The Environment Related Laws

The Environment related Laws enacted by the Parliament under Articles 252 and 253 of the Constitution of India. The Water (Prevention and Control of Pollution) Act, 1974 was promulgated as a Central Legislation under Article 252 of the Constitution. Since, the "water" is listed under the State list, a Resolution from two or more State Assemblies empowering the Parliament to enact the Legislation on the State List was required. The Water (Prevention and Control of Pollution) Act, 1974 became effective at the State level when it was adopted by the concerned State Assemblies. The Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 were promulgated under Article 253 of the Constitution of India, which empowered the Parliament to enact legislations on such matters as necessary for compliance of International Agreements in which India has been a party. The Supreme Court of India in numerous matters elaborated the scope of Article 21 of the constitution of India, which deals with protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by Law. In the matter of Rural Litigation and Entitlement Kendra Vs State of U.P. - the Hon’ble Supreme court held that the right to unpolluted environment and preservation and protection of nature’s gifts has also been conceded under Article 21 of the Constitution of India. The Constitutional provisions provide the bed-rock for the framing of environmental legislations in the country. Article 48-A of the Constitution deals with the Protection and Improvement of Environment and Safeguarding of Forests and Wildlife – The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. On the basis of the said provisions, the Environment (Protection) Act, 1986 and the Wild Life (Protection) Act, 1972 (as amended in 1986) have been enacted by the Parliament. Under Part IV-A of the Directive Principles of State Policy, Fundamental Duties have been added under Article 51-A by the 42nd Amendment of the Constitution in 1976. Under Article 51-A(g) provides the Fundamental Duties with respect to the environment which includes - To protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. Supreme Court Cases-2006S.C.C.vol.1 page1 Constitution of India — Arts. 21, 48-A and 51-A(g) — Forests — Conservation of — Adoption of incentive compatible/market oriented instead of command and control methodologies for — Diversion of forest land to non-forest use — Creation of market in forest use, ensuring inclusion of social opportunity cost/<169>externalities<170> of such use, in contemporary context and in terms of intergenerational equity, in pricing model therefore — Levying of appropriate Net Present Value (NPV) of such diverted forest land as the price of such forest use, on user agencies — Need, justification and scope of such NPV, discussed — Public trust doctrine reiterated and employed — Inadequacy of compensatory afforestation by itself in compensating for loss of natural forests, explained — Held, the

appropriate NPV has to be worked out on economic principles — Expert Committee, comprising three experts, one from Institute of Economic Growth, Delhi University, directed to be constituted — Terms of reference of said Committee specified — Committee to report to Supreme Court within four months of this order — Various methods of, and considerations involved in estimating said NPV discussed and emphasised — Clarified that various environmental outputs from forests appear as public goods for which there is no market — Such outputs enumerated, and directed to be accounted for by said Committee in arriving at estimate of said NPV — Committee to undertake entire exercise within framework and on basis of doctrine of sustainable development — Further held, larger public interest has to be the guiding principle and not present interest of the user agency only, (2006) 1 SCC 1-A

Constitution of India — Arts. 21, 48-A, 51-A(g) — Forests — Conservation of — Diversion of forest land to nonforest use — Levying of appropriate NPV of such diverted forest land as the price of such forest use, on user agencies — Updation of NPV amounts — Periodicity — Held, whatever be the NPV to be charged as determined by expert committee set up in terms of this judgment, the amounts shall have to be updated every three years, (2006) 1 SCC 1-B

Constitution of India — Arts. 21, 48-A, 51-A(g) — Forests — Conservation of — Diversion of forest land to nonforest use — Levying of appropriate NPV of such diverted forest land as the price of such forest use, on user agencies — Payments of NPV pending final determination by expert committee set up in terms of this judgment — Need for user agencies to make — Held, besides NPV as being presently calculated by MoEF, user agencies shall give undertakings to pay remaining/further amounts as determined by said expert committee, (2006) 1 SCC 1-C

Constitution of India — Arts. 21, 14, 48-A, 51-A(g) — Sustainable development — Applicability of principle of — Forest use — Primacy between dictates of development and protection of environment in — Held, Forest Policy, 1998, which has a statutory flavour dictates that derivation of economic benefit must be subordinated to ensuring environmental stability and maintenance of ecological balance — Non-fulfilment of this principle would be violative of Arts. 14 and 21 — Furthermore, in the ultimate analysis, economic development at cost of degradation of environment and depletion of forest cover would not be long-lasting — Such development would be counterproductive — Dwindling of forest cover in India — Importance of India as major biogeographic/<169>megadiversity<170> country — Need for vision for overall development and systematic approach — Concept of forest management discussed as possible practical mode to achieve the same, (2006) 1 SCC 1D

Constitution of India — Arts. 21, 48-A, 51-A(g) — Right to enjoyment of healthy life under — Violation of, from threats to the ecology — Conservation of natural resources — Obligations of all concerned, including Union and State Governments — Duty of Supreme Court — Held, Constitution enjoins upon Supreme Court a duty to protect the environment, (2006) 1 SCC 1-E

Constitution of India — Arts. 21, 48-A, 51-A(g) — Forests — Conservation of — Diversion of forest land to nonforest use — Levying of appropriate NPV of such diverted forest land as the price of such forest use, on user agencies — Projects/user agencies to be exempted from payment of NPV — Held, though issue is to be finally decided by expert committee set up in terms of this judgment, prima facie, revenue charging projects, even though they be public utilities, would not be exempt, while non-revenue earning projects could be exempted, (2006) 1 SCC 1-F

Environment Protection and Pollution Control Forests

— Compensatory Afforestation Fund Management and Planning Agency (<169>CAMPA<170>) set up in terms of MoEF notification dt. 23-4-2004 — Validity of — Held, constitution of CAMPA is necessary to fully and effectively implement recommendation dt. 9-8-2002 made by CEC for protection of environment, (2006) 1 SCC 1-G

Environment Protection and Pollution Control Forests

— Compensatory Afforestation Fund Management and Planning Agency (<169>CAMPA<170>) set up in terms of MoEF notification dt. 23-4-2004 — Constitution/Composition of executive body of CAMPA — Need for inclusion of conservationists, environmentalists, economists and experts in forestry — Held, cl. 2.2 of CAMPA notification dt. 23-4-2004 shall be amended so as to include two more environmentalists, one expert in field of forests and the other in field of forest economy development — Said amendment to be made within one month of this judgment, (2006) 1 SCC 1-H

Environment Protection and Pollution Control Forests

— Sums tendered as NPV for diverted forest land — Appropriation and use of — Appropriation whether to CAMPA Fund set up in terms of MoEF notification dt. 23-4-2004 or State Governments — Purposes for which funds to be used — Held, payment to CAMPA fund is constitutional and valid — Natural resources/ecology not being in ownership of any State or individual, public at large is beneficiary and they belong to all — Hence amounts of NPV cannot be made over to State Governments — In any case, proprietary rights of States over the land, timber or minerals are not affected — Effect of change in scheme of forest management from Forest Act, 1927 to Forest (Conservation) Act, 1980 and removal of forest and wildlife from State List in Sch. VII of Constitution in this regard, discussed — CAMPA or CAMPA Fund set up to protect ecology and provide for regeneration of forests cannot in constitutional scheme be considered as a fund under Arts. 266, 283 or 284 — Hence neither Arts. 110, 199, 195 nor 294 will have any application — Furthermore, imposition of NPV is a charge or a fee within Sch. VII List III Entries 47 and 20 — Lastly, 12th Finance Commission has recommended a grant of Rs 1000 crores, spread over 2005-2010 for maintenance of forests, to the States over and above what they have been spending through their forest departments, (2006) 1 SCC 1-I

Environment Protection and Pollution Control Forests

— Sums tendered as NPV for diverted forest land to CAMPA fund — Territorial usage of — Held, cl. 6.4(v) of CAMPA notification dated 23-4-2004 to be amended within one month of this order so as to provide that ordinarily expenditure shall be incurred in State or UT from which such sums are received, but leaving it to discretion of CAMPA to also incur expenditure in adjoining State or UT where impact of diversion of forest in question is also felt, (2006) 1 SCC 1-J

Environment Protection and Pollution Control Forests

— Establishment of SPV under CAMPA notification dt. 23-3-2004 — Legality of — Held, there is no illegality in establishment of the same in terms of cl. 6.6 of the said notification — However, before establishing SPV, its format to be filed in Supreme Court, and further action to be taken on orders thereupon — In meantime, word <169>may<170> in cl. 6.6, which left it discretion of CAMPA to establish SPV, to be amended to <169>shall<170> within one month of this judgment, (2006) 1 SCC 1-K

Environment Protection and Pollution Control Forests

— CAMPA Fund set up in terms of CAMPA notification dt. 23-3-2004 — Accounting method to be followed — Held, there should be corporate accounting based on doubleentry system and auditing is to be done by CAG, every six months — Relevant clauses of CAMPA notification to be amended within one month of this judgment, (2006) 1 SCC 1-L