By Chiranjeev Singh
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As has been often said, we do not inherit the Earth from our ancestors but borrow it from our successors. It is the responsibility of each generation to protect the environment and leave it in a state which can be used by our successors. In this context, the Stockholm Declaration of 1972 was a landmark event where, for the first time, World leaders came together and talked about the issue of environmental pollution and Sustainable Development. Its ripples were felt in India too which enacted the Water (Prevention and Control of Pollution) Act 1974 and the Air (Prevention and Control of Pollution) Act 1981. Additionally, the 42nd Amendment of the Constitution of India brought about Article 48A, which provided the mandate to the State to protect the environment, and Article 51A(g), which made the protection of environment a fundamental duty of the citizens. Though these enactments provided a framework for safeguarding the environment, it was felt that the legislations were too narrow in their scope and left many areas uncovered. As a result, the Environment Protection Act 1986 [the EPA Act or the Act] was passed by the Parliament.
Objectives
As has been stated above, the EPA Act is an umbrella legislation, the prime objective of which is to provide the Central Government the powers to take all such measures for protecting the environment by preventing, controlling and abating pollution. The Act is aimed to bring about change in the existing regulatory framework by establishing uniform standards throughout the country, regarding, for instance, the treatment of environmental pollutants or the procedure for handling hazardous substances. The Act provides for the formation of such standards, their enforcement, certain guidelines for determining the liability of the alleged offenders, and the penalties in case of non-adherence of the standards. To coordinate these efforts at the National level, the Act seeks to create a central authority which will have the same powers as the Central Government has under the Act. Additionally, the Act is aimed to be applied broadly due to which terms like environment, environmental pollution, hazardous substances, etc., have been defined in a loose and inclusive fashion.
Formation of Standards and Guidelines
Section 3(1) of the Act is wholly based on Article 48A of the Constitution, and states that the Central Government has the power to take all such measures which it considers expedient for the purpose of protecting and improving the environment. Sub-section (2) of the Section gives an indicative list of the topics on which the Government may take action. Among other things, the Central Government has the power to notify protected areas where any industries or a class of industries shall not carry out their operations. This power is complemented by Sections 6 and 25, which provide for the rule-making power of the Central Government under the Act.
The powers of the Central Government can be delegated. Section 3(3) provides that the Central Government may constitute a national level authority, if it considers expedient to do so, for carrying out the above-stated functions. It is interesting to note that even after the Supreme Court lamented on and criticised the Government’s failure to create such authority in Vellore Citizens Welfare Forum v Union of India[1](1996) [Vellore], no such authority has been created to date, and only some State-level authorities exist. In addition to the creation of a National Authority, Section 4 provides that the Central Government may designate certain officials to carry out certain functions under the Act.
A peculiar feature of the above provisions is that the power to take measures is limited to the Central Government and the State Governments do not have much say. This has led to excessive centralisation of power which results in a ‘one-size-fits-all’ approach. Such power has the potential to be arbitrary in nature too. Regardless, the Central Government, through various notifications, has delegated some functions to the State Governments.
Enforcement Mechanism
At the outset, Section 5 states that all the directions issued by the Central Government to any persons, authorities, industries in furtherance of its powers under the Act are binding on such persons, authorities and industries. Further, Sections 7 and 8 provide that no person handling any industry or operation should act in a way which violates the standards prescribed for the treatment of environmental pollutants, and the procedure laid down for the handling of hazardous substances. Section 9 imposes a positive obligation on the persons in charge of the industrial premises to take all measures in mitigating any further damage to the environment in cases of accidental pollution, i.e. due to an accident. Further they are obligated to inform the Central Government of such damage, and to assist the Government in all subsequent proceedings. Acting in contravention of these provisions constitutes an offence under the Act.
To ensure that the regulations are followed, the Central Government has the power for search and sampling. Any person designated by the Government for this person has the power to visit any industry at a reasonable time to examine any equipment, process, record or documents if the officer has reason to believe that any offence under the Act has been committed, is being committed or will be committed. The designated person can even seize such equipment if s/he feels it necessary to prevent or mitigate environmental pollution. Additionally, the designated officials have the power to take samples of air, water, soil or any other substance from any factory or premises for the purpose of analysis following the prescribed procedure. Such samples will be sent to a Government recognised laboratory, and the results will be analysed by a Government recognised Analyst. The reports of the Government Analyst may be used as evidence in the proceedings under the Act.
Section 19 of the Act deals with the cognizance of offences. In the previous environmental legislations, a complaint could have been only made by the Government authorities. The present Act however breaks away from this trend and allows any person to file a complaint before the Court. This right however is qualified by the condition that prior to filing the complaint, the Complainant will have to give a 60-day notice to the Central Government informing them of the alleged offence and their intention to make a complaint. Notwithstanding the fact that this condition has been the subject of severe criticism as it provides the offenders with a long enough window to escape liability under the Act, this provision of allowing any person to file complaints has given rise to a lot many social interest litigations which have actually resulted in the closure of Industries who flagrantly violated the environmental norms.
Determination of Liability
As has been stated above, the non-adherence of the standards issued by the Central Government constitutes an offence under the Act. At the same time, Section 18 protects all actions against persons who acted in good faith in pursuance of the Act. The Supreme Court, while interpreting the EPA Act, has propounded various doctrines which have to be followed while determining the liability of the alleged offenders, and these have become a fundamental part of the environmental law jurisprudence of the country. The EPA Act cannot be read in isolation of these doctrines. These doctrines are as follows:
Polluter Pays
The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution.Under the principle, it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. This principle gained explicit recognition in Indian Council for Enviro-Legal Action v Union of India [2](1996) and was held as a core principle of the Indian legal system in Vellore.
Precautionary Principle
The principle is based
on the recognition that a false prediction that a human activity will not result in significant
environmental harm will typically be more harmful to society than a false
prediction that it will result in significant environmental harm. Hence, when
the situation lacks scientific certainty and the possible threat is of a
serious or irreversible damage, the onus of proof shifts on the industrialist
to show that their action is environmentally sound. In Vellore, the
Supreme Court rejected the defence of the tanneries that there is uncertainty
on whether their actions will cause further damage, and enshrined the
Precautionary principle as the law of the land.
Doctrine of Public Trust
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. These resources are held by the Government in trusteeship of the public. It restricts the Government authorities in three ways: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses.
In M C Mehta v Kamal Nath[3](1997), also called as the ‘Span Motels Case’, Span Motels built a resort on the bank of Beas River and carried out substantial work of dredging, construction of barriers etc. to deflect the natural flow of river, which adversely impacted the environment. While quashing the lease granted to Span Motels, the Court upheld the Doctrine of Public Trust.
Penalties
Section 15 of the Act provides that any person who fails to comply with or contravenes the provisions of the Act, or its subordinate legislations, shall be punished with a maximum imprisonment of 5 years or with a fine of rupees 1 lakh. In case of failure or if the contravention continues, the person will be punished with an additional fine of Rs 5000 for each day the contravention continues. Section 16 in this regard states that when the offence has been committed by a company, all those persons who were responsible for the conduct of the act shall be punished and prosecuted. Similarly, if the offence is done by a Government department, Section 17 provides that the Head of that Department shall be punished and prosecuted. The persons referred under Sections 16 and 17 can escape all liability by proving that they did not have the knowledge of the offence or that they had exercised due diligence.
On the face of it such strict penalty provisions for polluting the environment are laudable and show that the Legislature is committed to safeguarding the environment. However, the strict provisions are watered down by Section 24 of the Act which states that if any offence punishable under this Act is also punishable under any other Act, then the offender will be liable to be punished under the other Act. What this Section effectively does is to provide a way out to escape the strict penalty provisions of this Act, and be punished under the relatively lenient provisions found in other environmental legislations.
Conclusion
It can be seen from the above provisions, that the Legislation is essentially enabling in nature allowing the Government to take certain measures, and does not primarily create positive obligations on the Government to do particular things. Thus, while the Act has provided a framework for protecting the environment, vast powers of searching and sampling, the same is at the mercy of the Central Government to effectively discharge various functions.
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Chiranjeev Singh is a 2nd year law student at National Law University Delhi. He loves to read about various topics of law, polity and economics. His inclination is towards exploring the various issues revolving around criminal justice administration.
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