CHAPTER-IV ENVIRONMENTAL LEGISLATIONS IN INDIA

Transcription

1 CHAPTER-IV ENVIRONMENTAL LEGISLATIONS IN INDIA 4.1 Environmental Policy and Legislations in India A policy is a board guideline for planners and administrators. It lays down the general objectives and its execution is left to the administrators. Policy formulation becomes indispensable because policy is in an instrument of transformation of a given environment into a preferred environment. It is through a policy that we can precisely identify the problems; fix priority to form alternative approaches and solutions; make a choice among alternatives on the basis of comprehensive analysis if benefits and costs; articulate the choice in terms of goals expressed; provide organization, personnel and resources to ensure effective implementation; and to lay down a mechanism for continuous monitoring of the policy. In India, attention has been paid right from the ancient times to the present age in the field of environmental protection and improvement. Historically speaking, the laws relating to environment improvement were simple but quite effective and people were aware of the necessity of environmental protection. The present day legislations in India are the outcome of the growing industrialization and population pressure. There are stated to be over 500 Central and State statues which have at least some concern with environmental protection, either directly or indirectly. Besides that, the common law and Constitutional remedies relating to environmental protection are also there. 4.2 Policy and Laws in Ancient India In ancient India, protection and cleaning up of environment was the essence of Vedic culture. The conservation of environment formed an ardent article of faith, reflected in the daily lives of the people and also

2 91 enshrined in myth folklore, art, culture and religion. In Hindu theology forests, trees and wildlife protection held a place of special reverence. Cutting green trees was prohibited and punishment was prescribed for such acts. Under the Hindu culture moral injunctions acted as guidelines towards environmental preservation and conservation. For instance, to maintain the quality of water and to avoid the water pollution, Manu advised not to contaminate water by urine, stool or coughing, un-pious objects, blood and poison. Yagyavalkya Smriti and Charak Samhita give many instructions for the use of water for maintaining its purity. Under the Arthtashastra, various punishments were prescribed for cutting trees, damaging forests, and for killing animals. The State assumed the functions of maintenance of forests, regulation of forest produce and protection of wildlife. Arthashastra also prescribed punishment for causing pollution and un-civic sanitation. Thus, ancient India had a philosophy of environmental management principally enshrined in old injunctions as they were contained in many scriptures and smritis. The environmental ethics of nature conservation were not only applicable to common man but the rulers and kings were also bound by them. 4.3 Policy and Laws in Medieval India During the Moghul period environment conservation did not receive much attention. It is righty said : To Moghul rulers, forest meant no more than woodlands where they could hunt. To their governors, the forests were properties which yielded some revenue. Barring royal trees which enjoyed patronage from being cut except upon a fee, there was no restriction on cutting of other trees. Thus, forests during this period shrank steadily in size.

3 92 However, the forests were managed with the help of a complex range of rules and regulations woven around the socio-cultural features as well as the economic activities of local communities. Further, the religious policy of Akbar based on the principal of complete tolerance also reflects concern for protection of birds and beasts in so muchso as endeavours were taken during his region to stop their unnecessary killing. During medieval era, another set of legal principles were inducted, governed by the holy Koran which declares that we made from water every living things. 4.4 Policy and Laws in British India With the establishment of British Colonial rule, many changes were brought in the religiously oriented indigenous system. The British regime saw the beginning of organized forest management. It was the forestry, wildlife and water pollution which attracted their attention in particular. In the field of forest protection, the enactment of the Forest Act, 1865 was the first step at asserting the State monopoly right over the forests. The customary rights of rural communities to manage forests were curtailed by the Act. The Forest Act of 1927 specifically denied people any rights over the forest produce simply because they were domiciled there. In the field of wildlife protection, the British practiced selective wildlife conservation. During this period, the concern for protection and management of water resources in India came through the first major development in the form of Bengal Regulation VI of 1819, which did not mention protection of water environment from pollution but invested the Government with sovereignty over water resources. It marked radical shift from earlier practices, which treated the water resources as common property of all, with control lying in the hands of the people. The Shore Nuisance (Bombay and Kolaba) Act of 1853 and the Oriental Gas Company Act of 1857

4 93 imposed restrictions on the fouling of water. The Merchant Shipping Act of 1858 dealt with prevention of pollution of sea by oil. In 1860, for the first time, an attempt was made to control especially water and atmospheric pollution through criminal sanctions under the Indian Penal Code, As against prohibitive provisions under the IPC, 1860, the Easement Act of 1882 allowed a prescription right to pollute the water but it was not an absolute right (one was not to unreasonably pollute or cause material injury to other ). The Bengal Smoke Nuisance Act of 1905 and Bombay Smoke Nuisance Act of 1912 were the earlier laws enacted during the British Raj, aimed at controlling air pollution. Thus, the environmental policy during the British rule was not directed at the conservation of nature but rather was directed at the appropriation and exploitation of common resources with a primary objective of earning revenue. Neither were there effective laws for the protection of environment. Further, these laws had a narrow scope and limited territorial reach. 4.5 Policy and Laws After Independence The India Constitution, as adopted in 1950, did not deal with the subject of environment or prevention and control of pollution as such (until 1976 Amendment). The original text of the Constitution under Article 372(1) has incorporated the earlier existing laws into the present legal system and provides that notwithstanding the repeal by this Constitution of enactments referred to in Article 395, but subject to other provisions of the other provisions of the Constitution, all laws in force immediately before the commencement of the Constitution shall remain in force until altered, repealed or amended by a competent legislature or other competent authority. As a result, even after five decades of independence, the plethora of such laws is still in operation without any significant charge in them.

5 94 The post-independence era, until 1970, did not see much legislative activity in the filed of environmental protection. Two early postindependence laws touched on water pollution. The Factories Act of 1948 required all factories to make effective arrangements for waste disposal and empowered State Governments to frame rules implementing this directive. Under the River Boards Act of 1956, river boards established are empowered to prevent water pollution of inter-state rivers. To prevent cruelty to animals, the Prevention of Cruelty of Animals Act was framed in Some States took initiative in the filed of environmental protection, viz., Orissa River Pollution Prevention Act, 1953, and, Maharashtra Prevention of Water Pollution Act, While the Orissa Act was confined only to rivers, the Maharashtra Act extended to rivers, watercourses, whether flowing or for the time being dry, inland water both natural and artificial, and subterranean streams. Thus, there were scattered provisions for checking pollution of air, water, etc., but there was no unified effort in developing any policy concerning the pollution emanating from these areas. This position went up to the seventies. Meanwhile concern arose over, inter-alia, population increase, greater pollution levels; human impact on animal populations and natural landscapes and other aspects of resource depletion. It was the Stockholm Declaration of 1972 which turned the attention of the Indian Government to the boarder perspective of environmental protection. The government made its stand well known through five year plans as well as the legislations enacted subsequently to curb and control environmental pollution. After 1970, comprehensive (special) environmental laws were enacted by the Central Government in India.

6 95 The Wildlife (Protection) Act, 1972, aimed at rational and modern wild life management. The Water (Prevention and Control of Pollution) Act, 1974, provides for the establishment of pollution control boards at Centre and States to act as watchdogs for prevention and control of pollution. The Forest(Conservation) Act, 1980 aimed to check deforestation, diversion of forest land for non-forestry purposes, and to promote social forestry. The Air(Prevention and Control of Pollution) Act,1981, aimed at checking air pollution via pollution control boards. The Environment (Protection) Act, 1986 is a landmark legislation which provides for single focus in the country for protection of environment and aims at plugging the loopholes in existing legislation. It provides mainly for pollution control, with stringent penalties for violations. The Public Liability Insurance Act, 1991, provides for mandatory insurance for the purpose of providing immediate relief to person affected by accidents occurring while handling any hazardous substance. The National Environment Tribunals Act, 1995, was formulated in view of the fact that civil courts litigations take a long time (as happened in Bhopal case). The Act provides for speedy disposal of environmental related cases through environmental tribunals. Under the Act, four benches of the tribunal will be set up in Delhi, Calcutta, Madras and Bombay and 8,000 of the most Hazardous industrial units in the country will be brought under its security. The National Environment Appellate Authority Act, 1997, provides for the established of a National Environment Appellant Authority (NEAA) to hear appeals with respect to restriction in areas in which any industries,

7 96 operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, The Biological Diversity Act, 2002, is a major legislation intervention effected in the name of the communities supposed to be involved in the protection of biodiversity around them. The Act intends to facilitate access to genetic materials while protecting the traditional knowledge associated with them. 4.6 Environmental Policy Since 1970 s By early 1972 it had been realized (as observed in the Fourth Five Year Plan earlier) that unless a national body was established to bring about greater coherence and coordination in environmental policies and programmes and to integrate environmental concerns in the plans for economic development, an important lacuna would remain in India s planning process. Thus, in Feb. 1972, a National Committee on Environmental Planning and Coordination (NCEPC) was established in the Dept. of Science and Technology. The NCEPC was an apex advisory body in all matters relating to environmental protection and improvement. The Committee was to plan and coordinate, but the responsibility for execution remained with the various ministries and governmental agencies. Over time the composition of the Committee changes significantly and it became unwieldy, and decision making more complex. Greater bureaucratization occurred with the addition of more secretaries. The Fifth Five Year Plan ( ) stressed that the NCEPC should be involved in all major industrial designs and a link and balance between development planning and environmental management has to be maintained. In this context, Minimum Needs Programme (covering rural education, health, nutrition, drinking water, etc.) received a fairly high

8 97 priority, and was expected to minimize environmental pollution and degradation in rural areas. In the Sixth Five Year Plan ( ), an entire chapter on Environment and Development was included that emphasized sound environmental and ecological principles in land use, agriculture, forestry, mineral extraction, energy production, etc. It provided environmental guidelines to be used by administrators and resource managers when formulating and implementing programmes, and lay down an institutional structure for environmental management by the Central and State Governments. The basic approach taken by the Seventh Plan ( ) was to emphasize sustainable development in harmony with the environment, as the federal government had recognized the negative effects that development programmes were having on the environment. The Plan called for the government and voluntary agencies to work together to create environmental awareness: This is a philosophy which must permeate the entire effort in the filed of environment. However, even today this basic philosophy has still not taken hold because the entire emphasis on industrialization, agri-business and powergeneration projects (form First to Fourth Five Year Plans), with little concern for environmental protection, has not relinquished its grip on decision makers. The Seventh Plan recognized that the nation s planning for economic growth and social well-bring in each sector must also work to secure improvement in environmental quality. The leaders of the country had realized that poverty and under-development, as opposed to development activities, had led to many of the country s environment problems.

9 98 The Eight Five Year Plan ( ) gave an important place to the environment by moving it to the fourth category of subjects examined in the text. The Plan stated: Systematic efforts have been made since the Sixth Plan period of integrate environmental considerations and imperatives in the planning process in al the key socioeconomic sectors. As a result of sustained endeavour, planning in all major sectors like industry, science and technology, agriculture, energy and education include environmental considerations. The Ninth Plan ( ) has emphasized Growth with Social Justice and Equity. The Joint Forest Management and Community Forestry have been specially emphasized in the Plan. The Tenth Plan ( &0 is on the similar lines. 4.7 Policy Statements In 1992, the Union Government adopted a National Conservation Strategy and Policy Statement on Environment and Development (NCS). The preamble to the NCS adopts the policy of sustainable development and declares the government s commitment to re-orient policies and action in unison with the environmental perspective. The NCS proceeds to recognize the enormous dimensions of the environmental problems facing India and declares strategies for action in various spheres such as agriculture, forestry, industrial development, mining and tourism. Special sections in the NCS deal with the rehabilitation of persons ousted by large development projects; the role of NGOs; and the special relationship between women and the environment. Again, in 1992, the Union Government came out with Policy Statement for Abatement of Pollution. This statement declares the objective of the government to integrate environmental considerations into

10 99 decision-making at all levels. To achieve this goal, the statement adopts fundamental guiding principles, namely: (i) (ii) (iii) (iv) Prevention of pollution at source; Adoption of the best available technology; Polluter pays principles; and Public participation in decision-making. The policy statements, though unenforceable in a court of law, represent a broad, political consensus and amplify the duties of the government under the Directive Principles of State Policy contained in Part IV of the Constitution. In the hands of a creative judge the policy documents may serve as an aid for interpreting environmental statutes or for spelling out the obligations of government agencies under environmental laws. For example, in State of HP v. Ganesh Wood Products 1, the Supreme Court relied upon the National Forest Policy and the State Forest Policy of Himachal Pradesh to invalidate a decision taken by the State industrial project authority. It was held that the policy of economic liberalization has to be understood in the light of the National Forest Policy and forest laws enacted by the government. The court cautioned government departments against ignoring the forest policies and warned that disregard of these policies would imperil government decisions. It is submitted that unless the government policy is baked by adequate budgetary allocations, changes to the statutory regime and a bureaucratic will, the government s intentions are apt to remain on paper. 4.8 Recent Legislative Measures (Delegated Legislation) During the nineties, some steps have been taken by the Central Ministry of Environment to provide legal and institutional basis for 1 (AIR 1996 SC 149)

11 100 management and protection of environment by way of rules, notification of standards, delegation of powers, identification of agencies for hazardous chemicals management and setting up of Environmental Councils in some States. A new chapter regulating hazardous industrial processes was introduced into the Factories Act. In the area of delegated legislation, effluent and emission standards were specified for 24 industries and general standards for effluent discharge and for noise pollution have been prescribed under the Environment Act. For the analysis of water and air samples, about seventy environmental laboratories were established across the country. Rules for the manufacture and transport of hazardous substances and microorganisms and for the management of toxic wastes were issued. Coastal Zone Regulations (CZR) were issued in A Gazette notification on environmental audit has been issued, whereby environment audit has been made compulsory for all industries requiring environmental clearance under the Water Act, 1974 or The Air Act, 1981, etc., Further, in 1996, the Central Government framed the Chemical Accidents (Emergency, Planning, Preparedness and Response) Rules to Supplement the Hazardous Chemical Rules of In 1998, the Central Government issued the Bio-Medical Waste (Management and Handling) Rules to regulate bio-medical waste. The Central Ministry of Environment issued a notification in 1994 making Environment Impact Assessment statutory for 29 different activities in industries, mining, irrigation, power, etc. A new dimension was added in 1997, to the Environment Impact process in India, by an amendment. The State Pollution Control Boards had nothing to do in the assessment process so far. They were now given a new role to play. Further, in the case of certain categories of thermal power plants,

12 101 responsibility of environmental clearance is now conferred on the State Government. Further, the Central Government enacted the Prevention and Control of Pollution (Uniform Consent Procedure) Rules, 1999, requiring all industries listed in Schedule VIII of the Environment Act, 1986 to obtain consent from the State Board or the Pollution Control Committee. For the purpose of consent management, the industries are categorized as red, orange and green. The Environment (Sitting for Industrial Projects) Rules, 1999, prohibit setting up of certain industries (including hazardous industries) in certain areas such as within the municipal limits of all Municipal Corporations/ Councils and Nagar Panchayats and a 25 km belt around the cities having population of more than 1 million; the periphery of the wetlands, national parks, sanctuaries and bioreserves. Recently, the Central Government framed the Recycled Plastic Manufacture and Usage Rules, The Rules prohibit vendors of foodstuffs from packing their wares in bags or containers made from recycled plastics. If foodstuffs are to be sold in plastic bags, the carry bag must be made of virgin plastic. The Municipal Solid Wastes (Management and Handling) Rules, 2000, apply to every municipal authority responsible for collection, segregations, storage, transportation, processing and disposal of municipal solid wastes. While the nodal responsibility to enforce these rules lies on the municipality, the Secretary-in-charge of the Dept. of Urban Development of the concerned State, the District Magistrate/Deputy Commissioner shall have the overall responsibility. The Central/ State Pollution Control Boards have been made responsibility to monitor the compliance of the standards regarding ground water, ambient air quality and the compost quality.

13 102 The Battery (Management and Handling) Rules, 2000, provides for specific categories of wastes such as battery, waste oil, etc. These rules shall apply to every manufacturer, importer, re-conditioner, assembler, dealer, recycler, re-smelter, auctioneer, consumer and bulk consumer involved in manufacturer, processing, sale and purchase of batteries. For the purposes of these rules, they are under the broad control of the State Pollution Control Boards. In 2000, the Noise Pollution (Regulation and Control) Rules, framed by the Central Government under the Environment Protection Act, 1986, came into effect. These Rules prescribed ambient air quality standards in respect of noise for industrial, commercial and residential areas as well as designated silence zones. In the same year, the Central Government enacted the Ozone Depleting Substances (Regulation and Control), rules, 2000 under the Environment Protection Act. The producers, dealers, users engaged in the manufacture/use of ozone depleting substances such as CFCs, Halon, Cabontetrachloride (CCI 4 ), etc., are required to compulsorily register under the Rules. Thus, in recent decades India employed a range of regulatory instruments to preserve and protect its natural resources. These new laws are impressive in their range covering hitherto unregulated fields, such as noise, hazardous waste, hazardous micro-organisms, environment impact assessment, etc. the new legislation has spawned new enforcement agencies and strengthened the older ones. 4.9 General Legislations on Environment In India, there are a number of laws which deal with various aspect of environment protection regulation, conduct of environmentally harmful activities and provide for remedies in case of their breach. Some of them are general having an indirect bearing on environment protection, while

14 103 others are special (viz. Water, Air and Environmental Acts, Forest Act, etc.) being directly concerned with environment protection. General legislation comprises of Indian Penal Code, 1860; Code of Criminal Procedure, 1973; Code of Civil Procedure, 1908; and, specific sectoral legislations having a bearing on the environmental aspects viz. The Factories Act, 1948, The Mines Act, 1952, The Industries (Development and Regulation) Act, 1951, The Insecticides Act, 1968, The Atomic Energy Act, 1962, The Motor Vehicles Act, 1939 and 1988, The Delhi Municipal Corporation Act, 1957, etc. Under Indian law, for instance, the remedies for a public nuisance are (i) a criminal prosecution for the offence of causing a public nuisance (Indian Penal Code 1860, Sec. 268), (ii) a criminal proceeding before a Magistrate for removing a public nuisance (Criminal Procedure Code 1973, Secs ), and (iii) a civil action by Advocate General or by two or more members of the public with the permission of the court, for a declaration, an injunction or both (Civil Procedure Code 1908, Sect. 91). The remedy under the civil law is not often used, however this provision is a reservoir for class action against environmental violations. Traditionally, the interpretation of the Indian Penal Code has been viewed as a conservative attempt at enforcement. This is because punishment and fines have been characterized as meager. The law of public nuisance contained in Sec. 133, Cr. P.C. has been used in a number of cases for the purpose of protection of the environment. In 1987, shortly after the Bhopal gas tragedy and the Supreme Court s ruling in the Shriram Gas Leak Case 2, the 1987 amendment to the Factories Act introduced special provisions on hazardous industrial activities. The amendment empowers the States to appoint site appraisal 2 (AIR 1987 SC 1086)

15 104 committees to advise on the initial location of factories using hazardous processes. The occupier of every hazardous unit must disclose to her workers the Factory Inspector the local authority and the general public in the vicinity all particulars regarding health hazards at the factory, and the preventive measures taken. The regulation of nuclear energy and radioactive substances in India is governed by the Atomic Energy Act of 1962, and the Radiation Protection Rules of Under the Act, the Central Government is required to prevent radiation hazards, guarantee public safety and the safety of workers handling radioactive substances, and ensure the disposal of radioactive wastes. The control of air pollution resulting from the vehicular emissions which contributes for about per cent of the pollution load in India was taken care of by the Motor Vehicles Act, The Act empowered the State Government to make rules inter-alia regarding the emission of smoke, visible vapour, sparks, ashes, girt or oil. The 1939 Act has now been repealed by the Motor Vehicles Act, Section 110 of the new Act empowers the Central Government to make rules regulating the construction equipment and maintenance of motor vehicles and trailers. In 1989, the Central Motor Vehicles Rules introduced nation-wide emission levels for both petrol and diesel engine vehicles. These rules were further amended in The amendments lay down standards regarding emission levels of carbon monoxide, nitrogen oxides and unburnt hydrocarbons for petrol and diesel vehicles. The vehicles manufactured after April 1, 1992 must meet the additional emission standards prescribed for petrol and diesel vehicles. As a pat of control mechanism, the amended rules authorized the regional or State Transport authorities to allow private agencies such as petrol stations to test the emission levels of vehicles and issue pollution under control certificates. Under Rule 116, the

16 105 registration of a vehicle found to be exceeding the permissible emission levels can be suspended. The various municipal laws have also provided for legal control of pollution. The Delhi Municipal Corporation, Act, 1957 contains extensive provisions for prohibiting the erection of latrines, septic tanks near wells, water pipes, tank or discharging sewage or dumping rubbish, etc., near water lines. The Act empowers the Municipal Commissioner to make an order restraining the use of water from any well, tank or other source of supply not vested in the corporation when it is so polluted as to be prejudicial to health of the people. Thus, there are a number of general legislations in India which are relevant from the environmental point of view. However, these statuses contain piecemeal provisions which are not only insufficient but have no effective mechanism for controlling pollution. Further, different authorities envisaged under these Acts is inimical to an integrated approach to conservation issues. The general legislations like IPC, Cr. PC, CPC, MV Act, Labour Acts, etc., could be quite effective in controlling environmental violations because of the easy availability of the enforcement machinery (Police, judiciary, etc.,) in every district of the country. Some of these Acts have been amended recently to incorporate current trends and requirements. Thus, besides an effective implementation of these Acts and creating a greater public awareness about them, there should be coordination between different types of authorities so as to effectively preserve and protect the environment The Environment Protection Act, 1986 Though there is a host of legislation in India aimed at protecting the environment from pollution and maintaining the ecological balance, the environment has not so far been considered in its totality. The Environment

17 106 (Protection) Act, 1986, enacted under Art. 253 of the Constitution of India to implement the decisions made at the United Nations Conference on Human Environment held at Stockholm, 1972 was expected to fill the lacuna and provide a blue print for a progressive policy for protecting the ecosystem. The Act seeks to supplement the existing laws on control of pollution by enacting a general legislation for environmental protection and to fill the gaps in regulations of major environmental hazards. However, as it turned out to be, it is at best a paper or toothless tiger meant to assuage the feeling of the environment hazards. However, as it turned out be, it is at best a paper or toothless tiger meant to assuage the feelings of the environmentalists. The Act has been invoked in very few cases. The Environment Protection Act is an umbrella legislation enacted to provide for the Central Government coordination over the central and State authorities established inter-alia under the water Act, 1974 and the Air Act, Thus, as regards air pollution, apart from the preventive or controlling measures under the Air Act, the residue protection of air would come within the Environment Act. According to the Preamble, the objective of the Environment Act is to provide for the protection and improvement of environment and for matters connected therewith. The Act is a special law and extends to the whole of India Definition of Environment The title of the Environment Act give an impression that the law signifies a hallmark of a change in emphasis from the narrow concept of pollution control to the wider aspects of environmental protection. However, the definition of Environment under the Act may give a negative impression. According to Sec. 2(a), environment includes water, air, land, and the inter-relationship which exists among and between water, air and land,

18 107 and human beings, other living creatures, plants, microorganisms and property. Environmental pollutant is defined in Sec. 2(b) as any solid, liquid or gaseous substance present in such concentrations as may be, or tend to be, injurious to the environment. Environmental pollution is defined in Sec. 2(c) as the presence in the environment of any environmental pollutant. Sec.2 shows as total lack of understanding of the modern concept of environmental pollution and the factors that lead to the imbalance of the ecosystem. The modern concept of environmental pollution is wider. It may be said that any sort of deviation of any substance from its original place and removal of its origin is called environmental pollution because such transferability may cause or tend to cause damage or injury to the nature. As for example, a plant is removed from its original place and planted in a new place may cause soil pollution for such amputation. In the Act, accent is on the physical condition of air and water. The major urban environmental ills like noise, traffic, slums and congestion are conspicuously absent from the Act and no provisions have been made for their control. Further, the Act focuses on environmental pollution and hazardous substance alone, as source of environment degradation. This focus ignores other causes of degradation such as deforestation and unrestrained development. The Act is drafted with the misconceived contention that protection and improvement of environment are synonymous to abatement of pollution. And then, pollution is misconceived as to be environmental quality deterioration caused by discharge of pollutants. The definition of environmental pollutant includes solid, liquid or gaseous substances only. There are pollutants which are not substances e.g. heat energy (which causes thermal pollution), nuclear radiations, and sound (which causes noise pollution).

19 108 The definition of environmental pollution is narrow and commonplace. The Act considers pollution to be something like adulteration. It is universally accepted that any environmental modification which has undesirable short terms of long term effect on the welfare of the environment is environmental pollution. It is not only the presence of certain substances that form pollution; the absence or decerased in concentration, or non-availability of a non-pollutant also form pollution. If oxygen is withdrawn from the environment in quantities detrimental to the environment, it forms an instance of pollution. This is how organic pollution occurs. Organic wastes from paper pulp plants, for example, are not poisonous materials; but if they are discharged into rivers without proper treatment, increase in oxygen demand leads to severe water pollution. Further, organisms can be pollutants. Presence or absence of any particular organism in such numbers as to destroy the ecosystem or food cycle is pollution. A popular example is the depletion of frogs and increase of mosquitoes. Thus, the definition of environment under the Environment Protection Act is not exhaustive but inclusive one. If the expression includes and means used in the definition, than it would become an exhaustive definition. However, a meeting of experts recommended that: an inclusive definition will have the distinct advantage for the exercise of vast rule-making power under Act and for a more effective enforcement of the Act. Exhaustive definitions in an evolving field like environment, are likely to lead to recourse to judicial interpretation of highly complex scientific and technological matters, whose complexion is every changing as knowledge accumulates dynamically.

20 109 The definition of environmental pollution as given in the Act though subject to certain limitations is wide and comprehensive in its scope at least for the legal regulation of industrial pollution and hazardous substances and is best possible in view of the difficulties involved in defining a general term like pollution Broad Powers Given to Central Government Sec.3 of the Act empowers the Central to take all such measures as it deems necessary or expedient for the purposes of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. The Central Government is authorized to set new national standards for the quality of the environment a swell as standards for controlling emissions and effluent discharges; to regulate industrial locations; to prescribe procedures for managing hazardous substances; to establish safeguards for preventing accidents; and to collect and disseminate information regarding environmental pollution. Under Sec. 5, the Central Government has authority to issue direct written orders, including orders to close, prohibit, or regulate any industry, operation or process or to stop or regulate the supply of electricity, water or any other service. Other powers granted to the Central Government to ensure compliance with the Act include the power of entry for examination, testing of equipment, etc.,(sec.10) and the power to take samples of air, water, soil or any other substances from any place for analysis(sec.11). When one compares the provisions of the Water and The Air Act with those of the Environment Act it becomes clear that the powers and functions similar to those vested in the Boards under the Water and Air Acts are vested in the Central Government under the Environment Act. The critiques conclude that the Act is conceptually identical to the Air Act and Water Act and does not prove the Central Government with new tools (e.g. environmental impact assessment) for preventing environmental

21 110 degradation. Further, concentration of powers in the hands of the Central Government is not a wise step towards environmental protection. It is likely in some cases that decisions of the Government may be influenced rather by political considerations than by environmental ones. Thus, the task has to be entrusted to an independent and expert agency created by statute Violations and Penalties Under the Act The Act explicitly prohibits discharge of environmental pollutants in excess of prescribed regulatory standards (Sec.7). Sec.15 prescribes the penalties for offences under the Act-a prison term of up to 5 years or a fine of up to Rs.1 lakh, or both. The Act imposes an additional fine of up to Rs.5,000 for every day of continuing violation. If a failure or contravention occurs for more than one year after the date of conviction, an offender may be punished for up 7 years imprisonment. The critics say that these provisions have a tendency to protect the guilty rather than the environment. Strangely enough, no minimum punishment is prescribed. A minimum of 2 years rigorous imprisonment should have been mandatorily provided for offences of environmental pollution. Further, the loopholes provided in Sec. 16 and 17 to get off the hook on proof of lack of knowledge or due diligence also dilute the effect of peal provisions. The Act makes corporate officials/heads of Government Departments liable for the offences under the Act unless the official/head can establish that the offence was committed without his knowledge or that he has exercised all due diligence to prevent the commission of the offence. Sec. 24 of the Act is a curious and controversial provision. This section postulates that where an offence under this Act is also an offence under any other Act, the offender shall be punished only under the other Act. This may lead to conflicts and negation of the Environment Protection

22 111 Act provisions, because standards established under the Environment Act are also the subjects to other statutes, such as the Water Act and The Air Act. If a factory discharges waste water containing the pollutant at a level higher than allowed under the Environment Protection Act but within the allowable limits of the Water Act, does the Water Act penalty provision apply? Therefore, in such cases serve penalties of the Environment Protection Act will simply remain on paper. For this reason the Act has been described as a cobra that is seemingly fierce but has no venom in its fangs. Environment Act also lacks any provisions providing for an individual s right to sue a defaulter for damages Citizens Suit Provisions Until the enactment of the Environment Act, the power to prosecute under Indian environmental laws belonged exclusively to the government. The citizens suit provision in the Environment Act expands the concept of locus standi in environmental prosecutions. Similar provisions allowing citizens participation in the enforcement of pollution laws are now found in Sec.43 of the Air Act(as amended in 1987) and Sec.49 of the Water Act(as amended in 1988). Sec. 19 of the Environment Act provides that any person, in addition to authorized government officials, may file a complaint with a court alleging an offence under the Act. However, the person must have given notice of not less than 60 days of the alleged offence and the intent to file a complaint with the government official authorized to make such complaints. The citizens suit provision appears to give the public significant powers to enforce the Environment Act. However, some critics are of the view that during the 60 days notice period required for the government to decide whether to proceed against the alleged violation, the offending industry has time to clean up traces of the offence and prepare

23 112 itself for the collection of samples. Further, the government may file a complaint but does not pursue prosecution diligently. There are no rules which require the publishing of information by polluters. The Act allowed, but does not require, the Central Government to obtain reports, returns, statistics, and other information in relation to its functions under the Act from any person, officer, State Government or other authority. The citizens suit provision may become an effective enforcement tool if industries were required to make mandatory public reports concerning their pollutant emissions and discharges Environment (Protection) Rules, 1986 The rule-making powers envisaged under the Environment Prection Act are quite exhaustive and they reach wide and varied dimensions. The general rule-making power is conferred on the Central Government for carrying out the provision of the Act (Sec.25). The Central Government may make rule in respect of all or any of the matters referred to in. Sec.3. The Department of Environment, Forests and Wildlife of Central Ministry of Environment and Forests has been entrusted the responsibility for making rules to implement the Environment Act. The Department has adopted industry-specific standards for effluent discharge and has prescribed general effluent standards for other water polluters. It has also designated certain State and Central officials to carry out specific duties under the Act and has designated specific laboratories for testing the samples of air or emissions obtained under the Act. Under the Environment Act, the Central Government is empowered to establish standards for the quality of the environment in its various aspects, including maximum allowable concentration of various environmental pollutants for different areas. These standards could be based on ambient levels of pollutants sufficiently low to protect the public

24 113 health and welfare. Emission or discharge standards for particular industries could be adjusted to ensure that such ambient level are achieved. The Environmental (Protection) Rules, 1986, do allow the State or Central authorities to establish more stringent emission/discharge standards, based on the quality of the recipient system, than the current uniform standards prescribed under these rules [Rule 3(2)]. Rule 3(3) specifies only one-year time limit to comply with the standards. However, on account of the local conditions or nature of environmental pollutant, the Board, under Rule 3(4), may specify a lesser period than one year for complying with standards. The standards are set out in the Schedules appended to the Environment (Protection) Rules. Schedule I lays down industry-specific standards for effluent discharge and emissions in respect of 89 designated industries. In case where the polluter is not covered by Schedule I, the unit must comply with the general standards for discharge of environmental pollutants prescribed in Schedule VI. The general standards are also known as the minimum national standards. Schedules III and VII prescribed national ambient air quality standards in respect of noise and other air pollutants. Regarding product standards, new motor vehicles must meet emission and noise limits. The issuance of directions under the Environment Act denotes a coercive power. Procedural safeguards are necessary for its proper use. The rules provide those safeguards, viz. an opportunity of being heard. However, when the Central Government is of the opinion that in view of the likelihood of a grave injury to the environment, it is not expedient to provide an opportunity to file objections against a proposed direction, it may, for reasons recorded in writing, issue directions without giving such an opportunity. This provisions takes into account emergency situations when quick action is needed (Rules 4).

25 114 The rules lay down the factors, which the Central Government should consider while it prohibits or restricts the location of any industry or carrying on of processes and operations in different areas. The topographic and climatic features of the area, the biological diversity, which, in the opinion of the Central Government, needs to be preserved, environmentally compatible and use and proximity to human settlement, are some of the significant factors to be considered [Rule 5(1)]. However, for areas that are not notified, no provision is made for the public to challenge the siting of an industry at a given location. The safeguards provided for taking samples and sending them for analysis are in recognition of the right of a fair process of law. The rules also lay down the functions of environmental laboratories, qualifications of government analysts and the manner of giving notices. [Rr. 6-11]. In view of the wide-reaching powers given to the Central Government under the Environment Act and Rules, it has used it to implement some new concepts like Environment Audit, EcoMark, Environment Impact Assessment, etc. Also, the Government framed rules relating to hazardous substances, ozone-depleting substance, noise pollution, Coastal zones, etc. (discussed elsewhere in the book) Environment Audit A separate and independent concept, environmental audit find its way into the Environment (Protection) Rules. This was added by the amendment notification in The rules made the submission of an environmental audit report compulsory. Every person carrying on an industry, operation or process requiring consent under the Water or Air Act or authorization under the Hazardous Waste (Management and Handling) Rule, 1989 has to submit an audit statement for the financial year (ending 31 st March) to the State Pollution Control Board.

26 115 In Indian Council for Enviro-Legal Action v. UOI 3, the Supreme Court observed: The head of several units/agencies should be made personally accountable for any lapse and/or negligence on the part of their units/agencies. The idea of an environmental audit by specialist bodies created on a permanent basis with power to inspect, check and take necessary action not only against erring industries but also against erring officers may be considered. The ultimate idea is to integrate and balance the concern for environment with the need for industrialization and technological progress. Greater industry compliance with environmental law, disclosure of date on waste generation, adoption of clean technology for pollution prevention, etc., is some of the remarkable gains of audit Ecomark It is a label given to environmental-friendly consumer products. Any product will get eco-mark if its life-cycle (manufacturing process, raw material, product use, disposal and packaging) is environment-friendly at every stage. In 1991, the Ministry of Environment and Forests (MoEF) decided to institute a scheme on labeling environment friendly products. Household and other consumer products can be accredited and labeled as satisfying environmental criteria, in addition to quality requirements laid down by the Bureau of Indian Standards for the product. The label is known as Ecomark. The scheme was meant to provide incentive to the manufacturers, to assists consumers to become environmentally responsible, and to improve the quality of environment leading to 3 (AIR 1996 SC 1446)

27 116 sustainable management of resources. In certain categories such as toilet soaps and detergents, paints, paper and laundry soaps, the MoEF has already finalized and notified the criteria for the product Environment Impact Assessment (EIA) It is essential that consequences of projects, plans or policies at different levels be assessed before they are executed. Environmental Impact Assessment (EIA) examines these consequences and predicts future changes in the environment. Approval of projects without a proper impact study is a danger that throws environmental management out of gear. It is often alleged that location of industrial projects in India is often decided on parochial, regional and political considerations rather than on environmental factors. EIA could not find a place in all the major environment Acts of India. Under Rule 8(2) of the Hazardous Wastes (Management and Handling) Rules 1989, framed under the Environment Protection Act, 1986, there is provision for an environmental impact study. But this was only in a crude form. The State Government or any person authorized by it, is responsible for the study. How it is to be done is not stated in the Rules. A draft EIA Notification was published in 1992, making it compulsory to get environmental clearance from the Central Government or State Government, as the case may be, for certain projects. However, in the final Notification (1994), the system of impact agencies envisaged both at the Centre and in the States gave way to a single agency, namely Ministry of Environment and Forests (MoEF). Through the MoEF had to consult the Committee of Experts who have right of entry into, and inspection of, the site or factory premises in order to prepare a set of recommendations on technical assessment of documents. However, this provision was made discretionary by a later amendment. The provision for environmental group to have access to reports, recommendations and

28 117 conditions of clearance was amended and made subject to pubic interest privilege. Thus, the effective public participation could be avoided by the Impact Assessment Agency (IAA) exercising its discretion. A new dimension was added in 1997, to the EIA process in India, by an amendment to the Environment Notification. The State Pollution Control Boards had nothing to do in the assessment process so far. They were now given a new role to play. An application for environmental clearance has to submit to the concerned Board, twenty sets of executive summary of the project along with other environmental information or documents. The Board is bound to give notice for a public hearing. A penal representing the Board, the State Government, local authority and senior citizenry solicits views of the public on proposed projects. Another amendment has rewritten the total bias against State clearance of projects. In the case of certain categories of thermal power plants, responsibility to give environmental clearance is now conferred on the State Government Environmental Courts The inherent limitations of the judicial system of review substantive questions relating to the environment makes it desirable to establish an alternative forum, with an alternative strategy. As early as 1987, the Supreme Court was convinced of the need for scientific and technological expertise as an essential input to inform judicial decision-making. The court urged the Government of India to set up an Ecological Science Research Group, with professionally competent and independent experts who would act as an information bank for the court and government departments and could generate correct and unbiased information.

29 118 Going a step forward and urging the Government of India to establish Environment Courts, the apex court said in [M.C. Mehta Vs. Union of India ( Shriram Gas Leak Case ) 4 : Since cases involving issues of environmental pollution, ecological destruction and conflicts over natural resources are increasingly coming up for adjudication and these cases involve assessment and evaluation of scientific and technical data, it might be desirable to set up Environment and these cases involve assessment and evaluation of scientific and technical data, it might be desirable to set up Environment Courts on the regional basis with one professional judge and two experts drawn from the Ecological Science Research Group keeping in view the nature of the case and the expertise required for its adjudication. There would be of course a right of appeal to the Supreme Court from the decision of the environment court. In Vellore Citizens Case 5, the Supreme Court made a request to the Chief Justice of the Madras High Court to constitute a special bench-a green bench - to deal with cases on environmental matters, as is done in Calcutta, Madhya Pradesh, and Punjab and Haryana High Courts. The rationale of such request is obviously admission and an approval of the need for experienced judicial institutions with the requisite environmental expertise, at the regional and State levels, to deal with environmental and ecological issues of local/regional significance. In Indian Council for Enviro-Legal Action v. UOI ( Coastal Protection Case ) 6, the apex court suggested that environmental matters [AIR 1987 SC 965] (AIR 1996 SC2715) (1996) 5 SCC 281

30 119 should first be raised before the High Court having the territorial jurisdiction over the are in question. The Court said: For a more effective control and monitoring of the antipollution laws, the High Courts have to shoulder greater responsibilities in tacking such issues, which pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India. Where general directions are issued by this court, more effective implementation of the same, can in a number of case, be effected, it the High Courts concerned assumed the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution leading to degradation of environment. In Indian Council for Enviro-Legal Action v. UOI 7, the apex court again reiterated the need for creating environmental courts to deal with all matters, civil and criminal, relating to the environment (in view of the fact that procedure in ordinary courts takes a long time and thus defeat the very purpose of granting the relief). According to the court, such courts should be managed by legally trained persons/judicial officers and should be allowed to adopt summery proceedings. For review of environmental decisions, it is necessary to have a mechanism of environmental courts or tribunals competent enough to analyse, in an objective manner, environmental, legal and policy issues. The National Environmental Tribunal Act, 1995 provides such a structure. However, the jurisdiction of the Tribunal is limited to determination of compensation for accidents while handling hazardous substances whereas, 7 (AIR 1996 SC 1446)

31 120 there are a number of other problems to be decided, examined and reviewed. A.P. Pollution Control Board v. M.V. Nayudu 8 The Supreme Court in this case again expressed the need for the establishment of environmental courts consisting of judicial and scientific expertise. It suggested amendments in environmental statutes to ensure that in all environmental courts, tribunals and appellate authorities, there is always a judge of the rank of a High Court judge-sitting or retired- and scientist or group of scientists so as to help a proper and fair adjudication of environmental related disputes. The Court felt that the practice adopted by the higher courts thus far resolving dispute matters through help of commission may not be sustainable over a long term. The court observed: Of paramount importance in the establishment of environmental courts, authorities and tribunals is the need for providing adequate judicial and scientific input rather than leave complicated disputes regarding environmental pollution to officers drawn only from the executive. It held: Environmental concerns arising in the Supreme Court or in the High Courts are of equal importance as the human rights concerns. Both are to be traced to Art.21, which deals with the fundamental right to life and liberty. While environmental aspects concern life, human rights concern liberty. In the context of emerging jurisprudence relating to environmental matters, it is the duty of the Supreme Court to render justice by taking all aspects into consideration. With a view to ensure that there is neither damage to the environment nor to the ecology and, at the same time ensuring sustainable development, the Supreme Court while dealing with 8 (AIR 1999 SC 812)

32 121 environmental matters, under Art. 32(or the High Courts under Art.226) can refer scientific and technical aspects for investigation and opinion to statutory expert bodies having combination of both judicial and technical expertise in such matters, like the Appellant Authority under the Environment Appellate Authority Act, The apex court felt an immediate need that in all States and Union Territories, the appellate authorities under the Water Act, 1974 and The Air Act, 1981 or other rules, there is always a judge of High Court and a scientist or group of scientists to help in the adjudication of environmentrelated disputes. The court pointed out the need of amending notifications under these Acts as well as notification under Rule 12 of the Hazardous Wastes (Management and Handling) Rules, The National Environmental Appellate Authority Act, 1997 comes very close to the ideals set by Supreme Court. The Authority, being combination of judicial and technical inputs, possess expertise to give adequate help to the Supreme Court and High Courts to arrive at decisions in environmental matters. The court in above case referred the issue of determination of the hazardous nature of the respondent industry to the Appellate Authority National Environment Appellate Authority Act, 1997 On 30 th January 1997, the President of India, in exercise of the powers conferred under Art. 123 of the Constitution of India, promulgated an ordinance to provide for the establishment of a National Environment Appellate Authority (NEAA) to hear appeals with respect to restriction in areas in which any industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, The said ordinance has been replaced by the National Environment Appellate Authority Act, 1997.

33 122 Sec. 3 of the NEAA Act provides that the Central Government shall, by notification in the official gazette, establish a body to be known as the National Environment Appellate Authority (hereinafter referred to as Authority ). The Central Government has appointed the Authority on Justice J.S. Verma, while inaugurating the NEAA stated that its establishment was a very positive response of the executive, as it would bring desired result in the least possible time. With effect from the date of establishment of the Authority, no Civil Court or other authority shall have jurisdiction to entertain any appeal in respect of any matter with the Authority is empowered by or under this Act (Sec.15). The headquarters of the Authority shall be in Delhi. However, the appeals may be heard at the headquarters or at the discretion of the Chairperson, at any other place (Rule 4, The National Environment Appellate Authority Rules, 1997). The Authority shall consist of a Chairperson, a Vice-Chairperson and such other members (to be appointed by President) not exceeding three as the Central Government may deem fit (Sec.4). A person to be appointed as Chairperson should have been a judge of the Supreme Court, or the Chief Justice of a High Court. A person to be appointed as Vice- Chairperson should have for at least two years held the post of a Secretary to the Government of India, and expertise or experience in administrative, legal, managerial or technical aspects or problems relating to environment. A person to be appointed as a member of the Authority should have the professional knowledge or practical experience in the areas pertaining to conservation, environment management, law or planning and development (Sec. 5). The association of a bureaucrat in the form of Vice-Chairperson is undesirable, as his opinion might be influenced by the political rather than environmental considerations.

34 123 Under the Act, any person who feels aggrieved by an order granting environmental clearance in the areas in which any industries, operations or processes shall not be carried or shall be carried out subject to certain safeguards, may file an appeal to the Authority within 30 days from the date of such order. However, the Authority may entertain an appeal beyond this period if there was sufficient cause for delay in filing the appeal. The Authority is required to dispose of the appeal within 90 days from the date of filing of the appeal. However, it may for reasons to be recorded in writing dispose of the appeal within a further period of 30 days (Sec.11). The Authority shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and subject to other provisions of the Act and of any rules made by the Central Government. The Authority shall also have the power to regulate its own procedure. For the purpose of discharging its functions, the Authority shall have the same powers as are vested in a civil court under the Code of Civil Procedure (Sec.12). Whoever fails to comply with any order made by the Authority, he shall be punishable with imprisonment for a terms which may extend to 7 years, or with fine which may extend to one lakh rupees, or with both (Sec.19). Where any offence is committed by a company, every person directly in charge of and responsible to be company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be punished accordingly. However, the corporate executive has not been held absolutely liable if he proves that the offence has been committed without his knowledge or that he exercise due diligence to prevent such offence, he can be exonerated from the liability (Sec.20). It is submitted that the executive has done well by establishing the National Environment Appellate Authority. It is hoped that in the

35 124 environment matters, justice shall be delivered quickly and the Authority would go a long way to fulfill the long-felt need. In A.P. Pollution Control Board the Supreme Court held that in addition to its statutory jurisdiction, the Appellate Authority also had an advisory role to play in complicated environmental matters that were referred to it by the Supreme Court or the High Court. The definition of person within the Act is very liberal. Further, the constitution of the Authority is such as to ensure its independence (the members are appointed by the President and enjoy a secure tenure) and inspire confidence in the public. Significantly, the appellate jurisdiction is limited only to case where environmental clearance is granted and does not extend to case where clearance is refused Precautionary and Polluter Pays Principle Precautionary Principle A basic shift in the approach to environmental protection occurred initially between 1972 and Earlier, the concept was based on the assimilative capacity rule (Principle 6 of Stockholm Declaration, 1972), which assumed that science could provide policy makers with the information and means necessary to avoid encroaching upon the capacity of the environmental to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. Later, the emphasis shifted to the precautionary principle (11 th Principle of UN Resolution on World Charter for Nature, 1982), and this was reiterated in the Rio Conference of 1992 in its Principle 15( In order to protect the environment, the precautionary approach shall be widely applied by States according to their capacities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be

36 125 used as a reason for postponing cost-effective measures to prevent environmental degradation ). The inadequacy of science is the real basis that has led to the precautionary principle of 1982 [A.P. Pollution Control Board Vs. Prof. M.V. Nayudu 9. The precautionary principle is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible. The principle of precaution involves involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake [A.P. Pollution Control Board Case]. The essential ingredients of the precautionary principle are:- (i) Environmental measures- by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation. (ii) When there are threats of serious and irreversible damages, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign ( Reversal of burden of proof). (iv) Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of 9 (1992) 2 SCC 718]

37 126 proof on the person or entity proposing he activity that is potentially harmful to the environment. In other words, the burden of proof is to be placed on those attempting to alter the status quo. This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure that is not fair. Therefore, it is necessary that a party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. If insufficient evidence is presented by the latter to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection [A.P. Pollution Control Board Case]. In M.C. Mehta v. UOI (CNG Vehicles Case) 10, the Supreme Court observed that It cannot be gainsaid that permission to use automobiles has environmental implications, and thus any auto policy framed by the Government must, therefore, of necessity conform to the constitutional principles as well as overriding statutory duties cast upon the Government under the EPA. The auto policy must adopt the precautionary principle and make informed recommendations which balance the needs of transportation with the need to protect the environment and reverse the large scale degradation that has resulted over the years, priority being given to the environment over economic issues. The Court then observed: The emission norms stipulated by the Government have failed to check air pollution, which has grown to dangerous levels across the country. Therefore, to recommend that the role of the Government be limited to specifying norms is a 10 (AIR 2002 SC 1696)

38 127 clear abdication of the constitutional and statutory duty cast upon it to protect and preserve the environment, and is in the teeth of the precautionary principle. Though precautionary principle has emerged as a basic guideline for the exercise of government discretion, the problem is that there is not much consensus on the exact scope of the principle. Every activity is fraught with certain risks and there can never be full scientific certainty. Taken literally, the principle would be: Don t do anything. In 2000, the European Commission dealt with the various aspects of implementing the precautionary principle and stated that it would be applicable where preliminary objective scientific evaluation indicates that there are reasonable grounds to believe that the potentially dangerous effects on the environment and human. etc., may be inconsistent with the high level of protection chosen for the community Polluter Pays Principle It means that polluter should bear the cost of pollution as the polluter is responsible for pollution. This principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertaking which cause the pollution. Under it, it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The principle was promoted by the Organisation for Economic Cooperation and Development(OCED) during the 1970s when there were demands on Government and other institutions to introduce polices/mechanisms to protect the environment and the public from the threats posted by pollution in a modern industrialized society. Despite the difficulties inherent in defining the principle, the European Community

39 128 accepted it as a fundamental part of its strategy on environmental matters. Thus, this principle has been incorporated into the European Community Treaty. Art. 102 R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventive action, the need for environmental damage to be rectified at source, and that the polluter should pay. It may be noted that the polluter pays principle evolved out of the rule of absolute liability as laid down by the apex court in Shriram Gas Leak Case. In the Bichhri Case (see below) the apex court nicely weighed and balanced the conspectus of absolute liability and polluter pays principle. The court interpreted the principle to mean that the absolute liability for harm to the environment extends to the cost of restoring the environmental degradation in additions to compensating the victims of pollution. The court observed that Sec. 3 and 5 of the Environment (Protection) Act, 1986, empower the Central Government to give directions and take measures for giving effect to this principle. The power to lay down the procedures, safeguards and remedial measures under the omnibus power of taking all measures impliedly incorporated the polluter pays principles. Also, in Vellore Citizens Welfare Forum v. Union of India (see below), the apex court directed the Central Government to constituted separate authorities under Sec. 3(3) of the Environment Act and directed the authorities to assess the loss to the ecology/environment and recover the amount from the polluters. In the Calcutta Tanneries Case 11, the task of assessment and recovery of restoration costs was assigned to an authority appointed by the State Government. The apex court also directed polluters to pay a 11 [M.C. Mehta Vs. Union of India (1997) 2 SCC 411]

40 129 pollution fine with the proceeds being credited to an environment protection fund for the restoration of the local environment. Span Motel was directed to pay compensation for restitution of the environment and ecology in M.C. Mehta v. Kamal Nath 12. In the similar case, the apex court noted:- Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages(compensation) for restoration of the environment. He has also to pay damages to those who have suffered loss on account of the act of the offender. Further, the offender can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner. However, the court cannot impose any pollution fine in absence of any trial and finding of guilty under the relevant statutory provisions. In the similar case (2002) 3 SCC 653, the apex court held: It would be both in public interest as well as in the interest of justice to fix the quantum of exemplary damages payable by Span Motels at Rs.10 lakhs only. The question relating to the quantum of damages on the principle of polluter pays will be determined separately. In Pravinbhai J. Patel v. State of Gujarat, 13, the court directed the pollution units to either shut down or pay one percent of its gross turnover towards Socio-economic uplift of the affected villages. In Deepak Nitrite Ltd. V. State of Gujarat, 14, the issue was when damages for, on account of polluter to pay can be awarded in case of pollution caused by industries. The court held that compensation to be awarded must have some broad (1997) 1 SCC (2) Guj LR AIR SCW 3285

41 130 correlation not only with the magnitude and capacity of the enterprise but also with the harm caused by it. In the present case, the industrial units were not observing norms prescribed by State PCB. However, the High Court gave no finding that such lapse has caused damage to environment. Thus, the payment of 1% of turnover as compensation ordered by the High Court to further investigate in each of these case and find our broadly whether there has been any damage caused by any of industrial units and that exercise need not be undertaken by High Court as if present proceeding is an action in tort but an action in public law. In this process, it is open to the High Court to consider whether 1% of turnover itself would be an appropriate formula or not. In Vijay Singh Puniya v. State of Rajasthan 15, the High Court, on the principle of Polluter pays directed that each of the polluting industrial units shall pay to State Industrial Corporation, 15% of its turnover by way of damages. The polluter pays principle though recognized judicially in India does not find a place in the major environmental legislations viz. Water, Air and Environment Acts. In Vellore Citizens Case, the apex court stated that precautionary principle and polluter pays principle govern the law in India as is clear from Arts. 48-A and 51-A(g) of the Constitution and that, in fact, in various environmental statutes, such as Water Act, 1974, the Environment (Provision) Act, 1986, and other statutes, these concepts are already implied. Lack of executive action in India has led someone to comment that in essence, the polluter pays principle has degenerated into pay and pollute. The CNG Vehicles case and so many other cases amplify the above point. 15 (AIR 2004 RaJ.1)

42 Judicial Observations Vellore Citizens Welfare Forum v. Union Of India 16 In this case, certain tanneries in the State of Tamil Nadu were discharging untreated effluent into agricultural fields, roadsides, waterways and open lands. The untreated effluent finally discharged in a river which was the main source of water supply to the residents of Vellore. The Supreme Court issued comprehensive directions for maintaining the standards stipulated by the Pollution Control Board. Observations- The Supreme Court observed that the Precautionary principle and the Polluter Pays Principle are part of the environmental law of the country. These principles are essential features of Sustainable development. The Precautionary principle in the context of the municipal law means: (i) Environmental measures by the State Government and the statutory authorities-must anticipate, prevent and attack the cause of environmental degradation (ii) where there are threats of serious/irreversible damage, lack of scientific certainly should not be used as a reason for postponing measures to prevent environmental degradation (iii) The onus of proof is on the actor or the developer/ industrialist to show that his action is environmentally benign. The Polluter Pays principle means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of Sustainable development and as such polluter is liable to pay the cost of the individual sufferers as well as the cost of reversing the damaged ecology. 16 (AIR1996 SC 2715)

43 132 The Supreme Court observed: Sustainable development as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalized by the international law jurists. Some of the salient principles of Sustainable development, as culled-out from Brundtland Report and other international documents, are-inter Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to assist and co-operate, Eradication of Poverty, and, Financial Assistance to the developing countries. The Supreme Court directed the Central Government to constitute an authority under Sec. 3 of the Environment Act, 1986 and confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority (headed by a retired judge of the High Court) shall implement the precautionary and polluter pays principles. The authority shall compute the compensation under two heads, namely, for reversing the ecology and for payment of individuals. In M.C. Mehta (Badkhal & Surajkund Lakes Matter) v. UOI 17, the banning of construction activities within the radius of 1 km form the tourist resorts of Badkhal Lake and Surajkund only in the State of Haryana was questioned as being arbitrary and discriminatory. The Supreme Court held: The Precautionary principle has been accepted as a part of the law of the land. The principle makes it mandatory for the State Govt. to anticipate, prevent and attack the causes of environment degradation. In order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes. 17 (1997) 3 SCC 715

44 133 The judgments of the Supreme Court in Vellore case and A.P. Pollution Control Board case have significant impact on the specialized environmental legislations in India. The judgments are a pointer for Pollution Control Board to grant consent for setting up industrial unit on the basis of precautionary principle. The precautionary principle underlines the provisions of environmental legislations which related to grant of consent by the Pollution Control Board to the setting up of industrial units. In Narmada Bachao Andolan v. Union of India 18, however, the apex court made crucial distinction between ecological principles in pollution cases and in natural resource conflicts. In pollution cases, the court has upheld the precautionary principle and the polluter pays principle. Both these progressive pieces of law seem to be off bounds for the Narmada case. The court noted the it was the inadequacies of science that has led to the precautionary principle where the burden of proof is placed on those who wish to change the status quo. The precautionary principle is particularly applied to cases of irreversible harm such as the extinction of a species of widespread toxic pollution. But in the Narmada hydroelectric project case, the court felt that there is no question of uncertainty, risk or irreversibility. The court argued that where the effect is known and mitigative steps can be taken the polluter pays principles was inapplicable. It adds merely because there will be change is no reason to presume that there will be ecological disaster. The court believed that Narmada is not a case where effects are unknown and knowledge uncertain. The stand taken by the Supreme Court in Narmada case, seems to dilute the importance of precautionary principle in relation to environmental protection and the concerned approached displayed by it in A.P. Pollution Control Board Case wherein it observed that precautionary 18 (2000) 10 SCC 664

45 134 duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The court ignored one of the real concerns in the Narmada Case, Viz., submergence of forests and loss of biodiversity in the region by the Narmada dam. It failed to appreciate the fact that the impact of massive deforestation could not be overcome by the complex artificial measures (e.g. compensatory afforestation, shifting of wildlife of adjoining forests) as envisaged by the Government Public Trust Doctrine The ancient Roman Empire developed a legal theory known as the as the Doctrine of the Public Trust. The doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Though the public trust doctrine under the English Common Law extended only to certain traditional uses viz., navigation, commerce and fishing, the US Courts in recent cases expanded the concept of the public trust doctrine. The Supreme Court in India has also recognized the that this doctrine is part of Indian law. The Court in the below-mentioned case held that the doctrine of public trust implies following restrictions on governmental authority: First, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public. Secondary, the property may not be sold,

46 135 even for a fair cash equivalent. Thirdly, the property, must be maintained for particular types of uses Intergenerational Equity Intergenerational equity i.e. moral obligation of the present generation to manage the earth in a manner without jeopardizing the aesthetic and economic welfare of the future generations is advanced as an argument in favour of sustainable development and natural resource use (see Vallore Citizens Case). If present generations continue to consume and deplete resources at unsustainable rates, future generations will suffer the environmental (and economic) consequences. The origins of the principle can be seen in the Principles 1 and 2 of the 1972 Stockholm Declaration. These principles lay down the solemn responsibility of the man to safeguard the natural resources of the earth for the benefit of the present and future generations through careful planning and management. The Report of WCED ( Brundtland Report ), 1987, emphasizing the importance of sustainable development, talked not only of equity for the present but of intergenerational equity. And thus the wheel of human reasoning came full circle 200 years ago the Isopanishad had stated: All, in this manifest world, consisting of moving or nonmoving, are governed by the Lord. Use its resources with restrain. Do not grab the property of others-distance and yet to come. In Dehradun Quarrying Case 19 the Supreme Court of India observed: We are not oblivious of the fact that natural resources have got to the be tapped for the purposes of the social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so that ecology and environment may not be 19 (AIR 1987 SC 359)

47 136 affected in any serious way. It has always to be remembered that these are permanent assets of mankind and not intended to be exhausted in one generation. In Mathew Lukose v. Karnataka SPCB, 20, explaining the principle of inter-generationaly equity, the court held : The world belongs to us in usufruct, but we owe a duty to the posterity and to the unborn to leave this world at least as beautiful as we found it. In State of Himachal Pradesh v. Ganesh Wood Products 21, the Supreme Court recognized the significance of intergenerational equity and held a government department s approval to establish forest-based industry to be invalid because: It is contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and intergenerational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations. In Coastal Protection case 22,also, the Supreme Court observed that violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations. In Shrimp Culture Case 23, the apex court opined that sustainable development should be the guiding principle for shrimp aquaculture and (2) KLT 686 AIR 1996 SC 149 (1996) 5 SCC 281 [S. Jagannath v. UOI(1997) 2 SCC 87]

48 137 by following the natural method, though the harvest is small but sustainable over long periods and it has no adverse effect on the environment and ecology. It held that there must be an Environment Impact Assessment (EIA) before permission is granted to install commercial shrimp forms. The assessment must take into consideration the intergenerational equity. To provide an overview of environmental legislations, a few important legislations of each category with brief description are given below: (a) WATER ACTS : The green revolution and rapid industrialization and urbanization have resulted in a profound deterioration of India s water quality. To provide legislative support for prevention of water pollution, Parliament passed India s first major Water legislation, called the Water (Protection and Control of Pollution) Act, Some legislative provision for water pollution is also made in the Environment (Protection) Act, Some important provision, of the Water Act, 1974 and Amendment, 1988 are given below:- The Water (Prevention and Control of Pollution) Act of 1974 and Amendment, 1988 The main objective of this Act is to provide for the prevention and control of water pollution and maintaining or restoring of wholesomeness of water (in the streams of well or on land). Some important provisions of this Act are given below:- The Act vests regulatory authority in the state boards, empowers these boards to establish and enforce effluent standards for factories discharging pollutants into bodies of water. A Central Board performs the same functions for union territories and coordinates activities among the states.

49 138 The boards control sewage and industrial effluent discharges by approving, rejecting or conditioning applications for consent to discharge. The state boards also minimize water pollution by advising state governments on appropriate sites for new industry. Act granted power to the Board to ensure compliance with the Act by including the power of entry for examination, testing of equipment and other purposes and power to take the sample for the purpose of analysis of water from any stream or well or sample of any sewage or trade effluents. Prior to its amendment in 1988, enforcement under the Water Act was achieved through criminal prosecutions initiated by the boards, and through applications to magistrates for inculcations to restrain polluters. The 1988 amendment strengthened the Act s implementation provisions. Now, a board may close a defaulting industrial plant or withdraw its supply of power or water by an administrative order; the penalties are more are more stringent, and a citizen s suit provision supports the enforcement machinery The Water (Prevention and Control of Pollution) Cess Act of The Water Cess Act was passed to help meet the expenses of the Central and State Water Boards. The Act creates economic incentives for pollution control and requires local authorities and certain designated industries to pay a cess (tax) for water consumption. These revenues are used to implement the Water Act. The Central Government, after deducting the expenses of collection, pays the Central Board and the states such sums, as it deems necessary to enforce the provisions of Water Act. To encourage capital investment in pollution control, the Act gives a polluter a 70 per cent rebate of the applicable cess upon installing effluent treatment equipment.

50 139 M.C. Mehta v. Union Of India [Ganga Pollution (Tanneries) Case] 24 FACTS- In 1985, M.C. Mehta, an activist advocate, filed a writ petition under Art, 32 of the Constitution. The petition was directed at the Kanpur Municipality s failure to prevent waste water from polluting the Ganga. The discharge of trade effluents form tanneries at Jajmau near Kanpur, without treating the effluents first into a primary treatment plant has been causing considerable damage. Sec.24 of the Water Act, 1974, prohibits the use of any stream or well (the expression stream includes rivers) for disposal of polluting matter, etc. Nothwithstanding the comprehensive provisions contained in the Act, no effective steps appears to have been taken by the State Board to prevent the discharge of effluents into Ganga. The fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provision of the law in forced since ultimately the effluents reach the Ganga from the sewerage system of the municipality. Further, not much has been done even under the Environment (Protection) Act, Under Sec. 5 of the Act, the Central Government may issue directions to any person, officer or authority, and such power includes the power to direct the closure prohibition or regulation of any industry, operation or process. Observations and Decision- The court observed that under the existing law, tanneries, like other industries, are expected to provide treatment of their effluents to different standards depending on whether they are discharged into stream or land. Accordingly, the court issued direction to the tanneries to set up effluent treatment plants within a period of six months. Each tannery is to make arrangement for the primary 24 (AIR 1988 SC 1037)

51 140 treatment of their effluent (before its discharge into the municipal sewer) and then discharge it into common treatment plant. The court also directed the Central Government, Pollution Control Board and the District Magistrate to oversee the work. The court further observed that the closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence. Comments-The case highlights the polluted condition of the river Ganga more than thirteen yeas after the enactment of the Water Act. In this case, the court issued direct orders to private tanneries, including orders to cease operations. Normally, an order issued in an Art. 32 is directed a public officials or authorities who are instrumentalities of the State under Art.12. M.C. Mehta v. Union of India [Ganga Pollution(Municipalities) Case] 25 Observations and Decision- The Supreme Court in this case held that the Nagar Mahapalika of Kanpur has to bear the major responsibilities for the pollution of the river Ganga near Kanpur city. The court cited the excerpts from the book entitled Water Pollution and Disposal of Waste Water on Land (1983) by U.N. Mahida: Those who cause pollution are seldom the people who suffer from it. The industries discharge their untreated or partially treated sewage and industrial waste from their own neighbourhood. But in doing so, they create intense pollution in streams and rivers and expose the downstream riparian population to unhygienic conditions. 25 (AIR1988 SC1115)

52 141 The Court observed that in common law, the municipal corporation can be restrained by an injunction in an action brought by a riparian owner who has suffered on account of the pollution of water in a river caused by the corporation. The petitioner in the present case is not a riparian owner, but he is a person interested in protection the lives of people who make use of the water flowing in the river Ganga. The nuisance caused by the pollution of Ganga is a Public nuisance and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petitioner has been entertained as a public interest litigation. The petitioner is entitled to move the court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Board constitution under the water Act. The court ordered the city municipal authorities to fulfill statutory duties [U.P. Municipalities Act] including: Removal of dairies or the wastes from the dairies; increase of the capacity of the sewers in labour colonies; provisions of public latrines, etc.; stricter enforcement to prevent the placing of dead bodies in Ganga; and submission of sewer proposals to the State within six months. M.C. Mehta v. Union Of India [ Calcutta Tanneries Case ] 26 A decade after the Supreme Court s rebuke to the Knapur Tanneries, the Calcutta tanneries were discharging untreated effluents into the river Ganga. The court, in the absence of any possibility of setting up of CETP (Common Effluent Treatment Plant) at the existing locations of the tanneries ordered the relocation of industries and issued directions to that effect. Further, the court directed the Calcutta High Court to monitor the matter in the future (2) SCC 411

53 142 The court ordered the State Government to render all assistance to the tanneries in the process of relocation. The State Government is required to appoint an Authority/Commissioner who with the help of Board and other expert opinion and after giving opportunity to the polluting tanneries concerned assess the loss to the ecology/environment in the affected areas. The said authority shall further determine the compensation to be recovered from the polluting tanneries as cost of reversing the damaged environment. A tannery may have set up the necessary pollution control device at present, but it shall be liable to pay for the pat pollution generated by the said tannery which has resulted in the environmental degradation and suffering to the residents of the area. The Court imposed pollution fine of Rs.10,000 each on all the tanneries and directed the Collector/District Magistrate of the area concerned to recover the said fine. The compensation amount recovered from the polluting tanneries and the amount of fine recovered from the tanneries shall be deposited in an Environmental Protection Fund to be utilized for restoring the damaged environment and ecology. Comments - The Supreme Court s judgment attempts to sensitize many layers of the bureaucracy and the judiciary to the importance of environment protection. For example, apart from the officials directly involved in the case, the order casts implementation and oversight responsibilities on the Collector/District Magistrate/Deputy Commissioner/ Superintendent of Police, and the Green bench of the Calcutta High Court.] Wetlands are very useful as-(i) they act as water purifier, (ii) they help maintain surface moisture, (iii) they lessen the impact of both floods as well as droughts, (iv) they contribute pure water to wells, (v) they preserve the wildlife, and, (vi) they support the fishing industry. It has been

54 143 calculated in U.S. that 1 acre of wetlands is worth tens of thousands of U.S. dollars for the service it renders. People United for Better Living in Calcutta v. State of W.B. 27 Facts- The petitioner in a writ petition under Art. 226 prayed for the maintenance of wetlands in the eastern fringe of the city of Calcutta. The State-respondents wants to develop the 784 acres of Calcutta s wetlands for commercial/residential purposes, under its Salt Lake City Development Plan. It contended that by the time the slogan save wetlands was raised, 3,000 acres of salt lake had already been developed by early 1980s, and only 784 acres more were to be essentially developed now (to optimize the use of infrastructure already created). The contemplated co-operative housing complex facilities for the people, and a world trade centre cannot perhaps be given up in the larger socio-economic interests. Observations- The court observed (as per Umesh Chandra Banerjee, J.) that there cannot be any manner of doubt that the Calcutta s wetlands presents a unique ecosystem apart from the materialistic benefits to the society at large. The court observed: While it is true that in a developing country there shall have to be developments, but that development shall have to be in closest possible harmony with the environment, as otherwise there would be development but no environment, which would result in total devastation.there should have to be a proper balance between the development and environment so that both can co-exist without affecting the other. The environment shall have to be protected but not at the cost of development of society, a balance has to be found out and administrative action ought to proceed in accordance therewith and not d hors the same. 27 (AIR 1993 CAL 215)

55 144 The Court Further Observed: There is no manner of doubt that the issue of environmental degradation cannot be termed to be a social problem Law courts have a social duty since they are part of the society and as such must always function having due regard to present day problems which the society faces. In Calcutta Youth Front v. State (1986, 21 CLJ 26), the court observed that an ecological problem is a special type of social problem. The Court Concluded: Wetlands being a bounty of nature do have a significant role to play in the proper development of society be it from environment perspective of from economic perspective. This benefit to society cannot be weighed on mathematical nicety so as to take note of the requirements o society-what is required today may not be a relevant consideration in the immediate future, therefore, it cannot really be assessed to what amount of nature s bounty is required for the proper maintenance of environmental equilibrium. It cannot be measured in terms of requirement and as such, the court cannot, in fact, decry the opinion of environmentalists in that direction. Decision- The court ordered an injunction restraining the State from reclaiming any further wetland, and prohibited them from granting any permission to any person for purpose of changing use of land from agriculture to residential/ commercial in the area. They are further directed to maintain the nature and character of wetlands in their present form and to stop all encroachments of wetland area. (b) Air Acts : To provide legislative support for prevention and control of air pollution, the Government of India enacted a central legislation called the Air (Prevention and Control of Pollution) Act, 1981 referred to as Air Act, The Act aims to prevention, control and reduction of air pollution. Beside this, Environmental (Protection) Act, 1986 also covers some aspects of air pollution. Some details of the Air Act, 1981 and Amendment, 1987 are given below :

56 145 The Air (Prevention and Control of Pollution) Act of 1981 and Amendment, 1987 To implant the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, Parliament enacted the nationwide Air Act. The main objectives of this Act are to improve the quality of air and to prevent, control and abate air pollution in the country. Important provisions of this Act are given below :- The Air Act s framework is similar to the one created by its predecessor, the Water Act of To enable an integrated approach to environmental problems, the Air Act expanded the authority of the central and state boards established under the Water Act, to include air pollution control. States not having water pollution boards were required to set up air pollution boards. Under the Act, all industries operating within designated air pollution control areas must obtain consent (permit) from the State Boards. The States are required to prescribe emission standards for industry and automobiles after consulting the Central Board and nothing its ambient air quality standards. Act granted power to the board to ensure compliance with the Act includes the power of entry for examination, testing of equipment and other purposes and power to take the sample for the purpose of analysis of air or emission from any chimney, fly ash or dust or any other outlet in such manner as may be prescribed. Prior to its amendment in 1987, the Air Act was enforced through mild court-administered penalties on violations.the 1987 Amendment strengthened the enforcement machinery and introduced stiffer penalties. Now, the boards may close down a defaulting industrial plant or may stop its supply of electricity or water. A board may also apply to the court to

57 146 restrain emissions that exceed prescribed limits. Notably, the 1987 Amendment introduced a citizens suit provision into the Air Act and extended the Act to include Noise Pollution Critical Appraisal of the Air Act The productive economic activities still dominate the minds of the Judges and pollution control authorities. Thus, the new provisions like citizens law suits, or the expanded equity jurisdiction of magistrates, or an increased level of penalties have not yet made their impact on the polluters. However, in recent judgments, the Supreme Court has directed various industries in Delhi and West Bengal to move away to another location outside the city, as they were causing air and water pollution. Though the Air Act is comprehensive in its contents relating to prevention and control of air pollution from industrial pollutants, yet its scope even after major amendments in 1987, remain limited and narrow. For instance, the Act has narrow scope as it does not include in its gamut pollution through the medium of air. Hence, noxious odours as are emitted by some industries (e.g. breweries and leather industries) are not covered under the Act. In Animal Feeds Dairies and Chemicals Ltd. v. Orissa State PCB, 28 an odour on account of cattle feed was not held to be an air pollutant. Similarly, light pollution caused by high intensity signboards, neon advertisements and their jamming light effects is not covered by the Act. However, noise pollution through medium of air is covered under the Act. The constitution of Boards under the Act is not free from drawbacks. The prevention and control of air pollution has been given as an additional or secondary duty of the (Water) Pollution Boards. This underrates the importance of control of air pollution as there remains a tendency 28 AIR 1995 Ori. 84,

58 147 to attach greater importance and devotion to primary function. Further, the Air Act like the Water Act does not provide for an integrated approach to check pollution, as the local and municipal bodies which are armed with statutory powers for ensuring environmental purity, have not been integrated into the national and State level enforcement machinery. The Air Act grants discretion to each State Government to designate particular areas as air pollution control areas within which the provision relating to regulations of pollutants discharges through permit system are to be applicable. It seems that polluters located outside such air pollution control areas cannot be subjected to regulations of pollution or be prosecuted for violations of standards laid by the State Boards. The implementation of the Act has to be improved upon. Rules have been framed under the Air Act, 1981, viz. The Air (Prevention and Control of Pollution) Rules, The rules provide for the procedure for transaction of business of the Board and its committees; temporary association of persons with the Central Board (for assistance or advice); budget, account and annual report of the Central Board. Rules in other areas (viz. taking of samples of emissions or air) are needed to be framed so as to overcome the subjective satisfaction of the Board. Thus, the Air Act is a good piece of legislation and has shown the right path to be pursued in the direction of prevention and control of air pollution. Nevertheless, the Act requires some amendments. M.C. Mehta v. Union of India ( CNG Fuel/Motor Vehicles Case ) 29 The Motor Vehicle Case indicates the difficulty of the court s intermittent attempts to oversee a complex problem fraught with political, economic and technological considerations. 29 [1991) 2SCC137; AIR 1998 SC 617/2963; (1999) 6 SCC 9; AIR 2001 SC 1948; AIR 2002 SC 1696; 2004(3) SCALE90]

59 148 These cases related to vehicular emission and resulting air pollution in Delhi. The Supreme Court directed the government to set up a highpowered committed to come up with solutions to the problem. On the recommendation of the Committee, the court exerted pressure on the government to ensure that new vehicles were fitted with catalytic converters and that lead-free petrol was introduced. It recommended compliance with Euro I and II standards for automobile manufacturers. The court directed the Delhi Government to use only CNG (Compressed Natural Gas) as fuel for all public transport. It may be noted that the terms of reference required the Committee: (i) To make an assessment of the technologies available for vehicular pollution control in the world. (ii) To make an assessment of the current status of technology available in India for controlling vehicular pollution. (iii) To look at the low cost alternatives for operating vehicles at reduced pollution levels in the metropolitan cites of India. (iv) To examine the feasibility of measures to reduce/eliminate pollution from motor vehicles both on the short tern and long term basis and make appropriate recommendations in this regard. (v) To make specific recommendations on the administrative/ legal resolution required for implementing the recommendations in (iii) above. Initially, the Committee headed by Justice Saikia submitted a report. But the Supreme Court hardly ever relied on this report. In 1998, the apex court endorsed the Central Government s decision to set up an authority under Sec.3 of Environment Act, 1986, to be called the Environment Pollution (Prevention and Control) Authority for the National Capital Region (EPPCA). The authority headed by Mr. Bhure Lal submitted a report, after the court censured the administration for delay caused in this regard:

60 149 We are not satisfied with the performance of the concerned authorities in tackling the acute problem of vehicular pollution in Delhi. Environmental protection appears to have taken a back seat. In fact, we are distressed to find that the directions given by this court, from time to time, have not evoked the response they were expected to revoke.the directions issued by this court were aimed at making the State to effectively discharge their obligations. In their response the Delhi Administration and the Union of India have pleaded, among other factors, lack of man power to deal with the growing menace of chaotic traffic and decline in the environmental quality 30. During the course of the litigation, the Supreme Court shifted focus from one scheme to another. In 1990, the emphasis was on the prosecution of defaulters. In 1991, it was anxious to have buses of D.T.C. converted from diesel to gas operation [Orders dated 3 rd Oct and 25 th Oct. 1991]. In 1992, the court s attention shifted to bringing down emissions from public buses [Order dated 8 Jan.1992]. Throughout 1994, the court exerted pressure on government to ensure that new vehicles are fitted with catalytic converters and that lead-free petrol is introduced in the four metros by April Thereafter the court monitored the extension of the unleaded petrol distribution network and obtained assurances from the Centre in respect of reduction in the lead content of petrol and the notification of year 2000 emission norms 32. In , the Supreme Court pressed the Central Govt. to convert its vehicles to operate on a cleaner fuel-cng 33 and also sought [1998 (6) SCC60] [1997 (4) SCALES (SP)]. [1998 (8) SCC 648] [1997 (4) SCALE 7 (SP)]

61 150 technical solution to reduce harmful emissions from two and three wheelers 34 and diesel trucks and buses 35. The court endorsed a time frame fixed by the EPPCA for eliminating lead petrol; converting auto-rickshaws, taxis and buses to clean fuels; reducing the age of the commercial fleet; and strengthening the clean-fuel distribution network 36.The modified its ban order and set a time frame for a more gradual phase out of old commercial vehicles 37.The court required all private vehicles registered after 1 June 1999 to conform to Euro I norms and those registered after 1 April 2000 to meet the Euro II norms. Diesel taxis were prohibited in the NCR unless they conformed to Euro II norms 38. The Euro norms are European Community standards that have been enforced across Europe. The court clarified that what it meant by the Euro I norms were the India 2000 norms, notified by the Central Govt. on 28 Aug Thus, the court advanced the statutory emission norms that were to come into effect on 1 April 2000 to 1 June 1999; and introduced more stringent emission standards (Euro II) w.e.f. 1 April The Euro- II Norms were re-christened Bharat Stage II standards, and notified through the Central Motor Vehicle (Third Amendment) Rules, In M.C. Mehta 39, the court took account of the lack of effective action taken by the private bus operators and the governmental authorities. On 28 th July, 1998, directions were issued fixing a time scheme after taking note of the recommendations made by the Bhure Lal Committee. One of the important directions was to the effect that the entire city bus fleet was to be steadily converted to a single fuel mode of CNG by [1997 (4) SCALE 9 (SP)] [1997 (3) SCALE 24 (SP)] [(1998) 6 SCC 63] (AIR 1999 SC 291) [(199) 6 SCC 14] (AIR 2001 SC 1948)

62 151 Another direction was to the effect that no either-year old buss were to play except on CNG/other clean fuel after 1 st April When challenged about the correctness/mandatory import of the Order dated 28 July, 1998, the apex court observed: All private operators, who operate their buses in Delhi, are bound by these orders, which were made to safeguard the health of the citizens, being a facet of Art. 21 of the Constitution. That apart, the Bhure Lal Committee had been set up under the Environment Act and it was directed by this court that the Committee could give directions towards effective implementation of the safeguards of Environment Act, more particularly in maters aimed at preventing air pollution. Further, the constitutional mandate of Art. 21 would override provisions of every statute including the Motor Vehicles Act. The norms fixed under the M.V. Act are in addition to and not in derogation of the requirements of Environment Act. The court categorically declined to give nay blanket extension of its directions contained in the aforesaid order. However, in public interest and with a view to mitigate the sufferings of the commuter public in general and the school children in particular, the court made certain relaxations or exemptions. The court also directed the Bhure Lal Committee to examine the question of low sulphur diesel being regarded as a clean fuel ; and to indicate which fuel can be regarding as clean fuel which does not cause pollution or is otherwise injurious to health. In M.C. Mehta 40, it was held that the EPPCA is a statutory authority constituted under Sec. 3, of the Environment Act, 1986, and its directions are final and binding on all persons and organizations concerned. Union of India should give priority to transport sector, including private vehicle, for the purposes of allocation of CNG. The court directed the permitholders having placed orders with bus manufacturers to take delivery 40 (AIR 2002 SC 1696)

63 152 within 2 weeks of court s order or face automatic cancellation of their permits. A fine is to be collected from owner of buses continuing to play diesel buses after (Rs.500/- day; Rs.1,000/- day after 30 days of operation). The National Capital Territory is to phase out 800 diesel buses per month. Union of India was also directed to prepare a scheme containing time schedule for supply of CNG to other polluted cities of India by ; and, to frame a financing scheme for taxis and for diesel busowners whose permits got cancelled. In M.C. Mehta 41, the apex court directed the Bhure Lal Committee to examine the possibility of the use of LPG as an alternate fuel; and, to lay down a time-frame for moving to Euro III norms. The court also directed to constitute an agency for conducting random inspetion regarding the quality of petrol and diesel available at the petrol pumps, oil depots and tank lorries in Delhi. In M.C. Mehta 42, the apex court held that the CNG is available clean fuel. The debate CNG good or CNG bad is an attempt to shift locus form a clean environment to CNG or confuse the entire issue. (c) Forest and Wildlife Acts : India is one of the few countries, which had a forest policy since To protect forest and wildlife, following legislations have been enacted : The Wildlife (Protection) Act of 1972 and Amendment, 1982 In 1972, Parliament enacted the Wildlife (Protection) Act. The Wildlife Act provides for state wildlife advisory boards, regulations for hunting wild animals and birds, establishment of sanctuaries and national parks, regulations for trade in wild animals, animal products and trophies, and judicially imposed penalties for violating the Act. Harming endangered species listed in Schedule 1 of the Act is prohibited throughout (2003) 10 SCC (3) SCALE 90.

64 153 India. Hunting species, like those requiring special protection (Schedule II), big game (Schedule IV), is regulated through licensing. A few species classified as vermin (Schedule V), may be hunted without restrictions. Wildlife wardens and their staff administer the Act. An amendment to the Act in 1982, introduced a provision permitting the capture and transportation of wild animals for the scientific management of animal population. India is a signatory to the Convention of International Trade in Endangered Species of Fauna and Flora (CITES, 1976). Under this, export or import of endangered species and their products are governed by the conditions and stipulations laid down therein. Indian government has also started some conservation projects for individual endangered species like Hungal (1970), Lion (1972), Tiger (1973), Crocodiles (1974), and Brow Antlered Deer (1981), Elephant ( ) The Forest (Conservation) Act of 1980 First Forest Act was enacted in This is one of the many surviving colonial legislations. It was enacted to consolidate the law related to forest, the transit of forest produce and the duty leviable on timber and other forest produce. Subsequently, the Forest (Conservation) Act was promulgated in 1980 to make certain reforms over the preceding Act of The 1927 Act deals with the four categories of the forests, namely reserved forests, village forests, protected forests and private forests. A state may declare forest lands or waste lands as reserved forest and may sell the produce from these forests. Any unauthorized felling of trees quarrying, grazing and hunting in reserved forests is punishable with a fine or imprisonment, or both. Reserved forests assigned to a village Community is called village forests. The State Governments are empowered to designate protected forests and may prohibit the felling of trees, quarrying and the removal of

65 154 forest produce from these forests. The preservation of protected forests is enforced through rules, licenses and criminal prosecutions. Forest officers and their staff administer the Forest Act. Alarmed at India s rapid deforestation and resulting environmental degradation, Central Government enacted the Forest (Conservation) Act in Under the provisions of this Act, prior approval of the Central Government required for diversion of forestlands for non-forest purposes. An Advisory Committee constituted under the Act advises the Centre on these approvals Biodiversity Act, 2000 India is one of the twelve mega-biodiversity countries of the world and became a party to the International Convention on Biological Diversity in The objectives of the convention are: The conservation of Biological Diversity, The sustainable use of its component, and The fair and equitable sharing of the benefits arising of the utilization of genetic resources. Following this a National Policy and Action Strategy on Biodiversity, which seek to consolidate the ongoing efforts of conservation and sustainable use of biological diversity and to establish a policy and programmable regime for the purpose, released by the Government on May To achieve these goals Biodiversity Bill 2000 was introduced in Parliament in May This has been finally passed in December This seeks to check bio-priacy, protect biological diversity and local growers through a three-tier structure of central and state boards and local committees. These will regulate access to plant and animal genetic resources and share the benefits. The National Biodiversity Authority (NBA) will deal with all cases of access by foreigners. Its approval will be required before obtaining any intellectual propriety right on an invention based on a biological resourced from India, or given in other countries.

66 155 The NBA will enjoy the power to states if it feels a naturally rich area, is threatened by overuse, abuse or neglect. (d) General Acts : The most important legislation in this category is The Environment (Protection) Act of Through this Act, Central Government gets full power for the purpose of protecting and improving the quality of the Environment and preventing, controlling and abating pollution. Details of the Act are given below :- Under the Act, the Central Government may, by notification in the office Gazette, make rules for the enforcement of the Act. It is worth mentioning the names of few important rules, which have been notified under the Environment (Protection) Act, 1986 in recent past for the management and control of hazardous substances, which include hazardous chemicals, waste and micro-organisms. (i) Hazardous Waste (Management and Handling) Rules of 1989: Objective is to control generation, collection, treatment, import, storage and handling of hazardous waste. (ii) The Manufacture, Storage and Import of Hazardous Chemical Rules of 1989 Defines the terms used in this context, and sets up an Authority to inspect, once a year, the industrial activity competent with hazardous chemicals and storage facilities. (iii) The Manufacture, use, Import, Export and Storage of Hazardous Micro-Organisms/Genetically Engineered Organisms or Cells Rules of 1989 These were introduced with a view to protect the environment, nature and health in connection with the application of gene technology and micro-organisms. (iv) Biomedical Waste (Management and Handling) Rules of 1998 It is a legal binding on the healthcare institutions of streamline the process of proper handling of hospital waste such as its segregation, disposal, collection and treatment.

67 156 (v) Recycled Plastic Manufacture and Usage Rules of 1999 & Recycled Plastic Manufacture and Usage Amendment Rules Of Rules were introduced to prohibit the usage of carry bags or containers made of recycled plastic for foodstuffs. Rules also lay down procedures for the manufacture of virgin and recycled plastic carry bags and recycled plastic containers. (vi) Municipal Solid Wastes (Management and Handling) Rules, 2000 According to these rules any municipal solid waste generated in a city or a town, shall be managed and handled in accordance with the compliance criteria and the procedure laid down in Schedules of these rules. The waste processing and disposal facilities to be set up by the municipal authority on their own or through an operator of a facility shall meet the specifications and standards as specified in Schedules National Environmental Tribunal Act of 1995 This has been created to award compensation for damages to persons, property and the environment arising from any activity involving hazardous substances. Thus the concluding observation is that there are various Environment Legislations in India. But the need of the hour is the effective enforcement and implementation of these Legislations to control and monitor ever- increasing environment polution o ----