The Environment related Laws enacted by the Parliament under Articles 252 and 253 of the Constitution of India.

[yogesh saxena]

The Environment related Laws enacted by the Parliament under Articles
252 and 253 of the Constitution of India. The Water (Prevention and
Control of Pollution) Act, 1974 was promulgated as a Central
Legislation under Article 252 of the Constitution. Since, the "water"
is listed under the State list, a Resolution from two or more State
Assemblies empowering the Parliament to enact the Legislation on the
State List was required. The Water (Prevention and Control of
Pollution) Act, 1974 became effective at the State level when it was
adopted by the concerned State Assemblies. The Air (Prevention and
Control of Pollution) Act, 1981 and the Environment (Protection) Act,
1986 were promulgated under Article 253 of the Constitution of India,
which empowered the Parliament to enact legislations on such matters
as necessary for compliance of International Agreements in which India
has been a party.
The Supreme Court of India in numerous matters elaborated the scope of
Article 21 of the constitution of India, which deals with protection
of life and personal liberty - No person shall be deprived of his life
or personal liberty except according to procedure established by Law.
In the matter of Rural Litigation and Entitlement Kendra Vs State of
U.P. - the Hon’ble Supreme court held that the right to unpolluted
environment and preservation and protection of nature’s gifts has also
been conceded under Article 21 of the Constitution of India. The
Constitutional provisions provide the bed-rock for the framing of
environmental legislations in the country. Article 48-A of the
Constitution deals with the Protection and Improvement of Environment
and Safeguarding of Forests and Wildlife – The State shall endeavour
to protect and improve the environment and to safeguard the forests
and wildlife of the country. On the basis of the said provisions, the
Environment (Protection) Act, 1986 and the Wild Life (Protection) Act,
1972 (as amended in 1986) have been enacted by the Parliament. Under
Part IV-A of the Directive Principles of State Policy, Fundamental
Duties have been added under Article 51-A by the 42nd Amendment of the
Constitution in 1976. Under Article 51-A(g) provides the Fundamental
Duties with respect to the environment which includes - To protect and
improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures.


Supreme Court Cases-2006S.C.C.vol.1 page1
Constitution of India
— Arts. 21, 48-A and 51-A(g) — Forests — Conservation of — Adoption of
incentive compatible/market oriented instead of command and control
methodologies for — Diversion of forest land to non-forest use —
Creation of market in forest use, ensuring inclusion of social
opportunity cost/<169>externalities<170> of such use, in contemporary
context and in terms of intergenerational equity, in pricing model
therefore — Levying of appropriate Net Present Value (NPV) of such
diverted forest land as the price of such forest use, on user agencies
— Need, justification and scope of such NPV, discussed — Public trust
doctrine reiterated and employed — Inadequacy of compensatory
afforestation by itself in compensating for loss of natural forests,
explained — Held, the appropriate NPV has to be worked out on economic
principles — Expert Committee, comprising three experts, one from
Institute of Economic Growth, Delhi University, directed to be
constituted — Terms of reference of said Committee specified —
Committee to report to Supreme Court within four months of this order
— Various methods of, and considerations involved in estimating said
NPV discussed and emphasised — Clarified that various environmental
outputs from forests appear as public goods for which there is no
market — Such outputs enumerated, and directed to be accounted for by
said Committee in arriving at estimate of said NPV — Committee to
undertake entire exercise within framework and on basis of doctrine of
sustainable development — Further held, larger public interest has to
be the guiding principle and not present interest of the user agency
only, (2006) 1 SCC 1-A
Constitution of India
— Arts. 21, 48-A, 51-A(g) — Forests — Conservation of — Diversion of
forest land to non-forest use — Levying of appropriate NPV of such
diverted forest land as the price of such forest use, on user agencies
— Updation of NPV amounts — Periodicity — Held, whatever be the NPV to
be charged as determined by expert committee set up in terms of this
judgment, the amounts shall have to be updated every three years,
(2006) 1 SCC 1-B
Constitution of India
— Arts. 21, 48-A, 51-A(g) — Forests — Conservation of — Diversion of
forest land to non-forest use — Levying of appropriate NPV of such
diverted forest land as the price of such forest use, on user agencies
— Payments of NPV pending final determination by expert committee set
up in terms of this judgment — Need for user agencies to make — Held,
besides NPV as being presently calculated by MoEF, user agencies shall
give undertakings to pay remaining/further amounts as determined by
said expert committee, (2006) 1 SCC 1-C
Constitution of India
— Arts. 21, 14, 48-A, 51-A(g) — Sustainable development —
Applicability of principle of — Forest use — Primacy between dictates
of development and protection of environment in — Held, Forest Policy,
1998, which has a statutory flavour dictates that derivation of
economic benefit must be subordinated to ensuring environmental
stability and maintenance of ecological balance — Non-fulfilment of
this principle would be violative of Arts. 14 and 21 — Furthermore, in
the ultimate analysis, economic development at cost of degradation of
environment and depletion of forest cover would not be long-lasting —
Such development would be counterproductive — Dwindling of forest
cover in India — Importance of India as major biogeographic/
<169>megadiversity<170> country — Need for vision for overall
development and systematic approach — Concept of forest management
discussed as possible practical mode to achieve the same, (2006) 1 SCC
1-D
Constitution of India
— Arts. 21, 48-A, 51-A(g) — Right to enjoyment of healthy life under —
Violation of, from threats to the ecology — Conservation of natural
resources — Obligations of all concerned, including Union and State
Governments — Duty of Supreme Court — Held, Constitution enjoins upon
Supreme Court a duty to protect the environment, (2006) 1 SCC 1-E
Constitution of India
— Arts. 21, 48-A, 51-A(g) — Forests — Conservation of — Diversion of
forest land to non-forest use — Levying of appropriate NPV of such
diverted forest land as the price of such forest use, on user agencies
— Projects/user agencies to be exempted from payment of NPV — Held,
though issue is to be finally decided by expert committee set up in
terms of this judgment, prima facie, revenue charging projects, even
though they be public utilities, would not be exempt, while non-
revenue earning projects could be exempted, (2006) 1 SCC 1-F
Environment Protection and Pollution Control
Forests
— Compensatory Afforestation Fund Management and Planning Agency
(<169>CAMPA<170>) set up in terms of MoEF notification dt. 23-4-2004 —
Validity of — Held, constitution of CAMPA is necessary to fully and
effectively implement recommendation dt. 9-8-2002 made by CEC for
protection of environment, (2006) 1 SCC 1-G
Environment Protection and Pollution Control
Forests
— Compensatory Afforestation Fund Management and Planning Agency
(<169>CAMPA<170>) set up in terms of MoEF notification dt. 23-4-2004 —
Constitution/Composition of executive body of CAMPA — Need for
inclusion of conservationists, environmentalists, economists and
experts in forestry — Held, cl. 2.2 of CAMPA notification dt.
23-4-2004 shall be amended so as to include two more
environmentalists, one expert in field of forests and the other in
field of forest economy development — Said amendment to be made within
one month of this judgment, (2006) 1 SCC 1-H
Environment Protection and Pollution Control
Forests
— Sums tendered as NPV for diverted forest land — Appropriation and
use of — Appropriation whether to CAMPA Fund set up in terms of MoEF
notification dt. 23-4-2004 or State Governments — Purposes for which
funds to be used — Held, payment to CAMPA fund is constitutional and
valid — Natural resources/ecology not being in ownership of any State
or individual, public at large is beneficiary and they belong to all —
Hence amounts of NPV cannot be made over to State Governments — In any
case, proprietary rights of States over the land, timber or minerals
are not affected — Effect of change in scheme of forest management
from Forest Act, 1927 to Forest (Conservation) Act, 1980 and removal
of forest and wildlife from State List in Sch. VII of Constitution in
this regard, discussed — CAMPA or CAMPA Fund set up to protect ecology
and provide for regeneration of forests cannot in constitutional
scheme be considered as a fund under Arts. 266, 283 or 284 — Hence
neither Arts. 110, 199, 195 nor 294 will have any application —
Furthermore, imposition of NPV is a charge or a fee within Sch. VII
List III Entries 47 and 20 — Lastly, 12th Finance Commission has
recommended a grant of Rs 1000 crores, spread over 2005-2010 for
maintenance of forests, to the States over and above what they have
been spending through their forest departments, (2006) 1 SCC 1-I
Environment Protection and Pollution Control
Forests
— Sums tendered as NPV for diverted forest land to CAMPA fund —
Territorial usage of — Held, cl. 6.4(v) of CAMPA notification dated
23-4-2004 to be amended within one month of this order so as to
provide that ordinarily expenditure shall be incurred in State or UT
from which such sums are received, but leaving it to discretion of
CAMPA to also incur expenditure in adjoining State or UT where impact
of diversion of forest in question is also felt, (2006) 1 SCC 1-J
Environment Protection and Pollution Control
Forests
— Establishment of SPV under CAMPA notification dt. 23-3-2004 —
Legality of — Held, there is no illegality in establishment of the
same in terms of cl. 6.6 of the said notification — However, before
establishing SPV, its format to be filed in Supreme Court, and further
action to be taken on orders thereupon — In meantime, word
<169>may<170> in cl. 6.6, which left it discretion of CAMPA to
establish SPV, to be amended to <169>shall<170> within one month of
this judgment, (2006) 1 SCC 1-K
Environment Protection and Pollution Control
Forests
— CAMPA Fund set up in terms of CAMPA notification dt. 23-3-2004 —
Accounting method to be followed — Held, there should be corporate
accounting based on double-entry system and auditing is to be done by
CAG, every six months — Relevant clauses of CAMPA notification to be
amended within one month of this judgment, (2006) 1 SCC 1-L