the incident of the Bhopal Gas tragedy, this Act was enacted to provide an umbrella of the mechanism for the coordination between the activities of different authorities of previous legislation established at the Central and State level, established by the Central Government. This Act provides wide powers to the executive.

4. The Factories Act, 1948

The Factories Act was enacted to ensure the safety of the workers in the working place conditions also, in the employee benefits. With environmental conservation, the safety and health of employees are also important. This Act also regulates the emission of harmful chemicals and gasses in the environment without final disposal.

 There are other legislations also to regulate the activities of living as well as the working conditions of the industries and their behavioural manner towards the environment. Both public and private areas of law are showing concern for the alarming situation of the present. Environment conservation is a challenge for all and all must follow up with the conditions to better combat it.

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