Constitutional laws in India

Environment Protection Laws in the British Era

Written By: Bharat Budholai - IIIrd Year, Hidayatullah National Law University, Raipur (C.G)
Environment Law
Legal Service
  • Environment Degradation

    One of the biggest problem, the world is facing today. The problem of environment pollution is as old as the evolution of Homo sapiens on this planet. Man's ambition for limitless enjoyment and comfort has led him towards the exploitation of nature's wealth so indiscriminately and so shamelessly as to reduce nature's capacity for self-stabilization. Man's voracious appetite for resources and his desires to conquer nature has put him in collision course with the environment. The demand for his explosive technological society imposes intense stress on the state of equilibrium with the environment. The relationship between human beings and his environment has varied from time to time. It has also been varying from place to place at a given point of time. This statement is quite legitimate as far as India and its environment protection policy is concerned. It was a statement of one of the great personality in the field of law Prof. Upendra Baxi that ?In India, Environment protection and management started only after 1972 i.e. after the Stockholm Conference. In my view this statement is wrong, as the Environment protection in India started long before from the time of Ancient India. In the early stages of human history in India, human beings considered the environment as very dominant and that was why, they worshipped different aspects like trees, forest, animals, mountains, rivers etc. All of these held a special place of reverence in Hindu theology.

    The Vedas, Puranas, Upanishads, and other scriptures of the Hindu religion gave a detailed description of Trees, plants and wildlife and their importance to the people. The Rig Veda highlighted the potentialities of nature in controlling the climate, increasing fertility and improvement of human life emphasizing on intimate kinship with nature. Atharva Veda considered trees as abode of various gods and goddesses. Yajur Veda Emphasized that the relationship with nature and the animals should not be that of dominion and subjugation but of mutual respect and kindness.

    Many animals and plants were associated with Gods and Goddesses so that they were preserved for the future generations. As they were associated with supernatural powers, no one dared to misuse the resources and therefore there was a check on the excess utilization of resources. King Ashoka of the Mauryan Empire did as much as he could to protect environment. He made several laws for the preservation of the ecology of India. Same trend continued even at the time of medieval India when Mughals ruled India though not at the same pace which was expected from them. However, the strongest steps for the same came only from British. They contributed a lot for the conservation of the ecological system of India by enacting several laws, which really were missing in the ancient era. Therefore this project of mine is to give you a glimpse of all the environment protection laws, which were made by the Britishers along with the other steps taken by them.

    Arrival of the British and the formation of Environmental Laws in India

    British arrived in India at 1600 with the mission of trading goods from India in the form of East India Company. But, after seeing the immense amount of natural resources and plunders of opportunity to exploit the resources present here, they changed their game plan and started applying coercion so as to complete their aim of exploiting natural resources in India. At the time when British arrived in India, India was divided into several princely states ruled by different rulers. It was quite an easy task for the British to establish itself gradually and astutely. They very cleverly implemented the policy of Divide and Rule in India and took benefit of the diversity as on the basis of different rulers as well as due to multiplicity of religion in the country. The early days of British rule in India were days of plunder of natural resources. They started exploiting the rich resources present India by employing the policy of imperialism.

    By around 1860, Britain had emerged as the world leader in deforestation, devastation its own woods and the forests in Ireland, South Africa and northeastern United States to draw timber for shipbuilding, iron-smelting and farming. Upon occasion, the destruction of forests was used by the British to symbolize political victory. Thus, the early nineteenth century, and following its defeat of the Marathas, the East India Company razed to the ground teak plantation in Ratnagiri nurtured and grown by the legendary Maratha Admiral Kanhoji Angre. There was a total indifference to the needs of the forest conservancy. They caused a fierce onslaught on Indian Forests. The onslaught on the forests was primarily because of the increasing demand for military purposes, for British navy, for local construction (such as roads and railways), supply of teak and sandalwood for export trade an extension of agriculture in order to supplement revenue.

    The British government started control over forest in the year 1806 when a commission was appointed to enquire into the availability of teak in Malabar and Travancore by way of appointment of Conservator of Forest. This moved failed to conserve forest as the appointed conservator plundered the forest wealth instead of conserving it. Consequently, the post of conservator of forest was abolished in the year 1823.

    Their early treatment of the Indian forest also reinforces the claim that destructive energy of the British race all over the world was rapidly converting forest into desert. Until the later decades of nineteenth century, the British Raj carried out a immense onslaught on the subcontinent's forest. With the Oaks forest vanishing in England, a permanent supply of durable timber was required for the British Navy because the safety and defense of the British Empire depended primarily on its navy. In the period of fierce competition between the colonial powers, Indian teak, the most durable of shipbuilding, saved British during a war with Napoleon and the later maritime expansion. To tap the likely sources supply, search parties were sent to teak forests of India's west coast. Ships were built in the dockyards in the Surat and the Malabar Coast, as well as in England by importing teak from India.

    The revenue orientation of colonial land policy also worked towards the denudation of forests. As their removal added to the class of land assessed for revenue, forests were considered as an obstruction to agriculture and consequently a bar to the prosperity of the British Empire. The dominant thrust of agrarian policy was to extend cultivation and the watchword of the time was to destroy the forest with this end in view.

    This process greatly intensified in the early years of the building of the railways network after about 1853. While great chunks of forests were destroyed to meet the demand for railway sleepers, no supervision was exercised over the felling operation in which a large number of trees was felled and lay rotting on the road. The sub-Himalayan forests of Garhwal and Kumaon, for example were all felled in even to desolation and thousands of trees were felled which were never removed, nor was their removal possible.

    As early as 1805, the British government requested the British East India Company, which already controlled large parts of the coastal regions, to investigate the feasibility of harvesting Malabar teak in Madras to meet the needs of British shipbuilding during the Napoleonic war. Although the East India Company was a private trading company commissioned in 1600, in India it functioned as a state entity, enjoying a monopoly of trade in the areas it ruled. Acting at the direction of the British parliament, it shared authority in India with government officials. The company appointed a former police officer, Captain Watson, as India's first conservator of forests in 1806. Watson's two-pronged plan involved placing a tax on teak in order to simultaneously slow its harvest by private interests and raise money for the government, and then purchasing the teak from the private dealers.

    Together, these measures would guard against over-exploitation and ensure a steady supply of teak.

    On 3 August 1855, Lord Dalhousie, the governor general of India, reversed previous laissez-faire policy to establish the India Forest Department and annex large areas of sparsely populated lands in India. These lands were declared protected areas and staffed by foresters, fireguards, rangers, and administrators. Over the next decades, forestry in India became an international profession with global specialists ruling an empire of trees and grasslands.

    The new environmental policies served in turn to support British imperialism in India. Unlike the conservative French and English royal forests reserved for hunting by the privileged elite, or the later American concept of total protection in national parks, the new colonial environmentalism was intended to generate income for the imperial British state through strict control of India's natural resources. Lord Dalhousie's new forest policies greatly expanded British authority over the land and people of India, a colonial empire that the British had procured piecemeal over the course of several centuries of mercantile and military exploitation. Thus, environmentalism and imperialism have a shared past, and the newly protected forests marked a symbiotic alliance of environmental concern with expansion of state power in India.

    After Napoleon's defeat at Waterloo in 1815, however, the navy had less need of teak, and a new governor of Madras, Thomas Munro, felt that the timber royalty unnecessarily raised the opposition of Indian princes who objected to the tax placed on forests under their authority. Munro also felt pressure from Indian merchants who objected strenuously to a tax that cut severely into their profits and from peasants who saw traditional access to the forest sharply curtailed. The new governor rescinded the teak regulations, abolished Captain Watson's position, and allowed the free market to operate as it had before Lord Dalhousie's tenure as governor-general from 1848 to 1856 saw the acquisition of territory and implementation of administrative reforms for which posterity dubbed Dalhousie "the great Proconsul." Dalhousie's support for conservation was unapologetically imperialist. Upon reaching the capital at Calcutta for his inauguration in 1848, he proclaimed, "we are Lords Paramount of India, and our policy is to acquire as direct a dominion over the territories in possession of the native princes, as we already hold over the other half of India." The British government in India made it clear that "all the forests are the property of Government, and no general permission to cut timber therein will be granted to anyone."

    The second half of the 19th century marked the beginning of an organized forest management in India with some administrative steps taken to conserve forest; the formulation of forest policy and the legislations to implement the policy decision. The systematic management of forest resources began with the appointment of the First Inspector General of Forest in 1964. Dietrich Brandis was the first Inspector General of India. Lord Canning appointed Dietrich Brandis as the first inspector general of the India-wide Indian Forest Department, a post he held from 1864 to 1883.

    The immediate task of the forest department was under the supervision of Inspector General was that of exploration of resources, demarcation of reserves, protection of the forest from fire and assessment of the growing stock in valuable reserve by sample enumeration and prescription of yields which could be sustained. The objective of management of forest thus changed from obtaining of timber for various purposes to protecting and improving forests and treating them as a biological growing entity. Forest conservators had already been appointed in Bombay (1847), Madras (1856), and the United Burma Provinces (1857); Brandis in turn appointed forest conservators to the Northwestern Provinces and Central Provinces in 1860, Oudh in 1861, Punjab in 1864, Coorg and Bengal in 1864, Assam in 1868, and Berar in 1868. By the end of 1868, the Forest Department had administrators in every province of the subcontinent. In 1871, the Forest Department was placed under the newly established Department of Revenue and Agriculture, itself under the umbrella of the Home Department. Brandis was followed by Wilhelm Schlich (1883-88), Berthold Ribbentrop (1888-1900), and E. P. Stebbings (1900-17)

    The first step of the British Government to assess state monopoly right over the forest was the enactment the Forest Act, 1865.
    the act was revised after about thirteen years later in 1878 and extended to most of the territories under the British rule. It also expanded the powers of the state by providing for reserved forest, which were closed to the people and by empowering the forest administration to impose penalties for any transgression of the provision of the Act. Yet the latter act was passed only after a prolonged and biter debate within the protagonist of the earlier debate put forth arguments strikingly similar to those advanced by participants in the contemporary debate about the environment of India.

    Hurriedly drafted, the 1865 act was passed to facilitate the acquisition of those forest areas that were earmarked for railway supplies. It merely sought to establish the claims of the state to the forests in immediately required, subject to the proviso that existing rights would not be abridged. Almost immediately, the search commenced for a more stringent and inclusive piece of legislation. A preliminary draft, prepared by Brandis in 1969, was circulated among the various presidencies. A conference of forest officers, convened in 1874, then went into defects of the 1865 act and the details of the new one.

    The British Government declared its first Forest Policy by a resolution on the 19th October 1884. The policy statement had the following objectives:
    1. Promoting the general well being of the people in the country;
    2. Preserving climatic and physical condition in the country; and
    3. Fulfilling the need of the people

    The policy also suggested a rough functional classification of forest into the following four categories:
    1. Forests, the preservation of which was essential for climatic and physical grounds;
    2. Forests which offered a supply a valuable timber for commercial purposes;
    3. Minor forest which produced only the inferior sort of timber; and
    4. Pastures, which were forest only in name.

    To implement the Forest policy of 1884, the Forest act of 1927 was enacted. Till 1935, the government of India enacted the Forest Act. In 1935, the British Parliament through the Government of India created provincial legislature and the subject of the forest as included in the provincial legislature list. Thereafter, several provinces made their own laws to regulate forest. Most of these laws were within the framework laid down in the 1927 Act . The British all along their reign in India formed many other Acts from time to time

    Main Acts in the field of Environment in the British Era Acts controlling Water Pollution
    # The Shore Nuisance (Bombay and Kolaba) Act, 1853
    # The Orient Gas Company Act, 1857
    # Indian Penal Code, 1860
    # The Serais Act, 1867
    # The North India Canal and Drainage Act, 1873
    # The Obstruction in Fairways Act, 1881
    # The Indian Easement Act, 1882
    # The Indian Fisheries Act, 1897
    # The Indian Ports Act, 1908
    # The Indian Steam Vessels Act, 1917
    # The Poison Act, 1919
    # The Indian Forest Act, 1927

    The Shore Nuisance (Bombay and Kolaba) Act, 1853

    This is the earliest Act on the statue book concerning control of water pollution in India. It was the first act in the field of Environment protection in India, which was enacted by the British for the British India. This act was passed so as to regulate the waste materials discharged in the coastal area of Bombay (Now Mumbai) and Colaba area, from various industries functioning in these areas.

    Oriental Gas Company Act, 1857

    This law imposed restrictions on fouling of water by the Oriental Gas Company. The Oriental Gas Company provided fine of Rs. 1000, for fouling water and for the subsequent continuation of the offence, Rs. 500 per day. Oriental Gas Company (OGC) Act was among the first act in the field of water pollution.

    Indian Penal Code, 1860

    As regards to water pollution, Indian Penal Code says that whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to make it less fit for the purpose for which it is ordinarily used, shall be punished with simple or rigorous imprisonment for a term exceeding to three months or fine of five hundred rupees or both. The definition is confined to a voluntary act and acts committed without any knowledge or accidentally would not be covered under the present law. Moreover, it has limited operation to the water of public spring or reservoir. Further, looking to the gravity of the offence it attracts only minor punishment. It is surprising to know that in spite of the fact that this provision was incorporated to protect the public health, the cast ridden society wanted to enforce this provision against the lower cast person taking water from a public cistern but the Bombay High Court did not allow the above interpretation (R v Bhagi 2 Bom LR 1078) . Chapter 14th of the Indian Penal Code (IPC) is for Public Nuisance from section 268 to 291.

    The Serais Act, 1867

    The Act enjoined upon a keeper of Serai or an inn to keep a certain quality of water fit for consumption by "persons and use of it by the animals" to the satisfaction of the District magistrate or his nominees. Failure for maintaining the standard entailed a liability of rupees twenty. It is to be understood that the amount twenty rupees was a very big amount at that time and therefore should not be compared to the value of twenty rupees prevailing now in the country.

    The North India Canal and Drainage Act, 1873

    Certain offences have been listed under the Act contained in Section 70. It was to regulate the way canals for the purpose of irrigation as well as to discharge the effluents from various industries as well as drainage system is to be controlled.

    Obstruction in Fairways Act, 1881

    Section 8 of the Act empowered the Central Government to make Rules to regulate or prohibit the throwing of rubbish in any fairway leading to a port causing or likely to give rise to a bank or shoal.

    Indian Easements Act, 1882

    It protected riparian owners against unreasonable pollution by upstream officer. Illustrations (f), (h) and (j) of Section 7 of the
    Act deal with pollution of waters. Section 28(d) of the Easement Act, 1882 on the one hand allowed a prescriptive right to pollute the water but it was not an absolute right. The illustrations (f), (g), and (j) of this Section, limited this prescriptive right not to unreasonably pollute or cause material injury to other.

    The Indian Fisheries Act, 1897

    The Indian Fisheries Act, 1897 contains seven sections. This act penalized the killing of fish by poisoning water and by using explosive. Section 5 of the Act prohibits destruction of fish by poisoning waters.

    Indian Ports Act, 1908

    The Indian Ports Act, 1908, has regulated water pollution caused by the use of oil or discharging of oil in the port waters.

    The Indian Forest Act, 1927

    This act was very comprehensive and contained all the major provisions of the earlier act and amendments made thereto including those relating to the duty on timber. The Act of 1927 also embodied land-using policy whereby the British could acquire all forestland, village forest and other Common Property Resources. Section 26(i) of the Act makes it punishable if any person, who, in contravention of the rules made by the State Government, poisons water of a forest area. The State Government has been empowered under Section 32(f) to make rules relating to poisoning of water in forests. This act is still in force, together with several amendments made by the State Governments.

    Acts For The Protection of The Indian Environment

    # The Orient Gas Company Act, 1857
    # The Serais Act, 1857
    # The Northern India Canal and Drainage Act, 1873
    # The Obstruction in Airways Act, 1881
    # The Indian Fisheries Act, 1897
    # The Indian Ports Act, 1901
    # The Bengal Smoke Nuisance Act, 1905
    # The Explosives Act, 1908
    # The Bombay Smoke Nuisance Act, 1912
    # The Inland Stream Vessel Act, 1917
    # The Mysore Destructive Insects & Pests Act, 1917
    # The Poison Act, 1919
    # The Andhra Pradesh Agricultural, Pest & Diseases Act, 1919
    # The Indian Boilers Act, 1923
    # The Workmen's Compensation Act, 1923
    # The Indian Forest Act, 1927
    # The Motor Vehicles Act, 1939
    # The Bihar Wastelands (Reclamation, Cultivation & Improvement) Act, 1946.

    Air Pollution Acts

    # Indian Penal Code, 1860
    # The Indian Boilers Act, 1923
    # Motor Vehicle Act, 1939 (Repealed by Act No.59 of 1988)
    # The Poison Act, 1919

    Municipality Laws
    # Uttar Pradesh Municipality Laws, 1916
    # Bihar and Orissa Municipality Laws, 1922
    Both of these laws were amongst the earliest laws for regulating the environment conditions in the cities by the help of municipality laws.

    Wildlife Protection Act

    # Forest act of Madras 1873
    # Elephant Preservation Act, 1879
    # World Birds Protection Act, 1887
    # World Birds and Animal Protection Act, 1912
    # Hailey National Park Act,1936 (Now Called Corbett National Park)

    In the field of wildlife protection, the first wildlife

    statute was enacted in Madras (Chennai) for the protection of wild elephants. The law introduced a general prohibition on destruction of wild elephants and imposed penalty on those who violated the embargo. The first effort by the Central Government came after six years later by the passing of the Elephant Preservation Act in 1879. In 1887, central government enacted the Wild Birds Protection Act prohibiting the possession or sale of wild birds recently killed or taken during the notified breeding season. In 1912, the Central Government enacted a broader Wild Life and Animal Protection Act. Extending to most of the British India, this law specified a closed hunting season and regulated the hunting of designated species through licenses. Indeed, all the statutes related primarily to the regulation of hunting and did not regulate trade in wildlife and wildlife products- both major factors in the decline of Indian Wildlife. As a consequence, wildlife depredation continued and many species became extinct.

    The first comprehensive law for the protection of wildlife and its habitat was perhaps the Hailey National Park Act of 1936, which established the Hailey (now Corbett) National park in Uttar Pradesh.

    # The Indian Fisheries Act, 1897
    # The Indian Forest Act, 1927
    # Criminal Procedure Code, 1893

    Criminal Procedure Code, 1893.

    Criminal Procedure Code, 1893 was one of the major acts, which provided some of the very strict punishments for the environmental offences under the criminal law. Sections 133 to 144 in the Chapter XII of the Criminal Procedure under the heading Public Nuisance provided for the punishment under criminal procedure for the commission of any nuisance,
    which affected the public at large. The environmental degradation was also included in it as any degradation of the environment is automatically supposed to be affecting the public at large.

    Thus, it can be held hereby that some of the very strong steps were taken by the British in order to protect environment from degrading and to preserve it for the future generations. But, some of these laws showed their capability on paper and not on the practical grounds. Many laws and acts enacted by the British in our country proved out to be more useful for them (British) as compared to us. They made several laws so as to make their task easy as by that they were able to make use of the resources and degrade environment comfortably and lawfully.

    Some of the laws were so as to protect the resources from the natives itself, so that the British can utilize them for their own needs which were to gain as much capital from India as possible. Introduction of Railways in India is thought to be major reward for the Indians by the British and there is no doubt that it is one of the very valuable gift of the British for India. But, the British never brought rail to India with the thought of benefiting us but for their own benefit. They introduced rail in India so that the resources present in India, especially environmental resources that they were harnessing, can reach easily and quickly to their destination. They made laws for conserving the forest and in the process marked much of the area as the property of the government so that no one could object as to he use of these forest by the British. Even if some laws were present which were beneficial for the environment conservation, then they were not implemented properly for them.

    The punishments prescribed under the laws were not very strict and so the offender was very easily allowed to escape. Moreover, most of the time, the British themselves depleted the resources. The theories like Sovereign Immunity always saved the government from being sued under public offence. The maxims like ?King can do no wrong? were applied to its full extent. But still to say that the British always thought of their own benefit would be a wrong statement. The laws like Indian Penal Code 1860, and Criminal Procedure Code 1893, were very effective. Moreover, the laws made by the British paved a way for the Indian to think and implement new laws in this field itself. These laws were one of the first lessons for the Indians to make laws for the protection of the environment in a more polished fashion in the future.

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