INTRODUCTION OF THE ACT
Nowadays, the Protection of environment is a global issue and it is not a problem of any area or nation but the problem of whole world. The problem of environment protection has different dimensions and its management have taken a serious turn in the present day. Today, in a developing nation or society, industrialization, population exploitation, poverty, urbanization, over – exploitation of resources, raw materials, research for new sources of energy and depletion of traditional resource of energy are the major cause of environmental deterioration all over the world but right to live in a healthy environment is a fundamental right under “right to life” (Article 21 of the Constitution). The decline in environmental quality or due to increase of environmental pollution is a threat for life support system. In India, various legislations relating to environment protection have been passed by legislation from time to time. The Environment (Protection) Act, 1986 passed by the legislature. The Environment (Protection) Act, 1986 is the most broad or comprehensive act relating environmental protection in Indian Statute. It is a general legislation regarding environment protection and it was enacted under Article 253 of the Constitution i.e. Parliament has power to make any law for the whole or any part of the Indian Territory, for implementing any treaty, agreement or convention with any other country or any decision made at any international conference or any other body. India had participated in the United Nations Conference on Human Environment held in Stockholm in June, 1972 and taken decision that the need for general legislation to protect the environment becomes necessary. Therefore, the Environment (Protection) Act was passed which came into force on 19th November 1986. The act contains 26 Sections with deal with many provisions.
OBJECTIVE OF THE ACT
The Environment (Protection) Act was passed with the following objectives. The main objective of the act is that it could cover those areas of major environmental hazards which were not covered by existing legislation. To co-ordinate activities of the various regulatory agencies under the existing laws or legislation and creation of an authority or authorities for protection of environment and also provide deterrent or preventative punishment to those who endanger human health, environment and safety. It also aims to implement the decision made at the United Nations Conference on the Human Environment held at Stockholm in June 1972. It also ensures sustainable development in the country.
NEED OF THE ACT
India is the second most polluted country across the world. In India, 84% live in areas exceeds India’s own air quality standards. To control, prevent and abatement of environmental pollution we need to enact the legislation. In 1986, the Environment Pollution Act was enforced on 19th November, the aim of the act is to protect environment to covers those major environmental hazards which were not covered by existing environmental laws, creation of authorities for environment protection and provide deterrent punishment to those who endanger human environment. In India, pollution increases day by day which causes poor health of the people. The Act contains provisions relating to constitute of authority which can provide a better regulatory mechanism to control the pollution by implementing the principles and take all steps and measures for the purposes of improving and protecting the quality of environment.
PROVISIONS OF THE ACT
DEFINITIONS: Section 2 of the act deals with various definitions relating to environment. There are some important definitions given below:
ENVIRONMENT: It includes water, land, air and the inter-relationship which exists between and among air, water, land, human beings, other living creatures, micro-organism, plants and property.
ENVIRONMENT POLLUTANT: It means that any liquid, solid or gaseous substance in which such concentration present which may be or tend to be injurious to health.
ENVIRONMENTAL POLLUTION: It means the presence of environment pollutant in the environment.
HANDLING: Handling means the manufacture, processing, package, treatment, use, transportation, collection, storage, conversion, transfer or offering for sale of a substance or in relation to any substance.
OCCUPIER: Occupier means any person who has control over the affairs of the factory or the premises and also includes in relation of the substance or in possession of substances in relation to any factory or premises.
GENERAL POWERS OF THE CENTRAL GOVERNMENT: Section 3 deals with the Power of the Central Government to take Measure to Protect and Improve Environment. The Central Government has the power to take all measures which are necessary for protection and improving the quality of environment. The Central Government also has the power to take all necessary measures to preventing, controlling and abating environment pollution. Section 3(2) defines measures with respect to all or any of the following matters:-
Co- ordination of actions by the State Government officers and other officers or authorities under this act or any other law.
For planning and execution of nation-wide programmes regarding prevention, abatement and control of environmental pollution.
Laying down standards for the quality of environment in the various aspects.
Laying down standards for the discharge or emission of environment pollutants.
Restrictions of areas in which industry operation or process shall be carried out.
Laying down procedure and safeguards for the prevention of accident which may cause pollution in environment and remedies for such accidents.
Laying down procedure and safeguards for the handling of hazardous substance in a factory or premises.
Examination of materials, manufacturing process and substances which may cause environmental pollution.
Sponsoring investigation and carrying out and research relating to problems of environment pollution.
Inspection of any premises, factory, material, substance or equipment etc. and giving directions to officers, persons and authorities to take steps for the prevention, control and abatement of environmental pollution.
Establishment and recognitions of environmental laboratories and courts.
Preparation of manuals guides or codes relating to control, abatement or prevention of environment pollution.
Dissemination and collection of information relating to environmental pollution.
Such other matters as the Central Government may think necessary for the purpose of securing and safeguard effective implementation of this Act.
Section 3(3) defines that the Central Government may constitute an authority or authorities to exercise powers and perform function as mentioned under Section 3(2). The Central Government can also implement the suggestions to Supreme Court for establishing Environmental Court. The Environmental Court should be empowered to deal with all matter, civil and criminal relating to environment.
Vellore Citizens’ Welfare Forum v. Union of India
This case was popularly known as T.N Tanneries Case. In this case, the Supreme Court observed that the main purpose of the Environment (Protection) Act is to constitute an authority or authorities as mentioned under Section 3(3) of the Act with appropriate or sufficient power to control pollution and protect the environment. Till the date no authority has been constituted by the Central Government. The Supreme Court directed to Central Government to constitute an authority and confer all necessary powers to deal with the situation and the constituted authority shall implement the “Precautionary Principle” and “Polluter Pays Principle”
Section 5 ensures Power to give directions, the Central Government while exercising its power and performing its function can issue the direction in writing to any person, authority or officer and they shall be bound with these directions. Power to issue directions includes power to direct:
The closure, prohibition or regulation of any industry, its operation or process.
Stoppage or regulation of the supply of water or electricity or any other services.
Section 5-A deals with the provision to Appeal to National Green Tribunal – This section has been added after the enactment of National Green Tribunal Act, 2010 which provides that any person aggrieved by an order or decision by Appellate authority made on or after the commencement of the National Green Tribunal Act may file an appeal to National Green Tribunal.
THE ENVIRONMENT (PROTECTION) RULES, 1986
The Central Government has also the power to make rules to regulate environmental pollution. The Environmental (Protection) Rules which also came into force on 19th November, 1986 provides that –
The standards of quality of water, soil or air for various areas and purposes.
The maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas.
The safeguards and procedure for the handling of hazardous substance.
The restrictions and prohibition on the handling of hazardous substances in different areas.
The restrictions and prohibition on the location of the industries in different or various areas.
The safeguards and procedures for the prevention of accidents which may cause environmental pollutant and providing remedies for accident.
PREVENTION, CONTROL AND ABATEMENT OF ENVIRONMENTAL POLLUTION: Section 7 of the Environment (Protection) Act provides that certain standards have to be maintained and no person or an industry can be permitted to cause damage to the environment. If any person or any industry is found guilty of causing damage to the environment, then he can be asked to pay the “exemplary damages” by applying “Polluter Pays Principle” for polluting the environment.
D.S. Rana v. Ahmedabad Municipal Corporation,
In this case, the restrictions imposed on the trade or operation of melting gold and silver which were causing public nuisance, health hazard and damaging the environment and was held to be in proper manner.
Section 8 provides that persons handling hazardous substances are required to comply with the procedure safeguard as may be prescribed i.e. where the discharge of any environmental pollution in excess etc.
Section 11 provides Power to take Samples and Procedure – The Central Government or any officer empowered to take samples of air, water, soil or other substance for the purpose of analysis. The sample can be taken from factory, premises or other place in a prescribed manner. In order to make the result of any sample admissible as evidence in any legal proceeding, the following procedure must be followed.
Notice must be served on the occupier or person or his agent who is in-charge of the place. The notice must specify the intention to have analysis of the sample.
Sample must be collected in the presence of in-charge of that place or occupier or agent.
Sample to be placed in the container which should be marked sealed and should be signed by both person one who is taking the sample and another is occupier or his agent.
The container should be send to the environmental laboratory without delay.
In case, the occupier or his agent or person who is in-charge of the place wilfully absent himself at the time of collecting sample or refuses to signed the sealed and marked container. He should inform the government analyst in writing about wilful absence or refusal to sign by the occupier, person or his agent. The Central Government may establish one or more laboratories person as government analysts.
PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE ACT, RULES, and ORDERS AND DIRECTIONS: The Environment (Protection) Act provides deterrent punishment to those who endanger human health, environment and safety. Section 15 provides that any person who fails to comply any of the provision of this act, rules, orders or directions under this act, then he shall be punishable with imprisonment for a term which may extended to 5 years or with fine which may extended to 5 lakh Rupees or both for each failure.
If failure or contravention continues after the conviction of first failure, an additional fine which may extended to 5000 Rupees for everyday can be imposed for a period during which failure continues beyond a period of one year, the offender shall be punishable with imprisonment which may extended to 7 years.
MC Mehta v. Union of India,
In this case, the court held that if a fine is to be imposed upon the person who is found guilty of failure or contravened of any provisions of the Act or he is tried for specific offence under the relevant provision and then found guilty, he may be punished either by sentencing him with fine or with imprisonment or with both.
Section 16 and 17 defines offences by Companies and Government Department respectively. This section provides that any offence is committed by the company and government department, the company, person in-charge and government department as well as Head of the department shall be deemed to be guilty and liable for punishment respectively.
There is no liability of company and government department if he proves that the offence was committed without his knowledge or he exercised all care to prevent the commission of such offence. The act provides protection for action taken in good faith. If any offence has been committed by a government department with the consent, negligence or connivance of any officer other than the head of the department, then the officer shall be deemed to be guilty or liable for punishment.
Suo Moto v. Vatva Industries Asson,
In this case, it was held that the Pollution Control Board and its officers are competent and free to take action against any person who violating any provision of the environmental laws. They need not to wait for the direction of the court for taking action.
WHO CAN MAKE COMPLAINT: A complaint can be made by Central Government or any authority by Central Government or any person who has given notice of not less than 60 days of the alleged offence and his intention to make complaint to the authorised officer or Central Government.
BAR OF JURISDICTION: Section 22 of the act deals with the bar of jurisdiction. The act bars the civil courts from entertaining any suit or proceeding in respect of any action taken or thing done by the Central Government or other authority in exercise of powers and performance of function. In India, most of the cases came before the court through PIL under writ jurisdiction of Supreme Court and High Court.
POWER TO MAKE RULES: Section 25 confers power on the Central Government to make rules for carrying out for the purposes of this act. The Central Government enacted various rules for the protection of environment from pollution in the exercise of the powers under Section 3, 6 and 8.
DRAWBACKS OF THE ACT
The Environment (Protection) Act does not include provisions regarding forests, rivers, flora and fauna. The act provides wide powers to the centre to facilitate expedient and effective action which can be resultant to arbitrariness and misuse of such powers. The Act adopted a general approach and not adopted modern concept of pollution like cutting or deforestation of forests, polluting rivers, noise pollution, slums and overburdened transport system etc. There were no such powers given to State Government to preventing, controlling and abating the environment pollution.
The Environment (Protection) Act is the precious and important act of the environment legislation. This is a general legislation which can cover all kinds of pollutions. In this act, the punishments described are maximum punishment not minimum. The act also deals with civil and criminal cases relating to environment but there are many lacunas and drawbacks in this act. After the commencement of this act, the pollution has been increased and the act is not effective and efficient to prevent pollution.
BA- LLB, 3rd Year
JEMTEC, SCHOOL OF LAW,(Greater Noida), Affiliated to GGSIPU