Environmental Legislations

Constitutional Provisions:

• Art 21 “Right to pollution free environment.”
• Art 48-A “ The state shall endeavour to protect & improve the environment and to safeguard the forests and wildlife of the country.
• Art 51-A(g) “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.

About MOEFCC:

• In February 1980, the government appointed the Tiwari committee to suggest ways to improve environmental protection. On the committee's recommendation, a separate department of environment was created in November 1980 to carry out environmental appraisals of development projects.
• The department of environment was established in 1980 which later became the Ministry of environment and forests in 1985. In May 2014 the ministry was renamed to the current title of Ministry of Environment, Forest and Climate Change.
• Forests and wildlife are included in the Concurrent list of the Indian Constitution.

Wildlife Protection Act, 1972

• Enacted for safeguarding our floral and faunal diversity. It is aimed towards protecting wild animals and plants; and for matters connected therewith or ancillary or incidental thereto.

Salient Features of the WPA include:

• It provides for the establishment of 5 types of protected areas. National Parks, Wildlife Sanctuaries, conservation and community reserves and Tiger reserves. etc.
• It paved the way for the formation of the Central Zoo Authority.
• The Act lists 4 schedules that give varying protection to the flora and fauna of the country. 
• The Act provides for licenses for the sale, transfer, and possession of some wildlife species. 
• The Act also prohibits the hunting of endangered species.
• An expert committee, constituted by the Indian Board of Wildlife considers amendments to the Act, as and when necessary.

• Management Effectiveness Evaluation (MEE) is the assessment of how well-protected areas such as national parks, wildlife sanctuaries, conservation reserves, community reserves, and tiger reserves are being managed and their effectiveness in conserving flora and fauna.
• Statutory bodies under WPA:
• National Board for Wildlife and state wildlife advisory boards
• Central Zoo Authority
• Wildlife Crime Control Bureau
• National Tiger Conservation Authority

Amendments in 2022:

• Rationalization of the Schedules:
• The Bill reduces the total number of schedules from 6 to 4:

• Wild animals to be declared as Vermin by the way of notification by the Central Government for any area and for a specified period.
• Controlling Invasive alien species: Empowers the central government to regulate or prohibit the import, trade, possession or proliferation of invasive alien species. An officer can be authorised to seize and dispose the invasive species.

·       New Chapter VB for implementation of CITES

·       Designation of authorities by the Central government:

o   Management Authority, which grants export or import permits for trade of scheduled specimens.

o   Scientific Authority, which gives advice on aspects related to impact on the survival of the specimens being traded.

• Identification mark: As per CITES, the Management Authority may use an identification mark for a specimen. Modification or removal of the identification mark is prohibited.
• Registration certificate: Person possessing live specimens of scheduled animals must obtain a registration certificate from the Management Authority.
• Control of sanctuaries: Chief Wild Life Warden shall control, manage and maintain all sanctuaries in accordance with the management plan prepared as per guidelines issued by the Central Government.
• New section 42A for Surrender of captive animals.

The Water (Prevention and Control of Pollution) Act, 1974

• Objective: To provide prevention and control of water pollution. Maintaining or restoring of wholesomeness and purity of water in the various sources of water.
• CPCB and SPCB are statutory bodies created under the Water Act, 1974. It empowers CPCB and SPCB to establish and enforce effluent standards for factories discharging pollutants into water bodies (CPCB, and SPCB have regulatory powers).
• CPCB performs these same functions for union territories along with formulating policies related to the prevention of water pollution and coordinating activities of different SPCBs.
• SPCB controls sewage and industrial effluent discharge by approving, rejecting, and granting consent to discharge.
• The Act prescribes a special procedure for handling hazardous substances and the concerned person has to handle the hazardous substances according to the procedure of the Act.
• 1988 amendment act empowered SPCB and CPCB to close a defaulting industrial plant.

The Air (prevention and control of pollution) act, 1981

The act targets to control and prevent air pollution in India and its main objectives are:

• To provide for prevention, control, and abatement of air pollution.
• To provide for the establishment of the boards at the central and state levels to implement the act.
• CPCB and SPCB were given the responsibility.
• It states that the sources of air pollution such as internal combustion engines, industry, vehicles, power plants, etc., are not permitted to release particulate matter, lead, carbon monoxide, sulfur dioxide, nitrogen oxide, volatile organic compounds (VOCs), or other toxic substances beyond the predetermined limit.

• It empowers the state government to designate air pollution areas.
• The 1988 amendment act empowered SPCB and CPCB to close a defaulting industrial plant.
• 1987 amendment added Noise pollution under Air pollution.

Environment (Protection) Act, 1986

• This was passed in the wake of the Bhopal gas tragedy in December 1984.
• The Act was enacted in 1986 with the objective of providing for the protection and improvement of the environment. 
• This act was passed under article 253 (legislation for giving effect to international agreements). The purpose of this Act is to implement the decisions of the United Nations Conference on Human Environment of 1972 which relate to the protection and improvement of human environment and the prevention of hazards to human beings, other living creatures, plants and property.
• The act is an umbrella for legislations designed to provide a framework for central government coordination of the activities of various central and state authorities established under previous acts, such as the Water act and the Air act.
• It empowers the Central Government to establish authorities charged with the mandate of preventing environmental pollution in all its forms and to tackle specific environmental problems that are peculiar to different parts of the country.
• The Central Government or any other person duly authorised is empowered to collect the samples of air, water, soil or other substances as evidence of the offences under the Environment (Protection) Act, 1986. 
• In this Act, “Environment” is defined to include water, air and land and the inter-relationships which exist amongst them. 
• The Act has relaxed the rule of “locus standi” and because of such relaxation, even a common citizen can approach the Court with prior legal notice. The 
• Environment Protection Act grants immunity to officers of the government for any act done under the provisions of this Act. 
• It further debars the Civil Courts from having any jurisdiction to entertain any suit or proceeding in respect of an action, direction, order issued by the Central Government or other statutory authority under this Act.
• Central Ground Water Authority has been constituted under Section 3 (3) of the Environment (Protection) Act, 1986 to regulate and control development and management of ground water resources in the country.
• Eco-sensitive zones or ecologically fragile areas are notified by MoEFCC under EPA, 1986.
• Statutory bodies under the EPA, 1986:
• Genetic Engineering Appraisal Committee
• National Coastal Zone Management Authority (later converted to National Ganga Council under Ministry of Jal Sakthi)

Forest conservation act of 1980 

• Acted to consolidate the law related to forest control uncheck deforestation , the transit of forest produces and the duty liveable on timber and other forest produce.
• Prior approval of the central government is required for diversion of forest lands for nonforest purposes.
• And advisory committee constituted under this act advises the Centre on these approvals.
• 1992 amendment: It provisioned for allowing some non-forest activities in forests, without cutting trees or limited cutting with prior approval of central govt.

Act deals with 4 categories of forests:

1.   Reserved forests

2.   Village forests

3.   Protected forests

4.   Private forests

Areas similar to dictionary definition of forests and are not notified under forest act will also be protected.

Biological Diversity Act, 2002

• Biological Diversity bill was introduced in the parliament in 2000 and was passed in 2002.
• The Biological Diversity Act, 2002 was born out of India’s attempt to realize the objectives enshrined in the United Nations Convention on Biological Diversity (CBD) which recognizes the sovereign right of states to use their own biological resources.
• The Act is aimed at the conservation of biological resources, managing its sustainable use and enabling fair and equitable sharing of benefits arising out of the use and knowledge of biological resources with the local communities.

• The Act envisaged a three-tier structure:

o   National Biodiversity Authority (NBA).

o   State Biodiversity Boards (SBBs).

o   Biodiversity Management Committees (BMCs) at local level.

• NBA will enjoy the power of a civil court. NBA and SBB are required to consult and BMC in decision related to use of biological resources. All foreign national or organizations require prior approval of NBA for obtaining biological resources and associated knowledge for any use.
• The monetary benefit, fees, royalties, as a result of approvals by NBA will be deposited in National Biodiversity Fund.
• There is a provision for notifying Biodiversity Heritage Sites important from standpoint of biodiversity by state governments in consultation with local self-government.

The Act prohibits the following activities without the prior approval from the NBA:

• Any person or organization (either based in India or not) obtaining any biological resource occurring in India for its research or commercial utilization.
• The transfer of the results of any research relating to any biological resources occurring in, or obtained from India.
• The claim of any intellectual property rights on any invention based on the research made on the biological resources obtained from India.

• Any grievances related to the determination of benefit sharing or order of the NBA or SBB under this Act shall be taken to the National Green Tribunal (NGT).

As per National Biodiversity Authority, following Acts and Rules are related to Biodiversity:

1.     The Fisheries Act, 1897

2.     The Destructive Insects and Pests Act, 1914

3.     The Agricultural Produce (Grading and Marketing) Act, 1937

4.     Import and Export (Control) Act, 1947

5.     Indian Forest Act, 1927

6.     Mines and Mineral Development (Regulation) Act, 1957

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

• Forest Rights Act (FRA) deals with the rights of forest dwelling communities over land and other resources. The Act grants legal recognition to the rights of traditional forest dwelling communities. 
• Ministry of Tribal Affairs (MoTA) is the nodal agency for implementing the Act.

• Eligibility to get rights under the Act is confined to those who “primarily reside in forests” and who depend on forests and forest land for a livelihood. 
• FRA only recognises pre-existing rights.
  • Must be ST.
  • Primarily resided in forest or land prior to december 2005.
  • Depend on forest or forest land for livelihood needs.
  • Primarily resided in forest for 3 generations (75 years) prior to December 2005.
  • Depend on forest for livelihood needs.
• Criteria to claim rights for forest dwelling scheduled rights:
• Criteria to claim rights for other traditional forest dweller:
• As per the Act, the Gram Sabha has been designated as the competent authority for initiating the process of determining the nature and extent of individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes and other traditional forest dwellers.
• National Parks and Wildlife Sanctuaries have been included along with Reserve Forest and Protected Forests for the recognition of rights. 
• The rights conferred under the Act shall be heritable but not alienable or transferrable.
• The Act has also defined the term “minor forest produce” to include all non-timber forest produce of plant origins including bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu leaves etc.
• The critical wildlife habitats have been envisaged in Forest rights act, 2006. CWH are defined under the act as the “areas of national parks and sanctuaries where it has been specifically and clearly established case by case, on the basis of scientific and objective criteria, that such areas are required to be kept as inviolate for the purpose of wildlife conservation.
• MoEFCC is the nodal agency to notify the guidelines related to Critical Wildlife Habitats.

The National Green Tribunal Act, 2010

·       It was established in concurrence to Rio Summit 1992 to provide judicial and administrative remedies for the victims of the pollutants and other environmental damage.

·       It also agrees with article 21, the Right to a healthy environment to its citizens of the constitution.

·       The NGT has to dispose of the cases presented to it within 6 months of their appeals.

• NGT has original jurisdiction on matters related to substantial questions of the environment.
• Principal bench of the NGT has been established in New Delhi, with regional benches in Pune (Western zone), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench).
• Members of NGT:
• 10 expert members and 10 judicial members, although the act allows for up to 20 of each.
• The chairman of the tribunal is required to be a serving or retired chief justice of a high court or a judge of the Supreme court of India.
• The chairman of the tribunal also serves as a judicial member.
• Every bench of tribunal must consist of at least 1 expert member and 1 judicial member.
• NGT is not bound by the procedure laid down under the code of Civil Procedure, 1908, and rules of evidence act 1872 but shall be guided by principles of natural justice. 
• While passing Orders, the NGT will apply the principles of 
• Sustainable Development
• Precautionary Principle
• Polluter Pays Principle
• The tribunal has powers to review its own decisions. NGT order can be challenged before the Supreme court within 90 days.
• NGT deals with the civil cases under the 7 acts related to the environment:

1.     Water (Prevention And Control Of Pollution) Act, 1974

2.     Water (Prevention And Control Of Pollution) Cess Act, 1974

3.     Air (Prevention And Control Of Pollution) Act, 1977

4.     Forest Conservation Act, 1980

5.     Environmental Protection Act, 1986

6.     Public Liability Insurance Act 1991

7.     Biological Diversity Act, 2002

2 acts have been kept out of the jurisdiction of NGT:

1.     Wildlife Protection Act, 1972

2.     Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)

Compensatory Afforestation Fund Act, 2016

• The CAF Act was enacted to manage the funds collected for compensatory afforestation which till then was managed by ad hoc Compensatory Afforestation Fund Management and Planning Authority (CAMPA). The compensatory afforestation fund act, 2016 under which funds were released, was designed to compensate for the loss of tree cover in the country by

·       Compensatory afforestation means that every time forest land is diverted for non-forest purposes such as mining or industry, the user agency pays for planting forests over an equal area of non-forest land, or when such land is not available, twice the area of degraded forest land.

• As per the rules, 90% of the CAF money is to be given to the states while 10% is to be retained by the Centre.
• The funds can be used for the treatment of catchment areas, assisted natural generation, forest management, wildlife protection and management, relocation of villages from protected areas, managing human-wildlife conflicts, training and awareness generation, supply of wood saving devices, and allied activities.