- Legislative and Constitutional Measures for Protection of Environment
- Constitutional Measures
- Legislative Measures
- The Water (Prevention and Control of Pollution) Act, 1974 (As Amended in 1978 and 1988)
- The Water (Prevention and Control of Pollution) Cess Act, 1977 (Amended in 1991)
- The Air (Prevention and Control of Pollution) Act, 1981 (Amended in 1987)
- The Environment (Protection) Act, 1986
- Hazardous Waste (Management and Handling) Rules, 1989
- Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
- The Public Liability Insurance Act, 1991
- National Environmental Tribunal Act, 1995
- National Green Tribunal Act (NGT), 2010
- Premise of the Environment (Protection) Act, 1986
- Objectives of the Act
- The National Environment Appellate Authority
- National Environmental Policy, 2006
India has arranged a pollution reduction system, which incorporates the lawful structure furthermore, the Environment Authorities. In addition to Pollution Control Boards, 6 Environmental Authorities have been established under the Environment (Protection) Act, 1986, including the National Environment Appellate Authority. These are :
- The Central Ground Water Authority – Aqua Culture Authority
- Dahanu Taluka Environment (Protection) Authority
- Environment Pollution (Prevention and Control) Authority for National Capital Region of Delhi
- Loss of Ecology (Prevention and Payment of Compensation) Authority for State of Tamil Nadu
- National Environment Appellate Authority, 1997
Measures for control of different types of pollution:
Ambient standards in respect of noise for different categories of areas (residential, commercial, industrial) and silence zones have been notified under the Environment (Protection) Act, 1986. Noise limits have been prescribed for automobiles, domestic appliances, and construction equipment at the manufacturing stage. Standards have been evolved and notified for the gen-sets, firecrackers, and coal mines. Regulatory
agencies have been directed to enforce the standards for control and regulate noise pollution.
In addition, to combat noise pollution from fire crackers, the Government of India has enacted noise standards for fire-crackers vide G.S.R.682(E), dated 5th October 1999, in an effort to control noise pollution due to firecrackers. In March 2001, Central Pollution Control Board in association with National Physical Laboratory (NPL), Delhi initiated a study on the measurement of noise levels of fire-crackers available in the market. The study indicates that 95% of the fire-crackers samples exceed the prescribed noise limits.
Consequently, CPCB issued a notice under Section 5, of the Environment (Protection) Act, 1986 to the Department of Explosives, Nagpur, to take immediate steps to control the manufacturing of fire-crackers exceeding the prescribed limits. All the State Pollution Control Boards/Committees were also requested to initiate steps to control the sale of fire-crackers exceeding the notified limits, in consultation with their respective local administrations.
To control noise pollution in the country the following steps were taken –
- Ambient noise standards were notified in 1989, which formed the basis for State Pollution Control Boards to initiate action against violating sources.
- The vehicular noise standards, notified in 1990, are being implemented by the Ministry of Science and Technology, to reduce traffic noise. These standards have been made more stringent vide a notification in September 2000 and will be effective from January 2003.
- Noise standards for diesel Genset were prescribed in Dec. 1998. The government has been pursuing with State Pollution Control Boards, generator manufacturing, and major users, for implementation of these standards. Presently these standards are being revised (the MoEF is in the process of issuing notification) making it mandatory for all generator manufacturers to provide acoustic enclosure at the manufacturing stage itself. This will have a major impact on noise from DG sets.
- Noise standards for fire-crackers were developed in October 1999. Central Pollution Control Board had carried out a compliance testing of the firecrackers available in the market and also taken up with the Department of Explosives for compliance with these standards.
- Noise standards for petrol and kerosene generator sets were notified in September 2000 and will be effective from September 2002. The sale of these gen-sets will be prohibited if not certified by the testing agencies, identified for the purpose.
- The Noise Rules, 2000, regulates noise due to Public Address System/ Loudspeakers and also prescribed procedures for noise complaint handling.
- Central Pollution Control Board has taken up a study on aircraft noise monitoring in Indira Gandhi International Airport, Delhi. This will be followed by the development of guidelines/ standards for aircraft noise.
Vehicular Pollution & Air Quality
- Establishment of Ambient Air Quality Monitoring throughout India.
- Notification of Ambient Air Quality Standards under Environment (Protection) Act.
- Notification of vehicular emission norms for the year 1990-91,1996, 1998, 2000, 2001.
- Improving fuel quality by phasing out lead from gasoline, reducing diesel sulfur, reducing gasoline benzene, and etc.
- Introduction of alternate fuelled vehicles like CNG/LPG.
- Improvement of the public transport system.
- Phasing out of grossly polluting commercial vehicles.
- Public awareness and campaigns.
Impacts of the steps taken in Delhi: All regulatory pollutants show a decreasing trend in concentrations in Delhi. CO decreased to 3069 ug/m3 in 2000-2001 from 5450 ug/m3 in 1998. NO2 decreased from 75 ug/m3 in 1996 to 59 ug/m3 in 2000. Lead which is harmful especially for children decreased remarkably due to phasing out of lead from gasoline. Another critical pollutant RSPM also shows a decreasing trend in Delhi.
Legislative & Constitutional Measures for Protection of Environment
1. Constitutional Measures
India is the first country in the world that has provided constitutional
safeguards for the protection and preservation of the environment. In the
constitution of India, specific provisions for the protection of the environment has been incorporated by the Constitution (Forty-second Amendment) Act, 1976. Now, it is an obligatory duty of the State and every citizen to protect and improve the environment. The Directive Principles of State Policy contain specific provisions enunciating the State commitment to protecting the environment.
“The State shall endeavor to protect and improve the environment and to
safeguard forests and wildlife of the country”.
Furthermore, duties of the citizens towards the environment are contained in Article 51-A(g), This Article says –
“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures”.
2. Legislative Measures
The constitutional provisions are implemented through the environmental protection laws of the country. India has a large body of laws and regulations governing the environment. These include laws enacted by Central and State Governments, as well as an increasing body of judicial decisions, affecting industrial activities that generate pollution. Further, there are more than 200 statutes that have a bearing on environmental matters in India. However, the major legal provisions made in the last twenty years are summarised below.
– The Wild Life (Protection) Act, 1972, amended in 1983, 1986, and 1991.
– The Water (Prevention and Control of Pollution) Act, 1974, amended in 1988.
– The Water Cess Act, 1977, amended in 1991.
– The Forest (Conservation) Act, 1980, amended in 1988.
– The Air (Prevention and Control of Pollution) Act, 1981, amended in 1987.
– The Environment (Protection) Act, 1986. – The Motor Vehicles Act, 1938, amended in 1988.
– The Hazardous Waste (Management and Handling) Rules, 1989, amended in 2000.
– The Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989, amended in 2000.
– The Manufacture, use, import, export, and storage of Hazardous Microorganisms or Cells Rules, 1989.
– The Public Liability Insurance Act, 1991.
– A notification of Environmental Statement, 1993.
– A notification on Environmental Clarence, 1994.
– A notification on Environmental Clearance, 1994.
– The National Environmental Tribunal Act, 1995
The existing laws and regulations on environmental pollution which are administered by the Ministry of Environment and Forests are –
i) The Water (Prevention and Control of Pollution) Act, 1974, (amended in 1978 and 1988).
ii) The Water (Prevention and Control of Pollution) Cess, Act, 1977.
iii) The Air (Prevention and Control of Pollution) Act, 1981 amended in 1987.
iv) The Environment (Protection) Act, 1986.
v) The Public Liability Insurance Act, 1991.
vi) The National Environment Tribunal Act, 1995.
The main provisions under these Acts are given here.
The Water (Prevention and Control of Pollution) Act, 1974 (As Amended in 1978 and 1988)
The Water Act is comprehensive legislation providing for the Prevention and Control of Water Pollution and for maintaining or restoring the wholesomeness of water in streams or wells. The Act provides for the establishment of the Central Pollution Control Board at the Centre and State Pollution Control Boards in the respective States.
- The functions of the Central Board at the national level are to –
- Advise the Central Government on matters relating to prevention and control of water pollution.
- Coordinate the activities of the State Board and resolve disputes among them.
- Provide technical assistance and guidance to the State Boards.
- Carry out and sponsor research and investigation in the problems of water pollution.
- Set the standards for streams and wells.
- Create environmental awareness, and
- To act as State Board for the Union Territories
- State Board has executive and territorial functions which include –
- Planning for prevention, control, or abatement of pollution of streams and wells.
- Advise the State Government on matters relating to water pollution.
- Inspection of sewage or industrial effluent, including municipal wastewater.
- treatment plants for the treatment of sewage or trade effluents.
- Setting standards for the sewage and industrial effluents discharge.
There is a provision of joint Boards for two or more contiguous States. In case of a dispute between two State Boards, the Central Board has the authority to arbitrate.
Important provisions in the Water (Prevention and Control of Pollution) Act, 1974 (As amended in 1978 and 1988) are –
- Pollution Control Board (PCB) has the right to –
- Obtain any information regarding the construction, installation, or operation of an industrial establishment or treatment and disposal system.
- Take samples of trade effluent for the purpose of analysis in the prescribed manner.
- Enter and inspect any industrial establishment, record, register, document, or any other material object.
- Prohibit the use of stream or sewer or land for disposal system without the prior consent of the PCB.
- Restriction on the establishment and the operation of any industrial process or any treatment and disposal system without the prior consent of the PCB.
- PCB’s right to refuse or withdraw consent, for the discharge of effluents.
- Industry to comply with the conditions stipulated in the consent.
- PCB’s to grant consent within four months after the date of receipt of the application complete in all respects.
- Industry to appeal to the Appellate Authority, in case of grievances against the order passed by the PCB regarding the grant, refusal, or withdrawal of the consent within the specified time in the prescribed manner.
- Industry to furnish information to the PCB and other specified agency/agencies in case of discharge of poisonous, noxious, or polluting matter into a stream, sewer, or land, occurred or likely to occur resulting in pollution due to an accident or any other unforeseen event.
- PCB’s right to issue orders restraining or prohibiting an industry from discharging any poisonous, noxious, or polluting matter in case of emergencies, warranting immediate action.
- PCB’s have the power to make an application to the court for restraining likely disposal of polluting matter in a stream or on land.
- Bar of the jurisdiction in civil court in respect of any matter under the purview of the Appellate Authority constituted under the Act and no grant of injunction in respect of any action taken or proposed in pursuance of the Act.
- Bar on the filing of any suit or legal proceedings against the Government or Board officials, for action taken in good faith in pursuance of the Act.
- PCB’s to make inquiries, in the prescribed manner, for grant of consent for the discharge of effluents.
- PCB’s power to issue directions for –
- the closure, prohibition or regulation of any industry, operation or process or,
- the stoppage or regulation of supply electricity, water, or any other service
- to the industry in the prescribed manner.
- Industry to comply with the directions of the PCB within the specified time.
- PCB’s to maintain a consent register containing particulars of the consent issued and to provide access to the industry at all reasonable hours.
The Water (Prevention and Control of Pollution) Cess Act, 1977 (Amended in 1991)
The Water Cess Act provides for the levy of a Cess on water consumed by persons carrying on specified industries given in Schedule-I of the Act and also local authorities entrusted with the duty of supplying water under the laws by or under which they are constituted at the rates specified in Schedule-II of the Act.
The Cess is levied and collected by the State Government concerned and credited to the consolidated Fund of India. An industry that installs and operates its effluent treatment plant is entitled to a rebate of 25% on the Cess payable.
The Cess has been introduced mainly to augment the resources of the Central and the State Pollution Control Boards.
The Air (Prevention and Control of Pollution) Act, 1981 (Amended in 1987)
The Act provides for the setting up of Central / State Boards for prevention and control of Air Pollution, however, Section 4 of the Act stipulates that in any State in which the Water (Prevention and Control of Pollution) Act, 1974 is in force and the State Government has constituted a State Pollution Control Board, that State Board shall be deemed to be the State Board for the prevention and control of air pollution.
For Union Territories, the Central Pollution Control Board is empowered to perform the functions of a State Pollution Control Board under the Act. The State Governments in consultation with their respective State Boards are empowered to declare air pollution control areas. As per the provisions of the Air Act no person can establish or operate any industrial plant in an air pollution control area without obtaining consent from the concerned State Board.
The Environment (Protection) Act, 1986
The provisions under this Act are –
- Take all necessary measures for protecting the quality of the environment.
- Plan and execute a nation-wide program for the prevention, control, and abatement of environmental pollution.
- Lay down standards for discharge of environmental pollutants.
- Empower any persons to enter, inspect, take samples, and test.
- Establish or recognize environmental laboratories.
- Appoint or recognize government analysts.
- Lay down standards for the quality of the environment.
- Restrict areas in which any industries, operations, processes may not be carried out or shall be carried out subject to certain safeguards.
- Lay down safeguards for the prevention of accidents and take remedial measures in case of such accidents.
- Lay down procedures and safeguards for handling hazardous substances.
- Constitute an authority or authorities for exercising its powers.
- Issue directions to any person, officer, or authority including the power to direct closure, prohibition, or regulation of any industry, operation, or process or stoppage or regulation of supply of electricity, water, or any other service.
It confers powers on persons to complain to the courts regarding any violation of the provisions of the Act, after a notice of 60 days to the prescribed authorities.
The Central Government is empowered to take action under the provision of the Environment (Protection) Act, 1986. Powers under Section 5 of the Environment (Protection) Act, 1986 have been delegated by the Central Government to States and Union Territories.
Rules have been framed and agencies/authorities have been notified under specific sections for carrying out specific functions. These include:
All those carrying on any industry, operation, or process requiring consent under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and/or under Air (Prevention and Control of Pollution) Act, 1981 (84 of 1981) and or authorization under the Hazardous Waste (Management and Handling) Rules, 1989, are required to submit the Environmental Statement in prescribed ‘Form-V’, for the Financial Year ending 31st March to the concerned State Pollution Control Boards / Pollution Control Committees in the Union Territories on or before 30th September every year.
Hazardous Waste (Management and Handling) Rules, 1989
The Hazardous Wastes (Management and Handling) Rules, 1989, provide for an effective inventory and controlled handling and disposal of hazardous wastes.
Under rules 18, categories of hazardous waste are identified along with their regulatory quantity Industries generating any of this waste beyond the regulatory quantity are required to seek authorization from the concerned State Pollution Control Board for its temporary storage in the premises and their disposal.
Possibility, of common treatment facilities including landfill, are envisaged. The operator of such facility is also required to obtain authorization from the Board. The Boards are expected to specify conditions on safe handling and disposal of the waste in the authorization. Treatment of the waste at the premises before disposal could also be specified. The import of hazardous waste for processing has to be got approved by the Central Government.
Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
The principal objective of the regulation is the prevention of major accidents arising from industrial activity, the limitation of the effects of such accidents both on humans and the environment, and the harmonization of the various control measures and the agencies to prevent and limit major accidents. The industrial activities covered by the regulation are defined in terms of process and storage methods involving
specified hazardous chemicals.
An important feature of the regulation is that the storage of hazardous chemicals not associated with the process is treated differently from those coming under process use for which a different list of hazardous chemicals and their manufacture and storage procedures applies. Under the provisions isolated storage/cover sites are to be separate tank farms or warehouses. The Central Pollution Control Board and the State Pollution Control Board as the case may be, is the enforcement agency for these storages.
A safety report is required to be prepared as per Rule 10 in this Act. It involves the identification of the nature and use of hazardous chemicals at the installation. The report will also give an account of arrangements for the safe operation of an installation including control of any serious deviation that could lead to a major accident and for emergency preparedness at the site. The report will identify the type and the relative likelihood of consequences for any major accident that might occur. It will also demonstrate that the manufacturer or the occupier has identified the major potential accidents from the activity and has provided appropriate controls.
The Public Liability Insurance Act, 1991
This is an Act to provide for Liability Insurance for the purpose of providing immediate relief to the persons affected by accidents occurring while handling hazardous substances. The Act casts on the person, who has control over handling any hazardous substance, the liability to give the reliefs specified in the Act to all the victims of any accident which occurs while handling such substance. It would be the duty of every owner to take necessary insurance policies to discharge his liabilities.
National Environmental Tribunal Act, 1995
This is an Act to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accident. This was enacted with a view to giving relief and compensation for damages to persons, property, and the environment and for matters connected therewith or incidental thereto.
Standards for effluent and emissions from industries have been notified and the industries have been directed to adopt action programs leading to compliance with these standards on a time-bound basis. The Central and State governments are playing a more active role in enforcing these environmental standards. Many polluting units in the country face shifting/closure orders from the courts. It is to be noted that with increasing awareness on environment-related issues in the country, the public is becoming more active in highlighting polluting industries and there is an increasing number of Public Interest Litigations in the court.
The coming into force of the National Green Tribunal Act implied an automatic repeal of two existing laws: the National Environment Tribunal Act, 1995, and the National Environment Appellate Authority Act, 1997, and, therefore, the closure of the National Environment Appellate Authority (NEAA) — a quasi-judicial body empowered to hear appeals against the environmental approvals granted (or not) to projects. All the cases pending before the NEAA were to be heard by the NGT.
National Green Tribunal Act (NGT), 2010
NGT is a federal legislation enacted by the Parliament of India, under India’s constitutional provision of Article 21, which assures the citizens of India the right to a healthy environment. The tribunal itself is a special fast-track court to handle the expeditious disposal of the cases pertaining to environmental issues.
The legislate Act of Parliament defines the National Green Tribunal Act, 2010 as follows –
“An Act to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto”.
The Tribunal’s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. The Tribunal is mandated to make and endeavor for disposal of applications or appeals finally within 6 months of the filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible; New Delhi is the Principal Place of Sitting of the Tribunal, and Bhopal, Pune, Kolkata, and Chennai shall be the other 4 places of sitting of the Tribunal.
Premise of the Environment (Protection) Act, 1986
The Environment (Protection) Act was enacted in the year 1986. It was enacted with the main objective to provide the protection and improvement of the environment and for matters connected therewith. The Act is one of the most comprehensive legislations with a pretext to protection and improvement of the environment.
The Constitution of India also provides for the protection of the environment. Article 48 A of the Constitution specifies that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51 A further provides that every citizen shall protect the environment.
It is now generally accepted that the environment is threatened by a wide variety of human activities ranging from the instinctive drive to reproduce its kind to the restless urge of improving the standards of living, development of technological solutions to this end, the vast amount of waste, both natural and chemical, that these advances produce. Paradoxically, this urge to grow and develop, which was initially uncontrolled is now widely perceived to be threatening as it results in the depletion of both living and non-living natural resources and life support systems. The air, water, land, living creatures as well as the environment, in general, is becoming polluted at an alarming rate that needs to be controlled and curbed as soon as possible.
The 1986 Act was enacted in this spirit. From time to time various legislations have been enacted in India for this purpose. However, all legislations prior to the 1986 Act have been specific relating to precise aspects of environmental pollution. However, the 1986 Act was general legislation enacted under Article 253.
Legislation for giving effect to international agreements—Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention with any other country or countries or any decision made at any international conference, association or other body of the Constitution, pursuant to the international obligations of India. India was a signatory to the Stockholm Conference of 1972 where the world community had resolved to protect and enhance the environment.
The United Nations conference on the human environment, held in Stockholm in June 1972, proclaimed that “Man is both creator and molder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet, a stage has reached when through the rapid acceleration of science and technology man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man’s environment, the natural and manmade are essential to his well-being and to the enjoyment of basic human rights even the right to life itself”.
While several legislations such as The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 were enacted after the Conference, the need for general legislation had become increasingly evident. The EPA was enacted so as to overcome this deficiency.
Objectives of the Act
As mentioned earlier, the main objective of the Act was to provide the protection and improvement of the environment and for matters connected therewith. Other objectives of the implementation of the EPA are to –
- implement the decisions made at the UN Conference on Human Environment held in Stockholm in June 1972.
- enact a general law on the areas of environmental protection that were left uncovered by existing laws. The existing laws were more specific in nature and concentrated on a more specific type of pollution and specific categories of hazardous substances rather than on general problems that chiefly caused major environmental hazards.
- co-ordinate activities of the various regulatory agencies under the existing laws.
- provide for the creation of an authority or authorities for environmental protection.
- provide deterrent punishment to those who endanger the human environment, safety, and health.
Scope and Applicability
The Environment (Protection) Act is applicable to whole of India including Jammu & Kashmir. It came into force on November 19, 1986.
Section 2 of the EPA deals with definitions. Some important definitions provided in the Section are:
Section 2 (a) “Environment” includes water, air, and land and the interrelationship that exists among and between water, air and land and human beings, other living creatures, plants, microorganism, and property. This definition is not exhaustive but an inclusive one.
Section 2 (b) “Environmental Pollutant” means any solid, liquid, or gaseous substance present in such concentration as may be, or tend to be injurious to the environment.
Section 2 (c) “Environmental Pollution” means the presence in the environment of any environmental pollutant6. This implies an imbalance in the environment. The materials or substances when after mixing in air, water or land alters their properties in such a manner, that the very use of all or any of the air-water and land by man and any other living organism becomes lethal and dangerous for health.
Section 2 (e) “Hazardous Substance” means any substance or preparation which, by reasons of its chemical or Physio-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, microorganism, property, or environment.
Powers of Central Government to take measures to Protect & Improve Environment
According to the provisions of the Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution. Such measures may include measures with respect to all or any of the following matters, namely –
- co-ordination of actions by the State Governments, officers and other authorities –
- under this Act, or the rules made thereunder, or
- under any other law for the time being in force which is relatable to the objects of this Act;
- planning and execution of a nation-wide program for the prevention, control, and abatement of environmental pollution;
- laying down standards for the quality of the environment in its various aspects;
- laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:
- Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;
- restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
- laying down procedures and safeguards for the prevention of accidents that may cause environmental pollution and remedial measures for such accidents;
- laying down procedures and safeguards for the handling of hazardous substances;
- examination of such manufacturing processes, materials, and substances as are likely to cause environmental pollution;
- carrying out and sponsoring investigations and research relating to problems of environmental pollution;
- inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control, and abatement of environmental pollution;
- establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;
- collection and dissemination of information in respect of matters relating to environmental pollution;
- preparation of manuals, codes, or guides relating to the prevention, control, and abatement of environmental pollution;
- such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.
The Central Government may, if it considers it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under Section (5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise and powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.
As considerable adverse environment impact has been caused due to degradation of the environment with excessive soil erosion and water and air pollution due to certain development activities therefore it is necessary to protect the environment. This can be achieved only by careful assessment of a project proposed to be located in any area, on the basis of an environment impact assessment and environment management plan for the prevention, elimination or mitigation of the adverse impacts, right from the inception stage of the project.
The Central Government has passed certain notifications laying that the expansion or modernisation of any existing industry or new projects listed shall not be undertaken in any part of India, unless it gets environmental clearance by the Central Government, or the State Government.
Powers of the Court
The Act does not curtail the powers of the Supreme Court. It has from time to time in various matters issued directions and orders to control pollution. Some such important cases pertaining to the protection of the environment are:
Directions issued to control vehicular pollution
In Mehta v. Union of India (1998) 6 SCC 63, in order to control the chaotic traffic conditions and vehicular pollution, the Supreme Court issued the following directions –
a) All commercial/transport vehicles which are more than 20 years old should be phased out and not permitted to ply in Delhi after October 1998.
b) All such commercial/transport vehicles which are 17 to 19 years old (3200) shall not be permitted to ply in the National Capital Territory, Delhi after 1998;
c) Such of the commercial /transport vehicles which are 15 and 16 years old (4962) shall not be permitted to ply after December 31, 1998.
The Supreme Court made this order applies to all commercial/transport vehicles whether registered in the National Capital Territory of Delhi or outside (but ply in Delhi) which are of more than stipulated age and which do not have any authority to ply in Delhi.
Protection of Coastline of India
In Indian Council for Enviro-Legal Action v. Union of India, the Supreme Court in regard to the 600 kms long coastline emphasized that it would be the duty and responsibility of the coastal States and Union Territories in which the stretch exists, to see that the notifications issued, declaring the coastal stretches should be properly and duly implemented. Further, the various restrictions on the setting up and expansion of industries, operation or process, etc. in the regulation Zone should be strictly enforced.
In the same case, the court enunciated the principle further that the polluter pays. Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person irrespective of the fact whether he took reasonable care while carrying on his activity. Under this principle, it is not the role of the 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 on the taxpayer. The responsibility of repairing the damage is that of the offending industry.
In Vellore Citizen Welfare Forum v. Union of India & others, the polluter principle as interpreted by the Supreme Court 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 to the individual sufferer as well as the cost of reversing the damaged ecology.
In Goa Foundation v. Diksha Holdings Pvt. Ltd the court observed that with a view to protecting the ecological balance in the coastal areas, notifications having been issued by the Central Government, there ought not to be any violation and prohibited activities should not be allowed to come up within the area declared as CRZ notification. The court also emphasized that no activities which would ultimately lead to unscientific and unsustainable development and ecological destruction should be allowed.
Prevention, Control & Abetment of Environment Pollution
Chapter III of the EPA deals with the prevention, Control, and abetment of Environmental Pollution. Some important provisions of this chapter provide that, No person carrying on any industry, operation, or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed.
No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed.
Where the discharge of any environmental pollutant in excess of the prescribed standards occurs or is apprehended to occur due to any accident or other unforeseen act or event, the person responsible for such discharge and the person in charge of the place at which the discharge occurs shall be bound to prevent or mitigate the environmental pollution, and shall also:
a) intimate the fact of such occurrence or apprehension of such occurrence; and
b) be bound, if called upon, to render all assistance.
On receipt of such information, the authorities or agencies shall cause such remedial measures to be taken as are necessary to prevent or mitigate environmental pollution.
The expenses incurred by any authority or agency may be recovered from the person concerned as arrears of land revenue or of public demand.
Section 15 provides for Penalties for contravention of the provisions of the Act as well as the Rules, Orders and Directions. Whoever fails to comply with or contravenes any of the provisions, rules, orders or directions of this Act shall be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both. In case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues.
If the failure or contravention continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which, may extend to seven years.
Offenses by Companies
Offences by Companies are dealt with under Section 16. Where any offence is committed by a company, every person who, at the time the offence was committed, was directly in charge of and was responsible to, the company for the conduct of the business of the company shall be deemed to be guilty of the offence.
If he proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of such offence he shall not be liable to any punishment.
Where the offence has been committed with the consent or connivance of or is attributable to any neglect on part of, any director, manager, secretary or other officers of the company, such person shall be deemed to be guilty of the offence.
Cognizance of Offences and Bar of Jurisdiction of Civil Courts
As per the provisions of Section 19 of the EPA, no court shall take cognizance of any offence under this Act except on a complaint made by:
- The Central Government or any authority or officer authorized in this behalf by that Government; or
- any person who has given notice of not less than 60 days, of the alleged offence and his intention to make a complaint, to the Central Government or the authority or officer authorized.
Section 22 provides that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order or direction issued by the Central Government or any other authority or officer in pursuance of any power conferred under the Act.
The National Environment Appellate Authority
The National Environment Appellate Authority (NEAA) was set up as an independent body to address cases in which environmental clearances granted by the ministry of the environment are challenged by civil society. On January 30, 1997, the President of India, in the exercise of the powers conferred under Article 123 (123. Power of President to promulgate Ordinances during recess of Parliament.—(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.) of the Constitution, promulgated an Ordinance to provide for the establishment of the NEAA to hear appeals with respect to restriction of areas in which any industries, operations, and processes shall not be carried out or shall be carried out subject to the safeguards as provided under the EPA. The Ordinance was later on repealed with the enactment of the National Environment Appellate Authority Act, 1997. (Annexure 2)
The NEAA Act, which was granted presidential assent on 26th March 1997 came into force from 9.4.97. This Act provides for the establishment of a NEAA. The Act was enacted with the following object:
To hear appeals with respect to restriction of areas in which any industry, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the EPA and for matters connected therewith or incidental thereto.
This is to bring in transparency in the process, accountability and to ensure smooth and expeditious implementation of developmental schemes and projects.
Jurisdiction of the Act
- Any aggrieved person may file an appeal within thirty days of passing of an order granting environmental clearance in the areas in which any industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the EPA. It is further provided that the Authority may entertain an appeal even after the expiry of the said term if a sufficient cause for delay in filing such an appeal exists. The Authority is required to dispose off the appeal within ninety days from the date of filing of the same. However, the Authority may, for reasons that are to be recorded in writing, dispose off the appeal within a further period of thirty days.
- An Ordinance promulgated under this Article shall have the same force and effect as an Act of Parliament, but every such Ordinance—
- shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
- maybe withdrawn at any time by the President.
- shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
- maybe withdrawn at any time by the President.
Explanation—Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
- If and so far as an Ordinance under this Article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.