Environmental Protection During Ancient And Medieval Periods Law General Essay

INTRODUCTION

India is a unique sub-continent with vast variations in geographic area, topography and climate. It has a great diversity of ecosystems from the cold and high Himalayan ranges to the seacoasts, from the wet northeastern green rainforests to the dry northwestern arid deserts. Different types of forests, wetlands, islands, estuaries, oceans, and plains endow the country combined with a rich blend of diversified natural settings. Natural and biological resources in the country being abundant, the kind of exploitation they had to undergo through the ages has also been awful, leading to the large-scale degradation of the environment in multifarious ways. Since time immemorial, the efforts of the people to conserve and utilize the natural resources in a sustainable manner have been quite exemplary. Many customary and community norms were evolved by the society to protect the environment. With changing times and scenario, these undocumented traditional doctrines took a back seat, paving the way to codified laws in India. Industrial development, increased population, urbanization, pollution, deforestation, mismanagement of water resources, etc., have resulted in a distraught state of India’s pristine environment. It now becomes imminent for us to look into the evolution of environmental legislation in India during three epochs; environmental conservation during ancient and medieval periods; environmental regulation during British rule; and protection and improvement of environment in independent India.

I. ENVIRONMENTAL PROTECTION DURING ANCIENT AND MEDIEVAL PERIODS

Environmental protection is not a new concept to Indians. It has been a 5000-year-old history and tradition for them. The efforts for environmental protection can be traced from early Indian history to the modern age. In early days, many religious and customary norms governed environmental conservation. The people gave utmost importance and reverence to every aspect of nature. They seemed to have understood the significance of environment for the sustenance of life on earth. It was the dharma [1] of each individual in the society to protect nature. The people worshipped the objects of nature. The trees, water, land and animals gained important position in the ancient time [2] . The five important elements of nature called the Panchaboothas [3] were divine incarnations to them. Moreover, natural resources management was given prime importance in ancient India. Conservation of water bodies and protection of forests and wildlife were considered to be important aspects of governance by the rulers and local people. Punishments were prescribed for causing injury to plants [4] . Sacred groves were the inherent feature of the ecological heritage and tradition. They were kept undisturbed since time immemorial [5] . According to evidences in Vedas [6] and Kautilya’s Arthasasthra [7] , different dynasties accorded top priority to environmental protection and sustainable use of its components. All of the tree parts were considered important and sacred and Kautilya fixed punishments based on the destruction of the specific part of the tree [8] . Some of the important trees were even elevated to the position of God.

Manu imposed a condition on mankind to protect forests [9] . The rivers also enjoyed a high stature in the society [10] . The Ashoka Edicts, especially the 5th Pillar Edict, states that how animals and birds were protected in those days [11] . The major drawback of this period was that India was not a single political entity and consisted of many empires and small kingdoms. The result, there was no uniform agenda for environmental protection throughout the country and the priority for environmental conservation varied from time to time, ruler to ruler. The rural and tribal communities evolved unique rules to be followed by them. For instance, the customary laws prevailing in Arunachal Pradesh are so effective even today [12] . Though the customary and religious norms contributed tremendously to the conservation of environment, the right spirit was lost somewhere in between, both in thought and in deed, and a number of superstitious and unsustainable rituals crept into the religious practices that resulted in affecting the water bodies, flora and fauna in due course. The values of customary and community norms diminished considerably over time as the statutory instruments started encroaching the fields.

In medieval period, though there have been instances of establishment of nature parks, gardens, and fruit orchards by the Mughal rulers around their palaces and along banks of rivers, they did not have any definite policy to protect the forests or wildlife. Rather they were merely considered to be a good source of revenue and pleasure. The notable feature of the Mughal regime was the growth of interest in natural history. Both Babar’s account of Indian flora and fauna [13] and Jahangir’s investigations in natural history are well known while Salim Ali, the celebrated ornithologist, drew attention to their contributions as naturalists long ago [14] . Adbul Qadir Badauni lists among sins and offences, the three sins, of cutting down a shady tree, making a profession of killing animals, and selling away human beings, as heinous [15] . Akbar’s efforts in promoting afforestation in common property resources, management of water bodies, and his disapproval of killing animals are legendary [16] .

II. ENVIRONMENTAL PROTECTION DURING BRITISH RULE

The advent of British rule significantly changed the nature of environmental governance in India. The early days of the British rule marked large-scale plundering of natural resources from India. The forest resources were the major casualties [17] . However, the British regime resorted to a legalized exploitation in due course. The exploitation of forest resources in a legitimate manner was included in the first forest law, the Indian Forest Act, 1865, passed by the Supreme Council in England. Subsequently, it was amended in 1878. The provisions of this Act established a virtual state monopoly over the forest in a legal sense on one hand and attempted to establish, on the other, the customary use of forest by the villagers as not a right, but a privilege that could be withdrawn at will [18] . The principles of ‘eminent domain’ and ‘public purpose’ were used to validate the acquisition of forestland by the government. In 1884, a Forest Policy was formulated by the British Government with the objectives of promoting the general well being of the people and, preserving climate and physical conditions of the country. The Indian Forest Act, 1927 was enacted to implement this Forest Policy. The 1927 Act was passed with an objective to consolidate the existing laws relating to forests, the transit of forest produce, and the duty leviable on timber. This Act also established reserved forests, protected forests, and village forests.

Another aspect of the British Rule is that, it marked the establishment of industries in coastal and other parts of the country. Through this process many enactments were made by them to deal with water, air, and land pollution. The then prevailing common law system viewed the environmental problems as public nuisance. The Shore Nuisance (Bombay and Colaba) Act 1853, was one of the earliest laws made by the British Regime to counter water pollution caused by industries [19] . The Oriental Gas Company Act, 1857 contained provisions to regulate pollution caused by the Oriental Gas Company. It recognized the compensation to the persons whose water was affected by the company’s discharges. The North India Canal and Drainage Act, 1873 was another legislation which contained provisions prohibiting any interference with or alteration in the flow of water in any river or stream so as to endanger, damage, or render less useful any canal or drainage [20] . The Indian Easements Act, 1882, the Indian Fisheries Act, 1897, the Bombay Smoke Nuisance Act, 1912, and the Bengal Smoke Nuisance Act, 1905, was other enactments that dealt with different aspects of environment.

The Indian Penal Code (IPC), 1860 in Chapter 14 (Sections 268 to 291) contains provisions relating to public nuisance, public health, safety, and convenience. The Criminal Procedure Code (Sections 133 to 144) also deals with abatement of public nuisance.

On wildlife conservation, the British regime undertook two significant steps. They were the Elephants Preservation Act 1879 enacted by the Madras Government and the Wild Birds and Animals Protection Act 1912.

The purpose of British rule in India was not to protect the nature’s wealth and people’s interests in India. Hence, one cannot expect that they would make laws for the betterment of the country and environment. It is obvious that the content of their laws furthered their own intention of getting the best out of available resources for their benefit. However, their initiatives in making laws on every aspect paved the way for establishment of a formalized legal regime in the country and provided a platform for environmental jurisprudence in India.

III. ENVIRONMENTAL PROTECTION IN INDEPENDENT INDIA

The aim of the independence movement was to release the people and country from the clutches of British regime and govern our country by our own people with our own laws. During the foreign rule, it was not only the people who suffered, but also the environment, which deteriorated in many ways.

After independence, the hitherto people and environment unfriendly laws and policies have been attempted to be overhauled, modified and repealed with new provisions in tune with the Constitution of India.

The Constitution empowered the Parliament of India and the State Legislatures to enact laws as per the entries found in List I [21] and II [22] of the Seventh Schedule respectively. List III [23] is the Concurrent List on which both the Parliament and State Legislatures can make laws. When a Central law conflicts with a State law on a Concurrent subject, the Central law prevails. However, if the State law enacted subsequent to the Central law, obtains the assent of the President, the State Law will prevail [24] . The Parliament can also make laws on the residual power [25] , in the national interest [26] , on any State subject based on the consent of the State Legislatures [27] or give effect to treaties and international agreements [28] .

In order to curb water pollution, major steps were taken. The Factories Act, 1948 enacted to secure health, safety and welfare of the workers employed in factories, contained provisions dealing with disposal of trade waste and effluents [29] . The Damodhar Valley Corporation (Prevention of Pollution of Water) Regulation Act, 1948 authorized the Corporation to make regulations with previous sanction of the Central Government for prevention of water pollution. The prevention was extended to any person including local authorities and vessels. The Mines Act, 1952 contains provisions for health and safety of the employees by providing

"cool and wholesome" drinking water [30] .

The River Boards Act, 1956 established River Boards for regulation and development of inter-state rivers and river valleys. One of the functions of the Board is to advise the State governments on prevention of pollution of waters on the inter-state rivers. To give effect to the International Convention for the Prevention of Pollution of the Sea by the Oil, 1954, the Merchant Shipping Act, 1958 was enacted. This Act regulates and controls the discharge of oil or oil mixture by ships or tankers. Laws on atomic energy [31] , insecticides [32] , river pollution [33] , noise pollution [34] and land management [35] were the other initiatives by the Central and State governments.

The planning process in India responded to the problem at a snail’s pace. It was only in the Fourth Five Year Plan the necessity of introducing environmental aspect into the planning

process was clearly articulated [36] . The Fifth Plan (1974-79) stressed the need for environmental protection while pursuing development. The Sixth Plan (1980-85) devoted a complete section to "Ecology and Environment" and called for a bold new approach to development, based on techno-environmental and socio-economic evaluation of each developmental project. The Seventh, Eighth, and Ninth Plans also emphasized the need for environmental planning. The Tenth Plan (2002-2007) proposed very vital environmental strategies for achieving sustainable development using key indicators such as (i) encouraging multi-stakeholder participatory process involving effective exchange of information; (ii) supplementing command and control regime with market based economic instruments and evolving environmental markets at least on experimental basis; (iii) evolving methodologies and apparatus for indicators/indices of sustainability, monitoring process, assigning responsibility, incentives and accountability; (iv) promoting sustainable consumption levels and patterns through effective classification and awareness programmes; (v) promoting sustainable production, transportation, clean technology, waste minimization, renewable energy, and energy efficiency; (vi) institutionalizing cross-sectoral and inter-disciplinary research and transparency in decision making; (vii) professionalising Pollution Control Boards with built-in accountability, etc [37] .

11th Five year plan.

Environment

Increase forest and tree cover by 5 percentage points.

Attain WHO standards of air quality in all major cities by 2011–12.

Treat all urban waste water by 2011–12 to clean river waters.

Increase energy efficiency by 20%

Target growth:8.33% Growth achieved:7.9%

On the eve of the United Nations Conference on Human Environment in 1972, the Pitamber Committee was set up to prepare a report on the State of Environment in India. Based on its recommendations, a National Committee on Environmental Planning and Coordination (NCEPC) was constituted by the Government of India in the same year within the Department of Science and Technology, to plan and coordinate environmental programmes and policies and advice various ministries on environmental protection. In 1980, a high-powered committee was set up under the Chairmanship of Mr. N.D. Tiwari. This committee suggested a number of legal and administrative measures for environmental protection. It has recommended insertion of a new entry on "environmental protection" in the Concurrent List to enable the Central government to legislate on environmental matters, which has still not seen the light of the day [38] . Subsequently, a Department of Environment was set up in the Ministry of Science and Technology, which was later elevated to form an exclusive Ministry of Environment and Forests in the Cabinet in 1985.

The year 1972 also marked a watershed in the environmental conservation movement and development of environment regulation in India. The Stockholm Conference proclaimed that the man had the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that presented a life of dignity and well-being. The Stockholm Declaration mandated all the countries to approach environmental problems with a new vigor by enacting fresh laws and policies in their countries. India responded to the Declaration to a great extent and new special legislations have been enacted besides upgrading the existing ones.

Constitutional Mandate

The Constitution contained provisions such as Articles 39 (b) [39] , 47 [40] , 48 [41] and 49 [42] which provided an indirect and tangential reference to environment, they did not prescribe a comprehensive national agenda to protect and conserve the environment in its totality. This prompted the eminent jurist, Prof. Upendra Baxi to comment that the Constitution of India was "environmentally blind".

The Constitution of India was amended in 1976 [43] to incorporate two important provisions on environment in the Constitution. Article 48-A was inserted into the Part IV of the Constitution making environmental protection a part of Directive Principles of State Policy. Article 48-A directs the State "to protect and improve the environment and to safeguard forests and wildlife". Article 51-A(g) declared that it shall be the fundamental 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". This is a significant leap forward in the environmental management in India. Article 48-A mandated the State to make new laws and policies for the protection of environment. Taking cue from the fundamental duty under Article 51-A(g) and ‘Right to Life’ under Article 21, many Public Interest Litigations (PIL) were filed by the Indian citizenry to assert their environmental rights.

The Forty Second Amendment inserted a new entry "Population Control and Family Planning" [44] into the Concurrent List, while "Forests" [45] and "Protection of Wild Animals and Birds" [46] were moved to the Concurrent List from the State List enabling the Parliament and the State Legislatures to enact suitable laws. Part IX and IX-A were added into the Constitution by 73rd and 74th Amendments in 1992 to give constitutional sanction to democracy at the grass root level through panchayats [47] and municipalities [48] . The local bodies are assigned with the powers to perform various environmental matters as enumerated in Eleventh and Twelfth Schedule of the Constitution.

I. Pollution Related Laws

The earlier legislative efforts were piecemeal and inadequate until the 1970s when the central government began to enact comprehensive environmental laws [49] . As far as environmental laws are concerned, they can be classified into two categories: laws dealing with pollution and laws pertaining to the conservation of nature such as forests and wildlife.

Among the laws dealing with pollution, the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act 1977, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, the National Environment Tribunal Act, 1995, and the National Environmental Appellate Authority Act, 1997, require special mention. These are special enactments to deal with the problems posed by industrial activities.

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

The Water Act of 1974 represented one of India’s first attempts to deal comprehensively with an environmental issue. As water is a State subject under the Constitution, it was enacted under Article 252 (Clause 1) that empowers the Parliament to make laws on any entry found in the State List if two or more State Legislatures consent to a Central Law. The Act provides for the prevention and control of water pollution and maintenance and restoration of wholesomeness of water. It establishes a Central Pollution Control Board [50] at the national level and State Pollution Control Boards [51] in every State in order to administer and implement the Act. Before the establishment of an industry which is likely to discharge sewage or trade effluents, the project proponent should get prior consent of the State Pollution Control Board and comply with the conditions laid down by the Board [52] . Any violation of the provisions of the Act will attract penal provisions [53] . The State Pollution Control Board and citizens [54] can launch prosecution against the polluting industry.

The Water (Prevention and Control of Pollution) Cess Act, 1977

The purpose of the Water Cess Act is to levy and collect cess on water consumed by persons carrying on certain industries and by local authorities with a view to augment resources of Central and State Boards constituted under Water Act 1974. According to the Act, the industries and local authorities are subject to the cess if they use water for (a) industrial cooling, spraying in mine pits, or boiler feed, (b) domestic purposes, (c) processing which results in water pollution by biodegradable water pollutants, or (d) processing which results in water pollution by pollutants which are not easily biodegradable or are toxic [55] . A rebate of 25% is available for the person or local authority for installing plants for the treatment of sewage or trade effluents [56] . The rebate will not be available for persons who consume water in excess of the maximum prescribed quantity or fail to comply with the Water Act, 1974 and the Environment (Protection) Act, 1986 [57] .

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

The Air Act was enacted for the prevention, control and abatement of air pollution. The Central and State Pollution Control Boards were envisaged by the Act, and for the purpose of this Act, the Boards constituted under the Water Act, 1974 shall be deemed to be the Boards for the Prevention and Control of Air Pollution [58] . The State Governments are empowered to declare air pollution control areas [59] . Consent of the State Pollution Control Board is required to establish or operate any industry in an air pollution controlled area [60] . The State Pollution Control Boards can launch prosecutions against the industries violating the conditions laid down in the consent orders or other provisions of the Act. An Amendment made to the Act in 1987 empowered the citizens to file cases against polluting industries after giving sixty days’ notice to the State Pollution Control Board [61] .