THE ENVIRONMENT PROTECTION ACT 1986: AN
ANALYSIS
INTRODUCTION:
Against the backdrop of the United Nations
Conference on the Human Environment held at Stockholm in June 1972, in which
India was a participant, the Central Government enacted a legislation, ‘The
Environment (Protection) Act, 1986’, with an objective for protection and
improvement of the environment and for matters connected therewith.
As per this Act, the Central Government shall have the power to take all such measures for the purpose of protecting and improving the quality of the environment and to prevent environmental pollution. Further, the Central Government shall have the power to give directions in writing to any person or officer or any authority for any of the purposes of the Act, including the power to direct the closure, prohibition or regulation of any industry, operation or process.
No person carrying on an industry, operation or process shall discharge or emit any environmental pollutant in excess of standards prescribed by the Government. Further persons handling with hazardous substances shall comply with the procedural safeguards as may be prescribed by the authorities.
As per the Act where the discharge of any environmental pollutant in excess of prescribed standard occurs, or is apprehended to occur due to any accidental or other unforeseen act or event, the person responsible for such discharge shall be bound to prevent or mitigate the pollutant so caused as well as intimate the fact of such occurrence to the concerned authorities.
The Central Government or any other officer empowered by the Central Government shall have the powers to take the samples of air, water, soil or any other substances from any factory, premises, etc for the purpose of analysis. The said officer shall without delay send the container with the sample to the laboratory established or recognized by Central Government. The Central Government has established several environmental laboratories for the purposes of the Environment (Protection) Act.
For the purposes of protecting and improving the quality of the environment and preventing and abetting environmental pollution, the standards of emission or discharge of environmental pollutants from the industries, operations or processes are specified in Schedules 1 to 1V of the Environment (Protection) Rules.
The Central Government takes into consideration various factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas. Every person carrying on an industry, operation or process requiring consent under the water (prevention and control of pollution) Act, 1974 or under The Air (Prevention and Control of Pollution) Act, 1981 or both or authorization under the Hazardous Waters (Management and Handling) Rules, 1989 shall submit an environmental statement for the financial year ending on the 31st March in Form V to the concerned State Pollution Control Board on or before the Thirteenth day of September every year, beginning 1993.
As per this Act, the Central Government shall have the power to take all such measures for the purpose of protecting and improving the quality of the environment and to prevent environmental pollution. Further, the Central Government shall have the power to give directions in writing to any person or officer or any authority for any of the purposes of the Act, including the power to direct the closure, prohibition or regulation of any industry, operation or process.
No person carrying on an industry, operation or process shall discharge or emit any environmental pollutant in excess of standards prescribed by the Government. Further persons handling with hazardous substances shall comply with the procedural safeguards as may be prescribed by the authorities.
As per the Act where the discharge of any environmental pollutant in excess of prescribed standard occurs, or is apprehended to occur due to any accidental or other unforeseen act or event, the person responsible for such discharge shall be bound to prevent or mitigate the pollutant so caused as well as intimate the fact of such occurrence to the concerned authorities.
The Central Government or any other officer empowered by the Central Government shall have the powers to take the samples of air, water, soil or any other substances from any factory, premises, etc for the purpose of analysis. The said officer shall without delay send the container with the sample to the laboratory established or recognized by Central Government. The Central Government has established several environmental laboratories for the purposes of the Environment (Protection) Act.
For the purposes of protecting and improving the quality of the environment and preventing and abetting environmental pollution, the standards of emission or discharge of environmental pollutants from the industries, operations or processes are specified in Schedules 1 to 1V of the Environment (Protection) Rules.
The Central Government takes into consideration various factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas. Every person carrying on an industry, operation or process requiring consent under the water (prevention and control of pollution) Act, 1974 or under The Air (Prevention and Control of Pollution) Act, 1981 or both or authorization under the Hazardous Waters (Management and Handling) Rules, 1989 shall submit an environmental statement for the financial year ending on the 31st March in Form V to the concerned State Pollution Control Board on or before the Thirteenth day of September every year, beginning 1993.
The concern over the
state of environment has grown, the world over since the sixties. The decline
in environmental quality has been evidenced by increasing pollution, loss of
vegetal power and biological diversity, excessive concentration of harmful
chemicals in the ambient atmosphere and in food chains, growing risks of
environmental accidents and threat to life support systems.
From time to time
various legislations relating to protection of environment from specific types
of pollution have been passed by the Indian legislature. However, the
Environment (Protection) Act, 1986 is the most comprehensive act on the Indian
statute book relating to environment protection. It is a general legislation
for the protection of environment. It was enacted under Article 253 of the
Constitution.
The world community’s
resolve to protect and enhance the environment quality found expression in the
decisions taken at the United Nations Conference on the Human Environment held
in Stockholm June, 1972. The Government of India participated in the conference
and strongly voiced the environmental concerns. While several measures had been
taken for environmental protection, both before and after the conference, the
need for general legislation further to implement the decision of the Conference
had become increasingly evident. Therefore the Environment (Protection) Act,
1986 was passed.[1]
OBJECT
AND PURPOSE OF THE ENVIRONMENT PROTECTION ACT 1986:
The Environment
(Protection) Act, 1986 extends to the whole of India and it came into force on November
19, 1986.
After the enactment of
Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and
Control of Pollution) Act, 1981, it was thought that there should be a general
legislation for environmental protection as well as for coordinating the
activities of various regulatory agencies. Need was felt to create authority
with adequate power for environment protection, regulation of discharge,
handling of hazardous substances, speedy response to accidents threatening
environment and deterrent punishment to those who endanger human environment,
safety and health.
Following are the
objectives of EPA, 1986:[2]
• To implement the
decisions made at the U.N. Conference on the Human Environment held at
Stockholm in June, 1972.
• To co-ordinate
activities of the various regulatory agencies under the existing laws and
creation of an authority or authorities for environment protection.
• To provide for
deterrent punishment to those who endanger human environment, safety and
health.
• To ensure sustainable
development is also one of the goals of the EPA, 1986. If the act is not armed
with the powers to ensure sustainable development, it will become a barren
shell.
• To enact general law
on environmental protection which could cover uncovered gaps in the areas of
major environmental hazards as the existing laws generally focused on specific
types of pollution or on specific categories of hazardous substances and some
major areas of environmental were not covered.
In short, the EPA, 1986
aims at protecting and improving the environment and prevention of hazards to
human beings, other living creatures, plant and property.
1. Environment [Section
2(a)]:
Environment includes
water, air and land and the inter relationship which exists among and between
water, air and land and human beings, other living creatures, plants,
microorganisms and property.
2. Environmental
Pollutant [Section 2(b)]:
Environmental Pollutant
means any solid, liquid or gaseous substance present in such concentration as
may be, or tend to be, injurious to environment.
3. Environmental
Pollution [Section 2(c)]:
Environmental pollution
means the presence in the environment of any environmental pollutant.
4. Handling [Section
2(d)]:
Handling, in relation
to any substance, means the manufacture, process, treatment, destruction,
conversion, offering for sale, transfer, or the like of such substance.
5. Hazardous Substance
[Section 2(e)]:
Hazardous substance
means any substance or preparation which, by reason of its chemical or
physicochemical properties or handling, is likely to cause harm to human
beings, other living creatures, plants, microorganisms, property, or the
environment.
6. Occupier [Section
2(f)]:
Occupier in relation to
any factory or premises means a person who has control over the affairs of the
factory or premises and includes, in relation to any substance, the person in
possession of the substance.
POWER
OF THE CENTRAL GOVERNMENT TO TAKE MEASURES TO PROTECT AND IMPROVE ENVIRONMENT:
The Central Government
has the power to take all such measures as it deems necessary for the purpose
of protecting and improving the quality of environment and preventing,
controlling and abating environmental pollution. Such measures may include:
• Co-ordination of
actions by the State Government officers and other authorities under this act
or under any law.
• Planning and
execution of nation- wide programmes for the prevention, control and abatement
of environmental pollution.
• Laying down standards
for the quality of environment in the various aspects.
• Laying down standards
for the emission or discharge of environmental pollutants.
• Restriction of areas
in which any industry, operation or process shall be carried out.
• Laying down
procedures and safeguards for handling of hazardous substances.
• Examination of
manufacturing processes, materials and substances which are likely to cause
environmental protection.
• Carrying out and
sponsoring investigations and research relating to problems of environmental
pollution.
• Establishment and
recognition of environmental laboratories.
• Such other matters as
the Central Government may deem necessary of the purposes of securing effective
implementation of this Act.
Under section 3(3)[4],
the Central Government may constitute an “authority” or “authorities” to
exercise powers and perform functions as mentioned above. The Central
Government is also having the power to appoint officers to exercise powers and
perform functions under this Act.
It is submitted that
very wide power has been conferred under section 3(3) of the EPA, on the
Central Government to constitute any “authority” to exercise powers and perform
functions mentioned in the act. The Central Govt under this section can
implement the suggestion of the SC for establishment of “environment courts”
which alone should be empowered to deal with all the matters, civil and
criminal relating to environment.
The SC in various cases
has directed the Central Govt to constitute “authority” under section 3(3) of
the EPA. In Vellore Citizens’ Welfare Forum v. Union of India[5],
the SC observed:
“The main purpose of
the EPA is to create an authority or authorities under section 3(3) of the act
with adequate power to control pollution and protect the environment. It is
pity that till date no authority has been constituted by the Central Govt.”
Thus, the Court
directed the Central Govt. to constitute an authority and confer on this
authority all the powers necessary to deal with the situation created by
tanneries and other polluting industries in the State of Tamil Nadu.
The Central Govt.
accordingly constituted the “Loss of Ecology (Prevention and Payment of
Compensation) Authority” for the State of T.N. which was also conferred with
the power to implement the “polluter pays principle”.
While explaining the
scope of sections 3[6],4[7]
and 5[8] of
the EPA, the Bombay HC in Sneha Mandal Co-op Housing Society Ltd. v. Union of
India[9],observed
that sections 3,4 and 5 of the EPA authorize the Central Govt. plenary powers
to take all steps and measures as it deems necessary or expedient for the
purposes of protecting and improving the quality of environment and for the
purposes of preventing, controlling and abating environmental pollution. Sec 5
gives specific powers to the Central Govt. for issuing directions in writing
time to time to any person, officer or any other authority in connection with
the Act which such person is bound to comply with.
However, the Central
Govt. while issuing the notifications has to balance various interests
including economic, ecological, social and cultural. While economic development
should not be allowed to take place at the cost of ecology or by causing
widespread environment destruction and violation, at the same time, the
necessity to preserve ecology and environment should not hamper economic and
other development. Both development and environment must go hand in hand. In
other words, there should not be development at the cost of environment and
vice versa.
In M.C. Mehta v. UOI[10],
it was brought to the notice of the court that Ministry of Environment and
Forests, GOI under sec 3(3) of the EPA has constituted the Environment
Pollution (Prevention and Control) Authority for National Capital Region. The
court observed that the step taken by the govt. is appropriate and timely and
the above authority will deal with entire matters relating to environmental
pollution in the National Capital Territory Region. It was further pointed out
that except for the Chairman, Central Pollution Board being an ex-officio
member of the authority, the remaining members would be in the Committee not
merely by virtue of their office but because of the personal qualifications on
account of which they were included in the committee.
In S. Jagannath v. UOI[11],
the SC directed the Central Govt. to constitute an “authority” under Sec 3(3)
of the EPA and confer all powers necessary to protect the ecologically fragile
coastal area, sea- shore, waterfront and other coastal areas esp. to deal with
the situation created by shrimp culture industry in those areas.
In M.C. Mehta v. UOI,
the SC held that the directions given by the Environment Pollution (Prevention
and Control) Authority constituted under sec 3 of the EPA are final and binding
on all persons and organizations concerned and they are bound to follow the
same.
The object and purpose
of the act is “to provide for the protection and improvement of environment”,
could only be achieved by ensuring strict compliance with its directions.
Therefore, the directions or conditions put forward by the act need be strictly
complied with.
The Central Govt. has
also the power to make rules to regulate environment pollution. The govt. in
exercise of this power has already enacted “The Environment (Protection) Rules,
1986 which also came into effect on November 19, 1986.
OFFENCES
AND PENALTIES:
1. Penalty for
contravention of the provisions of the Act, Rules, Orders and Directions:
One of the objectives
of EPA is to provide for deterrent punishment to those who endanger human
environment, safety and health.
Sec 15 of the EPA
provides that any person who fails to comply or contravenes any of the
provisions of the Act, or the rules made or orders or directions issued under
the act or rules, then for such failure or contravention, he shall be
punishable:-
a) With imprisonment
for a term which may extend to 5 years,
b) With fine which may
extend to one lakh rupees,
c) With both.
In case the failure or
contravention continues after the conviction for first failure or
contravention, an additional fine which may extend to five thousand for every
day can be imposed for a period during which failure or contravention
continues.
If the failure or
contravention continues beyond a period of one year after conviction, the
offender shall be punishable with imprisonment for a term which may extend to
seven years.
2. Offences by
Companies and Government Departments:
Sec 16 of EPA
incorporates the principle of “vicarious liability” of the person incharge ,
Director, Manager, Secretary or other officer, for the offence if committed by
the company.
When any offence is
committed by the company then the company as well as the person directly
incharge of and responsible for the conduct of the business of the company
shall be deemed to be liable to punishment.
However, the person
incharge of responsible for the cinduct of business of the company is no held
liable if he proves:
a) That the offence was
committed without his knowledge,
b) That he exercised
all due diligence/ care to prevent the commission of such offence.
In Suo Motu v. Vatva
Industries Asson[12],it
was held that the pollution control board and its officers are free and
competent to take action against any person on violating any provisions of the
environmental laws. They need not wait for any direction of the court for
taking action under the law.
3. Who can make the
Complaint?
A complaint under this
act can be made by:
a) The central govt. or
any other authority by that govt. or,
b) Any person who has
given notice of not less than 60 days of the alleged offence and of his
intention to make complaint to the Central Govt. or the authorized officer.
OTHER
RELATED ACTS AND CASES:
1. The water (prevention and control)
act, 1988:
The
first legislation which specifically addressed
the
environment problem was THE WATER
(PREVENTATION AND CONTROL
OF POLLUTION ) ACT,1988. In short THE WATER ACT.
The
WATER ACT envisages the setting up of central and state boards for the
prevention and control of water pollution.
The
task of these bodies, among others , is the prevention and control of the
discharge of water into streams or wells , as also to lay down effluent
standards to be complied with by industries.
There
are two important functions of State Board:
·
To lay down the standards of pollution
and to make consent order for polluting trade and sewage effluent into streams
·
The boards have also granted ample
powers of investigation, inspection, sample collection and testing, and also
the power to prosecute violators of the
act.
THE
GANGA CASE[13]:
This
case is about polluting river GANGA.
A lawyer named Mr. M. C. Mehta found
that people are polluting water
of river GANGA by bathing in it , by
washing clothes in it ,by throwing dirty things in river .And as is it was duty of municipal corporation to
see that water of the river do not get dirty ,Mr. M.C. Mehta filed a case against municipal
corporation for breach of duty.
The
Supreme Court gave the decision in favour of
Mr.
.C. Mehta as water pollution is a crime and it is polluting water which is a
basic need for living beings. The court ordered municipal corporation to give
Rs.20,00,000 as fine for their breach of duty.
This was the case were the court handled a
case under water act and `gave a right decision
PREVENTION
AND CONTROL OF WATER POLLUTION:
·
Power to take samples of effluents and
procedure to be followed
·
Prohibition on use of stream or well for
disposal of polluting matter
·
Restrictions on New Outlets and New
Discharges
·
Provision regarding Discharge of sewage
or Trade Effluent
·
Refusal Or Withdrawal of Consent by
state board
2.
THE AIR ACT, 1981:
The air act deals with
the control of emission of noxious substances from industries and automobiles.
Basically, air act is applied only to
specified industrial processes in notified areas called the air pollution
control areas (APCA).
The functions under the act are entrusted to
the central and state boards created under the water act.
The state government declares an area as air
pollution control area only after consulting with state board.
The specified industries in the APCA have to
seek the permission of the board to emit
noxious substances.
THE BHOPAL GAS TRAGEDY
CASE[14]:
This case is about a
company named UNION CARBIDE COMPANY
which leaked a poisonous gas methane isocynade (CH2CN) due to which 2014
people died .First the case was filed in USA against the company as it was an
American company but due to pressure exerted by UN the case came to INDIA
First the case was
filed in district court and the court gave the decision that the union carbide company should gave a
compensation of Rs.350,000 crore . The company was not satisfied and appealed in high court against the
decision and the court gave the decision
to pay Rs. 250,000 crore , again the company was not satisfied and appealed in supreme court against the
decision of high court. Here for the first time a negotiation took place
between the criminal and the courts.
Union carbide company said that they will Compensate the victims if the court
will crash all the criminal charges against the company. The courts agreed to
this negotiation and they crashed all
the criminal charges against the company and the company gave compensation of
Rs.750 crores only.
This was the case were
courts tried to deal with a case of air pollution but did unjustice to the
victims of the tragedy, and till now the courts orders are not followed.
THE TAJ MAHAL CASE[15]:
Cultural heritage: the Taj
Mahal, 4 World Heritage Sites and 254 monuments within the Taj Trapezium Zone Life
and health of the people, particularly the residents of Agra.
CONCLUSION:
In conclusion,
environment pollution are affecting not only individual but also entire
countries all over the world. The awareness towards improving the quality of
environment has increased substantially and all efforts are being made at
different levels to minimize environmental pollution and thus help in improving
the quality of life.
Management of
environment means the proper utilization, conservation preservation, control
and recycling of the resources for maintaining a balanced ecosystems. The main
focus of environment management is, thus, to avoid the over-use, misuse and
abuse of the natural resources.
The effective environmental
management is the optimum allocation of finite resources among the various
possible uses and it has to be based on scientific and technological approach
which takes full note of socioeconomic parameters and compulsions.
Environmental
management is an interdisciplinary approach to resource conservation and it
acts as a regulatory force on human wantonness in resource wasting.
In India the Twelfth
Five Year Plan has emphasized the need for sound environmental management which
includes environmental planning, protection, monitoring, assessment, research,
education, and conservation as major guiding factors for national development.
Environmental pollution
is a world-wide phenomenon; therefore, there is a need to have a coordinated
administrative structure from international level to national levels so that
the environmental problems may be tackled in a coordinated and co-operative
way.
[1]
www.advocatekhoj.com
[2]
www.flexiguru.com
[3]
The environment and protection act,1986
[4]
Section 3(3): The Central Government may, if it considers it necessary or
expedient so to do for the purpose of this Act, by order, published in the
Official Gazette, constitute an authority or authorities by such name or names
as may be specified in the order for the purpose of exercising and performing
such of the powers and functions (including the power to issue directions under
section 5) of the Central Government under this Act and for taking measures
with respect to such of the matters referred to in sub-section (2) as may be
mentioned in the order and subject to the supervision and control of the
Central Government and the provisions of such order, such authority or
authorities may exercise and powers or perform the functions or take the
measures so mentioned in the order as if such authority or authorities had been
empowered by this Act to exercise those powers or perform those functions or
take such measures.
[5] Vellore
Citizens Welfare Forum vs Union Of India & Ors on 28 August, 1996
[6]
Section 3: power of the central government to take measure to protect and
improve environment
[7] Section
4: appointment of officers and their power and functions
[8]
Section 5: power to give directions
[9] AIR
2000 Bom 121, 2000 (1) BomCR 395, (2000) 1 BOMLR 13
[10]
Mc Mehta v. UOI 1988 AIR 1115, 1988 SCR (2) 530
[11] S.
Jagannath vs Union Of India & Ors on 11 December, 1996
[12] AIR
2000 Guj 33, (1999) 3 GLR 2758
[13] 1988
AIR 1115, 1988 SCR (2) 530
[14] 1990
AIR 273, 1989 SCC (2) 540
[15] 2003
(4) AWC 3334 SC, JT 2003 Suppl 1 SC 391
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