Green Laws for Better Health: The Past that was and the Future that may be - Reflections from the Indian Experience

Georgetown International Environmental Law Review, Summer 2004 by Dam, Shubhankar

I. INTRODUCTION

"Public health" is a legal term of art referring specifically to delineated powers, duties, rights, and responsibilities.1 Its meaning, however, has defied precision. Different schools of thought explain its meaning and scope differently. Traditionally, public health discourse has been based on conceptions of population health.2 In medicine, the patient is an individual person, whereas, in public health, the patient is the whole community or population.3 The human rights construction of the public health definition explains its scope on the premise that "the health of most people in the world depends less on access to medical services than on efficient farming, distributive justice, ensuring 'domestic tranquility,' and broad-based, sustainable development of natural and built environments."4 This emerging conception of public health justifies government intervention. Intervention involves public officials taking appropriate measures including environmental regulations pursuant to specific legal authority, after balancing private rights and public interests, to protect the health of the public.5

There are two criteria common to each of these conceptions. First, each conception regards "public health" as involving the whole or a significant part of the population and secondly, each emphasizes environmental pollution as an important cause of its deterioration. Each conception acknowledges that the environment in which we live greatly affects our health. The household, the workplace, outdoors and transportation environments pose risks to health in a number of different ways, from the poor quality of air many people breathe to the hazards we face as a result of climate change.6 Poor environmental quality is directly responsible for 25% of all preventable ill-health, including diarrhoeal and acute respiratory diseases.7 Exposure to air pollution including chemical variants like sulphur and nitrogen dioxide, reactive hydrocarbons and other organic compounds are associated with lung cancer, nasopharynx and acute respiratory infections particularly among children.8 Of the three million premature deaths in the world that occur each year due to outdoor and indoor air pollution, the greatest number occurs in India.9 Studies in India reveal a close nexus between genetic disruptions, neurobehavioral problems and exposure to vehicular pollution.10 India is likely to have about thirty-two million asthma patients by 2010.11 Noise pollution or "slow poison" is associated with miscarriages, still birth and physical deformities, deafness and hypertension.12 Threat to human health from hazardous substances is no less alarming. India generates about five million tonnes of waste.13 The potential for hazardous waste to affect the general population is due, for the most part, to exposure over a prolonged time to small amounts of substances in ground water, the food-chain and in the air.14 Consequences of such exposure vary from headache, bronchitis, renal failure, secondary hypertension or even formation of tumors.15 The interplay of these factors makes public health, inter alia, a function of pollution control and environmental standards.

Law is a complex web of conflicting interests. Every legal system consists of institutions that use law as an instrument to create a society envisioned by the highest law that binds the system. The institutions harmonize the conflicting interests; often based on pressures that interest groups exert. Ideally, the law that results from this harmonization process must reflect prioritized concerns of every interest group. In reality, however, the law tends to singularly reflect the interests of the dominant pressure group; which explains why most regulations favor the industry rather than public health concerns. For the purposes of this article, I shall regard these institutions as actors of law. Who, then, are the actors of law in matter of prescribing and maintaining environmental standards in India? I have divided the actors into three categories; the legislature, the executive (including the statutory bodies created by the former), and the judiciary.

This article is a critical analysis of the performance of the actors in maintaining environmental standards in India. Part II is a discussion on the source of environmental law in India. There is little, as a body of environmental law, which is Indian. Most of it is international in character and has become Indian by incorporation. Part III discusses the performance of the legislature. The legislature is the principal body entrusted with law-making. Has the legislature effectively used the instrument of law to prescribe environmental standards? Part IV evaluates the performance of the statutory bodies entrusted with the task of implementing environmental standards in India. Without effective implementation, good laws are as ineffective as bad laws. How has inefficient implementation by the pollution control boards and other agencies contributed to the poor state of public health? Part V discusses the role of judiciary in providing environmental law in India with a sense of direction. Not only has the judiciary assumed the role of a law-maker, but also policy maker and, at times, that of an implementing agency.16 The impact of these shifting constitutional dynamics, especially in environmental matters, has been particularly profound.17 How effective has environmental adventurism of the judiciary been in promoting public health? In the conclusion, I provide a final audit and a glimpse of the future that may be.