12 The Environmental (Protection) Act, 1986

Dr.Shilpa Jain

epgp books

 

 

 

LEARNING OUTCOME:

  1. Understanding the need for Environment protection.
  2. In-depth study of the provisions of the Environment (Protection) Act, 1986.
  3. Judicial approach towards Environment protection.
  4. Understanding of the fact that the Act imposes vicarious liability as well.

 

Introduction

 

Environment Protection is a much discussed topic and has dominated the debates in the public fora, especially since the sixties. The quality of the environment has been degrading for centuries, ever since the mankind decided to exploit nature for its own good, but the degradation has escalated with the advent of the industrial revolution and the dawn of the era of machines.

 

Increased human population, increase in demand, decline in vegetation to accommodate the needs of the increased population, release of chemicals in the environment, disruption of food chains due to Activities like fishing are very few examples of how the environment is being exploited and abused. The result of all this is an increased concern over the health and safety of the environment, for which time to time numerous piece of legislations and treaties have resurfaced. In the Indian context, many legislations have emerged specifically focusing on the kinds of pollution, like The Air (Prevention and Control of Pollution) Act, 1981 or The Water Prevention and Control of Pollution) Act, 1974. But the Environment Protection Act, 1986 is one of the most exhaustive legislation for the protection for the environment. It is a general piece of 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. 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 [hereinafter referred to as The Act] was passed.

 

The Act came into force on November 19, 1986, the birth anniversary of our Late Prime Minister Indira Gandhi, who was a pioneer of environmental protection issues in our country. The Act extends to whole of India. The Constitution of India clearly states that it is the duty of the state to ‘protect and improve the environment and to safeguard the forests and wildlife of the country’.

As compared to all other previous laws on environment protection, the Environment (Protection) Act, 1986 is a more effective and comprehensive measure to fight the problem of pollution.

 

Objects:

  1. The Environment Protection Act is a means to implement the decisions of the UN Conference on the Human Environment held in Stockholm (June 1972).
  2. The Environment Protection Act also seeks to enact a general blanket law on environmental protection, dealing with all aspects of pollution and harm to the nature and not limiting its scope to just one type of pollution or pollutants.
  3. The exhaustive nature of Environment Protection Act also ensures that no ambit of environmental protection is left and all hazards’ to the environment are absolutely roofed and addressed under the Act.
  4. The Act also provides punishment (deterrent in nature) to those responsible for causing harm to the environment or endangering it.
  5. The Act provides for a scheme and a mechanism of working of various already existing regulatory authorities and also creates more agencies for furtherance of environment protection.
  6. The Act also aims at promoting sustainable development as a means to achieve the end of prosperity and opulence.

In the case of N D Jayal v Union of India, (2004) 9 SCC 362, it was held that If the Act is not armed with the powers to ensure sustainable development, then it will be a barren shell. Sustainable development is one of the means to obtain the object and purpose of The Act as well as the Protection of Life under “Article 21”.Acknowledgment of this principle will breathe new life into our environmental jurisprudence and Constitutional resolve.

 

Important Definitions:

 

Section 2 of the Environment (Protection) Act, 1986 deals with definitions.

Some of the important definitions are as under:

 

“Environment” includes water, air, and land and the interrelationship which exists among and between water, air and land and human beings, other living creatures, plants, microorganism and property [Section 2(a)].

 

“Environmental Pollutant” means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be injurious to environment [Section 2(b)].

 

“Environmental pollution” means presence in the environment of any environment pollutant [Section 2(c)]. It causes imbalance in environment. The materials or substances when after mixing in air, water or land alters their properties in such manner, that the very use of all or any of the air water and land by man and any other living organism becomes lethal and dangerous for health.

 

“Handling” In relation to any substance, it means the manufacturing, processing, treatment, packaging, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance [Section 2(d)].

 

“Hazardous Substance” means any substance or prEnvironment Protection Actration which, by reasons of its chemical or physic-chemical properties, is liable to cause harm to human beings or other living creatures, plants, micro-organism, property or the environment [Section 2(e)].

 

“Occupier” It means a person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance [Section 2 (f)].

 

Powers provided by the Act to Central Government:

 

The Act provides the Central Government with the power to take measures to protect and improve the environment. It endows the Central government the power to take all measures which it deems necessary to protect, preserve and improve the environment. It can take measures to curb activities causing harm to the environment it can control and bring a halt to activities discharging pollutants. In particular, and without prejudice to the generality of the provision such measures may include measures with respect to all or any of the following matters, namely:-

  1. Co-ordination of Actions by the State Governments, officers and other authorities–
    1. under this Act, or the rules made there under, or
    2. under any other law for the time being in force which is relatable to the objects of this Act;
  2. Planning and execution of a nation-wide program for the prevention, control and abatement of environmental pollution;
  3. Laying down standards for the quality of environment in its various aspects;
  4. Laying down standards for emission or discharge of environmental pollutants from various sources whatsoever: Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;
  5. Restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
  6. Laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;
  7. Laying down procedures and safeguards for the handling of hazardous substances;
  8. Examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;
  9. Carrying out and sponsoring investigations and research relating to problems of environmental pollution;
  10. Inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;
  11. Establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;
  12. Collection and dissemination of information in respect of matters relating to environmental pollution;
  13. Preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;
  14. Such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of the Act as per Section 3(2) of the Act.

Section 3(3) gives power to the central government to constitute an “authority” or “authorities” to assist in its functions which is tied with the duty to constitute such an authority so as to provide a better mechanism. This was highlighted in various cases such as Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338; T.N. Godavaram Thirumulpad v.Union of India and Others, (2014) 4 SCC 61.

 

The ambit of powers given to the central government under this Act is very wide and under this section the central government also can implement the suggestions of the Supreme Court. The Supreme Court in various cases such as F.B. Taraporawala v. Bayer India Ltd., (1996) 6 SCC 58, has directed the Central Government to constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986. The Central government has constituted the Loss of Ecology (Prevention and Payment of Compensation) Authority for the state of Tamil Nadu on the instruction of the Supreme Court. In Vellore Citizens’ Welfare Forum v. Union of India also known as T. N. Tanneries case, (1996) 5 SCC 647 where the Supreme Court observed:

“It is thus obvious that the Environment Act contains useful provisions for controlling pollution. The main purpose of the Act is to create an authority or authorities under Section 3(3) of the Act with adequate powers to control pollution and protect the environment. It is a pity that till date no authority has been constituted by the Central Government. The work which is required to be done by an authority in terms of Section 3(3) read with other provisions of the Act is being done by this Court and the other courts in the country. It is high time that the Central Government realises its responsibility and statutory duty to protect the degrading environment in the country. If the conditions in the five districts of Tamil Nadu, where tanneries are operating, are permitted to continue then in the near future all rivers/canals shall be polluted, underground waters contaminated, agricultural lands turned barren and the residents of the area exposed to serious diseases. It is, therefore, necessary for this Court to direct the Central Government to take immediate Action under the provisions of the Environment Act.”

 

The court concludes as follows:

 

“Keeping in view the scenario discussed by us in this judgment, we order and direct as under:

  1. The Central Government shall constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986 and shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu.
  2. The authority  so  constituted  by  the  Central  Government  shall  implement  the
  3. “Precautionary Principle” and the “Polluter Pays Principle”.

In the case of M.C. Mehta v. Union of India, (1998) 2 SCC 435, the Supreme Court pointed out that the step taken by the government in constituting the Environment Pollution (Prevention and Control) Authority for the National Capital Region is appropriate and timely and the above authority will deal with entire matters relating to environmental pollution in the NCR. It was further pointed out that except for the chairman, central pollution control board being an ex-officio member of the authority

the remaining member would be in the committee not merely by virtue of their office but because of their personal qualifications on account of which they were included in the committee.

 

In the case of S. Jagannath v. Union of India, (1997) 2 SCC 87 the court directed the government to constitute an authority and to “confer on the said authority all the powers necessary to protect the ecologically fragile coastal areas, seashore, waterfront and other coastal areas and specially to deal with the situation created by the shrimp culture industry in the coastal States/Union Territories. The Central Government shall confer on the said authority the powers to issue directions under Section 5 of the Act and for taking measures with respect to the matters referred to in clauses (v), (vi), (vii), (viii), (ix), (x) and (xii) of sub-section (2) of Section 3.” The court further directed that “The authority so constituted by the Central Government shall implement “the Precautionary Principle” and “the Polluter Pays Principle”

In the case of Bittu Sehgal v. Union of India, (2001) 9 SCC 181, it was held:

 

“We direct the Central Government to constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986 and also confer on the said authority all the powers necessary to protect the ecologically-fragile Dahanu Taluka and to control pollution in the said area. The authority shall be headed by a retired Judge of the High Court and it may have other members with expertise in the field of hydrology, oceanography, terrestrial and aquatic ecology, environmental engineering, development and environmental planning and information technology, to be appointed by the Central Government. The Central Government shall confer on the said authority the power to issue directions under Section 5 and for taking measures with respect to the matters referred to in clauses (v), (vi), (vii), (viii), (ix), (x) and of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986.”

The court further pointed out that the authority so constituted by the Central Government shall consider and implement the “precautionary principle” and “the polluter pays” principle in its implementation and work towards conserving the ecologically fragile Dahanu Taluka.

The Central government also has the power to give directions under the Act. It can issue directions to any person or any officer or any authority to exercise its functions under the Act and such directions are mandatory and are bound to be complied with. Under this the Central government can direct closure, prohibition or regulation of any industry, operation or process which is harming the environment or introducing pollutants in the environment. The Central government can also, in furtherance of stopping the Activities causing harm to the environment, regulate the supply of services like water or electricity (Section 5).

 

In the case of Vellore Citizens’ Welfare Forum v. Union of India Supreme Court held that the Central government should confer the above powers to the authorities constituted under the Act as well.

In the case of Mahabir Soap and Guakhu Factory v. Union of India, AIR 1995 Ori 218, the Government of India has issued directions to close down a factory which were accompanied with instructions to disconnect the water supply and electricity connections. Such measures were taken since the factory was situated in a thickly populated area and the untreated discharge was polluting the water reservoirs hence causing harm to the environment and jeopardising the health of the people living in the local limits. The court established the basis of such orders in accordance with Section 5 of the Environment (Protection) Act, 1986.

 

The Gujarat High Court also dealt with a similar question in the case of Narula Dyeing and Printing Works v. Union of India, AIR 1995 Guj 185, where the Narula Dyeing and Printing Works were discharging their untreated trade effluents into the stream which was an irrigation canal. The state government as well as the Gujarat State Pollution Control Board to whom the powers were delegated by the Central Government in accordance with Section 3(3) issued directions under Section 5 of the Environment Protection Act to close down the factory. In this case also the Petitioner’s challenged the powers of the State Government on the ground that no personal hearing was provided to them. The court did not accept the plea of the petitioner and further observed that the government is fully empowered to dispense with the opportunity of hearing being given for filing objections against the proposed directions in such cases of grave injury to the environment. It is intended to safeguard the environment from any grave injury to any component of the environment.

 

The Central Government also has the power to make rules to regulate environment pollution. The Government in exercise of this power has already enacted “The Environment (Protection) Rules, 1986” which also came into force w.e f. 19 November, 1986. These rules, inter alia, provide for (i) the standards of quality of air, water or soil for various areas and purposes, (ii) the maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas; (iii) the procedure and safeguards for the handling of hazardous substances; (iv) the prohibition and restrictions on the handling of hazardous substances in different areas (v) the prohibition and restriction on the location of industries in different areas (vi) the procedures and safeguards for the prevention of accidents which may cause environmental pollution and providing remedial measures for such accidents.

Prevention, Control and Abatement of Environmental Pollution:

Section 7 of the Act specifically provides that no person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or be emitted any environmental pollution in excess of the prescribed standards. Section 7 of the Environment Protection Act provides that certain standards have to be maintained and no person or an industry can be permitted to cause damage to the environment. If any person is found guilty of causing damage to the environment then by applying the “polluter pays principle” he can be asked to pay the exemplary damages for polluting the environment. In D.S. Rana v. Ahmedabad Municipal Corporation, AIR 2000 Guj 45, the imposition of restrictions on the trade or operation of melting gold and silver which was causing public nuisance and a health hazard and damaging the environment was held to be proper.

Section 8 provides that persons handling hazardous substances are required to comply with procedural safeguards where the discharge of any environmental pollution in excess of prescribed standards occurs or is apprehended to occur due to accident or other unforeseen circumstances the people responsible for such discharge and the person in charge of the place where the discharge occurs shall be bound to mitigate or reduce the pollution. He is required to give intimation and render all assistance to the concerned authorities.

Section 9 provides that on receipt of such intimation or otherwise the concerned authorities shall take steps to prevent or mitigate the environmental pollution Section 10 provides that the Central government can give any person powers of entry, inspection of any place for the purpose of examining and testing equipment, industrial plant, record, register or document and make such seizures as is necessary to prevent or mitigate environmental pollution.

 

Power to take Samples and Procedure to be followed thereafter:

The Central government or any other officer empowered by it in this behalf has the power to take for the purpose of analysis, samples of –

  • (i) Air
  • (ii) Water
  • (iii) Soil, or
  • (iv) Other substance.
  • (i) Factory
  • (ii) Premises, or
  • (iii)Other place.

In order to make the result of any sample admissible in the evidence in any legal proceedings the following procedure must be followed:-

  1. a) Notice must be served on the occupier or his agent or person in charge of the place. The notice must indicate his intention to have the analysis of sample ;
  2. b) The Sample must be collected in the presence of the occupier of his agent or his agent;
  3. c) The sample to be placed in a container or containers which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;
  4. d) Send without delay, the container or the containers to the laboratory established or recognized by the Central Government under section 12 [i.e. Environmental Laboratory].

In a case where the occupier, his agent or person wilfully absents himself, the person taking the sample shall collect the sample for analysis to be placed in a container or containers which shall be marked and sealed and shall also be signed by the person taking the sample, and in a case where the occupier or his agent or person present at the time of taking the sample refuses to sign the marked and sealed container or containers of the sample as required, the marked and sealed container or containers shall be signed by the person taking the samples, and the container or containers shall be sent without delay by the person taking the sample for analysis to the laboratory established or recognised and such person shall inform the Government Analyst in writing, about the wilful absence of the occupier or his agent or person, or, as the case may be, his refusal to sign the container or containers (Section 11).

 

The Central Government or the officer empowered to take samples under Section 11 shall collect the sample in sufficient quantity to be divided into two uniform parts and effectively seal and suitably mark the same and permit the person from whom the sample is taken to add his own seal or mark to all or any of the portions so sealed and marked. In case where the sample is made up in containers or small volumes and is likely to deteriorate or be otherwise damaged if exposed, the Central Government or the officer empowered shall take two of the said samples without opening the containers and suitably seal and mark the same. The Central Government or the officer empowered shall dispose of the samples so collected as follows:-

  • (i) One portion shall be handed over to the person from whom the sample is taken under acknowledgement; and
  • (ii) The other portion shall be sent forthwith to the environmental laboratory or analysis.

The Act 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, shall be punished with

  1. a) With imprisonment for a term which may extend to 5 years,
  2. b) With fine which may extend to one lakh rupees,
  3. 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 (Section 15).

Offences by Companies and Government Departments:

 

The Act incorporates the principle of vicarious liability of the person in-charge, Director, Manager, Secretary or other officer for the offence if committed by the company. When any offence is committed by the company, the company as well as the person directly in-charge of and responsible for the conduct and business of company shall be deemed to be guilty and liable to punishment. However the person in-charge and responsible for the conduct and business of the company is not held liable if he proves

  • (i) that the offence was committed without his knowledge; or
  • (ii) that he exercised all due diligence/care to prevent the commission of such

If it is proved that the offence has been committed by a company with the consent, or connivance, or negligence of any director, manager, secretary other officer of the company then such persons are deemed to be guilty of the offence and liable for punishment (Section 16).

 

When an offence under this Act has been committed by any Government Department, the head of the department shall be deemed to be guilty and liable for punishment. However, there is no liability of the head of the department if he proves (a) that the offence was committed without his knowledge; or (b) that he exercised all due diligence/care to prevent the commission of such offence.

 

Section 17 states that if it is proved that the offence has been committed by a Government Department with the consent, or connivance or negligence of any officer be that the head of the department, then such a person shall be deemed to guilty and liable for punishment. However, the Act provides protection for Actions taken in good faith (Section 18).

 

In U.P. Pollution Control Board v. Mohan Meakins Ltd, (2003) SCC 745, the Supreme Court made it clear that directors and managers who were responsible for causing the pollution would be liable under section 16 of the Environment Protection Act and there was inordinate delay in taking up the case. The court further observed that it couldn’t afford to deal lightly with cases involving pollution of air and water.

In Suo Motu v. Vatva Industries Asson, AIR 2010 Guj 33, it was held that the pollution control board and its officers are free and competent to take Action against any person on violating any provision of the environmental laws. They need not to wait for the direction of the court for taking Action under the law. In fact such a course of seeking direction from the court would amount to dereliction of duty.

The Act further empowers the Central Government to make rules for the purpose of carrying out the purposes of this Act. The Central Government has enacted various rules in furtherance of section 3, 6, 8 read with section 25. Some of the important rules enacted under the Act are:-

  1. The Hazardous Waste (Management and Handling) Rules, 198
  2. Manufacture, Storage and Import of hazardous chemical Rules, 1989
  3. Hazardous Micro0organisms Rules, 1989
  4. Bio- Medical Waste (Management and Handling) Rules,1998
  5. Municipal Solid waste ( Management and Handling ) Rules , 2000
  6. The Batteries ( Management and Handling ) Rules, 2001

Thus, the Act is a very important piece of legislation which is in the form of an umbrella legislation covering all forms of environmental pollution. However there are still many lacunas in the Act which remain such as no Minimum sentence is prescribed, thus diluting the deterrent effect of the Act. Also the Act emphasis on Criminal Liability rather than Civil Liability. It also lacks any incentive to the general public for taking steps to bring the culprit to books. 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. All in all it is a positive piece of legislation which is a way forward towards achieving sustainable development.

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