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

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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.

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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

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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, 1860. 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.

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The post-independence era, until 1970, did not see much legislative

activity in the filed of environmental protection. Two early post-

independence 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

1960.

Some States took initiative in the filed of environmental protection,

viz., Orissa River Pollution Prevention Act, 1953, and, Maharashtra

Prevention of Water Pollution Act, 1969. 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.

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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,

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operations or processes shall not be carried out or shall be carried out

subject to certain safeguards under the Environment (Protection) Act, 1986.

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 1970s

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 Indias

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 (1974-79) 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

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priority, and was expected to minimize environmental pollution and

degradation in rural areas.

In the Sixth Five Year Plan (1980-85), 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 (1985-90) 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 power-

generation 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 nations 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 countrys environment

problems.

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The Eight Five Year Plan (1992-97) 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 socio-

economic 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 (1997-2002) 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

(2002-200&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 governments 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

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decision-making at all levels. To achieve this goal, the statement adopts

fundamental guiding principles, namely:

(i) Prevention of pollution at source;

(ii) Adoption of the best available technology;

(iii) Polluter pays principles; and

(iv) 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 Products1, 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 governments 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)

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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 1991.

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 1989. 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,

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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, 1999. 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.

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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 (CCI4), 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

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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. 133-44), 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

Courts ruling in the Shriram Gas Leak Case2, 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)

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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 1971. 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 65-70 per cent of the pollution load in India

was taken care of by the Motor Vehicles Act, 1939. 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, 1988. 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 1992. 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

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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.

4.10 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

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(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, 1981. 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.

4.11 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,

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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).

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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.

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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.

4.12 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

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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.

4.13 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

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

individuals right to sue a defaulter for damages.

4.14 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

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.

4.15 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

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).

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).

4.16 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 1992. 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

31st March) to the State Pollution Control Board.

115

In Indian Council for Enviro-Legal Action v. UOI3, 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.

4.17 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)

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.

4.18 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

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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.

4.19 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.

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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 Case5, 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

4 [AIR 1987 SC 965]

5 (AIR 1996 SC2715)

6 (1996) 5 SCC 281

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 anti-

pollution 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. UOI7, 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)

120

there are a number of other problems to be decided, examined and

reviewed.

A.P. Pollution Control Board v. M.V. Nayudu8

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)

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, 1997.

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 environment-

related 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, 1989.

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.

4.20 National Environment Appellate Authority Act, 1997

On 30th 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, 1986. The said ordinance has been replaced

by the National Environment Appellate Authority Act, 1997.

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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

17.1.1998. 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.

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

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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.

4.21 Precautionary and Polluter Pays Principle

Precautionary Principle

A basic shift in the approach to environmental protection occurred

initially between 1972 and 1982. 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 (11th

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

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. Nayudu9.

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]

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)

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: Dont 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.

4.22 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 Co-

operation 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

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 Case11, 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]

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 Nath12. 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

12

(1997) 1 SCC 388 13

1995(2) Guj LR 1210 14

2004 AIR SCW 3285

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 Rajasthan15, 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)

131

4.23 Judicial Observations

Vellore Citizens Welfare Forum v. Union Of India16

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)

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. UOI17, 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

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 India18, 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