CHAPTER 7

LEGAL REGULATION OF GLOBAL WARMING IN INDIA

Almost every national government in the United Nations now has a minister

and a department tasked with policy on the environment, and many regional and local

governments have also developed this capacity. Since 1992 the volume and quality of

environmental legislation (international, national and local) has expanded hugely, and

international agreements have not only raised the profile of environmental change but

also begun to drive global policy change.1

Domestic or national law refers to the legal system applicable to a defined

territory over which a sovereign power has jurisdiction. International Law, on the other

hand, regulates the conduct of the States and other international actors. Over the years

domestic and international systems of law have evolved in parallel. In certain fields

and regions of the world, international law has shaped and significantly contributed to

the development of domestic environmental law. Yet international environmental law

also reflects domestic experiences considered successful by the Community of

Nations. The result is a complex relationship in which the two levels of environmental

law mutually contribute to and reinforces each other.2

National governments represent their countries in international environmental

negotiations, but they are not entirely free to formulate policy positions. While it may

be possible for these representatives to ignore domestic constituents in the pre-

negotiation phase, national governments in democratic states ultimately rely on

majorities in legislatures or in public referenda in order to ratify international

agreements. Furthermore, even the ratification of international environmental

agreements cannot guarantee that these will be successfully implemented since

industries, courts, and interest groups often find sufficient leeway to delay and, po-

tentially, circumvent the implementation of international obligations at the domestic

level. Therefore, government positions are likely to be influenced by domestic pressure

groups in anticipation of the challenges posed by ratification.3

Two international conferences on Environment and development one at

1 Arvind Jasrotia, “Environmental protection and sustainable development: exploring the dynamics of ethics and law”, vol. 49, Jan-March 2007, No.1, p. 46 2 Dr. P Ishwara Bhat, and Sri Bhat Sairam, “International Environmental Law Principles: Defining Terms”, The Karnataka Law Journal, 2005(3), p.1 3 Sprinz and Martin Weifs, Domestic Politics and Global Climate Policy, 1st edition, Jaipur: Techno Science Publications, 1996, p. 88

Stockholm in 1972 and another at Rio de Janerio in 1992 have influenced

environmental policies in most countries, including India. Many countries and

international agencies have accepted the polluter pays principle, the precautionary

principle and the concept of intergenerational equity as guidelines for designing

environmental policies. 4

Climate change is a major challenge for developing countries like India that

face large climate variability and are exposed to enhanced risks from climate change.

Climate change will also significantly impact the economic growth and social

development of India, where eradication of poverty is the first and overriding

priority. It is for this reason that India has a huge stake in the multilateral climate

change negotiations that are taking place under the purview of United Nations

Framework Convention on Climate Change (UNFCCC).

No single country causes the problem; no single country can cure it. Only by

collective community action can that tragedy be avoided.5India is also not immune

from the impact of global warming and climate change. Any sharp rise in sea level

could have a considerable impact o n India. The United Nations Environment

Programme included India among the 27 countries that are most vulnerable to a sea

level rise.6

Unfortunately, India is among the countries that will suffer the most serious

consequences as a result of global warming. The impact is already being felt.7 In

India, climate change could represent additional pressure on ecological and socio-

economic systems that are already under stress due to rapid urbanization,

industrialization, and economic development. With its huge and growing population,

a 7500-km long densely-populated and low-lying coastline, and an economy that is

closely tied to its natural resource base, India is considerably vulnerable to the

impacts of climate change.

Increases in temperature and seasonal variability in precipitation are expected

to result in more rapid recession of Himalayan glaciers. In fact, the Gangotri glacier is

already retreating at a rate of 30 meters a year. According to the UN report, in the

4 http://www.mse.ac.in/pub/op_sankar.pdf accessed on 27th May 2014 5 Fred L. Morrision and Rudiger Wolfrum, International, Regional and National Environmental Law, Netherland, Kluwer Law International, 2000, p.167 6 H. A. C. Prasad, J. S. Kochher, “Climate Change and India: Some Major Issues and Policy Implications,” Department of Economic Affairs, Ministry of Finance, Government of India, March 2009, p. 8 7 R. Ramchndran, “Himalayan Concerns”, Frontline, March 9, 2007, p.14

Himalayas, rapidly melting glaciers will cause floods followed by a dip in river flow.

The decrease could see the Gangetic plans turn infertile. Cholera and malaria would

increase because of floods. Cereal yields in south Asia could drop by 30 per cent by

2050, devastating an agriculture-led rural economy like India. Food security and loss

of livelihood along with cultivable land is a nightmarish scenario.

The country is extremely vulnerable to the possible impact of climate change,

especially sea-level rise and shifts in monsoon cycles, because agriculture contributes

approximately 30 percent to the gross domestic product and employs about two-thirds

of the labor force.8

Thus many nations including India have understood the importance of

environmental law. At first the environmental law focused attention towards the

punitive aspects only. Gradually the state realized that prevention of environmental

degradation and pollution is more important than punishing the persons for causing

pollution. Thus the legal objective has changed from punitive to preventive. Here

comes the importance of the preventive and protective legislations.9

Thus, there is a there is a need of an effective response to curb global warming

by evolving norms and establishing institutions to take strategic steps to mitigate

global warming in India. To address these environmental challenges in coordination

with the state governments, the central government has established an environmental

legal and institutional system to meet these challenges within the overall framework

of India’s development agenda and international principles and norms.

7.1 Pre Constitutional era

The history of the evolution of law in relation to pollution and other

environment problems can be traced to the ancient period. From the Vedas,

Upanishads, Smritis and other ancient literatures we find that man lived in complete

harmony with nature. From the ancient scriptures of Hindu religion one learns that the

people gave so much importance to trees, plants, wild lives and other things of nature

that they developed a long tradition of protecting and worshiping nature.

Environmental ethics has always formed an inherent part of Indian religious precepts

and philosophy.10

8 Sprinz and Martin Weifs, supra note 3, p. 88 9 S. Sivkumar, “Environmental Protection: International and National Perspectives”, CULR, 2004, p. 291 10 Bhaskar Kumar Chakravarty, “Environmentalism: Indian Constitution and Judiciary”, JILI, vol. 48, Jan-Mar 2006, p. 99

Yajnavalkya Smriti, a historic Indian text on statecraft and jurisprudence,

suggested to have been written before 5th century AD, prohibited the cutting of trees

and prescribed punishment for such acts. Kautalya’s Arthashastra, written in Mauryan

period, emphasized the need for forest administration. Ashoka went further, and his

Pillar Edicts expressed his view about the welfare of environment and biodiversity.

Thus, ancient India had a philosophy of environmental management enshrined in old

injuctions contained in various scriptures and smrities11

Law of Torts

The law of torts is largely uncodified and also based on accepted principles.

Thus the common law principles including nuisance, negligence, trespass and strict

liability are the oldest form of remedies to abate the hazards of pollution. In India the

law of torts has been generally followed to provide equity, justice and good

conscience. The Supreme Court has evolved the principle of absolute liability in

addition to the above traditional categories as it felt that the rule of strict liability laid

down in Ryland v Fletcher12 was no longer suitable in the prevailing socio-economic

conditions of the country.13

Early Legislations

The Shore Nuisance (Bombay-Kalova) Act, 1893 was enacted to check wastes

and marine water pollution. The Oriental Gas Company Act, 1857 and the Bengal

Smoke Nuisance Act, 1905 were enacted to prevent or reduce atmospheric pollution

in and around Calcutta. The Bombay Smoke Nuisance Act, 1912 was passed to check

smoke nuisance in Bombay area. For preservation of forests, the Cattle Trespass Act

1871 and Indian Forest Act 1927 were passed. The Indian Easement Act of 1882

guaranteed property rights of riparian owners against “unreasonable” pollution by

upstream users.14

The Indian Penal Code, 1860

The Indian Penal Code 1860, enacted during the British rule, contains one

chapter (Chapter XIV) on offences affecting public health, safety, convenience,

decency and morals. It deals with offences affecting public health, safety and

conveyance, which covered aspects like water, are and noise pollution. Section 268

11 S Shanthakumar’s Introduction to Environmental Law, 2nd edition, Nagpur, Wadhwa and Company, Reprint 2009, p. 75 12 918680 LR 3 HL 330 13 M. C. Mehta v Union of India, AIR 1987 SC 1086 14 Supra note 4

covers public nuisance. It defines public nuisance as any act or an illegal omission

which cause any common injury, danger, or annoyance to the public or to the people

in general who dwell or occupy property in the vicinity, or which must necessarily

cause injury, obstruction, danger or annoyance to person who may have occasion to

use any public right.15 Sections 269 and 272 deal with adulteration of food or drink

for sale and adulteration of drugs respectively. Section 277 lays down that, whoever,

voluntarily corrupts or fouls the water of any public spring or reservoir, so as to

render it less fit for the purpose for which it is ordinarily used shall be punished with

imprisonment for a term which may extend to 3 months, or with a fine which may

extend to Rs. 500, or with both. Section 278 lays down that whoever voluntarily

vitiates the atmosphere so as to make it noxious to the health of persons in dwelling or

carrying on business in the neighborhood or passing along a public way shall be

punished with fine which may extent to Rs. 500. Sections 284, 285 and 286 deal with

negligent conduct with respect to poisonous substances, combustible matter and

explosive substances. Sections 428 and 429 cover mischief to animals. 16

Other concerned provisions are a “negligent act likely to spread infection or

diseases dangerous to life”17 and making atmosphere noxious to health.18 Thus, even

the pre-constitutional statues like Indian Penal Code 1860 and Code of Criminal

Procedure, 1973 and the criminal sanctions contained in specific environmental

legislation and municipal Acts contain provisions for criminal aspects relation to

environment

The Indian Forest Act, 1927

Although it embodies the colonial policies of the pre-independence era, the

Forest Act of 1927 remains in force. This Act consolidates, with minor changes, the

provisions of the Indian Forest Act of 1878 and it’s amending Acts.

The 1927 Act deals with four categories of forest, namely, reserved forests,

village forests, protected forests, and non-government (private) forests. A state may

declare forestlands or waste lands as reserved forests, and may sell the produce from

these forests. Any unauthorized felling of trees, quarrying, grazing and hunting in

15S. Sivkumar, supra note 9, p. 294 16 Supra note 4 17 The Indian Penal Code s.270 18S. Sivkumar, supra note 9, p. 293

reserved forests is punishable with a fine or imprisonment, or both.19 Such initiatives

help reduce pollution. Thus, various legislative measures were taken during the

British period for prevention of pollution and for conservation of natural resources.

7.2 Constitution and Environment Protection

The post Independence era witnessed a lot of changes in the policies of the

government with respect to environment protection especially after the framing of the

Constitution. The constitutional law has a seminal role to play in the protection and

preservation of environment. In fact the space for environment-related legislation in

the constitution is an outcome of the human urge for development with a social face.20

Inspite of such a rich reverence shown to the earth and its environment, as

depicted in the ancient Indian scriptures, the Constitution of India, as enacted and

adopted in 1949, hardly averred to natural environment of earth and its vitality for

human health. The makers of the Constitution did not appear to be concerned in this

regard so as to give a constitutional mandate for preservation and protection of the

natural environment.21 It did not contain any specific provisions on environment and

even the word environment did not find a place in the Constitution but there were

certain provisions which to a great extent had direct bearing on the environment such

as improvement of public health,22 organization of agricultural and animal husbandry

on modern and scientific lines23 and protection of natural monuments from spoliation,

disfigurement etc.24 The provision contained in Article 47 is more important as it

provides that the state shall regard the raising of the level of nutrition and the standard

of living of its people and improvement of public health as among its primary duties.

Protection and improvement of environment is inherently included in the

improvement of public health because without it public health cannot be assured. This

clearly reflects that the framers of our constitution were very much conscious about

the environmental concern.

Many countries have engrafted environmentalism into their basic

constitutional laws. India by the 42nd Constitutional Amendment, 1976 enjoined the

19 Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, 2nd edition, New Delhi, Oxford University Press, 2001, p. 64 20 Md Zafar Mahfooz Nomani, “Enviro-Constitutional Ethos in Right Duty Discourse: Towards the Creation of an Equitable and Sustainable Socio-Legal Order”, Indian Journal of Environmental Law, Vol.1, 2000. p. 61 21 Bhaskar Kumar Chakravarty, supra note 10, p. 100 22 Constitution of India, Article 47 23 Constitution of India, Article 48 24 Constitution of India, Article 49

State as well as citizens to express solidarity and compassion to biotic and abiotic

entitles. The constitutionalism and environmentalism inter woven strive to achieve to

said goals through superior as well as subordinate legislations. 25

The UN Conference on Human Environment held at Stockholm in 1972

exerted major influence on environmental legislations in India. A National Committee

on Environmental Planning and Coordination (NCEPC) was set up in the Department

of Science and Technology in 1972 to make necessary preparations for the

Conference. The Government of India took a number of steps to implement the

decisions taken at the Conference by means of amendments to the Constitution, new

legislations relating to environmental protection and creation of institutions for

implementing the legislations. The Constitution of India was amended by the 42nd

constitutional amendment and the subject of “ecology and environment” was

incorporated for the first time through Articles 48A and 51A (g).26

Thus, India took a bold step to include environmental protection rights and

duties in its Constitution. By incorporating Article 48A in part IV of the Constitution,

which contains the directive principles of state policy, the state has been given the

constitutional mandate to protect and improve the environment and to safeguard the

forest and wildlife of the country. Since the principles laid down in the part IV of the

Constitution are fundamental in the governance of the country, therefore it has been

now the constitutional duty of state to deal with the matters relating to environment,

forest and wildlife of the country.27

7.2.1 The Preamble

The Preamble contains certain basic values and philosophies that India

guarantees to its citizens and strives to achieve as a nation. The Preamble states inter

alia that social, economic and political justice will be secured for all citizens and that

liberty and equality will be promoted. These values are the cornerstone of true

democracy and are universal in nature. Every nation strives to achieve them.28

The Preamble opens with the words, ‘We, the people of India’ which indicates

25 Md Zafar Mahfooz Nomani, supra note 20, p. 63 26 Art. 48A - The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Art. 51A (g) - It shall be the duty of every citizen of India- to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; 27 Bhaskar Kumar Chakravarty, supra note 10, p.100 28http://www.lawteacher.net/international-law/essays/domestic-implementation-of-international-law-law-essay.php and also at http://ssrn.com/abstract=1771302 accessed on 5th Jan 2014

the source from which the Constitution comes, i.e., the people of India. Thus, we, the

people are solely responsible for constituting India into a “Sovereign, Socialistic, and

Secular, Democratic, Republic”29 and in this we find a glimpse of the concern for the

society as in such a society the state pays more attention to the social problems than

any individual problems. Environmental pollution which has emerged as one of the

biggest social problems is being regarded as a real problem affecting the society at

large and thus the State is under an obligation to fulfill basic aim of socialism, i.e., to

provide decent standard of living to all which can be possible with a pollution free

environment.

Environment as a subject, environment as a concern and environment as a part

of socio-economic-political structure in the country seems to have taken of. In fact it

has entered the structure in such a way that no intellectual, political or even academic

discourse is complete without it. Thus, when we talk of social, economic or political

justice we must include environment, as it has become a part of the social structure.

The state, therefore, should endeavor to take all necessary steps to secure its citizens

environmental justice.30

7.2.2 Fundamental Rights

The fundamental rights are a necessary consequence of the declaration in the

preamble to the constitution that the people of India having solemnly resolve to

constitute India into a sovereign, democratic, republic… The framers of the Indian

constitution visualized the great many difficulties in enunciating the fundamental

rights in general terms and have left in the hands of the judiciary to interpret them.31

The Fundamental Rights in Part III and the positive mandates to the State in

the form of Directive Principles in Part IV can be compared with the Universal

Declaration of Human Rights (UDHR) and commonalities can be traced.32 While

enjoining the fundamental right to freedom, equality and adequate conditions of life,

in an environment of a quality, it imposes a solemn responsibility to protect and

improve the environment for present and future generations. The Rio Declaration on

Environment and Development 1992 provides that ‘human beings are at the centre of

concerns for sustainable development and they are entitled to a healthy and productive

29 Inserted by the Constitution (42 Amendment) Act, 1976 for “Sovereign, Democratic, Republic” 30Dr. Sukanta K. Nanda, Environmental Law, 1st edn, Allahabad,Central Law Publications, 2007, p. 65 31 Prof. M. P. Jain, Indian Constitutional Law, 5th edn, Nagpur, Wadhwa & Company, 2005, p. 832 32 Supra note 27

life in harmony with nature. To promote environmentalism it calls for application and

use of law as an essential means at local, national and global levels.33

Though Article 21 does not explicitly mention environment, the Supreme

Court34 and the various High Courts of the country have given a wider interpretation

to the word “life” in this Article. According to the courts, the right to life includes the

right to live in an environment congenial to human existence.

Thus, Right to life being the foremost human right implies the right to live

without the deleterious invasion of pollution, environmental degradation and

ecological imbalances. The environment today should be of paramount legal

importance and the focal agenda of modern socio-legal order. The legal system,

therefore, is expected to instill environmentalism, deep ecological values and eco

centrism to bring about an equitable and sustainable socio-legal regime. However, the

task is quite assiduous because scientific and technological developments have

suppressed the harmony of creation.35

7.2.3 Directive Principles of State Policy

The State’s responsibility with regard to environmental protection has been

laid down under Article 48-A of our Constitution, which reads as follows: “The State

shall endeavor to protect and improve the environment and to safeguard the forests

and wildlife of the country”.

India’s constitutional commitment towards environmentalism, under Directive

Principles, endeavors to protect the environment and continuously improve its

status.36 The constitutional duty entrusted upon the state to protect and improve the

natural environment is based on the “Doctrine of Public Trust.”37

By incorporating article 48A in part IV of the Constitution, which contains the

directive principles of state policy, the state has been given the constitutional mandate

to protect and improve the environment and to safeguard the forest and wildlife of the

country. Since the principles laid down in the part IV of the Constitution are

fundamental in the governance of the country, therefore, it has been now the

constitutional duty of the state to deal with the matters relating to environment, forest

33 Md Zafar Mahfooz Nomani, supra note 20, pp. 62-63 34 Subhash Kumar v. State of Bihar, A.I.R 1991 S.C 420, 423; M.C .Mehta v. Union of India (Delhi Crushing Case), (1992)3 S.C.C 256,256; and Virendar Gaur v. State of Haryana (1995)2, S.C.C 577,581 35 Md Zafar Mahfooz Nomani, supra note 20, p. 60 36 Ibid 37 Bhaskar Kumar Chakravarty, supra note 10, p.101

and wildlife of the country. While the executive and legislative wings of the state are

implementing the directive principles by policy decisions and appropriate legislations,

the judicial wing is also implementing them through judicial activism.

7.2.4 Fundamental Duties

The 42nd constitutional amendment did not confine the constitutional

obligation to protect and improve environment only in the hands of the state but

brought the obligation down to the level of the citizens also by incorporating Article

51A (g) in a newly introduced part, namely part IV-A of fundamental duties. This

amendment is considered to be a revolution, as it was not only first of its kind in

constitutional history expressing concern for environment and its protection, but it

also accorded recognition to Buddhist and Gandhian environmental ethics, as Article

51A (g) made it a fundamental duty for all the citizens of India not only to protect and

improve the natural environment but also to have compassion for all living creatures.

Another significant aspect of Articles 48A and 51A (g) is that the state and its citizens

shall not only protect the environment but must also improve it.

Environmental protection is a fundamental duty of every citizen of this

country under Article 51-A (g) of our Constitution which reads as follows: “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.”

The constitutional mandate to environmentalism is not only directed to states

but to citizens as well. The fundamental duty chapter is the charter of country’s

resolution towards implementation of human values, eco-ethics, national ideology and

environmentalism. It solemnly resolves to protect improve the natural environment by

adopting sympathy and compassion for living creatures. Article 48 envisages that the

state shall endeavor to protect and improve and safeguard the flora and fauna of the

country. The protection and improvement clause appearing in both articles speaks

volumes about environmentalism and constitutionalism. Mere protection is not

considered enough in the eye of the Constitution but a solemn constitutional

commitment to improve the environment and its quality coupled with kindness and

compassion towards natural entities, animals and living creatures are pointers to

environmentalism oriented values. Compassion and kindness being the subject of

morality amply reflect the constitutional conscience towards environmentalism.

Generally, Articles 48A and 51A (g) impose two fold responsibilities. On one

hand, it gives directives to the state for the protection and improvement of

environment and on the other it casts a duty on every citizen to help in the

preservation of the natural environment. Combined together it lays the foundation for

unique enviro-constitutional jurisprudence in a novel discourse of right and duty.38

Article 51A gives effect to the declaration in Article 29(1) of the Universal

Declaration of Human Rights, which emphasizes the duties owed by individuals to the

community at large. These duties benefit community and also help in the full

flourishing of the individual.

By this 42nd constitutional amendment the Constitution of India has become

one of the very few constitutions in the world, which have enshrined a commitment

for protection, and improvement of environment. One can now very emphatically

assert that by raising the protection and improvement of environment to the status of

constitutional law, the “third generation” human right which is very important not

only from the individual point of view but also from the point of view of the

community at large has got its due place in the national charter of India. It is

submitted that by incorporating this third generation human right under directive

principles of state policy and fundamental duties of citizens, an endeavor has been

made to make enforcement of this right mandatory for both the state and its citizens.

The constitutional duty entrusted upon the state to protect.

There is a constitutional pointer to the state under Article 48A not only to

protect but also to improve the environment. The neglect or failure to abide by the

pointer or to perform the duty is nothing short of betrayal of fundamental law which

the state and every citizen is bound to uphold and maintain.39 Other Constitutional

Amendments were the two entries 17A Forests and 17B Protection to wild animals

and birds were added in the Concurrent List.

7.2.5 Constitutional basis of Law and Policy relating to Climate Change

Article 21 of the Constitution is a fundamental right which reads as follows:

“No person shall be deprived of his life or personal liberty except according to

procedure established by law.” Climate change, if unmitigated, will directly and

indirectly bear upon Article 21 rights that are guaranteed under the Indian

Constitution. This is evident in some of the early predictions made by scientists and

38 Md Zafar Mahfooz Nomani, supra note 20, p. 65 39 Ibid

some preliminary observations of possible climate-related occurrences. For example,

the IPCC predicts that glacial melts in the Himalayan region alone will increase

flooding, trigger avalanches and landslides, and cause extinction of species and

ecosystems. As such, Himalayan glaciers, including the Gangotri which is a source of

the .perennial and holy river Ganga, have receded by 30 meters, endangering water

supply in the dry season. Other changes in hydrological cycles are also expected to

cause extreme drought or flood conditions in some river basins, shorten crop duration

periods to the detriment of agricultural yields, threaten biological diversity, increase

the risk of malarial outbreaks by creating conditions favorable to disease carrying

vectors, and increase cyclones in coastal regions.

Some early observations of the effects of climate change are also becoming

visible. In early 2007, an Indian farmer was reportedly forced to abandon his ancestral

agricultural land because it was part of one of two islands submerged in the

Sunderbans region. Another farmer faced a similar threat temporarily. Absent

compensation and support from their government, the former moved to urban areas in

search of alternative livelihood, whereas the latter stayed on despite the risk of future

flooding and limited access to food. Both incidents, which have been attributed to

climate change related sea level rise, portend the fate of some of the nearly 65% of

India's population that is dependent on agriculture, forestry and fisheries for a living.40

Thus, climate change will affect not only the economic growth of India but

more importantly the wide array of fundamental rights - to life, to livelihood and to

health that have been guaranteed under the Indian Constitution. Pursuing

constitutional remedies, however, presents risks as well as opportunities.41

Bringing climate change within the constitutional dialogue may not only be

strategically desirable, but may be the only viable option in India to compensate

victims for their loss and, more importantly, to deter continuing GHG emissions in

India. The Indian Constitution, could serve as a potential basis for pursuing climate

change litigation within India, not only because of its substantive provisions but also

because the Supreme Court of India has facilitated enforcement of fundamental

constitutional rights by relaxing several formal procedural rules, which generally

40 Benjamin J Richardson (ed), “Climate Law and Developing Countries”, UK: Edward Elgar Publishing Limited, 2009, p. 69 41 Ibid

impede access to courts. Thus, the presence of substantial threats of climate-related

violations should be sufficient to invoke the Court’s writ jurisdiction under Article 32.

Thus the basic law of the land enjoins both the state and the citizen to protect

the environment and conserve the better part of it. The regulation of environmental

area began in the colonial period with forest related legislation and now it includes the

specific legislation in the areas like water, air, forest, wildlife and the Environment

(Protection) Act 1986. Specific environmental legislations have met more success, but

the substances and administration of the above legislation have widely been

criticized.42

National Policies

In addition to the Constitutional mandate, India has a number of national

policies governing environmental management, including the National Policy on

Pollution Abatement (NPPA, 1992) and the National Conservation Strategy and

Policy Statement on Environment and Development (NCS/PSED, 1992). While these

national policies are not judicially enforceable, they serve as guiding principles for the

central and state governments to follow.

The NPPA encourages the use of economic instruments to complement

traditional command-and control approaches to pollution abatement. To integrate

environmental considerations into decision making at all levels, the policy adopts the

following guiding principles:

i. prevention of pollution at source;

ii. adoption of best available technology;

iii. the polluter pays principle; and

iv. public participation in decision making.

The NCS/PSED provides an overarching policy framework on environmental

management, including conservation of natural resources and economic development.

Key instruments for promoting environmental change include conducting

environmental impact assessments, developing educational campaigns, and ensuring

public participation. As the nodal agency, the Ministry of Environment and Forests

(MOEF) is responsible for implementing the NPPA and the NCS/PSED.43

42S. Sivkumar, supra note 9, pp. 295-296 43 http://www.oecd.org/environment/outreach/37838061.pdf accessed on 7th March 2014

National Environment Policy, 2006

National Environment Policy, 2006 outlines essential elements of India’s

response to Climate Change. These, inter-alia, include adherence to principle of

common but differentiated responsibility and respective capabilities of different

countries, identification of key vulnerabilities of India to Climate Change, in

particular impacts on water resources, forests, coastal areas, agriculture and health,

assessment of the need for adaptation to Climate Change and encouragement to the

Indian Industry to participate in the Clean Development Mechanism (CDM).44

The primary objective of any legislation is to ensure social justice and well

being through enforcement of certain codes of conduct. Legislation for environmental

protection is also based on the recognition of the fact that it is necessary to abide by

the requirements to prevent damage to the environment, which is a common property.

7.3 Legislative Framework of regulation of Global Warming in India

There is a dichotomy in environmental protection and economic development

through industrialization. A possible compromise between the two is conceived in the

form of sustainable development. It aims at economic development without inflicting

any serious harm to the environment or tilting ecological balance. This is serious

concern to a developing country like India. Thus preservation and conservation of

environment have become the objectives of legal thinking in this millennium, along

with policies governing economic development. There are about two hundred laws

dealing with environmental protection both before and after independence in India.

However, the pre-independence laws have not dealt with environmental protection

exclusively.45

Subscription to internal legal arrangements and commitment to implement

them through ratification, without the necessary national preparation for the same in

putting across the Indian points of view, in international fora, have led to making of

laws to fulfill our international obligations.46

44 Lok Sabha Secretariat Parliament Library And Reference, Research, Documentation And Information Service (LARRDIS) Climate Change-India’s Perspective at http://164.100.47.134/intranet /CLIMATE_CHANGE-INDIA’s_PERSPECTIVE.pdf accessed on 7th March 2014 45 Michael R. Anderson, “ Individual Rights to Environment Protection in India” in Alan E. Boyle and Michael R. Anderson (Eds), Human Rights Approaches to Environmental Protection, Clarendon Press (1996), pp.199-200………..CULR, 2004, S Sivakumar 46 M K. Ramesh, “Environmental Justice Delivery in India: In Context”, Indian Journal of Environmental Law, Vol. 2, 2002, p. 12

The year 1972 marks a watershed in the history of Environment Protection in

India. In this year The Stockholm Declaration which may be considered as the Magna

Carta of the environment declared: (a) Man has the fundamental right to freedom,

equality and adequate conditions of life, in an environment of quality that permits a

life of dignity and well being and (b) Man bears a solemn responsibility to protect and

improve the environment for present and future generations. The conference is of

particular significance to India as our country expressed its policies and concern over

environmental protection and at the same time the conference initiated a series of

environmental legislations in India.47

India was represented by the Prime Minister Smt. Indira Gandhi who while

addressing the Conference brought on the forefront the peculiar environmental

problems of India.48 The views expressed at the Stockholm Conference forms a core

part of the basic environmental philosophy of India that found expression in various

governmental policy pronouncements in subsequent years.49

After the advent of Stockholm Conference in 1972 there was a significant

change in the concept of environmental protection in India. India has enacted several

legislations to protect and conserve the environment. The major environmental

concerns of India were focused on water pollution, air pollution, soil erosion,

deforestation, desertification and loss of wildlife. The most challenging problem in

protection of environment is the Nation’s desire to industrialize faster.50 Most of the

environment related laws enacted by the Parliament have been based on Articles 252

and 253 of the Constitution.51 Some of these legislations are regulatory while some

are punitive and others prevent the damage to the environment.52

47 Dr. J L. Aparajit and Miss. Adhara Badhe, “Judicial Response towards the Protection of Environment”, Journal of Indian Legal Thought, Vol. 1:97, 2003, p. 122 48 She emphasized that; “poverty and need” are the biggest polluters. She exclaimed that, “the environmental problems of the developing countries are not the side effects of excessive industrialization but reflects the in-adequacy of the development. The rich countries may look upon the development a cause of environmental destruction, but to us it is one of the primary means of improving the environment for living or providing food, water sanitation and shelter of making the desert green and the mountain habitable. Hence the view point of developed countries is that environmental problems were an abblection of industrialization and their suggestion for no growth policy as the only viable means of protecting the biosphere.” India shared the view along with other developing countries that environmental problems are mostly due to lack of development rather than excessive development. 49Dr. J. L. Aparajit and Miss. Adhara Badhe, supra note 47 50 R. C Trivedi, “Laws and Institutions for Control of Pollution in India”, Chartered Secretary, September 2002, p. 1257. 51 Art. 252 (1) - If it appears to the Legislature of two or more States to be desirable that any of the matters with respect to which parliament has no power to make law for the states except as provided in Art. 249 and 250 should be regulated in such States by Parliament by Law, and if resolutions to that

Environment statutes are regarded as ‘beneficent’ legislations, enacted to

advance the directive principles of state policy contained in Article 48A of the

Constitution. Being beneficent legislation, it is the duty of the court to adopt an

interpretation favoring ecological preservation. Another related rule requires courts to

adopt a ‘purposive’ interpretation, or an approach that advances the purposes that the

legislature had in mind when enacting the law.53 Thus various national laws for the

prevention and control of industrial and urban pollution which also aim at combating

global warming have been enacted.

7.3.1 The Forest (Conservation) Act, 1980

Alarmed at India’s rapid deforestation and the resulting environmental

degradation, the Central Government enacted the Forest (Conservation) Act in 1980.

This Act was adopted to protect and conserve forests. The Act restricts the powers of

the state in respect of de-reservation of forests and use of forestland for non-forest

purposes.

As amended in 1988, the Act requires the approval of the Central Government

before a state ‘de reserves’ a reserved forest, uses forestland for non-forest purposes,

assigns forestland to a private person or corporation, or clears forestland for the

purpose of reforestation. An advisory Committee constituted under the Act advises

the center on these approvals.54

It prevents even the state governments and any other authority dereserves a

forest which is already reserved. It prohibits forestland to be used for non-forest

purposes, except with the prior approval of the central government. 55 This Act was

passed to prevent deforestation, which results in ecological imbalance and

environmental deterioration resulting in global warming.

effect are passed by the all the houses of the Legislatures of those States, it shall be lawful for parliament to pass an Act regulating that matters accordingly, and any Act so passed shall apply to such states and to any other States by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of the States.

(2) Any Act so passed by parliament may be amended or repealed by an Act of parliament passed or adopted in like manner but shall not, as respects any states to which it applies, be amended or repealed by an Act of the legislature of that states. Art. 253 Notwithstanding anything in the forgoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. 52 Dr. J. L. Aparajit and Miss. Adhara Badhe, supra note 47, p.100 53 Shyam Divan and Armin Rosencranz, supra note 19, p. 59 54 Ibid, p. 64 55 Supra note 4

7.3.2 The Air (Prevention and Control of Pollution) Act, 1981

To implement the decisions taken at the United Nations Conference on the

Human Environment held at Stockholm in June 1972 Parliament enacted the Air Act.

The Act’s statement of objects and reasons contains the government’s explanation of

the contents and the scope of the law, and its concern for the ‘detrimental effect [of

air-pollution] on the health of the people as also on animal life, vegetation and

property’.

The Air Act’s framework is similar to the one created by its predecessor, the

Water Act of 1974. To enable an integrated approach to environmental problems, the

Air Act expanded the authority of the central and state boards established under the

Water Act, to include air pollution control and states not having water pollution

boards were required to set up air pollution boards.

The objective of this Act is to provide for the prevention, control and

abatement of air pollution, for the establishment, with a view to carrying out the

aforesaid purposes, of Boards, for conferring on and assigning to such Boards powers

and functions relating thereto and for matters connected therewith.

To counter the problems associated with air pollution, ambient air quality

standards were established, under the 1981 Act. The Act seeks to combat air pollution

by prohibiting the use of polluting fuels and substances, as well as by regulating

appliances that give rise to air pollution. Under the Act establishing or operating of

any industrial plant in the pollution control area requires consent from state boards.

The boards are also expected to test the air in air pollution control areas, inspect

pollution control equipment, and manufacturing processes.56

Increase in Air pollution contributes to Global Warming and the major

sources of air pollution are industrial emissions from thermal power plants, cement

plants, petroleum refineries and chemical industries, automobile exhaust, house hold

burning of fossil fuels and other carbonaceous matter and natural sources like dust

storms and forest fires etc.

Therefore, to reduce air pollution and combat global warming Chapter IV of

the Air Act, 1981 from Sec.19 to 31 A contains provisions for the prevention and

control of Air pollution.

56 http://envfor.nic.in/divisions/ic/wssd/doc2/ch2.html accessed on 27th May 2014

7.3.3 The Environment Protection Act, 1986

The Environment Protection Act (EPA) was enacted in the aftermath of the

Bhopal gas tragedy in 1984 claiming more than 3000 lives. The Statement of Objects

and Reasons of this Act refers to the decisions taken at the Stockholm Conference in

June 1972 and expresses concern about the decline in environmental quality,

increasing pollution, loss of vegetal cover and biological diversity, excessive

concentrations of harmful chemicals in the ambient atmosphere, growing risks of

environmental accidents and threats of life system.

The EPA is an ‘umbrella’ legislation designed to provide a framework for

Central Government coordination of the activities of various central and state

authorities established under previous laws, such as the Water Act and Air Act. It is

also an enabling law, which articulates the essential legislative policy on

environmental protection and delegates wide powers to the executive to enable

bureaucrats to frame necessary rules and regulations.57 Under this Act, the central

government is empowered to take measures necessary to protect and improve the

quality of the environment by setting standards for emissions and discharges;

regulating the location of industries; management of hazardous wastes, and protection

of public health and welfare.58 The scope of the EPA is broad, with ‘environment’

defined to include water, air and land and the inter relationships which exist among

water, air and land, and human beings and other living creatures, plants, micro-

organisms and property. ‘Environmental pollution’ is the presence of any

environmental pollutant, defined as any solid, liquid, or gaseous substance present in

such concentration as may be, or may tend to be, injurious to the environment.59

Section 3(1), of the Act empowers the Center ‘ to take all such measures as it

deems necessary or expedient for the purpose of protecting and improving the quality

of the environment and preventing, controlling, and abating environmental pollution’.

Section 7 of the EPA prohibits the discharge or emission of environmental

pollutants in excess of the prescribed standards. To implement this mandate, the

government has framed the Environment (Protection) Rules of 1986 (EPR). The

standards are set out in the schedule appended to the EPR.60

57 P K. Goel, K P. Sharma, “Environmental Guidance & Standards in India”, 1stedn, Jaipur, Techno Science Publications, 1996, p. 66 58 Supra note 56 59 See Sec.2 (b) and (c) of E.P Act, 1986 60 See Rule 3 of EP Rules 1986.

This Act provides for Environment Impact Assessment (EIA) which is the first

attempt at a comprehensive statutory EIA programme which began on 27 January

1994 when the Union Ministry of Environment and Forests issued a notification

dealing with mandatory EIA. The notification mandates a public hearing and requires

the project proponent to submit an EIA report, an environment management plan,

details of the public hearing and a project report to the impact assessment agency for

clearance, with further review by a committee of experts in certain cases. The impact

assessment agency is the ministry itself.

This Act also provides for the Ecomark Scheme wherein 1991, the

Department of Environment, Forests and Wildlife announced a scheme for labeling

environment friendly products. The objects of the scheme are to encourage

manufacturers to introduce environment friendly products, reward genuine initiatives

to reduce adverse environmental impacts and assist consumers in making an

informed, responsible choice while purchasing goods. The label known as ‘Ecomark’

may be used by the manufacturers of the consumer goods who meet the environment

criteria notified by the Central Government for the purpose of the scheme. Though

qualification criteria have long been published for a number of goods such as soaps,

detergents, paper and paints the scheme has yet to gain acceptance.61

From time to time the central government issues notifications under the EPA

for the protection of ecologically-sensitive areas or issues guidelines for reducing

pollution to mitigate global warming.62

7.3.4 The Factories Act, 1948 (amended in 1987)

The primary aim of the 1948 Act has been to ensure the welfare of workers

not only in their working conditions in the factories but also their employment

benefits. While ensuring the safety and health of the workers, the Act contributes to

environmental protection. The Factories Act, 1948 provides that the liquid effluents,

gases and fumes generated during a manufacturing process should be treated before

their final disposal to minimize the adverse effects. During this period the focus of

economic policy was on planned economic development in a mixed economy

framework. The dominant policy objectives were economic growth, employment

generation, balanced regional development and equity.

61 Shyam Divan and Armin Rosencranz, supra note 19, pp. 70-71. 62 Supra note 56

The Act contains a comprehensive list of 29 categories of industries involving

hazardous processes, which are defined as a process or activity where unless special

care is taken, raw materials used therein or the intermediate or the finished products,

by-products, wastes or effluents would: Cause material impairment to health of the

persons engaged Result in the pollution of the general environment63 but after the

Amendment in 1987 as a post-independence statute has explicitly showed concern for

the environment. Soon after the decisions of the Supreme Court in Shriram Gas Leak

Case 64 and experience of Bhopal Tragedy, the 1987 amendment to the Factories Act

introduced special provisions on hazardous industrial activities.

The 1987 amendment empowers the states to appoint site appraisal

committees to advice on the initial location of factories using hazardous processes.

The occupier of every hazardous unit must disclose to her workers the Factory

Inspector and the local authority all particulars regarding health hazards at the factory,

and the preventive measures taken. The occupier is required to maintain workers’

medical records and must employ operations and maintenance personnel who are

experienced in handling hazardous substances.65

7.3.5 Public Liability Insurance Act, 1991

The Public Liability Insurance Act (PLIA), 1991 is enacted ‘to provide for

mandatory public liability insurance for installations handling hazardous substances to

provide minimum relief to the victims. Such insurance apart from safeguarding the

interests of the victims would also provide cover and enable the industry to discharge

its liability to settle large claims arising out of major accidents. If the objective of

providing immediate relief is to be achieved the mandatory public liability insurance

should be in the principle of “no fault” liability as it is limited to only relief on a

limited scale.

The Act covers accidents involving hazardous substances and insurance

coverage for these. Where death or injury results from an accident, this Act makes the

owner liable to provide relief as is specified in the Schedule of the Act. The PLIA was

amended in 1992, and the Central Government was authorized to establish the

Environmental Relief Fund, for making relief payments.66

63 Ibid 64 M. C. Mehta v. Union of India AIR 1987 SC 965 65 Shyam Divan and Armin Rosencranz, supra note 19, pp. 65-66 66 Supra note 56

However, availability of immediate relief would not prevent the victims to go

to courts for claiming larger compensation it mandates that business owners operating

with hazardous substances take out insurance policies covering potential liability from

an accident and establish Environmental Relief Funds to deal with accidents involving

hazardous substances. The National Environmental Appellate Authority Act of 1997

requires the central government to establish an authority to hear appeals on area

restrictions where industrial operations will not be carried out or will be carried out

with certain safeguard measures. In 2005, Parliament enacted the Right to Information

Act designed to promote greater transparency and accountability of the government

and public participation in decision-making.67

Society’s responses to climate change, be they in the realm of adaptation or

mitigation, will also entail liabilities for insurers and their customers. The insurance

industry faces material liability exposures to both the causes and consequences of

climate change and the costs of adaptation. Climate change will clearly affect insurers

as policyholders suffer damage from extreme weather events, climate change will also

implicate insurers in other ways as climate-related liability risks increase.

Liability claims related to climate change have already emerged in United

States, Australia, Germany, New Zealand, the United Kingdom, and perhaps

elsewhere. For almost a decade now, plaintiffs have tried to sue various industries for

damages resulting from greenhouse gas emissions and climate change. Therefore

under this Act also such liabilities may incur in the near future.

7.3.6 The Electricity Act, 2003

This Act seeks to create a framework for the power sector development by

measures conducive to the industry. Electricity Act does not explicitly deal with

environmental implications of activities related to power transmission. The applicable

legal provisions under this Act are as follows: Section 68(1) sanction from the

Ministry of Power (MOP) is a mandatory requirement for taking up any new project.68

The development of grid interactive renewable power took off with the coming into

force of the Electricity Act 2003 (EA 2003), which, among other things, provides for

regulatory interventions for promotion of renewable energy.69

67 Supra note 43 68 http://www.caretrust.in/Environmental%20laws.pdf accessed on 14th April 2014 69 http://mnre.gov.in/information/renewable-energy-regulatory-framework/ accessed on 4th April 2014

The National Tariff Policy (NTP) 2006 requires the State Electricity

Regulatory Commissions (SERCs) to fix a minimum percentage of Renewable

Purchase Obligation (RPO) from such sources taking into account availability of such

resources in the region and its impact on retail tariffs and procurement by distribution

companies at preferential tariffs determined by the SERCs. NTP has further

elaborated on the role of regulatory commission; mechanism for promoting renewable

energy and timeframe for implementation, etc. The policy was amended in January

2011 to prescribe solar-specific RPO be increased from a minimum of 0.25 per cent in

2012 to 3 per cent by 2022. Further, the National Action Plan on Climate Change

(NAPCC) suggests increasing the share of renewable energy in the total energy mix

at-least up to 15 percent by 2020.

Ministry of New & Renewable Energy has initiated an exercise to track the

evolving renewable power regulatory framework and develop a repository of

information in a consolidated manner. This exercise is expected to help understand

the dynamic nature of the renewable energy regulations and related issues and also

create a platform to share information on pertinent issues which helps in mitigating

global warming.70

7.3.7 The Energy Conservation Act 2001

Considering the vast potential of energy savings and benefits of energy

efficiency, the Government of India enacted the Energy Conservation Act, 2001. The

Act provides for the legal framework, institutional arrangement and a regulatory

mechanism at the Central and State level to embark upon energy efficiency drive in

the country. Five major provisions of EC Act relate to Designated Consumers,

Standard and Labeling of Appliances, Energy Conservation Building Codes, Creation

of Institutional Set up (BEE) and Establishment of Energy Conservation Fund.

The Act became effective from 1st March, 2002 and Bureau of Energy

Efficiency (BEE) operationalized from 1st March, 2002. Energy efficiency

institutional practices and programs in India are now mainly being guided through

various voluntary and mandatory provisions of the Energy Conservation Act.71

It provides a legal mandate for the implementation of the energy efficiency

measures through the institutional mechanism of the BEE in the central government

70 Ibid 71 http://powermin.nic.in/acts_notification/energy_conservation_act/introduction.htm accessed on 18th April 2014

and designated agencies in each state. A number of schemes and programmes have

been initiated and it is anticipated that these would result in a saving of 10,000 mw by

the end of 11th five year plan in 2012.

To enhance energy efficiency, four new initiatives will be put in place. These

are: A market based mechanism to enhance cost effectiveness of improvements in

energy efficiency in energy-intensive large industries and facilities, through

certification of energy savings that could be traded. Accelerating the shift to energy

efficient appliances in designated sectors through innovative measures to make the

products more affordable. Creation of mechanisms that would help finance demand

side management programmes in all sectors by capturing future energy saving sand

lastly developing fiscal instruments to promote energy efficiency.72

This Act requires large energy consumers to adhere to energy consumption

norms, new buildings to follow the Energy Conservation Building Code, and

appliances to meet energy performance standards as well as display energy

consumption labels. The Act also created the Bureau of Energy Efficiency to

implement the provisions of the Act.73

Programmes such as The Energy Conservation Awards recognize innovation

and achievements in energy conservation by the Industries, buildings, zonal railways,

state designated agencies, aviation, manufacturers of BEE star labeled appliances and

municipalities and raises awareness that energy conservation plays a big part in

India's response to reducing global warming through energy savings. These initiatives

suggest the potential for large scale replication, and of concrete measures which can

help mitigate global warming. The awards scheme has been in operation since 1991.

32 sectors of Industry and other establishments are included in the Awards. In the

Awards 2010, a new category for Thermal Power Stations has also been introduced so

as to recognize their initiatives and efforts undertaken to conserve energy.74

Another such initiative is the Bachat Lamp Yojana (BLY) Lighting

Programme, 2009. This scheme was developed by Bureau of Energy Efficiency

(BEE) to promote energy-efficient lighting in India. There are no mandatory

requirements in India requiring the use of energy efficient CFL at the household level,

so participation is voluntary. Quality long-life CFLs will be distributed to grid-

72 India: National Action Plan on Climate Change (NAPCC) http://chimalaya.org/2012/01/21/india-national-action-plan-on-climate-change-napcc/ accessed on 24th May 2014 73 http://www.iea.org/policiesandmeasures/pams/india/name-23940-en.php accessed on 3rd May 2014 74 Supra note 71

connected residential households in exchange for an incandescent lamp (ICL). Once

the CFLs have reached their end of life or any CFLs which have failed prematurely

during the project period will be collected and disposed of as per applicable

environmental norms. Such schemes are aimed at reducing global warming.

7.3.8 The Companies Act, 2013

The landmark Companies Act, 2013, makes it mandatory for companies to

spend 2% of their profit on corporate social responsibility (CSR)75, which will set

stricter compliance and create new opportunities for business spending on

environmental issues and clean energy. Companies are advised to give preference to

CSR activities that best align with the business. 'Environment Sustainability' is listed

as one of the eligible CSR activities.76

Corporate Social Responsibility is not a new concept in India, however, the

Ministry of Corporate Affairs, Government of India has recently notified the Section

135 of the Companies Act, 2013 along with Companies (Corporate Social

Responsibility Policy) Rules, 2014 “hereinafter CSR Rules” make it mandatory (with

effect from 1st April, 2014) for certain companies who fulfill the criteria as mentioned

under Sub Section 1 of Section 135 to comply with the provisions relevant to

Corporate Social Responsibility.77

It requires that companies having a net worth of Rs 500 crore or more or a

turnover of Rs 1,000 crore or a net profit of 5 crore must spend 2 % of net profit on

CSR activities. A schedule in the rules lists various activities companies can

undertake as CSR. Companies should take measures to check and prevent pollution;

recycle, manage and reduce waste, should manage natural resources in a sustainable

manner and ensure optimal use of resources like land and water, should proactively

75 The term “Corporate Social Responsibility (CSR)” can be referred as corporate initiative to assess and take responsibility for the company's effects on the environment and impact on social welfare. The term generally applies to companies efforts that go beyond what may be required by regulators or environmental protection groups1. Corporate social responsibility may also be referred to as "corporate citizenship" and can involve incurring short-term costs that do not provide an immediate financial benefit to the company, but instead promote positive social and environmental change. 76 http://www.theclimategroup.org/what-we-do/news-and-blogs/indian-businesses-must-spend-2-of-their-earnings-on-csr/ accessed on 13th Jan 2014 77 Megha Kapoor, “India: Corporate Social Responsibility: Mandating Companies To Contribute Towards Society” http://www.mondaq.com/india/x/305620/Corporate+Commercial+Law/Corporate+ Social+Responsibility+Mandating+Companies+To+Contribute+Towards+Society accessed on 20th May 2014

respond to the challenges of climate change by adopting cleaner production methods,

promoting efficient use of energy and environment friendly technologies.78

Thus, the move makes India one of the first countries in the world to mandate

spending on social welfare as part of company activity by law. The Climate Group is

of the view that, this new provision will facilitate an enabling environment to develop

longer term strategies to address some of the most persistent economic, social and

environmental issues facing Indian society. Furthermore, this provision has the

potential to play a catalytic role in bringing together many corporates under an

umbrella to address some of these issues collaboratively for much greater impacts.79

7.3.9 Twelfth Five-Year Plan and Climate Change

Indian Five year Plans have stressed on goals such as rapid economic growth,

employment generation, poverty alleviation and balanced regional development.

Since June 1991 there has been a tilt in economic policy towards economic

liberalization and globalization. The importance of sustainable development is also

being stressed as an objective of public policy.80

The theme for 12th five year plan is faster, inclusive and sustainable growth.

But in making planning and development policies, programmes and plans they still

use old indicators for sustainable growth like responsibility of industries for

monitoring environmental concerns, waste management, eco-friendly tourism etc. The

underlying notion is that growth will take care of environment and sustainability

concerns automatically. With increasing industrialization, growing population,

progressive pressure put by socio-economic infrastructure, our natural resources and

environment has come under lot of stress leading to adverse effects of climate change,

depleting natural resources and ecosystem imbalance.81

While India is increasingly pushing for sustainability development in nation's

growth, back home it is quite lackadaisical in adopting innovative practices. In

Economic Survey 2012-13, it was stated that, currently sustainable development and

planning process are seen in divergent views and there is increasing need to integrate

78 Lok Sabha Secretariat, Parliament Library And Reference, Research, Documentation And Information Service (LARRDIS) Corporate Social Responsibility available at http://164.100.47.134/intranet/CorporateSociaResponsbility.pdf accessed on 6th March 2014 79 Supra note 76 80 Supra note 4 81 Sustainable Development in Indian planning process and climate change available at http://donny1605.hubpages.com/hub/Sustainable-Development-in-Indian-planning-procees-and-climate-change accessed on 27th May 2014

them so that sustainable development is seen as integral part of our planning process.

Sustainable development rests on the three pillars of economic, social and

environmental convergence and any imbalance in any one of these is bound to create

ecological, humanitarian and socio-economic crisis. Environmental imbalance due to

local, regional ecological disturbances, unbearable and unviable social and economic

practices has brought adverse effects to our nation as well as to world. A 4x4 study by

Ministry of environment and forests has put forth four vulnerabilities caused by

climate change: Food, Agriculture, Forests and Environment degradation.82

But at a time when India is embarking on path of economic empowerment the

need for adopting suitable green accounting practices and environment friendly

regime in planning and implementing process is not up to desired global standards.

7.3.10 National Action Plan on Climate Change

At a global level, climate change management has taken the form of an

International Convention, the UNFCCC, 1992. The primary goals of the UNFCCC

were to stabilize greenhouse gas emissions at levels that would prevent dangerous

anthropogenic interference with the global climate. The convention embraced the

principle of common but differentiated responsibilities which has guided the adoption

of a regulatory structure.

India signed the agreement in June 1992, which was ratified in November

1993. As per the convention the reduction/limitation requirements apply only to

developed countries. The only reporting obligation for developing countries relates to

the construction of a GHG inventory. India has initiated the preparation of its First

National Communication (base year 1994) that includes an inventory of GHG sources

and sinks, potential vulnerability to climate change, adaptation measures and other

steps being taken in the country to address climate change.83

Building on the framework of the UNFCCC, the Kyoto Protocol broke new

ground with its legally binding constraints on greenhouse gas emissions and its

innovative ‘mechanisms’ aimed at cutting the cost of curbing emissions. India has

undertaken numerous response measures that are contributing to the objectives

of the UNFCCC. India is a non‐Annex I country under the Kyoto Protocol and thus

has no binding target for emissions reduction.

82 Ibid 83 Supra note 56

However, India is an active participant in the CDM established by the Protocol.

Rather than integrative binding legislation, India is developing a policy process to

specifically address climate change. India adopted NAPCC in 2008 outlining existing

and future policies and programmes directed at climate change mitigation and

adaptation. On 4th October 2012, the Indian government approved India’s 12th

Five‐Year Plan for 2012–2017, drafted by the Planning Commission, which sets a

target of 8.2% growth during that period. The Plan makes clear that high growth

requires supporting growth in energy and that the Indian government must take steps to

reduce the energy intensity of production processes and also to increase domestic

energy supplies as quickly as possible.

India’s emissions are estimated to be of the order of 1331.6 million tonnes of

the carbon dioxide equivalent GHG emissions in 2007. The emissions indicate an

annual growth of 4.2% from the levels in 1994. Whereas India’s CO2 emissions are

only about 4% of total global CO2 emissions and much less if the historical

concentrations are taken into account. Still India has been conscious of the global

challenge of Climate Change.

In pursuance of the obligations cast on parties to the UNFCCC, India has

undertaken to communicate information about the implementation of the Convention,

taking into account the common but differentiated responsibilities and respective

capabilities and their specific regional and national development priorities, objectives

and circumstances. The elements of information provided in the communication

include a national inventory of anthropogenic emissions by sources and removals by

sinks of all GHGs, a general description of steps taken to implement the Convention

including an assessment of impacts and vulnerability and any other relevant

information. India has submitted the Second National Communication (NATCOM) to

the UNFCCC in 2012.

The first National Communication was submitted in 2004. As per the Second

national Communication submitted by India to the UNFCCC, it is projected that the

annual mean surface air temperature rise by the end of the century ranges from 3.5 c

to 4.3 c whereas the sea level along the Indian coast has been rising at the rate of

about 1.3 mm/year on an average. These climate change projections are likely to

impact human health, agriculture, water resources, natural ecosystems, and

biodiversity. India’s strategy for addressing Climate Change is reflected in many of its

social and economic development programmes.84

Thus, NAPCC incorporates its vision of sustainable development and the steps

it must take to realize it. The Prime Minister, Dr. Manmohan Singh, set up a High

Level advisory group known as the Prime Minister’s Council on Climate Change

which included Government Representatives and Non-Government Members. The

Council coordinated National Action Plans for assessment, adaptation and mitigation

of Climate Change. It also advised the Government on proactive measures that can be

taken by India to deal with the challenge of Climate Change. It also facilitated inter-

ministerial coordination and guide policy in relevant areas.85

The NAPCC coordinated by the Ministry of Environment and Forests is being

implemented through the nodal Ministries in specific sectors/areas. On June 30, 2008,

India’s first NAPCC outlining existing and future policies and programs addressing

climate mitigation and adaptation was released. The plan identifies eight core

“national missions” viz:

National solar mission

Its objective is to make solar energy competitive with fossil-based energy

options. Launch an R & D programme facilitating international co-operation to enable

the creation of affordable, more convenient solar energy systems and Promote

innovations for sustained, long-term storage and use of solar power. A national solar

mission will be launched to significantly increase the share of solar energy in the total

energy mix while recognizing the need to expand the scope of other renewable and

non-fossil options such as nuclear energy, wind energy and biomass.

India is a tropical country, where sunshine is available for longer hours per

day and in great intensity. Solar energy, therefore, has great potential as future energy

source. It also has the advantage of permitting a decentralized distribution of energy,

thereby empowering people at the grassroots level. Photovoltaic cells are becoming

cheaper with new technology. There are newer, reflector-based technologies that

could enable setting up megawatt scale solar power plants across the country. Another

aspect of the solar mission would be to launch a major R & D programme, which

could draw upon international cooperation as well, to enable the creation of more

84 Supra note 44 85 Ibid

affordable, more convenient solar power systems, and to promote innovations that

enable the storage of solar power for sustained, long-term use.86

National Mission for Enhanced Energy Efficiency

The National Mission for Enhanced Energy Efficiency is one of the eight

missions under the National Action Plan on Climate Change. The objective of the

Mission is to achieve growth with ecological sustainability by devising cost effective

strategies for end- use demand side management. The MoP and BEE have been

entrusted with the task of preparing the implementation plan for the National Mission

for Enhanced Energy Efficiency (NMEEE) and to upscale the efforts to create and

sustain market for energy efficiency to unlock investment of around Rs. 74,000

Crores. The Mission, by 2014-15, is likely to achieve about 23 million tons oil-

equivalent of fuel savings- in coal, gas, and petroleum products, along with an

expected avoided capacity addition of over 19,000 MW. The carbon dioxide emission

reduction is estimated to be 98.55 million tons annually.87

Market Transformation for Energy Efficiency (MTEE) to accelerate the shift

to energy efficient appliances in designated sectors through innovative measures to

make the products more affordable with focus on leveraging international financial

instruments, including CDM to make energy efficient appliances affordable and

increase their levels of penetration. Since the public sector holds the key to

aggregation of CDM projects so as to reduce transaction costs, barriers to widespread

adoption of CDM need to be removed.

National mission on sustainable habitat

A national mission on sustainable habitat will be launched to make habitat

sustainable through improvements in energy efficiency in buildings, management of

solid waste and modal shift to public transport. The mission will promote energy

efficiency as an integral component of urban planning and urban renewal through

three initiatives.

The energy conservation building code, which addresses the design of new

and large commercial buildings to optimize their energy demand, will be extended in

its application and incentives provided for retooling existing building stock.88

86 Supra note 72 87 Supra note 71 88 Supra note 72

Recycling of material and urban waste management will be a major

component of ecologically sustainable economic development. India already has a

significantly higher rate of recycling of waste compared to developed countries. A

special area of focus will be the development of technology for producing power from

waste. The national mission will include a major R & D programme, focusing on bio

chemical conversion, waste water use, sewage utilization and recycling options

wherever possible.

Better urban planning and modal shift to public transport, making long term

transport plans will facilitate the growth of medium and small cities in ways that

ensure efficient and convenient public transport. In addition, the mission will address

the need to adapt to future climate change by improving the resilience of

infrastructure, community based disaster management, and measures for improving

the warning system for extreme weather events. Capacity building would be an

important component of this mission.89

National Water Mission

A national water mission will be mounted to ensure integrated water resource

management helping to conserve water, minimize wastage and ensure more equitable

distribution both across and within states. The mission will take into account the

provisions of the national water policy and develop a framework to optimize water

use by increasing water use efficiency by 20% through regulatory mechanisms with

differential entitlements and pricing. It will seek to ensure that a considerable share of

the water needs of urban areas are met through recycling of waste water, and ensuring

that the water requirements of coastal cities with inadequate alternative sources of

water are met through adoption of new and appropriate technologies such as low

temperature desalination technologies that allow for the use of ocean water.

The national water policy would be revisited in consultation with states to

ensure basin level management strategies to deal with variability in rainfall and river

flows due to climate change. This will include enhanced storage both above and

below ground, rainwater harvesting, coupled with equitable and efficient management

structures.90

The mission will seek to develop new regulatory structures, combined with

appropriate entitlements and pricing. It will seek to optimize the efficiency of existing

89 Ibid 90 Ibid

irrigation systems, including rehabilitation of systems that have been run down and

also expand irrigation, where feasible, with a special effort to increase storage

capacity. Incentive structures will be designed to promote water-neutral or water-

positive technologies, recharging of underground water sources and adoption of large

scale irrigation programmes which rely on sprinklers, drip irrigation and ridge and

furrow irrigation.

National Mission for Sustaining the Himalayan Ecosystem

A mission for sustaining the Himalayan ecosystem will be launched to evolve

management measures for sustaining and safeguarding the Himalayan glacier and

mountain eco-system. Himalayas, being the source of key perennial rivers, the

mission would, inter-alia, seek to understand, whether and the extent to which, the

Himalayan glaciers are in recession and how the problem could be addressed. This

will require the joint effort of climatologists, glaciologists and other experts. We will

need to exchange information with the south Asian countries and countries sharing the

Himalayan ecology.

An observational and monitoring network for the Himalayan environment will

also be established to assess freshwater resources and health of the ecosystem.

Cooperation with neighboring countries will be sought to make the network

comprehensive in its coverage.

The Himalayan ecosystem has 51 million people who practice hill agriculture

and whose vulnerability is expected to increase on account of climate change.

Community-based management of these ecosystems will be promoted with incentives

to community organizations and panchayats for protection and enhancement of

forested lands. In mountainous regions, the aim will be to maintain two-thirds of the

area under forest covers in order to prevent erosion and land degradation and ensure

the stability of the fragile eco-system.91

National Mission for a Green India

A national mission will be launched to enhance ecosystem services including

carbon sinks to be called green India. Forests play an indispensable role in the

preservation of ecological balance and maintenance of bio-diversity. Forests also

constitute one of the most effective carbon-sinks.92

91 Ibid 92 Ibid

The prime minister has already announced a green India campaign for the

afforestation of 6 million hectares. The national target of area under forest and tree

cover is 33% while the current area under forests is 23%. The mission on green India

will be taken up on degraded forest land through direct action by communities,

organized through joint forest management committees and guided by the

departments of forest in state governments. An initial corpus of over Rs 6000 crore

has been earmarked for the programme through the compensatory afforestaion

management and planning authority (Campa) to commence work. The programme

will be scaled up to cover all remaining degraded forest land. The institutional

arrangement provides for using the corpus to leverage more funds to scale up

activity.93

National Mission for Sustainable Agriculture

The mission would devise strategies to make Indian agriculture more resilient

to climate change. It would identify and develop new varieties of crops and especially

thermal resistant crops and alternative cropping patterns, capable of withstanding

extremes of weather, long dry spells, flooding, and variable moisture availability.

Agriculture will need to be progressively adapted to projected climate change

and our agricultural research systems must be oriented to monitor and evaluate

climate change and recommend changes in agricultural practices accordingly.

This will be supported by the convergence and integration of traditional

knowledge and practice systems, information technology, geospatial technologies and

biotechnology. New credit and insurance mechanisms will be devised to facilitate

adoption of desired practices. Focus would be on improving productivity of rainfed

agriculture. India will spearhead efforts at the international level to work towards an

ecologically sustainable green revolution.94

National Mission on Strategic Knowledge for Climate Change

Its objective is to Work with the global community in research and technology

development by collaboration through different mechanisms. The mission also has its

own research agenda supported by climate change related institutions and a climate

research fund. Encourage initiatives from the private sector for developing innovative

93 Ibid 94 Ibid

technologies for mitigation and adaptation. 95 To enlist the global community in

research and technology development and collaboration through mechanisms

including open source platforms, a strategic knowledge mission will be set up to

identify the challenges of, and the responses to, climate change. It would ensure

funding of high quality and focused research into various aspects of climate change.

The mission will also have, on its research agenda, socio-economic impacts of

climate change including impact on health, demography, migration patterns and

livelihoods of coastal communities. It would also support the establishment of

dedicated climate change related academic units in universities and other academic

and scientific research institutions in the country which would be networked. A

climate science research fund would be created under the mission to support research.

Private sector initiatives for development of innovative technologies for adaptation

and mitigation would be encouraged through venture capital funds. Research to

support policy and implementation would be undertaken through identified centers.

The mission will also focus on dissemination of new knowledge based on research

findings.

These eight national missions, taken together, with enhancements in current

and ongoing programmes included in the technical document, would not only assist

the country to adapt to climate change, but also, importantly, launch the economy on a

path that would progressively and substantially result in mitigation through avoided

emissions.96

Ministries with lead responsibility for each of the missions are directed to

develop objectives, implementation strategies, timelines, and monitoring and

evaluation criteria, to be submitted to the Prime Minister’s Council on Climate

Change. The Council will also be responsible for periodically reviewing and reporting

on each mission’s progress. To be able to quantify progress, appropriate indicators

and methodologies will be developed to assess both avoided emissions and adaptation

benefits.97

The Government is implementing the NAPCC with a view to enhance the

ecological sustainability of India’s development path and address Climate Change. 95 http://currentaffairs.gktoday.in/pmo-forms-executive-panel-on-climate-change-0220134896.html accessed on 20th April 2014 96 Supra note 72 97 National Action Plan on Climate Change Government of India June 2008 http://www.c2es.org/docUploads/India%20National%20Action%20Plan%20on%20Climate%20Change-Summary.pdf accessed on 5th April 2014

The Government regularly reviews the progress under the NAPCC, based on the

information provided by the concerned nodal Ministry. The Government has also

constituted an Executive Committee on Climate Change in January, 2013, under the

chairmanship of Principal Secretary to Prime Minister to assist the Prime Minister’s

Council on Climate Change in evolving a coordinated response to issues relating to

Climate Change at the national level and to monitor the implementation of the eight

National Missions and other initiatives under the NAPCC.98

All national missions have been approved by the Prime Minister’s Council on

Climate Change and are at different stages of implementation. Thus, these national

missions will be institutionalized by respective ministries and will be organized

through inter-sectoral groups which include in addition to related ministries, ministry

of finance and the planning commission, experts from industry, academia and civil

society. The institutional structure would vary depending on the task to be addressed

by the mission and will include providing the opportunity to compete on the best

management model.

Each mission will be tasked to evolve specific objectives spanning the

remaining years of the 11th plan and the 12th plan period 2012-13 to 2016-17. Where

the resource requirements of the mission call for an enhancement of the allocation in

the 11th plan, this will be suitably considered, keeping in mind the overall resources

position and the scope for reprioritization.99

7.3.10.1 Indian Network for Climate Change Assessment

Steps have also been taken to increase capacity at the institutional level for

conducting research into Climate Change science and making necessary assessments.

The Ministry has already set up a network, namely the Indian Network for Climate

Change Assessment (INCCA) comprising of 127 research institutions tasked with

undertaking research on the science of Climate Change and its impacts on different

sectors of economy across various regions of India. INCCCA has helped the Ministry

put together its GHG Emissions Inventories and in carrying out other scientific

assessments at more frequent intervals.100

The approach that the NAPCC proposes India takes is, “a directional shift in

the development pathway” that promotes development objectives while also yielding

98 Supra note 44 99 Supra note 72 100 Supra note 44

co-benefits for addressing climate change effectively.” Once again it should be

pointed out that climate change benefits are seen only as a byproduct or co-benefit of

a sustainable plan to meet development targets and not as a goal in itself.101

7.3.10.2 State Action Plans on Climate Change

Under advice of the Central Government, State Governments are also

preparing State Action Plans on Climate Change that are aimed at creating

institutional capacities and implementing sectoral activities to address Climate

Change. So far, 21 States namely Andaman and Nicobar, Andhra Pradesh, Arunachal

Pradesh, Assam, Delhi, Jammu & Kashmir, Kerala, Karnataka, Lakshadweep,

Madhya Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Odisha, Punjab,

Rajasthan, Sikkim, Tripura, Uttarakhand, and West Bengal have prepared document

on State Action Plan on Climate Change (SAPCC).102

Climate change may alter the distribution and quality of India’s natural

resources and adversely affect the livelihood of its people. With an economy closely

tied to its natural resource base and climate-sensitive sectors such as agriculture,

water and forestry, India may face a major threat because of the projected changes in

climate. India’s development path is based on its unique resource endowments, the

overriding priority of economic and social development and poverty eradication, and

its adherence to its civilization legacy that places a high value on the environment and

the maintenance of ecological balance.103

The states play the major role in the implementation of the NAPCC. In an

address on August 18, 2009, the Prime Minister called upon the states and union

territories to initiate the preparation of state action plans. State level plans need to

create an institutional and operational framework for implementing the missions and

aligning them with other developmental priorities of the state.

The Indian Ministry of Environment and Forests (MoEF) has asked all Indian

states to develop action plans to define how they intend to undertake activities and

programmes aimed at climate change adaptation and mitigation. These SAPCC

should be in line with the objectives of the NAPCC and ensure its implementation at

state level.104

101 http://www.climate-leaders.org/climate-change-resources/india-and-climate-change/indias-national-action-plan-on-climate-change accessed on 19th June 2014 102Supra note 44 103 Supra note 72 104 http://www.ccarai.org/fields-of-work.html accessed on 11th Dec 2013

State climate change action plans are treated synonymously with sustainable

development planning. This approach usefully injects environmental issues into

development planning, but represents a lost opportunity to internalize climate

resilience. The study draws on an analysis of state climate plans in five states:

Karnataka, Himachal Pradesh (HP), Madhya Pradesh (MP), Odisha, and Sikkim. The

states were primarily chosen to represent geographic and agro-climatic spread, and

variability in donor organizations involved, with additional attention to agro-climate

variability, size and, economic prosperity. Further, only states that had completed a

draft report were considered. As of January 2014, the climate plans of MP and Sikkim

had been endorsed, whereas HP, Karnataka and Odisha were awaiting approval.105

7.3.10.3 Karnataka state action plan on climate change

In June 2009 Government of Karnataka (GoK) constituted a Coordination

Committee to oversee and coordinate the state’s response to climate change. It

assigned the mandate to prepare the SAPCC to Environmental Management & Policy

Research Institute (EMPRI). In the planning process, the committee emphasized the

need to develop Karnataka SAPCC in close consultation with GoK who should

eventually own the action plan. This is reflected in the composition of the

Coordination.

Committee to which 15 key departments are member Work on Karnataka

SAPCC was preceded with a rapid assessment of sectoral actions of government

departments. Directed by the Coordination Committee, this review solicited

cooperation from 22 departments, 14 of which took part in the stocktaking exercise.

They provided details of actions already taken and in some cases, specific plans in

respect of climate change. Actions taken or proposed were reviewed keeping in view

the mandate and scope ensuing from the NAPCC as primary cornerstone. An initial

report of findings was released in December 2010 as a precursor.106

As a large, emerging economy, India faces big challenges relating to energy

and climate change. On the one side, the country has hundreds of millions of people

105 From margins to mainstream?: climate change planning in India as a 'door opener' to a sustainable future available at http://www.indiaenvironmentportal.org.in/content/389214/from-margins-to-mainstream-climate-change-planning-in-india-as-a-door-opener-to-a-sustainable-future/ accessed on 23rd Nov. 2013 106 Karnataka State Action Plan on Climate Change Draft Report for Government of Karnataka September 17, 2011//// http://www.nicraicar.in/nicrarevised/images/State%20Action%20Plan/ Karnataka%20SAPCC%20draft%20-%20EMPRI,%20TERI%202011-09-17.pdf accessed on 8th Jan 2014

without access to electricity and an economy demanding more energy to power

growth. These pressures mean that energy use, and emissions, are likely to grow

substantially over the next few decades. At the same time, India is vulnerable to the

impacts of climate change, in particular water stress, impacts on agriculture and

susceptibility to weather-related disasters.107

Despite having no obligation, as a developing country, to tackle emissions,

India is coordinating comprehensive policies across the economy covering both

mitigation of GHG emissions and adaptation. Building public awareness will be vital

in supporting implementation of the NAPCC. This will be achieved through national

portals, media engagement, civil society involvement, curricula reform and recognition

awards, details of which will be worked out by an empowered group. The group will

also consider methods of capacity building to support the goals of the national

missions.

There is a need to develop appropriate technologies to measure progress in

actions being taken in terms of avoided emissions, wherever applicable, with

reference to business as usual scenarios. Appropriate indicators will be evolved for

assessing adaptation benefits of the actions.108

7.4 Role of Judiciary

The phenomenon of the emergence of Courts of Law in India, perhaps, as the

sole dispenser of environmental justice is occurring. By delivering landmark

judgments, that have, indeed, altered the common man’s perception of the Court of

Law as just a forum for dispute resolution and nothing else; the Indian Judiciary has

carved out a niche for itself as a unique institution. The increasing interest and a sense

of inevitability in approaching the corridors of justice, over every conceivable

environmental problem interest groups and individuals, bear witness to this

unprecedented occurrence.109

The judiciary now in analyzing the issues relating to environment is taking

recourse to constitutional environmentalism more assertively and forcefully. In the

recent years, the Supreme Court of India and some High Courts of the states under

Articles 32 and 226 of the Constitution respectively have led the way in the

enforcement of environmental laws through citizen-led public interest litigation (PIL)

107 http://www.rtcc.org/2013/02/19/in-focus-indias-climate-change-laws/ accessed on 22nd May 2014 108 Supra note 72 109 M. K. Ramesh, supra note 46, p. 9

that has its legal basis in the constitutional right to a healthy environment. Through

this judicial activism, the courts have issued orders with specific implementation

requirements that not only remedy the case at hand, but also set new policies and

practices with widespread implications for the regulated community as well as

regulatory agencies.

The environmental constitutionalism which led to incorporation of Articles

48A and 51A (g) in the Constitution received further impetus in 1978 when the Apex

Court in Maneka Gandhi case in interpreting Article 21, which deals with the human

right relating to life and personal liberty, held the view that the correct way of

interpreting the provisions of part III (i.e., fundamental rights) would be to expand the

reach and ambit of the fundamental rights rather than to attenuate their meaning and

content by judicial interpretation. This has not only given new dimensions to Article

21, but the Court in interpreting subsequent issues relating to environment and

ecology has given birth to new environmental jurisprudence through its judicial

activism and held that right to life includes right to clean and health environment.

This enabled the Court to expand Article 21 in such a way that non-justiciable

directives contained in Article 48A got resurrected as enforceable fundamental right,

in a manner beyond the comprehension of the makers of the Constitution. This is to

say; for all practical purposes the directives contained in Article 48A have been raised

to the status of fundamental right enforceable by writ petitions under Articles 32 and

226 of the Constitution.

Another important development of this new environment jurisprudence is that

the traditional view that the negative language of Article 21 and the use of the word

‘deprived’ in it, has imposed upon the state of negative duty not to interfere with the

life and personal liberty has undergone a sea change. Now, under the new

environment jurisprudence and constitutional environmentalism the state is under a

positive obligation to ensure clean and healthy environment for enjoyment of life of

every individual.110

Lack of vision, in foreseeing environmental problems, not evolving

appropriate policies, plans and programmes, beside non-dynamic, reactive (rather than

being pro-active), legislative laws, in tackling the complex and ever challenging

110 Bhaskar Kumar Chakravarty, supra note 10, p.101

environmental issues and problems appear to be at the root of the activist stance of the

courts of law.111

The scope, thus, includes right to livelihood, right to roads, right to speedy

trial, right to clean air, forest, water and environment and right to traditional method

of environmental protection under right to life. The right to life approach not only

implies the absence of a polluted environment but also the quality of the environment

by enumerating justifiable entitlements such as a clean river and lakes, coastal

resource zone, afforestation, preservation of wetland, healthy growth of wildlife and

ornithology.112

An important recent development is the rise of judicial activism in the

enforcement of environmental legislation. This is reflected in the growth of

environment-related public litigation cases that have led the courts to take major steps

such as ordering the shut-down of polluting factories.113 In the quest for development,

man since time immemorial has been continuously thriving upon environment. In his

process to manage environment, to achieve higher standard of living he has caused

serious irreparable damage to the environment. Several legislations have been enacted

to impose a check on these human actions, which deplete the environment. But the

true savior has been the judiciary, which has time and again balanced man’s

development with the environment.

Pollution is also a part of Social Justice. In Minerva Mills Co. Ltd., Vs. Sut

Mill Mazdoor Union (AIR 1955 SC 170), it was held that, “Social justice connotes the

balance of adjustments of the various interests concerned in the social and economic

basis.” Public health is a part of social justice. A decent life presupposes decent

health, and not only the individual has to be kept from disease, but the whole

environment has to be kept halcyonic to ensure perfect health. In this context the

Supreme Court highlighted the relevant Articles 41, 43, 47 and 48-A of the

Constitution. 114

If we observe the cases becomes clear that the courts were certainly protecting

the environment. Though protection to the environment was not directly accorded

under environmental protection legislations, it was given indirectly through other

legislations having clauses pertaining to the environment. The IPC, Cr. P.C, Factories

111 M. K. Ramesh, supra note 46. p. 10 112 Md Zafar Mahfooz Nomani, supra note 20, p. 66 113 Supra note 57 114 Dr. J L. Aparajit and Miss. Adhara Badhe, supra note 47, p. 120

Act and the Law of Torts have helped indirectly in the development of environmental

laws in India and in absence of effective environmental enactments in the pre-1972

period these laws have helped to protect and conserve nature to a large extent. On

various occasions our courts have effectively interpreted various provisions to save

our environment for e.g. in Narendra Kumar Vs. Union of India (AIR1960 SC 430).

The Supreme Court exclaimed that Restrictions includes prohibition in certain cases

to save forests’. Keeping in mind the intention of law framers courts have positively

interpreted various words and phrases in the interest of nation and its environment. 115

In this context, Article 48-A of the Constitution is significantly important. In

Minerva Mills V. Union of India, (AIR 1978 SC 597) Y. V. Chandrachud, C. J.,

observed that a balance between the fundamental Rights (Part III) and Directive

Principles of State Policy (Part IV) form the basic components of the fundamental

structure of the Constitution of India. The fundamental rights as guaranteed by the

Indian Constitution projected a picture of a perfect, full-fledged and free citizen while

the Directive Principles aid at self sufficient society. The aspiration of the citizens is

achieved by the complementary role played by the Fundamental Rights and the

Directive Principles.

A primary duty of the State is spelt out in Article 47 to raise the level of

nutrition and standard of living and to improve health as this Article directs towards

betterment of public health. In Ratlam Municipality V. Vardhichand, (AIR 1980 S

1622) the court enforced the duty against the defaulting local authorities irrespective

of the insufficient financial resources of such authority.116

The right to clean environment as an integral part of the right to life, which in

turn is a human right, has been recognized In the decision of the Supreme Court in

Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh. 117 From here

onwards a new era has started to include clean environment as an integral part of the

right to life under Article 21 of the constitution of India. Environmental right, as a

part of the human rights law, now stands substantiated through judicial precedents and

other sources of international law.118

115 Ibid, p 121 116 Ibid, p. 123 117 A.I.R 1985 S.C 652. See also Subash Kumar v. Bihar A.I.R1991 S.C.420 118S. Sivkumar, supra note 9, p. 290

In Subhas Kumar v. State of Bihar,119 the Apex Court has held that right to

live is a fundamental right under Article 21 of the Constitution and it includes the

right of enjoyment of pollution free water and air for full enjoyment of life. If

anything endangers or impairs the quality of life in derogation of laws, a citizen have

a right to recourse to Article 32 of the Constitution for removing the pollution of

water or air which may be detrimental to the quality of life.

The Supreme Court has explained the inter-relation between ecological issues

and fundamental rights as ecological concern arising in this Court under Article 21 or

under Article 136 or under Article 226 in the High Courts are, in our view, of equal

importance as human rights concern. In fact both are to be traced to Article 21, which

deals with the fundamental rights to life and liberty. While environmental aspects

concern ‘life’, human rights aspects concern ‘liberty’.120

In M. C Mehta v. Union of India and others 121 the Supreme Court held that

when there is manufacture and sale of hazardous products then necessary steps should

be taken for reducing hazard to workmen and community living in neighborhood.

Damage in case of accident caused by leakage of liquid or gas must also be paid to the

petitioner.

Supreme Court further in Virender Gaur v. State of Haryana 122 has observed

that Article 21 protects right to live as a fundamental right. Enjoyment of life and its

attainment including the right to life with human dignity encompasses within its

ambit, the protection and preservation of environment, ecological balance, and

freedom from pollution of air and water, sanitation without which life cannot be

enjoyed. Any contract or action, which would cause environmental pollution,

environmental, ecological, air, water, pollution, etc., should be regarded as amounting

to violation of Article 21. Therefore, hygienic environment is an integral facet of right

to healthy life and it would be impossible to live with human dignity without a

humane and healthy environment. Environmental protection, therefore, has now

become a matter of grave concern for human existence. Promoting environmental

protection implies maintenance of the environment as a whole comprising the man

made and the natural environment. Therefore, there is a constitutional imperative on

the State Government and the municipalities, not only to ensure and safeguard proper

119 AIR 1991 SC 420 120 A.P. Pollution Control Board v. M.V. Nayudu, AIR 1999 SC 825 121 AIR 1987 SC 965. 122 (1995) 2 SCC 577.

environment but also an imperative duty to take adequate measures to promote,

protect and improve both the man made and the natural environment.

In the Bangalore Medical Trust v. B S. Muddappa 123 held that discretion

vested in an authority must be exercised for the purpose of attaining the objects of the

laws. A plot reserved for a public park could not be allotted arbitrarily to a private

hospital by altering the town-planning scheme. The alteration did not improve the

scheme and, therefore, was contrary to the purpose for which the power to alter the

scheme was conferred.

In M I Builders v. Radhey Shyam Sahu 124 Supreme Court ruled that there is no

alter to this except to dismantle the whole structure and restore the park to its original

conditions leaving a portion constructed for parking. We are aware that it may not be

possible to restore the park fully to its original condition as many trees have been

chopped off and it will take years for the trees now to be planted to grow. But a

beginning has to be made.

In Santi Park ‘Sorent’ Co-op. Hsg. Soc. Ltd. V. Municipal Corporation,125

considering the provisions of the Air Act, the air quality norms and statutory

obligations of the municipal corporation, the High Court of Bombay issued

comprehensive directions to the respondents to abate the nuisance. The directions

included proper management of the solid waste disposal site.

In Murali D. Deora v. Union of India and others 126 the Supreme Court

observed that fundamental right guaranteed under Article 21 of the Constitution of

India, inter alia, provides that none shall be deprived of his life without due process

of law. There is no reason why a non-smoker should be afflicted by various diseases,

including lung cancer or of heart, only because he is required to go to public places. It

is indirectly depriving him of his life without any process of law.

A public interest petition, filed to protect Taj Mahal a world wonder and the

monument of international repute, sought appropriate directions to the authorities

concerned to take immediate steps to stop air pollution in Taj Trapezium (TTZ). The

sulphur dioxide emitted by the Mathura Refinery and other industries when combined

with oxygen with the aid of moisture forms sulphuric acid called “acid rain” which

has a corroding effect on the gleaming white marble. The Supreme Court decisions

123 AIR 1991 SC 1902. 124 AIR 1999 S.C 2468. 125 W.P No. 1138 of 1996. 126 (2001) 8 SCC 765.

were based on the reports of various technical experts that air pollutants have a

damaging effect on the Taj and the people living in the TTZ. The court observed that

“precautionary principle” requires that environmental measures must anticipate,

prevent and attack the causes of operation, which are detrimental to the environment.

The Supreme Court further upheld that the polluting industries should changeover to

the natural gas as an industrial fuel or should relocate themselves in new industrial

estates outside TTZ. The UP government was directed to give assistance and

incentives to the industries in the process of relocation while workmen shall be

entitled to certain rights and benefits.127

To protect the deteriorating quality of air so as to protect the health of the

people in Delhi, which is the facet of the Article 21 of the Constitution, the Supreme

Court has highlighted very categorically the constitutional duty of the state to protect

the environment and held that Articles 39(e), 47 and 48A collectively cast a duty on

the local authority to phase out grossly polluting old vehicles and non CNG buses to

improve environment and protect the health of the people of Delhi.128

The Supreme Court in a case has highlighted very categorically the

constitutional duty of the state to protect the environment and held that Articles 39(e),

47 and 48A collectively cast a duty on the local authority to phase out grossly

polluting old vehicles and non CNG buses to improve environment and protect the

health of the people of Delhi.

The Kerala High Court achieved a more modest agenda in requiring the Kerala

government to strictly implement vehicular emission regulations framed under the

MVA. The court directed the state to provide a smoke meter and gas analyzer at every

major town.129 The Gwalior Bench of Madhya Pradesh High Court issued similar

directions.130 The question remains whether the court in M. C. Mehta’s case should

have restricted the new emission regime to the national capital region or extended to

all polluted metropolitan regions? Should other High Courts follow the lead and

prescribe similar technology forcing deadlines in respect of the polluted cities in their

jurisdiction.131

127 M. C. Mehta v. Union of India, AIR 1997 SC 734 128 M. C. Mehta v. Union of India, AIR 2001 SC 1948 129 Murali Purshotaman vs. Union of India, AIR 1993 Ker. 297 130 Santosh Kumar Gupta vs. Secy., Ministry of Environment, AIR 1998 M.P 43 131 The Bombay High Court required compliance with the Euro I norms from 1 January 2000 and Euro II norms from January 2001 in respect of private (non-commercial) vehicles. Smoke Effected Residence Forum vs. Municipal Corporation, Writ petition no. 162 of 1999 in a later order the court issued

In P.C Cherian v. State of Kerala132, the Kerala High Court said that the

carbon particle (carbon black) emitted from two rubber factories amounted to an

actionable public nuisance under section 133 of the code of criminal Procedure 1973.

The court took judicial notice of the health effects of air pollution and it had to strike

a balance between the community interest and the interest of the workers in protecting

their jobs. The court held that there is no scope for doubt that carbon black on the

clothes of the residents, which make them soiled, and their deposits on food articles

would cause annoyance to them all.133

In Koolwal’s case the court raise a questionable point that when every citizen

owes a constitutional duty to protect the environment (Article 51 A), the citizen must

also be entitled to court’s aid in enforcing the duty against recalcitrant state

agencies.134

A very unique jurisprudential innovation has been incorporated into the

equality principle by bringing inter-generational equity and sustainable development

under its precinct. Further, in the M C Mehta v. Union of India case, the Court held

that precautionary principles and the polluter pays principle were the broad

constituents of sustainable development and right to life. The other fundamental rights

having a bearing on environmentalism are the right to practice any profession or carry

on any occupation or trade or business. However, the Courts most often than not

impose restrictions on development-oriented plans which come in the way of

sustainable development.135

To abate environmental degradation and pollution not only the fundamental

right to a wholesome environment is articulated through Articles 32 and 226 but the

Apex Court is resorting to Article 142 of the Constitution to auger

environmentalism. 136 Thus view was firmed up in the Consumer Education and

comprehensive directions strengthening implementation of the emission norms, enhancing penalties against violators, allowing citizens participation in the testing procedure, and constituting a committee to recommend measures to control vehicular pollution. Order dated 15 December 1999. 132 1981 K.L.T.113 133S. Sivkumar, supra note 9, p. 299 134 L. K. Koolwal v State of Rajasthan, AIR 1988 Raj 2 135 Md Zafar Mahfooz Nomani, supra note 20, p. 66 136Constitution of India, Article 142 Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

Research Centre Case wherein the Supreme Court issued orders against thirty

asbestos mines and seventy four asbestos related industries to come abide by

ergonomic principles. A concurrent justification for the order was supported by

judicial obligations underpin under Article 142.137

The judiciary has evolved as well as applied various environmental principles

in the various landmark decisions. Absolute liability of hazardous and inherently

dangerous industry is high-water mark of the development of ‘polluter pays

principle’. The ‘polluter pays principle’ requires, a polluter bear the remedial or clean

up costs as well as the amounts payable to compensate the victims of pollution. The

principle as a remedial measure (for, it comes into force after the damage has

occurred) has been applied by the Supreme Court in a series of cases to enforce the

remedial costs on the polluters.

The “precautionary principle”, another part of the basic environmental law of

the land, which requires governmental authorities to anticipate, prevent and attack the

causes of environmental pollution and also imposes the onus of proof on the

developer or industrialist to show that his or her activity is environmentally benign,

has been applied the Apex Court in Sludge’s case, T N Tanneries case and Sapna

Motel case. The principle in more explicit terms was applied in M C Mehta v. Union

of India (Taj Trapezium case) for protecting the Taj from air pollution by coke/coal

fuel based industries operating within the Taj trapezium was revealed from expert

studies.138

The Supreme Court in Sapna Motel case has accepted the doctrine of Public

trust which rests on the premise that certain natural resources like air, sea, water are

means for general use and cannot be restricted to private ownership. These resources

are a gift of nature and the state, as a trustee thereof, is duty bound to protect them.

The State is the trustee, the general public the beneficiary, of such natural resources as

sea, running water, air, forests, and ecologically fragile lands.139

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself 137 Md Zafar Mahfooz Nomani, supra note 20, p. 66 138 Kailash Thakur and Hans Raj Jhingta, “Emerging Perspectives of Public Interest Litigation in Environmental Protection”, CULR, 2006, p. 460 139 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 598

The Supreme Court has assumed the role of public educator. In M C Mehta v.

Union of India, 140 the Supreme Court directed the exhibition and broadcast of

environmental messages and information by the media and introduction of

environment as a compulsory subject in schools and colleges. The Court issued

detailed directions regarding the compulsory screening of slides and documentaries in

cinema halls and the broadcast of programmes on radio and television. The UGC was

told to prescribe courses on environment in the universities syllabi. The State

Governments and Education Board were directed to take immediate steps to include

environment in the school curricula. To ensure strict compliance of its directions, it

has come heavily on defiant states enjoining upon them to strictly implement them

under the supervision of the state authorities.141

Taking on the “mining mafia” has been another concern of the Supreme Court.

Quite recently, it asked the central government to submit by January 27 the Justice

Shah Commission report on illegal mining in the states of Odisha and Jharkhand. The

report is expected to reveal the illegal financial transactions and expose the culprits.

Recently, the Court permitted 118 legal mines in the state of Karnataka to reopen,

lifting a two-year ban. However, it cancelled the leases of mining projects planned

outside the sanctioned area of the Bellary district.142

In Essar Oil Ltd. v. Halar Utkarsh Samiti and Ors.,143 the judiciary has made a

reference to the impact of global warming on the sea level and has stressed the need

for protecting the areas that are ecologically sensitive and important such as national

parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves,

corals/coral reefs, areas, close to breeding and spawning grounds of fish and other

marine life, areas of outstanding natural beauty, historical heritage areas, areas rich in

genetic diversity, areas which are likely to be inundated due to rise in sea level

consequent upon global warming and such other areas as may be declared by the

Central Government or the concerned authorities at the State/Union Territory level

from time to time.

140 AIR 1992 SC 382 141 Kailash Thakur and Hans Raj Jhingta, supra note 138, p. 464 142 http://thediplomat.com/2014/01/the-indian-supreme-court-as-environmental-activist/ accessed on 2nd May 2014 143 AIR 2004 SC 1834

In Karnataka, Industrial Areas Development Board v Sri. C Kenchappa &

Ors.144 the Court overturned a direction by the Karnataka High Court to the appellant

to leave a land of one km as a buffer zone to maintain a ‘green area’ around the

periphery of a village. In this case the judiciary has made specific mention of the

entire world facing the serious problem of environmental degradation due to

indiscriminate development and due to industrialization, burning of fossil fuels and

massive deforestation leading to degradation of environment resulting in global

warming.

The judiciary has been well aware of international development in the field of

environmental law and is molding and developing the environmental jurisprudence in

the light of international conventions, treaties and agreements. The Indian judiciary by

taking recourse to international environmental principles is not only reinforcing,

strengthening and widening the environmental jurisprudence in India, but is also

making the executive and legislative wings of the state proactive in the field of

protection and improvement of the environment. In fact, relying on some international

environmental principles the Indian judiciary has been able to face some of the

challenges relating to environmental protection very successfully in the absence of

appropriate domestic legislation in the concerned field. The Supreme Court relaying

on the international concept of sustainable development, which calls upon the states to

bear solemn responsibility to conserve and use environment and natural resources for

the benefit of present and future generations, has given some important decisions

relating to environment.145

Emboldened by the human rights-oriented judicial initiative, India’s

environmental movement in the atmosphere of repressive policing and bureaucracy

has ushered a generation human rights regime. This was made possible by ethical and

legal considerations embedded in deep ecological postulates and numerous

international declarations into our constitutional body.146

Therefore, if anything endangers or impairs that quality of life in derogations

of laws, a person can take recourse to Article 32 or Article 226 for removal of

pollution of water or air that may be detrimental to the quality of air. A petition for

prevention of pollution is maintainable at the instance of the affected person or

144 AIR 2006 S.C 2038 145 Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P AIR 1985 SC 652 146 Md Zafar Mahfooz Nomani, supra note 20, p. 67

persons, or even by a group of social workers or journalists. The lacunae in law and

laxity and indifference on the part of enforcement agencies has invited increased

judicial intervention and in some cases pass judicial strictures. To make up the

deficiencies in law, the Supreme Court has issued directions to fill cavernous gaps.147

India’s apex court, the Supreme Court, has been playing an important role as a

steward of environmental protection. In a recent order, it required the central

government to set up a national environment regulator with offices in every state by

March 31, 2014, entrusted with appraising and approving projects for environmental

clearances. In fact, Indian democracy is known not only for its judicial independence,

but, importantly, for offering numerous instances of judicial activism that has been

facilitated by the “innovative” tool of PIL - a judicial pill for relief against executive

wrongs.148

Thus, the Indian Supreme Court has interpreted the right to life under Article

21 in a manner that extends beyond mere survival, to cover conditions that are

necessary for higher standards of living. Climate change, could potentially affect both

the survival and standards of living of Indians. Therefore, constitutional litigation may

be one avenue to accelerate government responsiveness to climate change, and this

possibility may influence the tenor of the Indian Government in negotiations for a

post-2012 climate regime. Of course, even if litigation is a feasible option to influence

India's stance on addressing global warming, it may not amount to very much

internationally, given India's current limited influence in the post-Kyoto negotiations.

On the other hand, such litigation may be a more promising avenue to leverage

change domestically than any other currently available legal strategy. I therefore now

turn to discussing specifically how climate change could infringe constitutional rights

in India, before moving on to discussion of domestic constitutional litigation as a tool

for combating climate change. Even if the Supreme Court were to find an Article 21

violation, it could not exercise its jurisdiction over foreign nations. Article 32 of the

Indian Constitution provides for judicial review only in the case of violation of

fundamental rights by the Indian government.149

Even the option of bringing a constitutional challenge against the Indian

government as a strategy to catalyze action on climate change is not without

147 Kailash Thakur and Hans Raj Jhingta, supra note 138, p. 462 148 Supra note 142 149 Benjamin J Richardson. (ed), supra note 40, pp. 70-71

problems. The Constitution vests foreign affairs powers exclusively in the central

government. It grants to parliament, the legislative branch, the power to enact laws

regarding foreign affairs, including the power to conclude legal arrangements.

However in practice, the executive branch of government enters into and implements

treaties and international obligations, and the parliament merely has the power to

enact executing domestic legislation. No provision of the Indian Constitution

explicitly grants the judiciary the authority to review matters related to foreign affairs.

In fact, the judiciary is specifically excluded from adjudicating international disputes,

except for advising the President upon request.

Furthermore, the judiciary may be hard pressed to grant appropriate remedies.

Short of directing the government on international climate negotiations and policies,

there is little that the Indian judiciary can effectively do by way of shielding

fundamental rights from climate change related violations, without risking its

institutional legitimacy. If and when the violations actually occur, the Supreme Court

could order the government to pursue international adjudication, but, as current

evidence suggests, international adjudication has limited utility. International

principles under which any such remedy might be claimed, such as the duty to prevent

transboundary pollution (even though interpreted as customary international law in

the Trail Smelter Arbitration), are often not complied with by states.150

There is no indication at this point those violations will be prevented or

compensated for when climate change related catastrophes unravel, especially if the

incidents in the Sunderbans are any indication. More importantly, the Indian judiciary

may be facing the limits of its capacity to deliver justice in this context, because of the

complexity of climate science, the nature and breadth of remedies from different

branches of government that will be required effectively to mitigate the problem, and

the role of international governments.151

The constitutional challenges that could be triggered by climate change lend

themselves to adjudication. This is why judicial intervention has become an important

strategic tool to catalyze action on climate change in other jurisdictions, notably the

US. In Massachusetts v. Environmental Protection Agency,152 a group of states and

environmental public interest groups brought an action against the federal EPA for

150 Ibid, p. 72 151 Ibid, p. 73 152 549 U.S. 497 (2007)

failing to take action to combat climate change. The majority of the Court held that

the EPA was legally required to exercise its jurisdiction under the Clean Air Act to

come to an opinion as to whether or not vehicular emissions posed a danger, and were

not free to shirk this obligation based on the rationale of scientific uncertainty.

Constitutional litigation in India could serve the same purpose - to catalyze

action on climate change by the Indian government. This has been the purpose of

public interest litigation in India, to fill the void created by incompetent

administration. Thus, despite the potential hurdles discussed earlier, constitutional

litigation could serve the purpose of forcing the government to think in terms of the

rights of its people that will be violated if climate change occurs, rather than thinking

in terms of the right of its people to add to the problem. Such a shift could possibly

lead to the Indian government taking a more cooperative approach in the current post-

Kyoto negotiations that would focus on both its responsibilities for mitigation and

adaptation strategies. The Indian Supreme Court’s directions may require the

government to rethink its negotiating positions, but it would be dangerous for the

judiciary to attempt to play a role in the negotiation of a climate deal because any

such attempts to overreach would also affect the entire constitutional structure upon

which the nation is founded.153

The judicial response in the past few years towards the protection of

environment has been substantial and effective as per the requirement of the time.

Judiciary has been vigilant and active in protecting environment through

constitutional and other laws. Environment is the most talked about subject in the

present. Masses are made conscious of their health and hygiene. Accordingly

everybody expects to get clean air, clean water, and cleaner surroundings and

ecologically balance atmosphere. If this trend of judicial activism in the matters of

environment protection continues on the aforesaid lines, then as natural collorary a

question arises in mind as to whether the judiciary or the courts shall be in a position

to cope up with the need of environment protection. The judiciary has its own

limitations and cannot go beyond a certain point. If this trend continues in this manner

then the hope of the citizens to get clean air, water and ecologically balanced

environment shall be a matter in the state of abeyance.154

153 Benjamin J Richardson. (ed), supra note 40, pp. 74-75 154 Dr. J L. Aparajit and Miss. Adhara Badhe, supra note 47, pp.143-144

7.5 Institutional Framework for Mitigation of Global Warming

The Stockholm Conference on Environment and Development exerted great

influence on environmental policymaking leading to an amendment of the

Constitution, passage of important legislations such as the Water (Prevention and

Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act,

1981 and creation of institutions such as Central and State Pollution Control Boards

for implementing the provisions of the Acts which aim at reducing pollution there by

combating global warming.

Increase in Air pollution contributes to Global Warming and the major

sources of air pollution are industrial emissions from thermal power plants, cement

plants, petroleum refineries and chemical industries, automobile exhaust, house hold

burning of fossil fuels and other carbonaceous matter and natural sources like dust

storms and forest fires etc.

India has a very comprehensive framework of legal and institutional

mechanisms in the region to respond to the tremendous challenges to the environment

it is facing, owing to population growth, poverty and illiteracy augmented by

urbanization and industrial development. Since the 1970s an extensive network of

environmental legislation has grown in the country. The MoEF and the pollution

control boards i.e. CPCB and SPCBs together form the regulatory and administrative

core of the sector.155

7.5.1 Ministry of Environment and Forest

The nodal agency for implementing various legislations relating to

environmental protection at the centre is the Ministry of Environment and Forest

(MoEF). Besides giving directions to the CPCB on matters relating to prevention and

control of pollution, the MoEF is responsible for designing and implementing a wide

range of programmes relating to environmental protection. The Annual Report of the

MoEF for 1996-97 states that ‘the focus of various programmes of the Ministry and

its associated organizations, aimed at prevention and control of pollution is on issues

such as promotion of clean and low waste technologies, waste minimization, reuse or

recycling, improvement of water quality, environmental audit, natural resource

accounting, development of mass based standards, institutional and human resource

development etc. The whole issue of pollution prevention and control is dealt with a

155 Supra note 56

combination of command and control methods as well voluntary regulations, fiscal

measures, promotion of awareness, involvement of public etc.’

Established in 1985, the MOEF is the central government nodal agency

responsible for planning, promotion and coordination of all environmental activities,

including formulation of national policies, standards and regulation.156 The objectives

of the MOEF are:

i. conservation and survey of flora, fauna, forests and wildlife;

ii. prevention and control of pollution;

iii. afforestation and regeneration of degraded areas;

iv. protection of the environment; and

v. welfare of animals.

In wake of the problem of climate change, Ministries dealing with the

environment, water resources, urban development, agriculture, power, and new and

renewable energy are the nodal agencies for all the eight missions under the NAPCC.

With the MoEF recently coming with an objective set of guidelines that can make

way for a smooth flow of green clearance; a certain amount of “green thought” within

that objective framework is certainly called-for.157

The central and state governments have introduced a number of subsidies for

pollution control equipment and treatment installations. The Common Effluent

Treatment Plant (CETP) subsidy scheme is undertaken by the MOEF to enable

clusters of small-scale industries to establish or upgrade CETPs. The central and state

governments subsidize each 25 percent of total project costs, 30 percent is secured

through loans from financial institutions, and the remaining 20 percent is covered by

the participating small industries themselves.

Specifically in mitigating climate change under the Credit Linked Capital

Subsidy Scheme, the Ministry of Small Scale Industry is providing assistance to small

industrial units for adoption of cleaner production technologies and installation of

pollution controls. The financial support of up to USD 225,000 includes a 15 percent

subsidy from the Small Industry Development Bank of India and the National Bank

for Rural Development (World Bank, 2006).158

156 Supra note 43 157 “India’s Climate Change Policy: Critical Analysis on Eco-preparedness”, Civil Services Chronicle, November 2012, p. 18 158 Supra note 43

Based on the environmental laws and directions given by the Supreme Court,

the central government has created number of authorities for designing, implementing

and monitoring its environmental programmes. At the state level, most states have set

up Departments of Environments and the SPCBs.

The CPCB and the SPCBs are responsible for implementing legislations

relating to prevention and control of pollution. Pollution arises both from point

sources, for example, factories and non-point sources, for example, automobiles. In

addition, ambient standards for air and water have been laid down and are being

regularly monitored by the CPCB with the support of the SPCBs find that despite the

legislative and administrative efforts and fiscal incentives for pollution control,

‘ambient standards of air and water pollution continue to be routinely exceeded and in

some places quality has distinctly deteriorated’.

7.5.2 The Central Pollution Control Board

The first important environmental law enacted by Parliament is the Water

(Prevention and Control of Pollution) Act, 1974. This Act paved the way for the

creation of CPCB and SPCBs. The main function of the CPCB shall be to promote

cleanliness of streams and wells in different areas of the states. The term stream

includes river, watercourse, inland water, subterranean waters, and sea or tidal waters

to such extent or such point a state government may specify in this behalf.159

The Air Act’s framework is similar to the one created by its predecessor, the

Water Act of 1974. To enable an integrated approach to environmental problems, the

Air Act expanded the authority of the central and state boards established under the

Water Act, to include air pollution control. States not having water pollution boards

were required to set up air pollution boards.

Sec. 16 provides for the functions of the Central Board and Sec. 17 provides

for the functions of the States board. The CPCB was constituted in September; 1974

under the Water (Prevention and Control of Pollution) Act, 1974. All the States of the

Union have adopted the Act and respective State Pol1ution Control Boards have been

setup. Since May 1981, the CPCB and the State Pollution Control Boards have been

entrusted with the added responsibility of air pollution control under the provisions of

the Air (Prevention and Control of Pollution) Act 1981. Enactment of the

Environment (Protection) Act, 1986 has further widened the scope of activities of the

159 Supra note 4

Boards. A full-time Chairman nominated by the Central Government heads the

Central Board. A full-time Member Secretary, possessing qualifications, knowledge

and experience of scientific, engineering or management aspects of pollution control

is also nominated by the Central Government. Besides, the Government also

nominates some fixed number of members representing various other bodies. The

Pollution Control Unit of the Board looks after the work of setting and upgrading the

environmental standards.

Increase in Air pollution contributes to Global Warming and the major

sources of air pollution are industrial emissions from thermal power plants, cement

plants, petroleum refineries and chemical industries, automobile exhaust, house hold

burning of fossil fuels and other carbonaceous matter and natural sources like dust

storms and forest fires etc.

Therefore to mitigate global warming, the CPCB may carry out various

functions and exercise powers as provided in Chapter IV of the Air Act, 1981 under

section 16. It may take appropriate steps to improve the quality of air and to prevent,

control or abate air pollution in the country.

It may advise the Central Government on any matter concerning the

improvement of the quality of air and the prevention, control or abatement of air

pollution and plan and cause to be executed a nation-wide programme for the

prevention, control or abatement of air pollution.

It may co-ordinate the activities of the State and resolve disputes among them

provide technical assistance and guidance to the State Boards, carry out and sponsor

investigations and research relating to problems of air pollution and prevention,

control or abatement of air pollution and perform such of the function of any State

Board as may, be specified in and order made under sub-section (2) of section 18.

It may and organise the training of persons engaged or to be engaged in

programmes for the prevention, control or abatement of air pollution on such terms

and conditions as the Central Board may specifyand also organise through mass

media a comprehensive programme regarding the prevention, control or abatement of

air pollution;

It may collect, compile and publish technical and statistical data relating to air

pollution and the measures devised for its effective prevention, control or abatement

and prepare manuals, codes or guides relating to prevention, control or abatement of

air pollution and lay down standards for the quality of air.

It may collect and disseminate information in respect of matters relating to air

pollution and perform such other functions as may be prescribed and also establish or

recognise a laboratory or laboratories to perform functions efficiently.

Air quality standards specify the levels of the air pollutants beyond which the

quality of air becomes harmful or unacceptable. For establishing quality standards 1:1

addition, to health effects, considerations are also given to the impact on climate,

vegetation, animal life, materials as well as on the aesthetic quality of the

environment. These effects have significant social, cultural and economic

implications, and often become more sensitive indicators of air quality than effects on

health.

In addition to stating the concentration limits for the pollutants, air quality

standards should also specify the methods of measurement, the average time over

which concentrations should be measured, and the frequency with which the limit

may be exceeded.

The air quality standards are basically developed in two forms.

i. Ambient air quality standards

ii. Emission standards (Standards of performance)

a. Industrial

b. Motor vehicles

Ambient air quality standards specify the desired limit for specific pollutant

levels in the surrounding air.160 Today in wake of global warming the role of the

CPCB in lying down as well as enforcing norms is of utmost importance.

7.5.3 State Pollution Control Boards

The SPCBs were established under the Water Act of 1974 but also function

for the Air Act of 1981. At the State level, the SPCBs are attached either to the

Environment Department, or to the Forest and Wildlife Department. In general,

SPCBs perform the following functions:

i. advise the state governments on pollution related issues;

ii. plan a comprehensive state-level pollution control/prevention/abatement

program;

iii. implement and enforce national standards, making them more stringent if

warranted by local conditions;

160 P. K. Goel, K. P Sharma, supra note 57, p. 64

iv. grant consents to establish and to operate under the Air and Water Acts and

authorize hazardous waste disposal per rules under the EPA; and

v. Collect water cess for the use of water.161

The functions of the SPCBs also include inspection of any control equipment,

industrial plant or manufacturing process and to give, by order, such directions to

such persons as it may consider necessary to take steps for the prevention, control or

abatement of air pollution. The units belonging to the list of polluting industries

should obtain consents before their establishment or/and continuing their operations.

Therefore, to reduce air pollution and combat global warming Chapter IV of the Air

Act, 1981 from Sec.19 to 31 A contains provisions for the prevention and control of

Air pollution.

Firstly, the state government has the power to declare any area or areas within

the state as Air pollution control area or areas for the purpose of this Act after

consultation with the State Board.162

Secondly, to ensure standards for emission of Air pollutants from automobiles

the State government in consultation with the with State boards is empowered to give

such instructions as necessary to the concerned authority in charge of registration of

motor vehicles under the Motor Vehicles Act, 1939.163

Thirdly, provides for the restrictions on the use of certain industrial plants no

person shall without the previous consent of the state board establish or operate any

industrial plant in an air pollution control area.164

Fourthly, persons carrying industry, etc., are not allowed to emit air pollutants

in access of the standards laid down by the State Board and also empower the Board

to make application to the court for restraining persons from causing air pollutions.165

Fifthly, wherein in any area the emission of any air pollutant into the

atmosphere in access of the standards laid down by the State boards occurs or

apprehended to occur due to accident or other unforeseen act or event, the person of

the premises is bound to furnish information to State board and other agencies.166

Sixthly, any person authorized by the State Government is empowered to

enter any premises for inspection can obtain any necessary information and if 161 Supra note 43 162 Sec.19 of Air Act, 1981 163 Sec.20 of Air Act, 1981 164 Sec.21 of Air Act, 1981 165 Sec.22 and 22A of Air Act, 1981 166 Sec.23 of Air Act, 1981

necessary has got power to take samples of air and emissions from the premises and

reports of analysis of the samples has to be reported to the state board.167

Lastly, state government is empowered to establish a state air laboratory and

can appoint analysts and under Sec. 30 the reports signed by the analyst may be used

as evidence.168

The environmental standards developed by the Board find the place in various

schedules of the Environment (Protection) Rules, 1986. Most of these standards have

a legal element in them. The CPCB has also developed industry specific Minimal

National Standards (MINAS) taking into consideration the techno-economic

acceptability of the suggested treatment and ratio of the total annual cost of pollution

control to the annual turnover of the industry.169

To promote environmental compliance among small-scale industries, some

states like Andhra Pradesh, Uttar Pradesh, West Bengal, and Maharashtra have

initiated innovative economic incentive schemes that promote compliance with

environmental requirements. For example, in Kolkata (West Bengal), the majority of

small industries continue to use energy inefficient coal-fired heating installations

without any pollution control systems. The West Bengal PCB adopted strict

particulate emission standards and intensified enforcement efforts targeting these

pollution sources. In order to facilitate fuel conversion from coal to oil or gas in small

boilers and ceramic kilns, the PCB launched in 2001 a project to provide financial

assistance to these industries with support of the India-Canada Environment Facility

(ICEF).

Under the scheme, 25 percent of the capital costs of conversion are reimbursed

after the implementation as a matching grant by the West Bengal PCB, and further 25

percent by the ICEF. As of December 2004, a total of 228 small boilers and 18

ceramic kilns had been converted to cleaner fuel. This has led to a drastic reduction of

emissions of particulate matter from these industrial units. The same integrated

approach of regulation, enforcement, technical and financial assistance, including

support with providing the gas infrastructure, has been applied in Agra (Uttar

Pradesh), reportedly also with success (World Bank, 2006). 170

167 Sec24 to 27 of Air Act, 1981 168 Sec 28 and 29 of Air Act, 1981 169 P. K. Goel, K.P Sharma, supra note 57, p. 13. 170 Supra note 43

Public-Private Partnerships through economic incentives, both the central and

state governments are promoting public-private partnerships (PPPs) for the

development of infrastructure for environmental services. For example, in Gujarat, 10

percent of the total investment of USD 1,644 million for controlling pollution has

come through a public-private partnership. CETPs, TSDF, and conveyance pipelines

for treated wastewater disposal into deep sea are eligible for a 25 percent state

subsidy. This is in addition to the 25 percent central government subsidies designated

for CETP, TSDF and common hazardous waste incinerators. Some states, including

West Bengal, Andhra Pradesh, and Maharashtra, are applying PPPs to address bio-

medical and hazardous waste management.

Some states are introducing initiatives to encourage good environmental

behavior through packages of economic and regulatory incentives. For example, the

Gujarat PCB provides incentives to industries implementing environmental

management systems (EMS) by issuing them consents on a priority basis and of

longer validity (six years), providing 25 percent rebates in water cess and 50 percent

discounts on fees for environmental audits. Some states have even tried to make ISO

14001 certification a precondition for consent renewal for the 17 most polluting

categories of industries. However, turning EMS into a sector-wide requirement

creates a disincentive for companies to adhere to voluntary initiatives in the future.171

Thus such initiatives of the SPCBs may help in mitigating climate change.

Environmental law enforcement, being a highly specialized area of implementation,

entrusted to different agencies under different laws, presents to non-too-happy-a-

picture.172 While the CPCB, at the Centre, is well served by a team of Law Officers,

their role is confined to assisting and briefing the Private Legal Counsels appointed

for the purpose, after the dispute involving the government comes up before the

Courts of Law. No system is evolved, as yet, to facilitate consultation, by the different

branches within the Board, with the legal wing, before or at the time of decision-

making by each one of them. No special care is taken in ensuring that the legal

personnel recruited do possess the knowledge and skill required for understanding and

interpretation of environmental laws. No regular, periodic, verifiable training

programme is evolved to ensure their capacities in Environmental Laws are enhanced,

by the Board.

171 Ibid 172 M. K. Ramesh, supra note 46, p. 15

The story is no different in the regional offices of CPCB or in the State

Boards. Not all the State Boards have legal officers and, even where they are there,

their functions do not differ substantially from their counterparts in the CPCB. Since

the State Boards are normally the ones, that are involved in the litigative process, the

legal personnel recruited for the purpose are expected to possess the requisite

knowledge and skill as to the procedural and substantive aspects of environmental

laws. The expectations are belied as one goes through the litigation profile of different

State Boards. The higher judiciary has, time and again, reminded the Boards about

these lapses in their litigation. The Gujarat High Court, in Gujarat Water Pollution

Board v. Kohinoor Dyeing & Printing Works173 insisted that the Board officers take

effective steps for the service of the summons upon the accused; prepare the case

thoroughly; resist adjournments; seek exemplary costs to deter the accused from

adopting dilatory tactics and vigorously pursue appeals in the superior court.174

Constitution of core expert groups to advice the government on matters of

policy and implementation of law, especially when faced with an emergency situation

or in response to a directive from the higher judiciary, has become a routine affair. In

certain cases, it might appear that such a formation, to be in deference to the wishes of

the judiciary. However, on closer examination it becomes evident that the entire

exercise invariably has resulted in enabling the government to buy time, postpone

decision-making and when the reports are given, they remain at highest levels of

abstraction as to become more of enunciation of principles and not real tools for better

and effective implementation.175

Inspite of all the short comings these institutions play an important role in

combating climate change. Apart from these there are various other institutions and

NGOs who contribution in mitigating climate change is noteworthy.

7.5.4 Bureau of Indian Standards

It was initially Indian Standards Institution (ISI) whose name was charged to

Bureau of Indian Standards (BIS) from 1st April 1987. The present composition of

the Bureau is with its president as the union minister for parliamentary affairs and the

vice-president as the minister of state for food and civil supplies. The BIS is carrying

out significant work in the field of standardization for environmental protection since

173 1993 (2) GUJ. L. R. 1368 174 M. K. Ramesh, supra note 46, pp. 16-17 175 Ibid, p. 21

1950s, which is being looked after by different technical committees of the Bureau. A

brief account of the work done by BIS in the development of environmental standards

is summarized below.

The Chemical Division Council of the BIS recognized the growing menace of

air pollution and agreed to carry out work in this field in 1962. At that stage there was

no alternative but to allot this work to a sub-committee only because the number of

organizations and experts interested directly in air pollution were limited. Later,

however, several other organizations notably the Bhaba Atomic Research Center,

Universities and IITs got involved in the work leading to the building-up of Indian

expertise and data. Therefore, later a full-fledged Sectional Committee for air

pollution control was setup. The BIS has given the standard methodology for sampling

and measurement of air pollution. It has also given standards for ambient air and

emission standards for several industries. Further, the work for preparing steadied

codes of practice and guides for selected industries for controlling air pollution and

preparing standard specification for contra equipments has also been undertaken

BIS.176

Today, there is growing recognition that protecting the environment and

especially to combat global warming requires that the entire range of production

processes and products be environment friendly. One problem in this respect is the

continued use, in many countries, of obsolete, environmentally damaging industrial

production techniques and management damaging industrial production techniques

and management practices.177

7.5.5 The Indira Gandhi Institute of Development Research (IGIDR) is

represented by Dr. Jyoti Parikh in the Advisory Panel for Global Environmental

Issues set up by the Ministry of Environment and Forests. She was also the convening

lead author for the IPCC Working Group III chapter on decision-making frameworks.

She is a member of Scientific and Technical Advisory Panel (STAP) for the Global

Environment Facility (GEF). Dr. Parikh also contributed to a report prepared for the

Asian Development Bank coordinated by the Climate Change Institute in

Washington. IGIDR has contributed a number of papers on joint implementation at a

variety of conferences and workshops and so on. Recently, IGIDR prepared a project

176 P. K. Goel, K. P Sharma, supra note 57, pp 11-13. 177United Nations Conference on Trade & Development, ‘Environment’, UNCTAD series on issues in international investment arguments, United Nations, New York & Geneva, 2001, p. 9

document on GHG reduction strategies for the power sector in Maharashtra for the

UNEP.

7.5.6 The Center for Science and Environment (CSE) was one of the first

institutions to ask for an equitable share of environmental space for developing

countries on a per capita basis. Since then it has reported and commented on climate

change issues in the bi-weekly magazine, Down to Earth. It holds workshops and

conferences for AIJ and also holds dialogues with members of parliament and upper

house.

7.5.7 Development Alternatives (DA) is an organization that deals with the practical

demonstration of alternative technologies and methods. DA also organized a national

workshop on joint implementation in January 1995. It is also working out ways t

reduce CO2 emissions by developing appropriate construction materials and method.

7.5.8 Tata Energy Research Institute (TERI) has published several books on

climate change. It is also represented in the IPCC Working Groups II and III. TERI

I1n held several international workshops on climate related issues. It is also involved

in ALGAS project.

Other organizations involved in climate change issues are the Institute of

Economic Growth (IEG), the Indian Institute of Science (IISc), and the Indian

Institute of Management (IIM). These organizations and several more have

contributed general awareness and provided analytical background for policymaking.

State level awareness could spread more effectively with state-based NGOs. For

example, IGIDR in Maharashtra and the Indian Institute of Science in Karnataka have

done work on mitigation strategies for these states in addition to their work at national

and international levels.

Most NGOs support JI with guarded optimism, NGOs such as TERI and

IGIDR see this as a technology transfer exercise that could lead to greater energy

efficiency. IGIDR has so far expressed reservations about JI in sink projects, that is,

projects for plantations that divert land from agriculture or treat forests as carbon

sinks, However, IISc and IEG (and perhaps TERI) think that there may be a potential

for finding support for employment generation through sink projects, However, IEG

figures show that this may cost US$ 30 per ton of carbon fixed. CSE has expressed

stronger reservations for JI in general. They prefer to discuss carbon entitlement issue

first. Perhaps, due to support of NGOs in favor of JI or due to Governments own

analysis, the recent position of the government has mellowed so as to give approval of

pilot phase of JI. At the COP, Berlin, however, it is viewed as learning experience

only, According to MOEF, till the pilot phase is over, no discussion should be

entertained about carbon credit. But they have agreed to the pilot phase - although,

with some reluctance, for the time being.178

7.5.9 International Financial Institutions

The role of International Financial Institutions (IFIs) in the context of Climate

Change for India also needs to be examined. There are concerns that multilateral

financial institutions, being largely donor -driven, would be encouraged to bring in

climate related conditionalities even for their normal lending programmes. At the

same time, carbon trading could result in discrimination to developing countries who

fail to get the deserved price for projects taken with the intention of carbon emission

reduction while the emitters of carbon (developed countries) may get away with

increased emission levels. One issue that needs to be examined is why prices of

Certified Emission Reductions (CERs) for which developing countries are eligible are

lower than European Emission Allowances (EUAs), which are traded on several

European exchanges. India needs to monitor issues of trade competitiveness raised by

developed countries carefully, especially at WTO with regard to trade in

environmental goods and services. Environment has not been included in WTO

negotiations and we have to guard against t his making an entry through the back door

in the form of climate change negotiations in international institutions.179

There are also proposals for consolidating various initiatives of IFIs in India

on energy efficiency, renewable energy and climate change as a new paradigm for

clean energy in the context of global warming in place of getting them piece- meal.

There is a need to examine the appropriateness of such proposals as it could lead to

clubbing of developmental goals with climate change initiatives and diversion to

Climate Change purpose of funds hitherto given for developmental purpose and

meeting MDGs. A better option is probably to consolidate efforts only of those

related to climate change and leave the ones where there is overlapping, as it is.180

India has also started to experiment with environmental information disclosure

and performance rating schemes to exert public pressure on non-complying industries.

178Jyoti K. Parikh, “Institutional Framework for Climate Change in India”, Climate Change and North South Co-operation, edit; Jyoti. K Parikh, Roy Culpeper, David Runalls, J. P. Painuly, New Delhi,Tata McGraw-Hill Publishing Co. Ltd., 1997, pp.187-191. 179 H. A. C. Prasad, J. S. Kochher, supra note 6, p. 5 180 Ibid, p. 16

The Green Rating Project for the pulp and paper industry was launched in 1999 by the

Centre for Science and Environment with support from the Confederation of Indian

Industries. The exercise has achieved impressive results in terms of motivating

industries to adopt environmental policies but did not get widely replicated

7.6 Evaluation of the Institutional Framework relating to global warming

India is implementing its international law obligations steadily and effectively.

India, as a developing country has reasons to be concerned about the adverse impact

of climate change on its economy. A large part of its population depends on climate

sensitive sectors for livelihoods which makes it highly vulnerable to climate change.

Climate change can have serious impact on its crops, forests, coastal regions, etc.

which can in turn affect the achievement of its important national development goals.

The issue of climate change cannot however be taken up without linking it to

developmental needs such as poverty, health, energy access and education.

The Indian courts have played a very significant and vital role in environment

protection in India by applying the principles of international law. The scope of right

to life under Article 21 of the Constitution has been widened through the concept of

PIL and clean environment is now a fundamental right of every Indian.

India has a very comprehensive framework of legal and institutional

mechanisms in the region to respond to the tremendous challenges to the environment

it is facing, owing to population growth, poverty and illiteracy augmented by

urbanization and industrial development. India is one of the leading developing

countries in so far as having incorporated into its Constitution the specific provisions

for environmental protection. Despite the fact that India’s contributions to GHG

emissions are very small; the Government of India has taken many measures to

improve the situation in this regard. India has initiated several climate-friendly

measures, particularly in the area of renewable energy. It has one of the most active

renewable energy programmes besides having a dedicated Ministry for non

conventional energy sources and has also taken many other measures and policy

initiatives.181

Apart from the various legal and institutional provisions made by the

government to check the air pollution there is a need for execution of effective plan to

combat global warming. Thus, India has undertaken numerous response measures that

181 Ibid, p. 21-22

are contributing to the objectives of the UNFCCC and has formed a NAPCC which

incorporates its vision of sustainable development and steps it must take to realize it.

Engineering new and innovative forms of market, regulatory and voluntary

mechanisms to promote, the NAPCC addresses the urgent and critical concerns of the

country through a directional shift in the development pathway, including through the

enhancement of the current and planned programmes presented in the technical

document. The national action plan on climate change identifies measures that

promote our development objectives while also yielding co-benefits for addressing

climate change effectively. It outlines a number of steps to simultaneously advance

India’s development and climate change-related objectives of adaptation and

mitigation. But poor enforcement of the laws occurs as pollution control authorities

do not have reliable information regarding the quantities of effluents/emissions/solid

wastes and their characteristics and SPCBs do not have adequate technical facilities

and skilled manpower for monitoring the polluting units which can impose hardships.

And for the effective control of GHG emissions there must be coordination of the

various Ministries.

India’s commitment to climate mitigation and adaptation is considered by

many to be critical to the future of an effective post-2012 international climate

regime. This view stems from concerns about the potential effects that a rapidly

growing hydrocarbon economy of a billion people can have on the global climate and

on efforts by other nations to reduce GHG emissions. While playing its part in the

negotiation of this international regime, the Indian government must also be spurred

to action by considering the threat that the absence of an effective regime presents to

the constitutionally guaranteed rights of its citizens, and its own potential domestic

liability for climate induced harm.