LESSON 39. ENVIRONMENTAL LEGISLATION

INTRODUCTION

Indiscriminate human activity has resulted in the depletion of natural resources, degradation of land and pollution of water and air, noise pollution and huge waste generation including hazardous waste and e-waste. Major sources of environmental degradation are industrialization and urbanization, both of which are influenced by higher order group of people in the social and economic sector. But the effects of environmental degradation are felt much by the poor, lower order group of people who have little rights to raise their voice against these issues. Rampant industrialization and rapid growth in industrial sectors have led to the fast depletion of resources and great deterioration of Indian environment. It is essential  to protect the human population, the animal and plant life and the environment from destruction, through the enactment of laws at the national and international levels. With the increased scientific, technical, administrative and legislative back up over the last few decades there has been a systematic approach and involvement in environmental management at the central and state levels. The “polluter pays principle” as interpreted by the Supreme Court of India, 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 environment degradation. Remediation of the damaged environment is part of the process of “sustainable development” and as such, the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.  Already common law rules applicable to environmental issues, legislation on water and air pollution and the comprehensive environment (Protection) Act of 1986 have been in practice. However, institutional structures and the problems of law enforcement are to be dealt.

A committee was setup by the then Prime Minister of India Mrs. Indira Gandhi under the Chairmanship of Shri. Pitamber Pant to prepare a basic report on India’s environmental policy which led to formation of “National Committee on Environmental Planning and coordination (NCEPC)” which was formed under the Department of Science & Technology. NCEPC was given various tasks to perform ranging from review of policies, reviews of ecological research etc. During the VIth five year plan (1980-85) special emphasis was given on sound environmental and ecological principals in land use, agriculture, forestry, wildlife, water, air marine environment, minerals, fisheries, renewable resources, energy and human settlements. Tiwari Committe in 1980  recommended the creation of a Department of Environment at the national level to explicit recognition to the pivotal rote that environment conservation must play for sustainable National Development  and later it became Ministry of Environment, Forests and wildlife in 1986.  Now, each state has a separate Department of Environment to regulate industries subject to the provision of union list. Central Pollution Control Board and State Pollution Control Boards were established in every state/ country and they are responsible for implementing these legislations as well as issuing relevant  rules, regulations and notification there of which prescribe the standards for emissions and effluents of air and water pollutants and noise levels.

NEED FOR LEGISLATION

We do not inherit the environment from our forefathers but we borrow it from future generations. Each man’s action has an impact on others and the society. Each individual's life today depends on the performance of many other individuals. For example, carelessness in handling a chemical plant or nuclear reactor could kill thousands and hundreds of thousands of people not only in the plant and its vicinity but even at a considerable distance away from it and also the future generations as like Bhopal and Chernobyl tragedy. The dangerous wastes from chemical plants or a nuclear reactor can wipe out human, animal and plant life and make the environment unfit for living. The need for collaborative action on a global level has long been felt and in 1972, representatives of 113 world governments assembled in Stockholm to participate in the United Nations Conference on Human Environment and the Stockholm conference proclaimed that:

"The protection and improvement of human environment is a major issue which affect the well-being of people and economic development throughout the world and it is the duty of all government and people to exert common effort for the preservation and improvement of human environment, for the benefit of all people and their posterity."

Many countries have introduced control mechanism to punish the enterprises or industries violating the environment and have enacted special criminal laws or amended their penal codes by creating new criminal laws in order to prosecute the most flagrant offenders through the criminal prosecution system. The Japanese law for the punishment of crimes relating to environment pollution was the first such step. Penal codes of the Federal Republic of Germany  German Democratic Republic (as it then was), Hungary, Portugal, Spain and Brazil, soon followed. Countries that do not legally distinguish between regulatory offences and crimes, such as Canada and the United states, have created new regulations related to crime dealing with flagrant violations and provided stiff punishment with fines and prison sentences to violators.

LEGAL AND ECONOMIC INSTRUMENTS

An instrument for pollution policy is any device that causes the polluter to comply with the wishes of a control authority, i.e., that causes to reduce his pollution to the target levels.  There are a large number of instruments that could be used for pollution policy and the choice of instrument in practice, together with the specific details of its design, will depend on a large number of factors that are specific to the particular problem under consideration.

Factors determining instrument choice:

  1. The nature of the discharge gaseous, liquid or solid form.

  2. The receiving medium air, water or land,

  3. Substitutability between receiving media and transport mechanisms

  4. The toxicity of the polluting substance and its persistence in the environment

  5. Pollution detection technology by installing automatic measuring instruments and lab analysis

  6. Pollution sensitivity to location of entry

  7. Identifiable discharge location and

  8. Socio-legal factors

India was the first country to impose a constitutional obligation on the State and citizens to protect and improve the environment as one of the primary duties. Article 48A of the Indian Constitution provides:

"The state shall endeavour to protect and improve the environment and to safegaurd forests and wildlife of the country."

Article 51A provides:

"It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creature." So the central, state and the concurrent lists of subjects on which Parliament and state Legislatures are empowered to legislate span: noise control , land improvement, irrigation, town planning, slum clearance, house schemes, pest control, smoke control, water pollution, forests, wildlife, recreation etc.

ENVIRONMENTAL LAWS

The Environment acts and laws in India have been analysed according to the nature of the problems. The major Environmental Acts and Rules applicable in India are given below:

The Factories Act,1948 and the Factories Amendment Act, 1987

The Insecticides Act, 1968

The Wildlife (Protection) Act, 1972

The Water (Prevention & Control of Pollution) Act 1974 (as amended upto 1998).

The Water (Prevention &control of Pollution) cess Act 1977 (as amended by Amendment Act 1991).

The Forest Conservation Act 1980.

The Air (Prevention & Control of Pollution) Act 1981  (as amended by Amendment Act 1986)

Environment Protection Amendment Rule 1983.

Manufacture, Storage and Import of Hazardous Chemicals (Amendment) Rules 1984.

Environment (Protection) Act 1986.

Hazardous Waste (Management & Handling) Rules 1989.

The Public Liability Insurance Act 1991

The Notification on Environment Impact Assessment 1994.

Besides this there are a large number of RULES and AMENDEMENTS and a plethora of STATE LAWS.

IMPLEMENTING AGENCIES

Central Pollution Control Board:  

The Central Pollution Control Board shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose off property and to contract, and may, by the aforesaid name, sue or be sued. The main function of the Central Pollution Control Board is to implement legislation created to improve the quality of land, water and air and to prevent and control pollution in the country. The CPCB shall consists of the following members : Full time Chairman, five government officials,  five persons from state board, three non-officials, two persons from companies and a full time member secretary.  The Board advises the Central Government on matters concerning the improvement of quality of ecosystem and also coordinates activities, provides technical assistance and guidance to State Boards and lays down standards for the quality. It collects and disseminates information in respect of matters relating pollution and performs functions as prescribed in the Act.

State Pollution Control Boards:

The State Pollution Control Board shall be a body corporate with the name specified by the state government having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose off property and to contract, and may, by the aforesaid name, sue or be sued.  The State Board shall consist of the following members: one full time Chairman, five government officials, three persons from local authorities, three non-officials, two persons from companies and a full time member secretary. The State Boards have the power to advise the State Government on any matter concerning the prevention and control of pollution. They have the right to inspect at all reasonable times any control equipment, industrial plant, or manufacturing process and give orders to take the necessary steps to control pollution. They are expected to inspect pollution control areas at intervals or whenever necessary. They are empowered to provide standards to be laid down for different industrial plants with regard to quantity of pollutants into the atmosphere. A State Board may establish or recognize a laboratory to perform this function. The State Governments have been given powers to declare pollution control areas after consulting with the State Board and also give instructions to ensure standards and restriction on use of certain industrial plants.

Last modified: Wednesday, 30 October 2013, 7:00 AM