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The environment protection act 1986


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The environment protection act 1986

  1. 1. 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
  2. 2. 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 PROTECTION ACT 1986: OF THE ENVIRONMENT 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 1
  3. 3. 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. IMPORTANT DEFINITIONS:3 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)]: 2 3 The environment and protection act,1986
  4. 4. 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.
  5. 5. 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 India5, 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 36,47 and 58 of the EPA, the Bombay HC in Sneha Mandal Co-op Housing Society Ltd. v. Union of India9,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. 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
  6. 6. 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. UOI10, 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. UOI11, 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. 10 11 Mc Mehta v. UOI 1988 AIR 1115, 1988 SCR (2) 530 S. Jagannath vs Union Of India & Ors on 11 December, 1996
  7. 7. 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 Asson12,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. 12 AIR 2000 Guj 33, (1999) 3 GLR 2758
  8. 8. 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 CASE13: 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 13 1988 AIR 1115, 1988 SCR (2) 530
  9. 9. 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 CASE14: 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 CASE15: 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. 14 15 1990 AIR 273, 1989 SCC (2) 540 2003 (4) AWC 3334 SC, JT 2003 Suppl 1 SC 391
  10. 10. 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.