Environmental Law - Some Basics
Environment is the physical surroundings and conditions especially as affecting people's lives (The concise Oxford Dictionary of current English, 8th edition, 1990). Thus environmental law is that which concerns itself with the environment and its concerns.
Law, in very simple language, can be defined as a body of rules/norms governing promoting regulating, prohibiting human behaviour. Law is made at two levels - international and national (also called municipal or domestic laws). The Indian laws are enacted by Parliament in the centre or Legislative Assemblies in the States (called - the Acts) or by the executive, the President or the Governor of a State, the division of subjects for law making between the centre and the state is as per the Seventh Schedule to the Constitution of India which contains three lists List I - Union List (only the Parliament or President can enact on subjects included here); List II - State List (the State Legislative Assemblies or Governors); List III - Concurrent List (both Centre and state, subject to certain conditions).
At the international level, a law can be in the form of treaties (bilateral; multilateral), Conventions, United Nations General Assembly (UNGA) and other resolutions, declarations from different Conferences like the Stockholm Declaration(1972), Universal Declaration of Human Rights (1969), International court of Justice decisions etc.
All the above forms of law except resolutions, declarations and the decisions are binding in nature which means, the people of a country (in case of national laws) and state parties to a treaty, convention(s) are under an obligation to follow up the terms and conditions of the concerned document whereas in case of UNGA Resolutions it still is debatable. The debate is popularly called the "hard" law - "soft" law debate. The "compulsory" nature of a law makes it "hard" and the absence of it like in the UNGA resolutions, declarations makes it "soft". However, of late "soft" laws have gained in significance and have acquired greater force on account of their acceptance by large number of States "in principle". A condition for the acceptance of these ("soft" laws) is of longevity like that for another source of law-customs, which gain normative value over a long period of time.
Environmental law has a unique feature among subject matters of law. It is essentially an international, global matter. However peculiar an issue might look to a nation, it always has international repercussions - cutting of trees, pollution-of air, water and sound; extinction, endangering of wild life and/or plant species are all cause for global concern.
Environmental law concerns regulation - protection or prohibition - of activities affecting the environment which includes the air, water, plants and animal life. Thus environmental law would regulate air, water, sound pollution whether by emissions from vehicles, industrial effluents, or oil leaks from ships; disturbing of natural ecological balance whether by excessive and indiscriminate deforestation, extinction of wild and plant life through hunting for valuable hides, tusks etc.; not caring for animals in sanctuaries or zoos or behaving cruelly with them in any place.
III. Why we need to know the law
Knowledge of laws is compulsory for all, one cannot escape liability by pleading ignorance of law. Apart from this obligation, there are many other reasons why knowledge of environmental laws, as also other laws, is desirable. (a) Implementation of laws becomes easier and more effective if people know the reasons for the laws and "internalise" them rather than being forced to follow them by outside agencies like the police. (b) General consensus among people can bring about greater accountability on part of the officials responsible for carrying out instructions in implementing laws. To illustrate - pollution from vehicular traffic would be much less if vehicle owners themselves realised their contribution to the pollution levels and took necessary steps to prevent it. (c) Peer pressure also goes a long way towards implementation of regulations. (d) "Public opinion" is also an important factor influencing government policies, laws can be made on the basis of what the public opinion warrants just as law can influence or introduce new ideas into the society. (e) Many a time it is an informed and alert society which keeps errant and irresponsible miscreants in the society in check as also forces a government to fulfil its duties by also pointing out what is lacking in the law and how it can be improved. All these can broadly be classified as the Remedial measures. (f) Preservation of wild life and plant species also comes about through information regarding it and knowing what is prohibited by law so that large scale implementation becomes possible. Damage may also be undone in cases the future but it will require very serious efforts.
As law is also an instrument of change, new concepts are also introduced like sustainable development- a development which not only is non-destructive but is also protective of the nature; intra- and inter-generational equity - that we leave the natural resources in the condition that we received it in or if possible in a still better one.
The law can also be used to one's advantage. One can avoid or make provision for, as the case may be, conditions which are prohibited or favoured by law like the Environmental Clearance Act 1993, the Environmental Audit Notification, 1992. Such knowledge not only reduces clearance hassles also helps in establishing a non-polluting plant. In many cases making use of the waste products has been an added advantage.
Last but most important reason is that the knowledge of environmental laws enables one to contribute to the betterment of the place one lives in.
Giving only basic information here - law comes from religion (the moral right and wrong/sin), customs - practices, traditions - how it has always been, and from the legislator (authority of all these is presumed here for brevity). We concern ourselves here only with the last one with the desire to learn how to read and know the law when a large number of them exist simultaneously.
Law from the legislature is the statute - the Act- e.g. The Environment (Protection) Act, 1986. This is the function of the legislature - to legislate. However, many of the laws require technical knowledge which may not be the forte of the legislators, for e.g. air, water pollution, hazardous wastes etc. The legislature in such cases enacts a general law through which it empowers the governement or a department etc. which has the capability and the required knowledge of the subject to make laws which are called 'rules'. These rules therefore form an integral part of the statute and an Act then has to be read with these rules. The rules help in understanding the law since they are elaborate and also employ the terms used in the field they are to regulate.
Many a time a statute also mentions appointment of an authority etc. by the government by a notification for e.g. the requirement of an EIA (Environmental Impact Assessment) for obtaining environmental clearance for certain types of projects appeared as a notification in 1994. These notifications, like the statutes and the rules, are published in the official gazette from time to time. Other publications to find these include Current Indian Statutes and All India Reporter/a monthly issue, and the AIR manual. The international law documents are published in International Legal Materials, a quarterly issue, or in American Journal of International Law.
Sometimes a law needs to be passed when the legislature (Centre or State) is not in session. In such situations the President of India or the Governor of the State, as the case may be, can pass an ordinance which has a life of six months or till the next session of the legislature when the legislature passes the bill and makes it a law or does not pass it and ends its life. It can be renewed by President/Governor if the legislature is still not in session.
Amendments to a law and court decisions are interesting forms of law-making. Both can bring about changes or elaborations or end to a law. However, amendments come into effect essentially from the date of the amendment or from the date given in it. It sometimes grants concessions for a period before or after the date of its enactment e.g. Sec. 9 of the Air Pollution Amendment Act, 1987 which prohibits the setting up or operation of any industrial plant in an air pollution control area..... gives a period of three months to those persons who are already operating a plant in such an area. A court decision, on the other hand, on a clarification sought or the meaning, extent of a term disputed etc. means that the term had a certain meaning from the very beginning of its existence. The court does not give any "date" from when the meaning etc. will be attributed to the terms in dispute. In India, and in countries following the common law system (the other being Continental Law), court decisions are very significant. The decisions of the higher courts namely the Supreme Court and the High Courts, in the order, are binding on the lower courts which have to apply them to similar cases before them. These 'precedents' are also therefore laws. As mentioned above, sometimes courts and amendments can 'end' a law - the difference in the effects of the two is not our concern here.
Among laws - there are some general laws and some special laws - the Environmental (Protection) Act, 1986 of our interest is a general law whereas the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974, 1987 are special laws. The rule is that in case of conflict the special laws will have preference over the general laws. In case of differently dated statues being in conflict, the later in time will get preference since that would show the latest intention of the legislature.
All these aspects must be kept in mind when reading a law. Cases - both those decided in favour of the applicant or against - also narrate the way in which the courts have viewed the law and give an indication as to the decision that can be expected. However, many other aspects also play a role in the decision making like the social need, social interest versus individual interest etc. Yet, cases need to be studied as they show the latest and up to date position of law on a point. Preference should therefore be given to Supreme Court decisions which, as mentioned above, are the law on the point, followed by High Court decisions which are 'advisory' in nature and therefore need not be accepted or applied by another High Court or the courts under those other High Courts.
Apart from these domestic laws there also exist what are known as international laws which consist of international conventions, treaties - multilateral or bilateral or under the auspices of the United Nations or any international organisation. These are growing in number and customs. There are two ways in which a country applies these international laws within its boundaries where the government is the supreme law enforcement authority (of course with some exceptions where local traditions, practices override statues like some personal laws in India which have not been "codified" e.g. Muslim personal law). One, like India, where the Parliament must legislate to apply an international law within the country. Two, like USA, where any international law ratified by the President automatically applies within the country. However, in India too, albeit in a very few cases, the courts have applied an international law directly to a case before it when no statute had been enacted on it. Such a step is welcome sometimes since India does not readily enact laws on international obligations accepted by her in principle whereas it is time for the society to move on with the rest of the world and with the blurring of national boundaries this trend brings hope to the people who would otherwise suffer here.
V.International Norms Regarding Environment
The United Nations Conference on Environment and Development, 1972, Stockholm.
Popularly known as the Stockholm Conference, this Conference was the first step from the United Nations to address the growing problem of environmental degradation. It also gave birth to the United Nations Environment Programme.
In consonance with the 1961 UNGA Principles of Permanent Sovereignty over National Resources, this conference reaffirmed the international acceptance of a State's rights to exploit its own natural resources. However, such exploitation was to be in keeping with preservation of its nature and not an indiscriminate use and that its consequences should not affect its neighbours' enjoyment of their resources.
This was a significant contribution of this conference (This Article 21 later formed 'Agenda 21' in the Rio Earth Summit 1992). It lay down that environment and development had to go hand in hand and not be divorced from each other.
From 1972 to 1992 there has been a substantial change in the world perspective. It has changed from national sovereignty over natural resources as the follow up of independence of many states to international co-operation along with shift in priorities from industrial development to sustainable development. The change is also reflected in the numerous international obligations that have been created in the field of environment in this period - 1972 was the first most significant one and 1992 the second stage - between these two there have been a few other concerns addressed, however, many of these were later merged into the 1992 conference and the conventions that emerged from it.
As per the 1972 London Dumping Convention (Convention on the Prevention of Marine Pollution by Dumping of Wastes and other matter) - the coastal states have to take extreme precaution before dumping wastes into the sea. The material that can be dumped is classified into three lists - the red, the green and the yellow lists*.
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(* The 1997 Protocol makes it a single list of seven entries - 1. dredged material, 2. sewage sludge, 3. fish waste or material resulting from industrial fish processing operations, 4. vessels and platform or other man - made structures at sea, 5. inert, inorganic geological material, 6. oragnic material of natural origin and 7. bulky items primarily comprising iron, steel, concreate and similarly unharmful materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposable options other than dumping.
These wastes may be considered for dumping, provided that material capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to fishing or navigation.
Besides the above conditions, materials containing levels of radioactivity greater than de minimis (exempt) (as given in the Annex to the protocol) concentrations as defined by the IAEA and adopted by the Contracting Parties shall not be considered eligible for dumping.
All the dumpings can be made only with the permissions of the International Maritime Organisation established under the Law of the Sea Convention 1992 (better known as UNCLOS-III). These provisions are likely to come into force only 90 days after March 1988 and a certain number 26 States have ratified it).
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The red list enumerates the materials that are totally prohibited from dumping, the green list materials could be dumped without much prohibition and the yellow listed materials have to undergo careful treatment before they are passed for dumping or can only be dumped very selectively. This convention was immediately followed by an IAEA (International Atomic Energy Agency) Convention Prohibiting the Dumping of Radioactive substances. Under both these Conventions the coastal states need to be informed and their consent taken as to the material to be dumped in their waters.
The 1973 CITES Convention (Controlling International Trade in Endangered Species) as the title suggests identifies and controls trade in endangered species for their hide, bones, ivory, nails etc and prohibits the movement of such identified species and has been pretty effective in checking the decline in the numbers of the endangered species.
The 1987 Montreal Protocol (and the 1990 London Amendment) on Substances that Deplete the Ozone Layer restricts general production and consumption of chlorofluorocarbons (CFCs) and halons. These CFCs are mainly used in air conditioners, cleaning solvents etc. The main method of controlling the production was to stop their trade - trade in controlled substances, trade in products that contained controlled substances, and trade in technology for producing and using the controlled substances.
Under the 1989 Basal Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the parties have a legal duty to consult and inform each other to conduct scientific studies on dangers posed by such transboundary pollution.
The 1992 Rio conference produced five documents. These are dealt in more detail as they have attracted much attention and gained immense popularity. The attention is also because of the follow-up that has been maintained, fact apart that India has fared poorly regarding the conference and the implementation of any of the obligations undertaken there. However, since there is a Rio+5 on the anvil (December next, Kyoto, Japan) there is still hope that more states will come forward to implement the laws.
The United Nations Conference on Environment and Development, Rio de Janeiro, 1992.
The most significant and accepted international conventions on Environment is the Rio Conference - 1992 UN Conference on Environment and development, Rio de Janeiro, Brazil. Accepting, elaborating and modifying many of the 1972 Stockholm principles, this conference was one of the largest in terms of attendance as well. It had a parallel conference running, that of NGO's (Non-Governmental Organisations) which could not participate in the main conference. Co-operation among them however did influence the atmosphere in the conference which also reflected in the large number of states that signed it.
Five documents were agreed at Rio-
The Rio Declaration (Rio Declaration on Environment and Development)
A Statement of Principles on Forestry (Statement of Principles for a Global Consensus of the Management, Conservation and Sustainable Development of All Types of Forests)
Convention on Biological Diversity
The Framework Convention on Climate Change (UNFCCC)
1. The Rio Declaration's 27 principles together attempt to define and reshape world's development with an environmental perspective. Like the Article 21 of the Stockholm conference, Art 2 of this declaration, while recognising the sovereign right of the states to exploit their own resources based on their own environmental and developmental polices, puts on them a responsibility to ensure that their activities do not cause damage to the environment of other states. However, all states do not have same responsibilities. They are common but differentiated. One of the responsibilities on all the states is to make judicial and administrative proceedings accessible to all, with the responsibility to enact effective environmental legislation - national law regarding liability and compensation for victims of pollution and other environmental damages and also to co-operate with other States to develop international law on the matter. These national laws have to be based on the "precautionary approach" and ensure internalisation of environmental costs with the requirement that the polluter pay for the damage he causes.
2. The principles on the forestry were formulated mainly for the conservation of forests of the world through legal obligations. An inter-governmental panel on forests was set up in 1995 under the Commission on Sustainable Development (CSD). The CSD was established under chapter 38 of Agenda 21 in the 1992 conference to monitor the implementation of the Rio accord. The work of the panel was to develop criteria for defining sustainable forest use, analyse causes of deforestation and ways to prevent it, and study the feasibility of an international forest convention, developing methods for calculating the full cost to the environment involved in production of forest goods. The concern expressed at and since Rio is that continued felling of tropical forest could wipe out rich wildlife habitats and threaten the planet's ability to transform sufficient quantities of carbon dioxide into oxygen.
The point of controversy was that the developing countries pointed out that the developed countries had already used up much of the world's forests in the process of achieving economic growth and now wished to control the developing countries and the use of their own natural resources and in addition also make them pay a heavy price for doing so. It is time to recognise that conserving forests alone is not the solution, it must be accompanied by reduction in pollution causing activities which are mostly found in the developed countries and are growing unabated.
3. The Convention on Biological Diversity aimed at stopping the rapid extinction of species and habitats, the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of benefits arising out of the utilization of genetic resources. More than 165 countries have ratified the convention, 68 of these have reportedly increased access to information since the CSD, a similar number have reported preparation or are in the process of preparation of a national biodiversity strategy or action plan, about 51 are reported to have undertaken a systematic review of existing biodiversity related institutions, many have reviewed their legislations etc. However, transfer of relevant technologies and availability of funds, which was also an important part of the agreement, has been very disappointing. The funding has actually declined since Rio. The developed countries seem to benefit the most from all the conservation/provisions - (a) the forests are protected to act as "sinks" - thereby legitimising polluting by developed countries as they are the biggest polluters; (b) any use of the forest is punished heavily by way of "polluter pays" principles - thereby punishing the producers from the developing countries; (c) provisions for protection of scientific database because the technology for this comes from the developed States so their interests must be protected at all costs, although the data come from the developing, "indigenous" people - they bear the burden on behalf of all.
4. The Framework Convention on Climate Change (UNFCCC) was the world's response to the call for fighting global warming by way of returning the greenhouse gas emissions to their 1990 levels by the year 2000. As in the other conventions, in this too the developed countries agreed to provide environment friendly technology to the developing and poor countries to ensure the sustainable development. Yet, emissions rose to 35% in 1995 from 29 - 30% in 1990. This, in light of the fact that UNFCCC lays down that emission levels by 2000 should come down to 1990 levels with a relaxation of 10 years for developing countries to reach the same (1990) level. However, now the countries want to change the standard to gain time. The AOSIS (i.e. Alliance of Small Island States) and other developing countries in the G-77 insist that parties meet the Toronto target of 20 percent reduction in CO2 emissions by 2005. Some European governments ask for cutting emissions by 2010 but do not want fixed targets (Daman J Singh, "Consensus Eludes Climate Change Meet", in WWF-India Network Newsletter, Nov. 1996, Vol. 7, No. 3, pp 2-3). The World Health report released at the last Conference of Parties (CoP 2) warns of sharp rise in tropical disease like malaria, dengue and cholera in most parts of Africa and Asia, and that water scarcity will affect many more. A changing hydrological cycle will alter rainfall patterns in many areas. Coastal regions will receive higher precipitation and face flooding due to increased rates of evaporation. But many inland areas in the tropics may instead face droughts and drying up of rivers. A 3-4 degrees warming would eliminate up to 85 percent of remaining wetlands, wiping out many bird and turtle species. Many other disastrous effects are reported which should be warning enough for people all over the world to sit up and take notice. This will require consensus to finally reduce emissions by 50-70 percent over the next few decades by implementing measures that increase energy efficiency, limit carbon consumption and encourage transition to renewables.
5. Agenda 21 was the main programmatic result establishing a negotiated framework for co-operative action between governments, agencies and programmes of the UN system, NGO's and the private sector. The Commission on Sustainable Development was established under the Agenda to monitor the progress in the implementation of the Agenda relating to provision of financial resources, transfer of technology, to consider the information submitted by Governments, etc.
Although India had an Elephant's Preservation Act in 1879 and a Forest Act in 1927, environment related legislations after independence and in that sense 'Indian' came about as late as 1972 with the Wild Life (protection) Act.
1. The Wild Life Protection Act, 1972 (and the Wild Life Protection Amendment Act, 1991)
The 1972 Act was mainly to prohibit hunting of about 50 species of wild animals, 43 birds and many reptiles, insects, etc. specified in the Schedule to the Act. This Act was amended thrice till 1991. It established sanctuaries, parks and a network of officials to advise the government and in charge of conservation, namely, a Director of Wild Life Preservation and Assistant Directors of Wild Life Preservation as also a Chief Wild Life Warden and Wild Life Wardens. The 1991 Act added another post of Honorary Wild Life Wardens for each district. The selection of areas to be declared as sanctuaries (introduced in 1991), National Parks, game reserves (omitted by the 1991 Act) was to be done by the State Governments on the advise of the Wild Life Advisory Board. The Minister in charge of Forests in the State or Union Territory or the Chief Secretary to the State Government, if there is no such Minister, or Chief Secretary to the Government or the Union territory would be the Chairman. Among the members - two are from the State/Union Territory legislature, Secretary to the State Government/Government of Union Territory in charge of forests, Forest Officer in charge of the State Forest Department, ex. officio (since 1991), an officer to be nominated by the Director and the Chief Wild Life Warden.
The Act prohibited hunting except (by the order of the Chief Wild Life Warden) when an animal had become dangerous to human life or disabled or diseased beyond recovery and for educational purposes, Scientific research or Scientific Management (which means translocation of any wild animals to an alternative suitable habitat or population management without killing or poisoning any wild animals) or collection of specimens for zoological gardens, museums and similar institutions.
Since the Act was a measure to curb the large-scale commercial hunting of animals, a number of appropriate measures in the form of prohibitions are found in it. Causing of fire, entry into a sanctuary with weapons (even simple entry or staying within the sanctuary boundaries is only with permission), use of chemicals, explosives etc. are prohibited.
These restrictions are becoming common knowledge now with spread of awareness about protection of our much valued flora and fauna but when the Act was passed and even now it is not much respected. There still exist smugglers of timber, sandal wood, ivory and animal hides. In spite of many laws which prohibit cruelty to animals, we find youth teasing animals in cages in the zoos, throwing them food, ignorant of the fact that giving wrong food at wrong time can be dangerous to the animal and create difficulties for the zoo personnel.
2. The Forest (Conservation) Act, 1980 as amended in 1988 and The Forest (Conservation) Rules 1981 (as amended in 1987 and 1989).
A very small piece of legislation that requires the prior approval of Central Government to dereserve a forest for any "non forest purpose" or for lease or otherwise to any private person etc. other than that owned, managed or controlled by Government or even for reafforestation. A 'non-forest purpose' is cultivation of tea, coffee like commercial crops or any purpose other than reafforestation (reafforestation is also not allowed without permission but is also not a 'non-forest purpose').
The Act provides for an Advisory Committee consisting of the Inspector General of Forests, Ministry of Environment and Forests to be the Chairman, five members - Additional Inspector - General of Forests, Ministry of Environment and Forests, Joint Commissioner (Soil Conservation), Ministry of Agriculture, three eminent environmentalists (non-official) and; a Member - Secretary- a Deputy Inspector General of Forests (Forests Conservation), Ministry of Environment and Forests.
The committee can allow dereservation of forests when the State Government or any other authority has certified that it has considered all other alternatives and that the land under consideration is the minimum area required and that no other alternative is feasible and that the authority undertakes to provide the cost of equivalent land area and its afforestation. Forest land in a nature reserve, national park, wild life sanctuary, biosphere reserve etc. are to be considered carefully. Rehabilitation of persons displaced because of any river valley or hydroelectric project and for their agricultural use is another factor for consideration when allowing any dereservation.
3. In response to the 1972 Stockholm Conference (the United Nations Conference on the HumanEnvironment) India enacted The Environment (Protection) Act, 1986 and the corresponding Environment (Protection) Rules 1986, - This is a general enactment empowering the Central Government to prevent, control and abate environmental pollution.
'Environment' - according to the Act 'includes water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organisms and property' [sec 2(a)]. There are also special Acts on water pollution (1974 - amended in 1988) air pollution 1981 (amended in 1987) and rules concerning the manufacture, use, import, export and storage of hazardous micro- organisms/genetically engineered organisms or cells etc. (1989).
The Environment Protection Act (1986) empowers the Central Government to co-ordinate actions of State Government officers etc., plan and execute a nation wide programme for the prevention, control and abatement of environmental pollution, lay down standards for the quality of environment 'in its various aspects' and for emission or discharge of environmental pollutants from different sources. These standards are provided in the Schedule to the Environment Protection Rules, 1986. The schedule covers seven industries- caustic soda industry, man-made fibers (synthetic), oil refinery industry, sugar industry, thermal power plants, cotton textiles industries and composite woollen mills. Different parameters and standards are prescribed for each. The Government can give directions for inspection of any premises, plant, equipment, machinery, manufacturing etc. These directions must be in writing and specify the nature of action to be taken. Objection to the directions, if any, can be filed with a designated officer within 15 days and will be given an opportunity to present his case. Within the next 45 days the Central Government will have to decide on its action whether to confirm, modify or decide not to issue the proposed direction.
Besides, demarking and segregating industrial areas from non-industrial ones is also the Government's task. Considerations like the maximum allowable limits of concentration of various environmental pollutants (including noise) for an area, likely emissions and discharge from an industry, net adverse impact likely to be caused by the industry, the biological diversity of the area, the proximity to human settlement are a few of the numerous ones to figure in the decision making process. The problem that arises is that even when the polluting industries are put away from the city limits but the growing population and its need for settlement eventually engulf the industrial areas like the fifty percent of Delhi's industrial units that were in residential area and were recently asked by the Supreme Court to move out. Another even more difficult problem is that of noise pollution and air pollution due to the vehicular traffic which also grows correspondingly. It is yet to be brought under control.
Accidents take place like explosions and gas leaks due to improper maintenance or negligence and the poor people, who live in surrounding areas attracted by the basic facilities available to the factories, suffer the most and are the victims of such tragedies. Hospitals and other Institutions are situated at busy trafic junctions facing great safety hazards. Since it is not desirable to move these out of city, alternative ways, diversions etc. should be considered to tackle the problem.
The Environment Protection Act also provides for environmental laboratories to evolve standardised methods for sampling and analysis of various types of environmental pollutants, to analyse samples, to carry out investigations to lay down standards for the quality of environment and discharge of environmental pollutants, to monitor and enforce the standards set, and to report periodically to the Central Government.
Among the components of environment are air and water, needless to stay, basic amenities for sustaining life. These have also been dealt with in separate enactments.
4. Water (Prevention and Control of Pollution) Act, 1974; Water (Prevention and Control of Pollution) Rules, 1975; and Water (Prevention and Control of Pollution) Amendment Act 1988.
The main concern of the Acts is to maintain or restore the wholesomeness of water. The 1974 Act provides for a Central Pollution Control Board consisting of 17 persons (at its maximum) as also State Pollution Control Boards with a similar composition. These boards also function under Air Pollution Act, and Hazardous Waste Management Rules 1989 explained later. The persons are to represent agriculture, fisheries, companies or corporation owned, controlled by the Central or State Government (nominated), members of the State Board will represent in the Central Board and the State Pollution Control Board shall have representatives from the local bodies, a full time member secretary possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control. The Chairman must have special knowledge or practical experience in respect of matters relating to environmental protection or in administering institutions dealing with these matters. The CPCB has a full-time Chairman while an SPCB may have a full-time or a part-time Chairman. There can also be Joint Boards between any two Governments.
The function of the boards is to set standards, verify, modify or annul them as and when necessary, collect, compile and publish technical and statistical data relating to water pollution, measures devised for prevention and control, plan and cause to be executed nation- wide/area-wide programmes spreading information, promote and conduct research on the subject towards evolving economical and reliable methods of the sewage-treatment and trade effluents and disposal of sewage etc. The boards can also levy and collect a cess on water consumed by industries and authorities for increasing their (Boards') resources under the Water (Prevention and Control of Pollution) Cess Act, 1977.
The 1974 Act also requires information to be furnished by an establishment (industry or trade) as regards abstraction or discharge of substantial trade effluents. A sample can be taken by a state official, half of which would be sent to two laboratories for analysis. (The laboratories are established under the Act at the Centre and State levels). The reports of which may be presented, if necessary, before a court. The punishment for polluting is imprisonment upto three months or with fine upto Rs. 5000/- or both. Continuation of such failure attracts an additional fine upto Rs 1000/- per day of such failure.
The Act also prohibits polluting of stream or well with any poisonous, noxious or polluting matter or stopping the flow of the water which might lead to a substantial aggravation of pollution. The punishment entailed is imprisonment for not less than six months but which may extend to six years and with fine. The provision of a minimum punishment (although a subject for debate in legal theory), is meant to convey the gravity of the offence and the seriousness with which the legislature intends it to be dealt with. However any of these events occurring naturally or with the permission of the SPCB are exempted.
A punishment of imprisonment upto three months and/or fine upto Rs 1000/- is also leviable for anyone who (a) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the ground or any notice etc. put up under the authority of the Board; (b) obstructs anyone acting under the orders or directions of the Board or is acting under this Act (c) damages any works or property belonging to the Board; (d) fails to furnish any information to any officer as required by him under the Act or knowingly and wilfully makes false statement in material facts for obtaining any consent from the State Board for discharge of sewage or trade effluents into a steam or well or sewer or on land or was doing so before the commencement of the Act; or(e) tampers with the monitoring device required for measuring the levels etc. [Sec. 42(2) read with Secs. 25 and 26].
Every subsequent offence of any of the above mentioned kinds is punishable with imprisonment, again, for not less than one year but which may extend to seven years and with fine. A maximum of two years is given for the enforcement authorities to detect and apprehend the offender. This means that no offender can be punished after two years of the offence being committed, therefore, any offence committed under this Act is pardoned if two years have passed since.
The 1988 Amendment increased the fine to Rs. 10,000/- and in case of continuing offence and additional fine upto Rs. 5,000/- for everyday during which such contravention or failure continues. The imprisonment provided for remains at three months. This amended penalty is only for those offences which do not have any penalty prescribed elsewhere in the Act.
A complaint can be made by a Board or any officer authorised under the Act or any person who has given a notice of not less than sixty days in the prescribed manner- Form XV given in the Water (Prevention and Control of Pollution) Rules 1975. The 1988 Amendment has given the common people the right to issue a notice to the Board about their intention to make a complaint which is a very welcome step since (a) the Boards are not necessarily aware of all the places of pollution in the country and (b) it is the common man who comes across such incidents and also suffers because of them. This amendment can give impetus to people like M.C. Mehta who otherwise have to take recourse to 'fundamental right to life' provision of the Constitution. However, one point to note is that the fine levied is minimal compared to the amounts saved by the pollutants by not treating the effluence or preventing it from mixing with clean streams etc., therefore cannot be an effective deterrent.
5. Air pollution seems to have come to the notice of the legislature a little later than water pollution did. As the area covered by air and water differ in that water constitutes 70% of the earth's surface while the air envelopes the whole of it, this could probably be the reason why the pollution in air does not seem as alarming as does water pollution. The delay of about seven years to enact a law on air pollution than on water pollution could also be attributed to this.
The Air Pollution (Prevention and Control of Pollution) Act, 1981 was enacted in response to the 1972 Stockholm UNCED which required all participating states to take appropriate steps for the preservation of the natural resources of the earth including the preservation of the quality of air and control of air pollution.
It is interesting to note that while control of water pollution was India's own initiative (the concerned Act atleast does not mention the 1972 UNCED as does the Act on Air pollution therefore, this conclusion) the measures on air pollution came only as a response to the conference of 1972 at Stockholm.
The Air (Prevention and Control of Pollution) Act, 1981
The Central and State Pollution Control Boards established under the Water (Prevention and Control of Pollution) Act, 1974 exercise powers and function in relation to air pollution as well. Other provisions regarding constitution, composition, functions etc being the same, the Air (Prevention and Control of Pollution) Act gives the Board some additional powers. The board can declare any area as air pollution control area or areas, alter it- extend or reduce or merge it, prohibit the use of any fuel there and regulate establishment or operation of any industrial plant in such an area, require installation, alterations, replacement etc. of control equipment.
The Board can also make an application to a court of Metropolitan Magistrate or a Judicial Magistrate First Class (JMFC), but not lower, for restraining any person from such an act (of polluting the air).
The control of pollution caused by emissions from automobiles, is also covered by this Act. Section 20 empowers the State Government, in consultation with the State Pollution Control Board, to give such instructions to the concerned authority in charge of registration under the Motor Vehicles Act, 1939 and such authority to ensure compliance with set standards for emission of air pollutants from automobiles.
The punishment for violation of this Act is higher than that under the Water ... Act - the provision for imprisonment is atleast one year and six months extendable to six years and with fine, with an additional fine upto Rs 5,000/- for every day during which failure continues after the conviction for the first such failure (amended Sec. 37).
In spite of laws, how effective the laws are is a different question, the pollution levels in India have not gone down, barring that in a few pockets which was mainly due to concerted local efforts.
It is the judiciary in India and the people themselves that had to perform functions entrusted to the Pollution Control Boards - the five chemical industries in Rajasthan, the polluting plants in Delhi, Karnataka have been forced to close down not by the PCBs which should have done it, had they been alert and true to their profession but by alert and environment - concious local and other people.
And, in spite of all these mass actions and fury, the big dam projects continue to progress while the displaced persons still wait for their rehabilitation of Tehri Garhwal since 1970s and that of Sardar Sarover since 1980s.
6. Certain rules also exist regulating manufacture, use, import, export and storage of hazardous micro-organisms/genetically engineered organisms or cells (1989), chemicals (1989) and wastes (also of 1989). [Rules are technically different from an Act (Statute). These rules have been framed by the Central Government drawing authority from the Environment (Protection) Act, 1986. Sections 6, 8 and 25].
The Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms/Genetically
Engineered Organizms or Cell Rules, 1989
The Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989
The Hazardous Wastes (Management and Handling) Rules 1989
The last mentioned rules also require the Pollution Control Boards under the Water .... Act explained above while the first two mentioned have their own machinery (established by these rules).
The Hazardous Micro-organisms Rules (shortened for convenience) constitutes six committees
(b) Review Committee on Genetic Manipulation
(c) Institutional Bio Safety Committee
(d) Genetic Engineering Approval Committee
(e) State Bio Technology Co-ordination Committee
(f) District Level Committee
All these committees supervise and control the production, use etc. of the genetically engineered micro-organisms. Therefore any production, use, application, release etc. of such organism must be with the approval of the concerned committee.
Similar are the provisions for hazardous chemicals with the addition of a safety report, preparation of on-site and off-site emergency plan, to the competent authority specified in column 2 of schedule 5 to the rules. The authority will forward the same to the Ministry of Environment along with a notification and report relating to any major accident on the site. Information must also be given to persons outside the sites, directly or through the District Emergency Authority, of the nature of the major accident hazard and the safety measures and the "dos" and "don'ts" to be adopted in such an event. Preparation and availability on request of a correct and proper safety data sheet, labling of containers appropriately, information regarding import of hazardous chemicals so that suitable arrangements for proper handling of the goods and their safe-keeping can be made at the ports, sufficient notice therefore, for the purpose are other requirements under the Act.
The Hazardous Wastes ... Rules exclude matters covered by the Air ... Act (waste water and exhaust gases), wastes arising out of the operations from ships beyond five kilometres as covered under the provisions of the Merchant Shipping Act, 1958 and radioactive wastes covered by the Atomic Energy Act, 1962. Therefore it applies to the hazardous wastes specified in the schedule like cyanide wastes, metal finishing wastes, barium and antimony, mercury, arsenic, thallium and cadmium bearing wastes containing water soluble chemical compounds of lead, copper, zinc, chromium, nickel, selenium, and 14 more categories specified in the schedule.
The Rules are based on the Basal Convention of 1989 on transboundary movement of hazardous wastes and their disposal. The rules put responsibility on the occupier generating the wastes, of proper handling and disposing of without any adverse effect that may result from it, proper collection, reception, treatment, storage and disposal and only in facilities authorised by the Pollution Control Board. Such authorisation is valid for two years and has to be renewed.
Appeal, within thirty days of the order passed, lies to the State Government/Ministry of Environment and Forests, as the case may be, from SPCB/CPCB against an order of suspensions, cancellations or refusal of an authorisation.
The disposal sites are to be identified, compiled and an inventory of it published by the state Govt or person authorised by it. Information must also be maintained and published as to the description, information related to the amount, nature and toxicity of Hazardous wastes at each site. The occupier is also required to maintain similar records and send annual returns to SPCB. Accidents must be immediately reported to the SPCB.
Imports of hazardous are allowed into India for dumping, disposal, reuse as a raw material after application to central Govt (the Ministry of environment and forests) and scrutiny.
7. The latest of the environmental regulations (1993 - the Environmental Clearance Notification) applied in India is that of requirement of an environmental impact Assessment (EIA) and an Environment Management Plan by some industries desiring to set shop in India. These industries are specified in Schedules I and II to the Notification. These are 24 and 56 in number, respectively. Individual units in Industrial Estates that have EIA are exempt from the requirement, so are Industrial Townships provided these are as per the carrying capacity study of the area. It requires an environment clearance from the Ministry of Environment and forests. The applicant is required to present the estimated impact of the proposed project on the total ecosystem, the resources to be exploited - like land use, solid waste quality/disposal, emissions into air, water, likely health impacts, pollution sources existing in the 10 km radius and their impact on quality of air, water and land, rehabilation plan for quarries/below areas, green belt plan, compensatory afforestation plan, number of villages and population to be displaced, and rehabilation master plan.
Four kinds of problems, rather problems at four levels, are encountred by environmental laws.
1. Making of laws
Laws are norms and require or prescribe certain minimum conditions to be fulfilled, certain minimum acts to be carried through or avoided, as necessitated by the circumstances. Environmental law, like most laws in diverse conditions, encounters serious difficulties in its formation level. This problem is more peculiar because of the different levels of "development" or say industrial development achieved by different countries. Since the environmental problems have come to light only after some countries had achieved a very high level of industrial advancement at the cost of their natural resources, those countries that have not done so and are therefore economically poor are reluctant to accept standards set for protection of environment which they find too high to bear. At the same time such concerns prove doubly costly to them, one - they are to spend a lot of money on new technology which they do not posses and two - they are stopped from gaining materially too since industrial development is no longer an "approved" goal. On the other hand, the developed states are not ready to "pay up" unless their demands are fully satisfied. The demands are mainly in the form of preventing other states from using their own natural resources which is very strongly resented by those, mostly developing, countries. The will to regulate life differently is, therefore, lacking. This is also called the consensus problem.
2. Implementing the laws
Environmental laws are stringent in nature, in that, they prohibit acts which bring immediate gains and in the long run may prove dangerous to life on earth. So even if States, in case of international laws, may agree to the need for laws they would prefer every one but themselves to follow them. Such an attitude will also be reflected in the kind of municipal laws enacted for the purpose and the seriousness with which they are implemented within the domestic limits.
3. Effectiveness problems
Persons who come in direct contact with or deal with nature, like farmers, complain that they were not consulted before passing the laws. These are the people and the areas - the grassroot level - men and women especially in rural areas - where the environmental laws must apply. Such non-consultancy results in wrong measures or a complete lack of understanding of the problems and a lack of perspective on how to solve the problems in the best possible manner because the law makers are far removed from the ground reality, figuratively as well as literally .
The problem is aggravated where women are concerned. They are practically left out of the mainstream of development. They are bundled, unnaturally, with a lot of sections, classes etc. when they are a class in themselves with very unique characteristics since they also cut across sections/classes very different from each other. Besides these, they also have very difficult problems to tackle as "women" - illiteracy, poverty, lack of political empowerment, economic dependence, maximum physical labour - most of which is for free or very cheap. All these aspects are not considered while framing any policy or making any law. When so many factors are left out the law becomes very weak and almost ineffective.
4. Time Factor
Destruction always takes much less time than does construction. This on a global scale then becomes, needless to say a gigantic task. Further problems include the need to re-educate the people about their life styles because the environmental laws regulate life styles as their end. Resistance to laws increases with every aspect of one's life it touches and attempts to redefine. Since people have a relatively short time and one they want to make the most of it and not get bogged down by rules of behaviour "which any way would benefit the future generation they don t even know".
In spite of these "mammoth" problems environmental law has brought sharp focus to hazards which we were creating, developing and boosting by our thoughtless actions and false desires for "better living standards" and given a direction to goals that should be rather than that were.
Certain concerns have been in the world focus precisely because they generated a lot of debate over what should get primacy and at what cost - development or environment. The conflict was also addressed in 1972 at the UN conference, however, given the fact that they still generate a lot of heat, the issue does not seem to have been solved completely. Some of these problems are described below. The attempt is to provide both sides of the debate, however, the environmental concerns are likly to overshadow the developmental ones which reflects the side of the debate favoured.
The then prime minister of India, Mrs Indira Gandhi at the 1972 Stockholm Conference remarked "Poverty, ladies and gentlemen, is the greatest polluter", She was arguing for the industrial development in India because feeding the poor was India's greatest need at the time. The stand was welcomed by all the third world countries which wanted to develop before they thought about environmental concerns. This became a major topic of discussions for the 1992 UN conference which was called the United Nations Conference on Environmental and Development (and also as the Earth Submit) held at Reo de Janeiro in Brazil . Five years have passed since the formulation of Agenda - 21 and its acceptance by about 160 countries which put heavy responsibility on the developed countries to transfer the technology developed by them and necessary for all to carry out the "development with sustainability" principle. Even today developing countries have to fight for obtaining these technologies for the development of which they do not have any resources. Questions are also raised as to the meaning and definition of development which the Indian environmentalists claim is a western defined concepts which we also strive for whereas development is justice, the right to survival and nature is - (a) creativity, activity, productivity ( b) diversity in form and aspect (c) connectedness and inter-relationships of all beings, (d) continuity between the human and natural (e) sanctity of life in nature (Vandana Siva, "Chipko's Earth Charter", pp 241-250 at p.246 in G.S. Rajwar (ed) Garhwal Himalaya Ecology and Environment, 1993). This has been a long - standing debate between the developed and the developing states and does not seem likely to be resolved very soon.
The Chipko Movement started in the 1970s when forests in the Garhwal region were being denuded for the so - called development of the region through the establishment of a sports goods company. Such deforestation resulted in floods and land slides in the region. The natural disasters increased in frequency because of activities like road expansion for tourism and access to these companies and for timber contractors. Three years of blockading by the Chipko activists, on the banks of a stream, the source of which was being mined for the lime stone in the Doon valley, resulted in the closing down of the mine. Twelve springs in the valley had, in the meantime gone dry. Devastating earth quake in Tehri - Garhwal in 1984, brought the movement to this regions to oppose big dam projects. Several science reports have since linked the seismic activities to such big projects but the projects continue in various regions of the country in spite of the mass protests generated. Sunderlal Baghuguna now the leader of the movement is presently on a satyagraha because the people displaced by the project have still not been rehabilitated.
Similar problems of displacement of people with little or no alternative rehabilitation is the cause behind the Narmada Bachao Andalon (NBA) led by Ms Medha Patkar supported by renowned, highly respected, decorated social activist "Baba Amte" among many others. The Sardar Sarovar project is an ambitious plan to build big dams which are at the care of the controversy. Environmentalists offer small dams in more numbers along the river as the alternative. This also allows provision of water to the lowest riparian in summers when it is most needed and this is only one of the many positive aspects of the alternative offered. The argument of the government for the generation of electricity from big dams also suffers due to the facts that many other sources of energy have not been exploited at all - one glaring example is that of solar energy available in abundance, which cannot be stored for posterity and therefore must be used fully while available. Although this issue has not been raised by NBA other arguments put forward by it are equally valid. The World Bank which until then had remained mum on social issues, required a review of the project thus showing, in a way, that large projects may not be the panacea for prosperity.
Fighting environmental pollution on an individual level but employing the legal machinery is the crusader M.C. Mehta, a Supreme Court lawyer, the 1997 Magsaysay award winner. His case against the polluting Shri Ram Fertilizer Corporation compelled the government to take up the Ganga Action Plan which "cleaned" up Ganga till Haridwar. However after the initial enthusiasm waned out, the progress has been snail - paced. Mehta was also instrumental in the recent closure of industries in Delhi where upon he invited the wrath of the now jobless workers. It is very easy to ask people to give up their jobs in polluting industries for long- term national and international benefits. It is also essential that everybody remember their own duties to contribute to the same cause. Although the Supreme Court has asked the employers to pay compensations to these workers, it is necessary that funds be made available for the purpose, say in the form of loans from the government, after all the government must take the largest share of responsibilities.
Although the efforts of Mr. Mehta are laudable it is also important to note that there exist Pollution Control Boards - at the centre and in the states and thet Mr. Metha does not run them but he is forced to perform tasks that should have been performed by the Pollution Control Boards. Instead of making environmentalists and workers of polluting industries adversaries of each other, efforts should be made by both to join hands and strengthen each other. Loans should be made available by the government at attractive terms to manufacturers for making the required changes for implementing the laws. It must be kept in mind that not all industrialists are Jamnalal Bajajs or Jameshedji Tatas with a social vision and a social cause, most of them need directions and guidance, many others persuasion or even coercion. An informed and alert citizen may be the hallmark of a modern democratic society but the task has nevertheless to be performed by the government.
Common references for bothe the sections and important publications on the subject of the ENVIS references.
Dobrovolsky (1995) : Biogeochemistry of Land. Mir Publishers, Moscow, 295 pp.
Degens, E (1989) : Concepts in Biogeochemistry. Springer-Verlag, Berlin, Heidelberg, Germany, 495 pp.
Gupta,LP; Subramanian,V; Ittekkot,V (1997) : Biogeochemistry of particulate organic matter transported by the Godavari River, India. Biogeochemistry, 38(2): 103-128.
Ramanathan,AL; et al., 1997 Indian Journal of Marine Sciences.
Nayak et al. 1989 (Current Science/Indian J. of Remote Sensing)
