Year: 2024
Type: other
Abstract: This Handbook is a response to the rapid growth of environmental and natural resources law in India over the past few decades. The discipline is now a distinct field of research and teaching. A Handbook focused on India is required because the country has been at the forefront of jurisprudential developments among countries with similar environmental, geographical, socio-economic, and cultural conditions. Concurrently, India has been receptive to ideas and principles originating in other parts of the world or international law. The growth of environmental and natural resources law in India is sustained in part by growing environmental awareness and in part by the increasingly dire nature of the problems relating to the environment and natural resources, from local issues to the global climate crisis. At the same time, the continuous push for development has not abated, leading to recurrent pressure to weaken existing standards for environmental protection and the use and management of natural resources. This Handbook combines the multiple strands of the diverse and complex area of environmental and natural resources law. The complexity is reflected at all levels, starting with the choice of the title for this volume. For a long time, natural resources law was understood as something separate from environmental law. The former mainly dealt with using and managing natural resources for economic development. The latter was concerned, to an extent, with preventing and controlling pollution and protecting and conserving the environment from the adverse effects of human actions, including developmental activities. In principle, ‘sustainable development’ has been framed around the need to integrate protection (environment) and use (development) for decades, but the pre-existing distinction between sectors is yet to be completely erased. This is, for instance, the case with water, where its protection is understood as an environmental matter, whereas the regulation of its use is part of what is known as ‘water law’, a separate area of regulation. Bringing together the ‘environment’ and ‘natural resources’ is a necessity in the 2020s. The rest of this introduction first offers the reader some insights into the rationale for this Handbook. This is followed by sections examining the selected frame of reference and the scope and relevance of the Handbook. The introduction then highlights some main themes and how the chapters are organized. Environmental and natural resources law is a broad discipline covering a variety of issues, including nature conservation, prevention and abatement of pollution, and waste management. It also encompasses concerns related to natural resources, such as forests, water, minerals, and fisheries, and the balance between their use and protection. In addition, certain integral parts of environmental and natural resources law, such as the laws relating to climate change and biodiversity, have become complex and separate areas in themselves. Environmental and natural resources law also connects with distinct but related fields, such as agriculture, food, health, human rights, and trade. The broad nature of environmental and natural resources law has generated multiple debates, for example, concerning the scope of the ‘environment’ that forms the subject matter of regulation,1 as well as the relationship between human beings and the environment.2 The other issues that the discipline is grappling with include the need to strike the right balance between development and environment,3 and increasingly, to address the inherent inequity in the relative importance given to the needs and interests of different individuals and communities.4 The growth of environmental and natural resources law in India over the past five decades has been phenomenal. Law and policy interventions, as well as case law, recognize the environment and natural resources as important areas of regulation. Environmental regulation pertaining to water and air pollution touches on the lives and activities of most people, directly or indirectly. Issues such as air pollution and climate change have managed to move beyond esoterism and have become part of everybody’s routine talk, as in the case of air pollution in the National Capital Territory of Delhi and discussions on climate change in the context of frequent floods in the state of Kerala.5 Efforts to strengthen environmental and natural resources law co-exist with attempts to dilute the existing standards and procedures relating to the protection, use, and conservation of the environment and natural resources, as confirmed by legislative proposals to weaken existing protection standards and procedures,6 certain judicial decisions,7 and the dilution of environmental regulation through executive orders.8 Environmental and natural resources law has also developed as a distinct field of research and teaching in India. This is evident from the increase in publications9 and award of grants for research on issues relating to the environment and natural resources.10 Further, environmental law is a compulsory subject for the undergraduate law degree (LLB) according to the Bar Council of India Rules of Legal Education,11 and all the law schools in the country teach environmental law. A few universities offer a master’s degree (LLM) in environmental and natural resources law.12 There has also been an increase in the visibility of environmental and natural resources law in India beyond national borders. In some areas of domestic jurisprudence, Indian law tends to be more developed than in neighbouring South Asian countries.13 India is known for its contributions to developing environmental law. This does not necessarily imply that laws or judgments are effectively implemented or enforced.14 Further, the understanding of environmental and natural resources issues in India takes into consideration social and human issues to a certain extent.15 This can be compared with member states of the Organization for Economic Co-operation and Development (OECD) where the understanding of the environment remains much more exclusively focused on science. This tends to sideline other dimensions, including social dimensions.16 Environmental and natural resources law in India also reflects a willingness to learn from developments elsewhere. This includes, for instance, the incorporation of the precautionary principle and the polluter pays principle, which has occurred in part by drawing upon binding and non-binding instruments of international environmental law.17 However, this does not mean that environmental and natural resources law in India follows the principles and norms as articulated in international environmental law. For instance, while incorporating the precautionary principle, the Supreme Court of India preferred to articulate a strong version of the principle as opposed to the weaker version in international environmental law.18 In certain cases, environmental and natural resources law in India has incorporated novel ideas and principles, which do not have a precedent in international environmental law or other domestic jurisdictions, for instance, the articulation of the principle of absolute liability in the context of hazardous or inherently dangerous industries.19 This development took place in the aftermath of the Bhopal gas leak disaster.20 Some progressive features of environmental and natural resources law in India, such as the application of the public trust doctrine in a manner that prevents any undue appropriation,21 could enable domestic legal systems to leapfrog beyond their international commitments vis-à-vis protection of the environment and natural resources. The rapid development of environmental and natural resources law in India highlights the need for and presents a unique opportunity to adopt a descriptive and critical account of the same. This Handbook assesses the state-of-the-art environmental and natural resources law in India—both in its traditional sense and considering the interlinkages with ‘non-environmental’ issues. In addition, it situates existing and emerging concerns relating to the environment and natural resources in the contemporary context and analyses the responses of the makers, interpreters, and implementers of environmental and natural resources law. Environmental and natural resources law in India has been a focus of extensive academic writing.22 However, the pace and the magnitude with which the law and related policies in India have been evolving necessitate constant updating and expansion of their coverage. A Handbook that comprehensively and extensively covers different dimensions and issues in the context of environmental and natural resources law meets this requirement. At this juncture, the complexity and diversity of the topics to be covered necessitates the involvement of a large group of experts. This Handbook provides a comprehensive account and extensive analytical coverage of several important issues arising in the context of environmental and natural resources law in India. It contributes to the ongoing process of integrating our understanding and analysis of the ‘environment’ and ‘natural resources’, which are still too often considered separately in pedagogy, academic research, and law- and policy-making. Such an integration will lead to a better understanding of the connections between conservation, management, and the use of the environment and natural resources. The distinction between natural resources and the environment was always artificial. In fact, the debate should already have been settled in the 1970s. The Stockholm Declaration of 1972 asserted that ‘natural resources of the earth, [include] the air, water, land, flora and fauna and especially representative samples of natural ecosystems’.23 A later study prepared for the United Nations Environment Programme on the definition of natural resources repeated the above assertion and further blurred the distinction between the environment and natural resources.24 Despite these early attempts at integration, it has taken decades to bring together the ‘environment’ and ‘natural resources’. Some recent publications continue to define natural resources as substances that can be used to sustain life or for economic exploitation.25 There is an intimate link between the conservation of natural resources, maintenance of ecosystem balance, and sustenance of livelihoods. Yet, the distinction has endured in part because natural resources have often been reduced to a few resources, such as minerals, that could be more easily identified or understood as contributing to economic growth. At the same time, some of the most crucial natural resources, such as forests, have long been understood as falling within the scope of environmental law in India. This artificial distinction between the environment and natural resources leads to a blinkered view of the field. This is well exemplified in the case of water. Environmental law and water law remain conceived as distinct fields. On the one hand, water is, in principle, part of the scope of environmental law in India, but, in practice, this is limited to a focus on the pollution and control of water pollution, as reflected in the Water (Prevention and Control of Pollution) Act, 1974. Environmental lawyers usually understand water through the lens of this On the other hand, water law extensively with issues related to the use and management of water. It on use, as exemplified by laws relating to This is not to that of have not but remain is the in water law on which is an environmental laws focus on the use of in to water However, this usually to to the use of by than to This Handbook a of issues such as conservation, and pollution that among other part of the of development. issues are need to be considered in In fact, the of these issues has been the of development and the Development a of development including relating to the environment and natural This has also been incorporated in the domestic policy in India, and has been with the development of a to by The of development and the of the chapters in this do not directly address the or the because focus on the law than on policy At the same time, some of the chapters address the of in principles and which an integral of domestic environmental law to an extent, natural resources law. In this this Handbook discussions of the principles of prevention and the polluter pays principle, and the principle of in the context of and and principles are part of environmental and natural resources law in India, first through case law and through an in the National Act, This Handbook on India to the of the discipline and the including its environment and natural resources and because of the of that offers a of reference for and research However, the relevance of the Handbook is not limited to in India or on environmental and natural resources law in India. This is to several issues relating to the environment and natural resources covered in this Handbook also in other countries in the global and the global developments in India have the growth of environmental and natural resources law in other countries in South which have become more of these early India has been a in of judicial around social and environmental This and of the in India has in the past of but this does not to environmental and natural resources However, this between environmental and natural resources law in India on the one and international and on the other is not Legal developments in other have some on the development of environmental and natural resources law in India. This is, for instance, the case with the public trust The Supreme Court of India on developments in the while that the public trust doctrine is part of the law on environmental and natural resources law in This Handbook and the between several of environmental and natural resources law in India and international law. important of this link is the that several of the environmental in India are part of to with its international environmental law. For instance, domestic laws to international commitments the on and the on and The and to as the on of especially as India is a to all the international legal instruments that legal on states to the and the The National also to the and the with the on domestic climate policy and the recent the development of a legal to the international climate the United Nations on the and the environmental environmental concerns are also through other for instance, international law At the same time, international law on among all the scope of domestic law, in the global as is the case with Organization and the domestic The scope of this Handbook beyond the existing on environmental and natural resources law that tends to address a limited of has increasingly insights into of environmental law, such as environmental Bringing together the different strands of environmental and natural resources law will lead to of the between different issues. This is well in the case of climate often understood as an environmental At the same time, climate change policy often on directly with gas with other such as It is crucial to understand the different strands of environmental and natural resources law as a to integration of the environment and natural resources in and This Handbook provides a comprehensive study of environmental and natural resources law in India. It offers a reference for and law- and in environmental and natural resources law in India. This focus on India this Handbook with issues of more such as the relationship between domestic and international law and between law and other such as and science. this Handbook is also for and from other on issues relating to the environment and natural resources. This Handbook different areas of environmental and natural resources law, as well as with At the same time, to the of a is not in as much as be the case in a more focused Further, this Handbook attempts to as topics as the is not In addition, given the highlights necessarily a this Handbook a balance between and of coverage of environmental and natural resources law in India. Further, are some but limited in certain in the such as concerning and At the same time, the Handbook remains to its of integrating the ‘environment’ and ‘natural and a comprehensive of environmental and natural resources law in India. this Handbook covers most of the important issues and of environmental and natural law in India in some are dealt with as part of other chapters in this Handbook. For instance, the and dimensions of public environmental in India have long been for their The between environmental and natural resources law in India, on the one hand, and law, law, law on the other are also Some of the chapters in this Handbook the of these and to the growing domestic environmental and natural resources contributions from and different this Handbook offers a representative of Indian environmental and natural resources law that has and over the are on the have covered for chapters are by early including contributions the Handbook to evolving and and to with novel issues. are but the Handbook also with at the in and unique of this Handbook is that some of the do not have a legal but have in legal issues and in law- and at the state and levels, as well as in relating to the environment and natural resources. This of diversity of in the existing on environmental and natural resources law in India. The chapters in this Handbook a similar a view of the existing law and policy a including its as and In the the chapters with law and policy instruments and case law and the This the Handbook can be used as a reference and a teaching the chapters critical on the law and policy with and emerging in the field of environmental and natural resources law. international law dimensions South Asian concerning environmental and natural resources law and water and the environment and domestic law in India including and case law, and on the of India, A few on case for this for example, in the case of and law of critical certain this Handbook does not to the problems or It is to be and than in the chapters have been by with different into the to bring a on environmental and natural resources law to this Handbook. This is some chapters beyond a legal analysis to offer a of the or economic context within which the The latter to the of an in several For instance, examining the of laws is for understanding their and In to a on environmental this is evident in the chapters with fisheries, rights, health, and among and Environmental and natural resources law in India is by an ongoing between environmental protection and social and economic development as contributions address the principles of and polluter pays and the public trust doctrine In addition, the traditional to the environment and natural resources is the in Economic instruments have the The on environmental highlights social and as the of any of environmental and natural resources law in India and chapters address these and and The chapters on and in the between the and natural resources. This Handbook the law as a and the of laws relating to the environment and natural resources in India. There are laws in of certain issues, for example, biodiversity, forests, and In most these laws are not In other cases, are laws to with issues, as in the case of climate with other issues are often in Some of the contributions with legal in the of the of resources and law of chapters binding laws and non-binding as in the case of climate change on the and environment and water The Handbook topics that the subject matter of environmental and natural resources law in India. It also several some of which through the while are more to certain parts and At the same time, are between the topics covered in different parts of the Handbook. For example, on and be with chapters on the and environment climate change and water among on water is to on and the and as well as the chapters on social and climate change and In other the domestic law relating to of the environment and natural resources is not to laws with in the Some of the themes emerging from the different chapters in this Handbook are as it is to environmental and natural resources law in India by to diverse state and the relationship between the of state in of the and of environmental and natural resources law, as well as the and environmental dimensions of the issues and related it is to study environmental and natural resources law in India considering the of individuals and the of the The include the to health, the and water. with the of including as well as Environmental law, and to a extent, natural resources law, is of the of nature and and judicial developments in of the of nature and and the of human beings a the of beings of to public in and to the of environmental and natural resources law in India The on and process on issues relating to and the of public environmental and natural resources law in India. to address the as well as between forests, and to In some cases, protection, management or economic development is the of in between forests, and on one and economic development on the A understanding of public from the a focus of laws the protection of other and the and of environmental and natural resources law can be considered through the lens of relating to and and and and issues such as air pollution water pollution and hazardous and substances the scope and of and such as pollution control The on and different of and is a separate on liability The development of public the Supreme Court of India and at the state has the field of environmental and natural resources law, at the early In fact, the in environmental to the of a distinct the National to environmental In to a on the and that the several chapters with the of the in of the environment and natural resources in India. the of certain environmental and natural resources of include and of the public in other parts of the laws focus on in areas but in and of drawing include the of water use laws the of water and in and dimensions of water and protection The are also evident in and areas the of India in of waste management in and environmental and in other parts of the country an to different of and in of the environment and natural resources and related laws in India. The contributions on environmental and with the analytical of to some chapters responses to environmental and natural resources issues that have or more over the but have in the existing include in the environmental of law law issues related to and in this Handbook be in the context of the progressive of environmental and natural resources law in India. The that the of environmental be taken as a This that some of the in the chapters of this Handbook Some recent such as the of the the of the and other are to on the of environmental and natural resources law in Yet, this Handbook topics that will remain of This will the relevance of this for to This Handbook has been with parts distinct but themes or of the law relating to the environment and natural resources in India. provides the and the context of the Handbook. it does not any or it provides the that is for understanding and the other at the law relating to the environment and natural resources in India from a and in the context of the legal at international and It also provides an of the and for the environment and natural resources in India and the of social to the on and by the in and areas as identified in the of India, and analyses economic and in and law to environmental and analyses existing and emerging and principles of environmental and natural resources law in India. land, agriculture, and The chapters in this part focus on different of over land, the between agriculture, and from the of view of and rights, and biodiversity, including issues of and and in the context of evolving and the on the of the natural resources, and the In of the focus on the law relating to the protection of and in India and how it with the life of and concerns air pollution, climate change and environmental which are issues. pollution is a environmental in India. air to climate a and global The adverse of climate change the and of in India. offers a and analysis of laws relating to and the regulation of water and pollution in India. environmental is to water between states in India with reference to the distinct legal for and the use and protection of important in India and that are in nature using the existing legal and as the starting at the of health, and the environment from a legal most to the to which existing laws on and address environmental and to the to health, and the the of resources, of and and of waste and from an environmental on important of of the law relating to the environment and natural resources in India, that is, the of and the of a National for the of environmental and the of in waste management.
Source: Oxford University Press eBooks
Language: English
Topic: Environmental law and policy
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W4400773047