CHAPTER-IV

ENVIRONMENTAL LEGISLATIONS IN INDIA

4.1 Environmental Policy and Legislations in India
A policy is a board guideline for planners and administrators. It lays
down the general objectives and its execution is left to the administrators.
Policy formulation becomes indispensable because policy is in an
instrument of transformation of a given environment into a preferred
environment. It is through a policy that we can precisely identify the
problems; fix priority to form alternative approaches and solutions; make a
choice among alternatives on the basis of comprehensive analysis if
benefits and costs; articulate the choice in terms of goals expressed;
provide organization, personnel and resources to ensure effective
implementation; and to lay down a mechanism for continuous monitoring
of the policy.
In India, attention has been paid right from the ancient times to the
present age in the field of environmental protection and improvement.
Historically speaking, the laws relating to environment improvement were
simple but quite effective and people were aware of the necessity of
environmental protection. The present day legislations in India are the
outcome of the growing industrialization and population pressure. There
are stated to be over 500 Central and State statues which have at least some
concern with environmental protection, either directly or indirectly.
Besides that, the common law and Constitutional remedies relating to
environmental protection are also there.
4.2 Policy and Laws in Ancient India
In ancient India, protection and cleaning up of environment was the
essence of Vedic culture. The conservation of environment formed an
ardent article of faith, reflected in the daily lives of the people and also
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enshrined in myth folklore, art, culture and religion. In Hindu theology

forests, trees and wildlife protection held a place of special reverence.
Cutting green trees was prohibited and punishment was prescribed for such
acts.
Under the Hindu culture moral injunctions acted as guidelines
towards environmental preservation and conservation. For instance, to
maintain the quality of water and to avoid the water pollution, Manu
advised not to contaminate water by urine, stool or coughing, un-pious
objects, blood and poison. Yagyavalkya Smriti and Charak Samhita give
many instructions for the use of water for maintaining its purity.
Under the Arthtashastra, various punishments were prescribed for
cutting trees, damaging forests, and for killing animals. The State assumed
the functions of maintenance of forests, regulation of forest produce and
protection of wildlife. Arthashastra also prescribed punishment for causing
pollution and un-civic sanitation.
Thus, ancient India had a philosophy of environmental management
principally enshrined in old injunctions as they were contained in many
scriptures and smritis. The environmental ethics of nature conservation
were not only applicable to common man but the rulers and kings were also
bound by them.
4.3 Policy and Laws in Medieval India
During the Moghul period environment conservation did not receive
much attention. It is righty said :
“To Moghul rulers, forest meant no more than woodlands
where they could hunt. To their governors, the forests were
properties which yielded some revenue. Barring „royal trees‟
which enjoyed patronage from being cut except upon a fee,
there was no restriction on cutting of other trees. Thus,
forests during this period shrank steadily in size.”
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However, the forests were managed with the help of a complex

range of rules and regulations woven around the socio-cultural features as
well as the economic activities of local communities. Further, the religious
policy of Akbar based on the principal of complete tolerance also reflects
concern for protection of birds and beasts in so muchso as endeavours were
taken during his region to stop their unnecessary killing. During medieval
era, another set of legal principles were inducted, governed by the holy
Koran which declares that “we made from water every living things”.
4.4 Policy and Laws in British India
With the establishment of British Colonial rule, many changes were
brought in the religiously oriented indigenous system. The British regime
saw the beginning of organized forest management. It was the forestry,
wildlife and water pollution which attracted their attention in particular.
In the field of forest protection, the enactment of the Forest Act,
1865 was the first step at asserting the State monopoly right over the
forests. The customary rights of rural communities to manage forests were
curtailed by the Act. The Forest Act of 1927 specifically denied people any
rights over the forest produce simply because they were domiciled there. In
the field of wildlife protection, the British practiced selective wildlife
conservation.
During this period, the concern for protection and management of
water resources in India came through the first major development in the
form of Bengal Regulation VI of 1819, which did not mention protection of
water environment from pollution but invested the Government with
sovereignty over water resources. It marked radical shift from earlier
practices, which treated the water resources as “common property” of all,
with control lying in the hands of the people. The Shore Nuisance (Bombay
and Kolaba) Act of 1853 and the Oriental Gas Company Act of 1857
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imposed restrictions on the fouling of water. The Merchant Shipping Act of

1858 dealt with prevention of pollution of sea by oil.
In 1860, for the first time, an attempt was made to control especially
water and atmospheric pollution through criminal sanctions under the
Indian Penal Code, 1860. As against prohibitive provisions under the IPC,
1860, the Easement Act of 1882 allowed a prescription right to pollute the
water but it was not an absolute right (one was not to “unreasonably
pollute” or cause “material injury to other”). The Bengal Smoke Nuisance
Act of 1905 and Bombay Smoke Nuisance Act of 1912 were the earlier
laws enacted during the British Raj, aimed at controlling air pollution.
Thus, the environmental policy during the British rule was not
directed at the conservation of nature but rather was directed at the
appropriation and exploitation of common resources with a primary
objective of earning revenue. Neither were there effective laws for the
protection of environment. Further, these laws had a narrow scope and
limited territorial reach.
4.5 Policy and Laws After Independence
The India Constitution, as adopted in 1950, did not deal with the
subject of environment or prevention and control of pollution as such (until
1976 Amendment). The original text of the Constitution under Article
372(1) has incorporated the earlier existing laws into the present legal
system and provides that notwithstanding the repeal by this Constitution of
enactments referred to in Article 395, but subject to other provisions of the
other provisions of the Constitution, all laws in force immediately before
the commencement of the Constitution shall remain in force until altered,
repealed or amended by a competent legislature or other competent
authority. As a result, even after five decades of independence, the plethora
of such laws is still in operation without any significant charge in them.
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The post-independence era, until 1970, did not see much legislative
activity in the filed of environmental protection. Two early post-
independence laws touched on water pollution. The Factories Act of 1948
required all factories to make effective arrangements for waste disposal and
empowered State Governments to frame rules implementing this directive.
Under the River Boards Act of 1956, river boards established are
empowered to prevent water pollution of inter-state rivers. To prevent
cruelty to animals, the Prevention of Cruelty of Animals Act was framed in
1960.
Some States took initiative in the filed of environmental protection,
viz., Orissa River Pollution Prevention Act, 1953, and, Maharashtra
Prevention of Water Pollution Act, 1969. While the Orissa Act was
confined only to rivers, the Maharashtra Act extended to rivers,
watercourses, whether flowing or for the time being dry, inland water both
natural and artificial, and subterranean streams.
Thus, there were scattered provisions for checking pollution of air,
water, etc., but there was no unified effort in developing any policy
concerning the pollution emanating from these areas. This position went up
to the seventies. Meanwhile concern arose over, inter-alia, population
increase, greater pollution levels; human impact on animal populations and
natural landscapes and other aspects of resource depletion. It was the
Stockholm Declaration of 1972 which turned the attention of the Indian
Government to the boarder perspective of environmental protection. The
government made its stand well known through five year plans as well as
the legislations enacted subsequently to curb and control environmental
pollution.
After 1970, comprehensive (special) environmental laws were
enacted by the Central Government in India.
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The Wildlife (Protection) Act, 1972, aimed at rational and modern

wild life management.
The Water (Prevention and Control of Pollution) Act, 1974,
provides for the establishment of pollution control boards at Centre and
States to act as watchdogs for prevention and control of pollution.
The Forest(Conservation) Act, 1980 aimed to check deforestation,
diversion of forest land for non-forestry purposes, and to promote social
forestry.
The Air(Prevention and Control of Pollution) Act,1981, aimed at
checking air pollution via pollution control boards.
The Environment (Protection) Act, 1986 is a landmark legislation
which provides for single focus in the country for protection of
environment and aims at plugging the loopholes in existing legislation. It
provides mainly for pollution control, with stringent penalties for
violations.
The Public Liability Insurance Act, 1991, provides for mandatory
insurance for the purpose of providing immediate relief to person affected
by accidents occurring while handling any hazardous substance.
The National Environment Tribunals Act, 1995, was formulated in
view of the fact that civil courts litigations take a long time (as happened in
Bhopal case). The Act provides for speedy disposal of environmental
related cases through environmental tribunals. Under the Act, four benches
of the tribunal will be set up in Delhi, Calcutta, Madras and Bombay and
8,000 of the most Hazardous industrial units in the country will be brought
under its security.
The National Environment Appellate Authority Act, 1997, provides
for the established of a National Environment Appellant Authority (NEAA)
to hear appeals with respect to restriction in areas in which any industries,
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operations or processes shall not be carried out or shall be carried out

subject to certain safeguards under the Environment (Protection) Act, 1986.
The Biological Diversity Act, 2002, is a major legislation
intervention effected in the name of the communities supposed to be
involved in the protection of biodiversity around them. The Act intends to
facilitate access to genetic materials while protecting the traditional
knowledge associated with them.
4.6 Environmental Policy Since 1970’s
By early 1972 it had been realized (as observed in the Fourth Five
Year Plan earlier) that unless a national body was established to bring
about greater coherence and coordination in environmental policies and
programmes and to integrate environmental concerns in the plans for
economic development, an important lacuna would remain in India‟s
planning process. Thus, in Feb. 1972, a National Committee on
Environmental Planning and Coordination (NCEPC) was established in the
Dept. of Science and Technology.
The NCEPC was an apex advisory body in all matters relating to
environmental protection and improvement. The Committee was to plan
and coordinate, but the responsibility for execution remained with the
various ministries and governmental agencies. Over time the composition
of the Committee changes significantly and it became unwieldy, and
decision making more complex. Greater bureaucratization occurred with
the addition of more secretaries.
The Fifth Five Year Plan (1974-79) stressed that the NCEPC should
be involved in all major industrial designs and a link and balance between
development planning and environmental management has to be
maintained. In this context, Minimum Needs Programme (covering rural
education, health, nutrition, drinking water, etc.) received a fairly high
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priority, and was expected to minimize environmental pollution and

degradation in rural areas.
In the Sixth Five Year Plan (1980-85), an entire chapter on
„Environment and Development‟ was included that emphasized sound
environmental and ecological principles in land use, agriculture, forestry,
mineral extraction, energy production, etc. It provided environmental
guidelines to be used by administrators and resource managers when
formulating and implementing programmes, and lay down an institutional
structure for environmental management by the Central and State
Governments.
The basic approach taken by the Seventh Plan (1985-90) was to
emphasize sustainable development in harmony with the environment, as
the federal government had recognized the negative effects that
development programmes were having on the environment. The Plan called
for the government and voluntary agencies to work together to create
environmental awareness:
“This is a philosophy which must permeate the entire effort
in the filed of environment.‟ However, even today this basic
philosophy has still not taken hold because the entire
emphasis on industrialization, agri-business and power-
generation projects (form First to Fourth Five Year Plans),
with little concern for environmental protection, has not
relinquished its grip on decision makers.”
The Seventh Plan recognized that „the nation‟s planning for
economic growth and social well-bring in each sector must also work to
secure improvement in environmental quality‟. The leaders of the country
had realized that poverty and under-development, as opposed to
development activities, had led to many of the country‟s environment
problems.
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The Eight Five Year Plan (1992-97) gave an important place to the
environment by moving it to the fourth category of subjects examined in
the text. The Plan stated:
“Systematic efforts have been made since the Sixth Plan
period of integrate environmental considerations and
imperatives in the planning process in al the key socio-
economic sectors. As a result of sustained endeavour,
planning in all major sectors like industry, science and
technology, agriculture, energy and education include
environmental considerations.”
The Ninth Plan (1997-2002) has emphasized “Growth with Social
Justice and Equity”. The Joint Forest Management and Community
Forestry have been specially emphasized in the Plan. The Tenth Plan
(2002-200&0 is on the similar lines.
4.7 Policy Statements
In 1992, the Union Government adopted a „National Conservation
Strategy and Policy Statement on Environment and Development‟ (NCS).
The preamble to the NCS adopts the policy of „sustainable development‟
and declares the government‟s commitment to re-orient policies and action
„in unison with the environmental perspective‟. The NCS proceeds to
recognize the enormous dimensions of the environmental problems facing
India and declares strategies for action in various spheres such as
agriculture, forestry, industrial development, mining and tourism. Special
sections in the NCS deal with the rehabilitation of persons ousted by large
development projects; the role of NGOs; and the special relationship
between women and the environment.
Again, in 1992, the Union Government came out with „Policy
Statement for Abatement of Pollution.‟ This statement declares the
objective of the government to integrate environmental considerations into
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decision-making at all levels. To achieve this goal, the statement adopts

fundamental guiding principles, namely:
(i) Prevention of pollution at source;
(ii) Adoption of the best available technology;
(iii) Polluter pays principles; and
(iv) Public participation in decision-making.
The policy statements, though unenforceable in a court of law,
represent a broad, political consensus and amplify the duties of the
government under the Directive Principles of State Policy contained in Part
IV of the Constitution. In the hands of a creative judge the policy
documents may serve as an aid for interpreting environmental statutes or
for spelling out the obligations of government agencies under
environmental laws.
For example, in State of HP v. Ganesh Wood Products1, the
Supreme Court relied upon the National Forest Policy and the State Forest
Policy of Himachal Pradesh to invalidate a decision taken by the State
industrial project authority. It was held that the policy of „economic
liberalization‟ has to be understood in the light of the National Forest
Policy and forest laws enacted by the government. The court cautioned
government departments against ignoring the forest policies and warned
that disregard of these policies would imperil government decisions.
It is submitted that unless the government policy is baked by
adequate budgetary allocations, changes to the statutory regime and a
bureaucratic will, the government‟s intentions are apt to remain on paper.
4.8 Recent Legislative Measures (Delegated Legislation)
During the nineties, some steps have been taken by the Central
Ministry of Environment to provide legal and institutional basis for

1
(AIR 1996 SC 149)
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management and protection of environment by way of rules, notification of

standards, delegation of powers, identification of agencies for hazardous
chemicals management and setting up of Environmental Councils in some
States.
A new chapter regulating hazardous industrial processes was
introduced into the Factories Act. In the area of delegated legislation,
effluent and emission standards were specified for 24 industries and
general standards for effluent discharge and for noise pollution have been
prescribed under the Environment Act. For the analysis of water and air
samples, about seventy environmental laboratories were established across
the country. Rules for the manufacture and transport of hazardous
substances and microorganisms and for the management of toxic wastes
were issued. Coastal Zone Regulations (CZR) were issued in 1991.
A Gazette notification on environmental audit has been issued,
whereby environment audit has been made compulsory for all industries
requiring environmental clearance under the Water Act, 1974 or The Air
Act, 1981, etc., Further, in 1996, the Central Government framed the
Chemical Accidents (Emergency, Planning, Preparedness and Response)
Rules to Supplement the Hazardous Chemical Rules of 1989. In 1998, the
Central Government issued the Bio-Medical Waste (Management and
Handling) Rules to regulate bio-medical waste.
The Central Ministry of Environment issued a notification in 1994
making Environment Impact Assessment statutory for 29 different
activities in industries, mining, irrigation, power, etc. A new dimension was
added in 1997, to the Environment Impact process in India, by an
amendment. The State Pollution Control Boards had nothing to do in the
assessment process so far. They were now given a new role to play.
Further, in the case of certain categories of thermal power plants,
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responsibility of environmental clearance is now conferred on the State

Government.
Further, the Central Government enacted the Prevention and Control
of Pollution (Uniform Consent Procedure) Rules, 1999, requiring all
industries listed in Schedule VIII of the Environment Act, 1986 to obtain
consent from the State Board or the Pollution Control Committee. For the
purpose of „consent management‟, the industries are categorized as „red‟,
“orange‟ and „green‟. The Environment (Sitting for Industrial Projects)
Rules, 1999, prohibit setting up of certain industries (including hazardous
industries) in certain areas such as within the municipal limits of all
Municipal Corporations/ Councils and Nagar Panchayats and a 25 km belt
around the cities having population of more than 1 million; the periphery of
the wetlands, national parks, sanctuaries and bioreserves.
Recently, the Central Government framed the Recycled Plastic
Manufacture and Usage Rules, 1999. The Rules prohibit vendors of
foodstuffs from packing their wares in bags or containers made from
recycled plastics. If foodstuffs are to be sold in plastic bags, the carry bag
must be made of virgin plastic.
The Municipal Solid Wastes (Management and Handling) Rules,
2000, apply to every municipal authority responsible for collection,
segregations, storage, transportation, processing and disposal of municipal
solid wastes. While the nodal responsibility to enforce these rules lies on
the municipality, the Secretary-in-charge of the Dept. of Urban
Development of the concerned State, the District Magistrate/Deputy
Commissioner shall have the overall responsibility. The Central/ State
Pollution Control Boards have been made responsibility to monitor the
compliance of the standards regarding ground water, ambient air quality
and the compost quality.
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The Battery (Management and Handling) Rules, 2000, provides for

specific categories of wastes such as battery, waste oil, etc. These rules
shall apply to every manufacturer, importer, re-conditioner, assembler,
dealer, recycler, re-smelter, auctioneer, consumer and bulk consumer
involved in manufacturer, processing, sale and purchase of batteries. For
the purposes of these rules, they are under the broad control of the State
Pollution Control Boards.
In 2000, the Noise Pollution (Regulation and Control) Rules, framed
by the Central Government under the Environment Protection Act, 1986,
came into effect. These Rules prescribed ambient air quality standards in
respect of noise for industrial, commercial and residential areas as well as
designated „silence zones‟. In the same year, the Central Government
enacted the Ozone Depleting Substances (Regulation and Control), rules,
2000 under the Environment Protection Act. The producers, dealers, users
engaged in the manufacture/use of ozone depleting substances such as
CFCs, Halon, Cabontetrachloride (CCI4), etc., are required to compulsorily
register under the Rules.
Thus, in recent decades India employed a range of regulatory
instruments to preserve and protect its natural resources. These „new‟ laws
are impressive in their range covering hitherto unregulated fields, such as
noise, hazardous waste, hazardous micro-organisms, environment impact
assessment, etc. the new legislation has spawned new enforcement agencies
and strengthened the older ones.
4.9 General Legislations on Environment
In India, there are a number of laws which deal with various aspect
of environment protection regulation, conduct of environmentally harmful
activities and provide for remedies in case of their breach. Some of them
are „general‟ having an “indirect” bearing on environment protection, while
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others are „special‟ (viz. Water, Air and Environmental Acts, Forest Act,
etc.) being “directly” concerned with environment protection.
General legislation comprises of Indian Penal Code, 1860; Code of
Criminal Procedure, 1973; Code of Civil Procedure, 1908; and, specific
sectoral legislations having a bearing on the environmental aspects viz. The
Factories Act, 1948, The Mines Act, 1952, The Industries (Development
and Regulation) Act, 1951, The Insecticides Act, 1968, The Atomic Energy
Act, 1962, The Motor Vehicles Act, 1939 and 1988, The Delhi Municipal
Corporation Act, 1957, etc.
Under Indian law, for instance, the remedies for a public nuisance
are (i) a criminal prosecution for the offence of causing a public nuisance
(Indian Penal Code 1860, Sec. 268), (ii) a criminal proceeding before a
Magistrate for removing a public nuisance (Criminal Procedure Code 1973,
Secs. 133-44), and (iii) a civil action by Advocate General or by two or
more members of the public with the permission of the court, for a
declaration, an injunction or both (Civil Procedure Code 1908, Sect. 91).
The remedy under the civil law is not often used, however this
provision is a reservoir for class action against environmental violations.
Traditionally, the interpretation of the Indian Penal Code has been viewed
as a conservative attempt at enforcement. This is because punishment and
fines have been characterized as meager. The law of public nuisance
contained in Sec. 133, Cr. P.C. has been used in a number of cases for the
purpose of protection of the environment.
In 1987, shortly after the Bhopal gas tragedy and the Supreme
Court‟s ruling in the Shriram Gas Leak Case2, the 1987 amendment to the
Factories Act introduced special provisions on hazardous industrial
activities. The amendment empowers the States to appoint „site appraisal

2
(AIR 1987 SC 1086)
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committees‟ to advise on the initial location of factories using hazardous

processes. The occupier of every hazardous unit must disclose to her
workers the Factory Inspector the local authority and the general public in
the vicinity all particulars regarding health hazards at the factory, and the
preventive measures taken.
The regulation of nuclear energy and radioactive substances in India
is governed by the Atomic Energy Act of 1962, and the Radiation
Protection Rules of 1971. Under the Act, the Central Government is
required to prevent radiation hazards, guarantee public safety and the safety
of workers handling radioactive substances, and ensure the disposal of
radioactive wastes.
The control of air pollution resulting from the vehicular emissions
which contributes for about 65-70 per cent of the pollution load in India
was taken care of by the Motor Vehicles Act, 1939. The Act empowered
the State Government to make rules inter-alia regarding the emission of
smoke, visible vapour, sparks, ashes, girt or oil. The 1939 Act has now
been repealed by the Motor Vehicles Act, 1988. Section 110 of the new Act
empowers the Central Government to make rules regulating the
construction equipment and maintenance of motor vehicles and trailers.
In 1989, the Central Motor Vehicles Rules introduced nation-wide
emission levels for both petrol and diesel engine vehicles. These rules were
further amended in 1992. The amendments lay down standards regarding
emission levels of carbon monoxide, nitrogen oxides and unburnt
hydrocarbons for petrol and diesel vehicles. The vehicles manufactured
after April 1, 1992 must meet the additional emission standards prescribed
for petrol and diesel vehicles. As a pat of control mechanism, the amended
rules authorized the regional or State Transport authorities to allow private
agencies such as petrol stations to test the emission levels of vehicles and
issue “pollution under control” certificates. Under Rule 116, the
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registration of a vehicle found to be exceeding the permissible emission

levels can be suspended.
The various municipal laws have also provided for legal control of
pollution. The Delhi Municipal Corporation, Act, 1957 contains extensive
provisions for prohibiting the erection of latrines, septic tanks near wells,
water pipes, tank or discharging sewage or dumping rubbish, etc., near
water lines. The Act empowers the Municipal Commissioner to make an
order restraining the use of water from any well, tank or other source of
supply not vested in the corporation when it is so polluted as to be
prejudicial to health of the people.
Thus, there are a number of general legislations in India which are
relevant from the environmental point of view. However, these statuses
contain piecemeal provisions which are not only insufficient but have no
effective mechanism for controlling pollution. Further, different authorities
envisaged under these Acts is inimical to an integrated approach to
conservation issues.
The general legislations like IPC, Cr. PC, CPC, MV Act, Labour
Acts, etc., could be quite effective in controlling environmental violations
because of the easy availability of the enforcement machinery (Police,
judiciary, etc.,) in every district of the country. Some of these Acts have
been amended recently to incorporate current trends and requirements.
Thus, besides an effective implementation of these Acts and creating a
greater public awareness about them, there should be coordination between
different types of authorities so as to effectively preserve and protect the
environment.
4.10 The Environment Protection Act, 1986
Though there is a host of legislation in India aimed at protecting the
environment from pollution and maintaining the ecological balance, the
environment has not so far been considered in its totality. The Environment
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(Protection) Act, 1986, enacted under Art. 253 of the Constitution of India
to implement the decisions made at the United Nations Conference on
Human Environment held at Stockholm, 1972 was expected to fill the
lacuna and provide a blue print for a progressive policy for protecting the
ecosystem. The Act seeks to supplement the existing laws on control of
pollution by enacting a general legislation for environmental protection and
to fill the gaps in regulations of major environmental hazards. However, as
it turned out to be, it is at best a paper or toothless tiger meant to assuage
the feeling of the environment hazards. However, as it turned out be, it is at
best a paper or toothless tiger meant to assuage the feelings of the
environmentalists. The Act has been invoked in very few cases.
The Environment Protection Act is an umbrella legislation enacted
to provide for the Central Government coordination over the central and
State authorities established inter-alia under the water Act, 1974 and the
Air Act, 1981. Thus, as regards air pollution, apart from the preventive or
controlling measures under the Air Act, the residue protection of air would
come within the Environment Act.
According to the Preamble, the objective of the Environment Act is
“……to provide for the protection and improvement of environment
and for matters connected therewith”. The Act is a special law and
extends to the whole of India.
4.11 Definition of ‘Environment’
The title of the Environment Act give an impression that the law
signifies a hallmark of a change in emphasis from the narrow concept of
pollution control to the wider aspects of environmental protection.
However, the definition of „Environment‟ under the Act may give a
negative impression.
According to Sec. 2(a), “environment” includes water, air, land, and
the inter-relationship which exists among and between water, air and land,
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and human beings, other living creatures, plants, microorganisms and

property. Environmental pollutant is defined in Sec. 2(b) as any solid,
liquid or gaseous substance present in such concentrations as may be, or
tend to be, injurious to the environment. Environmental pollution is defined
in Sec. 2(c) as the presence in the environment of any environmental
pollutant.
Sec.2 shows as total lack of understanding of the modern concept of
environmental pollution and the factors that lead to the imbalance of the
ecosystem. The modern concept of environmental pollution is wider. It
may be said that any sort of deviation of any substance from its original
place and removal of its origin is called environmental pollution because
such transferability may cause or tend to cause damage or injury to the
nature. As for example, a plant is removed from its original place and
planted in a new place may cause soil pollution for such amputation.
In the Act, accent is on the physical condition of air and water. The
major urban environmental ills like noise, traffic, slums and congestion are
conspicuously absent from the Act and no provisions have been made for
their control. Further, the Act focuses on environmental pollution and
hazardous substance alone, as source of environment degradation. This
focus ignores other causes of degradation such as deforestation and
unrestrained development.
The Act is drafted with the misconceived contention that protection
and improvement of environment are synonymous to abatement of
pollution. And then, pollution is misconceived as to be environmental
quality deterioration caused by discharge of pollutants.
The definition of environmental pollutant includes solid, liquid or
gaseous „substances‟ only. There are pollutants which are not substances
e.g. heat energy (which causes thermal pollution), nuclear radiations, and
sound (which causes noise pollution).
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The definition of environmental pollution is narrow and

commonplace. The Act considers pollution to be something like
adulteration. It is universally accepted that any environmental modification
which has undesirable short terms of long term effect on the welfare of the
environment is environmental pollution. It is not only the presence of
certain substances that form pollution; the absence or decerased in
concentration, or non-availability of a non-pollutant also form pollution. If
oxygen is withdrawn from the environment in quantities detrimental to the
environment, it forms an instance of pollution. This is how organic
pollution occurs. Organic wastes from paper pulp plants, for example, are
not poisonous materials; but if they are discharged into rivers without
proper treatment, increase in oxygen demand leads to severe water
pollution.
Further, organisms can be pollutants. Presence or absence of any
particular organism in such numbers as to destroy the ecosystem or food
cycle is pollution. A popular example is the depletion of frogs and increase
of mosquitoes.
Thus, the definition of „environment‟ under the Environment
Protection Act is not exhaustive but inclusive one. If the expression
“includes and means” used in the definition, than it would become an
exhaustive definition. However, a meeting of experts recommended that:
“an inclusive definition will have the distinct advantage for
the exercise of vast rule-making power under Act and for a
more effective enforcement of the Act. Exhaustive
definitions in an evolving field like environment, are likely
to lead to recourse to judicial interpretation of highly
complex scientific and technological matters, whose
complexion is every changing as knowledge accumulates
dynamically.”
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The definition of environmental pollution as given in the Act though

subject to certain limitations is wide and comprehensive in its scope at least
for the legal regulation of industrial pollution and hazardous substances and
is best possible in view of the difficulties involved in defining a general
term like “pollution”.
4.12 Broad Powers Given to Central Government
Sec.3 of the Act empowers the Central to take all such measures as
it deems necessary or expedient for the purposes of protecting and
improving the quality of the environment and preventing, controlling and
abating environmental pollution. The Central Government is authorized to
set new national standards for the quality of the environment a swell as
standards for controlling emissions and effluent discharges; to regulate
industrial locations; to prescribe procedures for managing hazardous
substances; to establish safeguards for preventing accidents; and to collect
and disseminate information regarding environmental pollution.
Under Sec. 5, the Central Government has authority to issue direct
written orders, including orders to close, prohibit, or regulate any industry,
operation or process or to stop or regulate the supply of electricity, water or
any other service. Other powers granted to the Central Government to
ensure compliance with the Act include the power of entry for examination,
testing of equipment, etc.,(Sec.10) and the power to take samples of air,
water, soil or any other substances from any place for analysis(Sec.11).
When one compares the provisions of the Water and The Air Act
with those of the Environment Act it becomes clear that the powers and
functions similar to those vested in the Boards under the Water and Air
Acts are vested in the Central Government under the Environment Act. The
critiques conclude that the Act is conceptually identical to the Air Act and
Water Act and does not prove the Central Government with new tools (e.g.
environmental impact assessment) for preventing environmental
 110

degradation. Further, concentration of powers in the hands of the Central

Government is not a wise step towards environmental protection. It is
likely in some cases that decisions of the Government may be influenced
rather by political considerations than by environmental ones. Thus, the
task has to be entrusted to an independent and expert agency created by
statute.
4.13 Violations and Penalties Under the Act
The Act explicitly prohibits discharge of environmental pollutants
in excess of prescribed regulatory standards (Sec.7). Sec.15 prescribes the
penalties for offences under the Act-a prison term of up to 5 years or a fine
of up to Rs.1 lakh, or both. The Act imposes an additional fine of up to
Rs.5,000 for every day of continuing violation. If a failure or contravention
occurs for more than one year after the date of conviction, an offender may
be punished for up 7 years imprisonment.
The critics say that these provisions have a tendency to protect the
guilty rather than the environment. Strangely enough, no minimum
punishment is prescribed. A minimum of 2 years‟ rigorous imprisonment
should have been mandatorily provided for offences of environmental
pollution. Further, the loopholes provided in Sec. 16 and 17 to get off the
hook on proof of lack of knowledge or due diligence also dilute the effect
of peal provisions. The Act makes corporate officials/Heads of
Government Departments liable for the offences under the Act unless the
official/Head can establish that the offence was committed without his
knowledge or that he has exercised all due diligence to prevent the
commission of the offence.
Sec. 24 of the Act is a curious and controversial provision. This
section postulates that where an offence under this Act is also an offence
under any other Act, the offender shall be punished only under the other
Act. This may lead to conflicts and negation of the Environment Protection
 111

Act provisions, because standards established under the Environment Act

are also the subjects to other statutes, such as the Water Act and The Air
Act. If a factory discharges waste water containing the pollutant at a level
higher than allowed under the Environment Protection Act but within the
allowable limits of the Water Act, does the Water Act penalty provision
apply?
Therefore, in such cases serve penalties of the Environment
Protection Act will simply remain on paper. For this reason the Act has
been described as a “cobra that is seemingly fierce but has no venom in its
fangs”. Environment Act also lacks any provisions providing for an
individual‟s right to sue a defaulter for damages.
4.14 Citizens’ Suit Provisions
Until the enactment of the Environment Act, the power to prosecute
under Indian environmental laws belonged exclusively to the government.
The citizens‟ suit provision in the Environment Act expands the concept of
locus standi in environmental prosecutions. Similar provisions allowing
citizens participation in the enforcement of pollution laws are now found in
Sec.43 of the Air Act(as amended in 1987) and Sec.49 of the Water Act(as
amended in 1988).
Sec. 19 of the Environment Act provides that any person, in
addition to authorized government officials, may file a complaint with a
court alleging an offence under the Act. However, the person must have
given notice of not less than 60 days of the alleged offence and the intent to
file a complaint with the government official authorized to make such
complaints. The citizens‟ suit provision appears to give the public
significant powers to enforce the Environment Act. However, some critics
are of the view that during the 60 days notice period required for the
government to decide whether to proceed against the alleged violation, the
offending industry has time to clean up traces of the offence and prepare
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itself for the collection of samples. Further, the government may file a
complaint but does not pursue prosecution diligently.
There are no rules which require the publishing of information by
polluters. The Act allowed, but does not require, the Central Government to
obtain reports, returns, statistics, and other information in relation to its
functions under the Act from any person, officer, State Government or
other authority. The citizens‟ suit provision may become an effective
enforcement tool if industries were required to make mandatory public
reports concerning their pollutant emissions and discharges.
4.15 Environment (Protection) Rules, 1986
The rule-making powers envisaged under the Environment Prection
Act are quite exhaustive and they reach wide and varied dimensions. The
general rule-making power is conferred on the Central Government for
carrying out the provision of the Act (Sec.25). The Central Government
may make rule in respect of all or any of the matters referred to in. Sec.3.
The Department of Environment, Forests and Wildlife of Central Ministry
of Environment and Forests has been entrusted the responsibility for
making rules to implement the Environment Act. The Department has
adopted industry-specific standards for effluent discharge and has
prescribed general effluent standards for other water polluters. It has also
designated certain State and Central officials to carry out specific duties
under the Act and has designated specific laboratories for testing the
samples of air or emissions obtained under the Act.
Under the Environment Act, the Central Government is empowered
to establish standards for the quality of the environment in its various
aspects, including maximum allowable concentration of various
environmental pollutants for different areas. These standards could be
based on ambient levels of pollutants sufficiently low to protect the public
 113

health and welfare. Emission or discharge standards for particular

industries could be adjusted to ensure that such ambient level are achieved.
The Environmental (Protection) Rules, 1986, do allow the State or
Central authorities to establish more stringent emission/discharge
standards, based on the quality of the recipient system, than the current
uniform standards prescribed under these rules [Rule 3(2)]. Rule 3(3)
specifies only one-year time limit to comply with the standards. However,
on account of the local conditions or nature of environmental pollutant, the
Board, under Rule 3(4), may specify a lesser period than one year for
complying with standards.
The standards are set out in the Schedules appended to the
Environment (Protection) Rules. Schedule I lays down industry-specific
standards for effluent discharge and emissions in respect of 89 designated
industries. In case where the polluter is not covered by Schedule I, the unit
must comply with the general standards for discharge of environmental
pollutants prescribed in Schedule VI. The general standards are also known
as the „minimum national standards‟.
Schedules III and VII prescribed national ambient air quality
standards in respect of noise and other air pollutants. Regarding product
standards, new motor vehicles must meet emission and noise limits.
The issuance of directions under the Environment Act denotes a
coercive power. Procedural safeguards are necessary for its proper use. The
rules provide those safeguards, viz. an opportunity of being heard.
However, when the Central Government is of the opinion that in view of
the likelihood of a grave injury to the environment, it is not expedient to
provide an opportunity to file objections against a proposed direction, it
may, for reasons recorded in writing, issue directions without giving such
an opportunity. This provisions takes into account emergency situations
when quick action is needed (Rules 4).
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The rules lay down the factors, which the Central Government
should consider while it prohibits or restricts the location of any industry or
carrying on of processes and operations in different areas. The topographic
and climatic features of the area, the biological diversity, which, in the
opinion of the Central Government, needs to be preserved, environmentally
compatible and use and proximity to human settlement, are some of the
significant factors to be considered [Rule 5(1)]. However, for areas that are
not notified, no provision is made for the public to challenge the siting of
an industry at a given location.
The safeguards provided for taking samples and sending them for
analysis are in recognition of the right of a fair process of law. The rules
also lay down the functions of environmental laboratories, qualifications of
government analysts and the manner of giving notices. [Rr. 6-11].
In view of the wide-reaching powers given to the Central
Government under the Environment Act and Rules, it has used it to
implement some new concepts like Environment Audit, EcoMark,
Environment Impact Assessment, etc. Also, the Government framed rules
relating to hazardous substances, ozone-depleting substance, noise
pollution, Coastal zones, etc. (discussed elsewhere in the book).
4.16 Environment Audit
A separate and independent concept, “environmental audit” find its
way into the Environment (Protection) Rules. This was added by the
amendment notification in 1992. The rules made the submission of an
environmental audit report compulsory. Every person carrying on an
industry, operation or process requiring consent under the Water or Air Act
or authorization under the Hazardous Waste (Management and Handling)
Rule, 1989 has to submit an audit statement for the financial year (ending
31st March) to the State Pollution Control Board.
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In Indian Council for Enviro-Legal Action v. UOI3, the Supreme

Court observed:
“The head of several units/agencies should be made
personally accountable for any lapse and/or negligence on
the part of their units/agencies. The idea of an
“environmental audit” by specialist bodies created on a
permanent basis with power to inspect, check and take
necessary action not only against erring industries but also
against erring officers may be considered. The ultimate idea
is to integrate and balance the concern for environment with
the need for industrialization and technological progress.”
Greater industry compliance with environmental law, disclosure of
date on waste generation, adoption of clean technology for pollution
prevention, etc., is some of the remarkable gains of audit.
4.17 Ecomark
It is a label given to environmental-friendly consumer products.
Any product will get eco-mark if its life-cycle (manufacturing process, raw
material, product use, disposal and packaging) is environment-friendly at
every stage.
In 1991, the Ministry of Environment and Forests (MoEF) decided
to institute a scheme on labeling environment friendly products. Household
and other consumer products can be accredited and labeled as satisfying
environmental criteria, in addition to quality requirements laid down by the
Bureau of Indian Standards for the product. The label is known as
Ecomark. The scheme was meant to provide incentive to the
manufacturers, to assists consumers to become environmentally
responsible, and to improve the quality of environment leading to

3
(AIR 1996 SC 1446)
 116

sustainable management of resources. In certain categories such as toilet

soaps and detergents, paints, paper and laundry soaps, the MoEF has
already finalized and notified the criteria for the product.
4.18 Environment Impact Assessment (EIA)
It is essential that consequences of projects, plans or policies at
different levels be assessed before they are executed. Environmental
Impact Assessment (EIA) examines these consequences and predicts future
changes in the environment. Approval of projects without a proper impact
study is a danger that throws environmental management out of gear. It is
often alleged that location of industrial projects in India is often decided on
parochial, regional and political considerations rather than on
environmental factors.
EIA could not find a place in all the major environment Acts of
India. Under Rule 8(2) of the Hazardous Wastes (Management and
Handling) Rules 1989, framed under the Environment Protection Act,
1986, there is provision for an environmental impact study. But this was
only in a crude form. The State Government or any person authorized by it,
is responsible for the study. How it is to be done is not stated in the Rules.
A draft EIA Notification was published in 1992, making it
compulsory to get environmental clearance from the Central Government
or State Government, as the case may be, for certain projects. However, in
the final Notification (1994), the system of impact agencies envisaged both
at the Centre and in the States gave way to a single agency, namely
Ministry of Environment and Forests (MoEF). Through the MoEF had to
consult the Committee of Experts who have right of entry into, and
inspection of, the site or factory premises in order to prepare a set of
recommendations on technical assessment of documents. However, this
provision was made discretionary by a later amendment. The provision for
environmental group to have access to reports, recommendations and
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conditions of clearance was amended and made subject to pubic interest

privilege. Thus, the effective public participation could be avoided by the
Impact Assessment Agency (IAA) exercising its discretion.
A new dimension was added in 1997, to the EIA process in India,
by an amendment to the Environment Notification. The State Pollution
Control Boards had nothing to do in the assessment process so far. They
were now given a new role to play. An application for environmental
clearance has to submit to the concerned Board, twenty sets of executive
summary of the project along with other environmental information or
documents. The Board is bound to give notice for a public hearing. A penal
representing the Board, the State Government, local authority and senior
citizenry solicits views of the public on proposed projects.
Another amendment has rewritten the total bias against State
clearance of projects. In the case of certain categories of thermal power
plants, responsibility to give environmental clearance is now conferred on
the State Government.
4.19 Environmental Courts
The inherent limitations of the judicial system of review substantive
questions relating to the environment makes it desirable to establish an
alternative forum, with an alternative strategy. As early as 1987, the
Supreme Court was convinced of the need for scientific and technological
expertise as an essential input to inform judicial decision-making. The
court urged the Government of India to set up an Ecological Science
Research Group, with professionally competent and independent experts
who would act as an “information bank” for the court and government
departments and could generate correct and unbiased information.
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Going a step forward and urging the Government of India to

establish Environment Courts, the apex court said in [M.C. Mehta Vs.
Union of India („Shriram Gas Leak Case‟)4:
“Since cases involving issues of environmental pollution,
ecological destruction and conflicts over natural resources
are increasingly coming up for adjudication and these cases
involve assessment and evaluation of scientific and technical
data, it might be desirable to set up Environment and these
cases involve assessment and evaluation of scientific and
technical data, it might be desirable to set up Environment
Courts on the regional basis with one professional judge and
two experts drawn from the Ecological Science Research
Group keeping in view the nature of the case and the
expertise required for its adjudication. There would be of
course a right of appeal to the Supreme Court from the
decision of the environment court.”
In Vellore Citizens’ Case5, the Supreme Court made a request to the
Chief Justice of the Madras High Court to constitute a special bench-a
„green bench‟- to deal with cases on environmental matters, as is done in
Calcutta, Madhya Pradesh, and Punjab and Haryana High Courts. The
rationale of such request is obviously admission and an approval of the
need for experienced judicial institutions with the requisite environmental
expertise, at the regional and State levels, to deal with environmental and
ecological issues of local/regional significance.
In Indian Council for Enviro-Legal Action v. UOI („Coastal
Protection Case‟)6, the apex court suggested that environmental matters

4
[AIR 1987 SC 965]
5
(AIR 1996 SC2715)
6
(1996) 5 SCC 281
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should first be raised before the High Court having the territorial
jurisdiction over the are in question. The Court said:
“For a more effective control and monitoring of the anti-
pollution laws, the High Courts have to shoulder greater
responsibilities in tacking such issues, which pertain to the
geographical areas within their respective States. Even in
cases which have ramifications all over India. Where general
directions are issued by this court, more effective
implementation of the same, can in a number of case, be
effected, it the High Courts concerned assumed the
responsibility of seeing to the enforcement of the laws and
examine the complaints, mostly made by the local
inhabitants, about the infringement of the laws and spreading
of pollution leading to degradation of environment.”
In Indian Council for Enviro-Legal Action v. UOI7, the apex court
again reiterated the need for creating environmental courts „to deal with all
matters, civil and criminal, relating to the environment‟ (in view of the fact
that procedure in ordinary courts takes a long time and thus defeat the very
purpose of granting the relief). According to the court, such courts should
be managed by legally trained persons/judicial officers and should be
allowed to adopt summery proceedings.
For review of environmental decisions, it is necessary to have a
mechanism of environmental courts or tribunals competent enough to
analyse, in an objective manner, environmental, legal and policy issues.
The National Environmental Tribunal Act, 1995 provides such a structure.
However, the jurisdiction of the Tribunal is limited to determination of
compensation for accidents while handling hazardous substances whereas,

7
(AIR 1996 SC 1446)
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there are a number of other problems to be decided, examined and

reviewed.
A.P. Pollution Control Board v. M.V. Nayudu8
The Supreme Court in this case again expressed the need for the
establishment of environmental courts consisting of judicial and scientific
expertise. It suggested amendments in environmental statutes to ensure that
in all environmental courts, tribunals and appellate authorities, there is
always a judge of the rank of a High Court judge-sitting or retired- and
scientist or group of scientists so as to help a proper and fair adjudication of
environmental –related disputes.
The Court felt that the practice adopted by the higher courts thus far
resolving dispute matters through help of commission may not be
sustainable over a long term. The court observed:
“Of paramount importance in the establishment of
environmental courts, authorities and tribunals is the need for
providing adequate judicial and scientific input rather than
leave complicated disputes regarding environmental
pollution to officers drawn only from the executive.”
It held: Environmental concerns arising in the Supreme Court or in
the High Courts are of equal importance as the human rights concerns.
Both are to be traced to Art.21, which deals with the fundamental right to
life and liberty. While environmental aspects concern “life”, human rights
concern “liberty”. In the context of emerging jurisprudence relating to
environmental matters, it is the duty of the Supreme Court to render justice
by taking all aspects into consideration. With a view to ensure that there is
neither damage to the environment nor to the ecology and, at the same time
ensuring sustainable development, the Supreme Court while dealing with

8
(AIR 1999 SC 812)
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environmental matters, under Art. 32(or the High Courts under Art.226)
can refer scientific and technical aspects for investigation and opinion to
statutory expert bodies having combination of both judicial and technical
expertise in such matters, like the Appellant Authority under the
Environment Appellate Authority Act, 1997.
The apex court felt an immediate need that in all States and Union
Territories, the appellate authorities under the Water Act, 1974 and The Air
Act, 1981 or other rules, there is always a judge of High Court and a
scientist or group of scientists to help in the adjudication of environment-
related disputes. The court pointed out the need of amending notifications
under these Acts as well as notification under Rule 12 of the Hazardous
Wastes (Management and Handling) Rules, 1989.
The National Environmental Appellate Authority Act, 1997 comes
very close to the ideals set by Supreme Court. The Authority, being
combination of judicial and technical inputs, possess expertise to give
adequate help to the Supreme Court and High Courts to arrive at decisions
in environmental matters. The court in above case referred the issue of
determination of the hazardous nature of the respondent industry to the
Appellate Authority.
4.20 National Environment Appellate Authority Act, 1997
On 30th January 1997, the President of India, in exercise of the
powers conferred under Art. 123 of the Constitution of India, promulgated
an ordinance to provide for the establishment of a National Environment
Appellate Authority (NEAA) to hear appeals with respect to restriction in
areas in which any industries, operations or processes shall not be carried
out or shall be carried out subject to certain safeguards under the
Environment (Protection) Act, 1986. The said ordinance has been replaced
by the National Environment Appellate Authority Act, 1997.
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Sec. 3 of the NEAA Act provides that the Central Government shall,
by notification in the official gazette, establish a body to be known as the
National Environment Appellate Authority (hereinafter referred to as
„Authority‟). The Central Government has appointed the Authority on
17.1.1998. Justice J.S. Verma, while inaugurating the NEAA stated that its
establishment was a very positive response of the executive, as it would
bring desired result in the least possible time.
With effect from the date of establishment of the Authority, no Civil
Court or other authority shall have jurisdiction to entertain any appeal in
respect of any matter with the Authority is empowered by or under this Act
(Sec.15). The headquarters of the Authority shall be in Delhi. However, the
appeals may be heard at the headquarters or at the discretion of the
Chairperson, at any other place (Rule 4, The National Environment
Appellate Authority Rules, 1997).
The Authority shall consist of a Chairperson, a Vice-Chairperson
and such other members (to be appointed by President) not exceeding three
as the Central Government may deem fit (Sec.4). A person to be appointed
as Chairperson should have been a judge of the Supreme Court, or the
Chief Justice of a High Court. A person to be appointed as Vice-
Chairperson should have for at least two years held the post of a Secretary
to the Government of India, and expertise or experience in administrative,
legal, managerial or technical aspects or problems relating to environment.
A person to be appointed as a member of the Authority should have the
professional knowledge or practical experience in the areas pertaining to
conservation, environment management, law or planning and development
(Sec. 5). The association of a bureaucrat in the form of Vice-Chairperson is
undesirable, as his opinion might be influenced by the political rather than
environmental considerations.
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Under the Act, any person who feels aggrieved by an order granting
environmental clearance in the areas in which any industries, operations or
processes shall not be carried or shall be carried out subject to certain
safeguards, may file an appeal to the Authority within 30 days from the
date of such order. However, the Authority may entertain an appeal beyond
this period if there was sufficient cause for delay in filing the appeal. The
Authority is required to dispose of the appeal within 90 days from the date
of filing of the appeal. However, it may for reasons to be recorded in
writing dispose of the appeal within a further period of 30 days (Sec.11).
The Authority shall not be bound by the procedure laid down in the
Code of Civil Procedure, 1908, but shall be guided by the principles of
natural justice and subject to other provisions of the Act and of any rules
made by the Central Government. The Authority shall also have the power
to regulate its own procedure. For the purpose of discharging its functions,
the Authority shall have the same powers as are vested in a civil court
under the Code of Civil Procedure (Sec.12).
Whoever fails to comply with any order made by the Authority, he
shall be punishable with imprisonment for a terms which may extend to 7
years, or with fine which may extend to one lakh rupees, or with both
(Sec.19). Where any offence is committed by a company, every person
directly in charge of and responsible to be company for the conduct of the
business of the company, as well as the company, shall be deemed to be
guilty of the offence and shall be punished accordingly. However, the
corporate executive has not been held absolutely liable if he proves that the
offence has been committed without his knowledge or that he exercise due
diligence to prevent such offence, he can be exonerated from the liability
(Sec.20).
It is submitted that the executive has done well by establishing the
National Environment Appellate Authority. It is hoped that in the
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environment matters, justice shall be delivered quickly and the Authority

would go a long way to fulfill the long-felt need. In A.P. Pollution Control
Board the Supreme Court held that in addition to its statutory jurisdiction,
the Appellate Authority also had an advisory role to play in complicated
environmental matters that were referred to it by the Supreme Court or the
High Court.
The definition of „person‟ within the Act is very liberal. Further, the
constitution of the Authority is such as to ensure its independence (the
members are appointed by the President and enjoy a secure tenure) and
inspire confidence in the public. Significantly, the appellate jurisdiction is
limited only to case where environmental clearance is granted and does not
extend to case where clearance is refused.
4.21 Precautionary and Polluter Pays Principle
Precautionary Principle
A basic shift in the approach to environmental protection occurred
initially between 1972 and 1982. Earlier, the concept was based on the
“assimilative capacity” rule (Principle 6 of Stockholm Declaration, 1972),
which assumed that science could provide policy makers with the
information and means necessary to avoid encroaching upon the capacity
of the environmental to assimilate impacts and it presumed that relevant
technical expertise would be available when environmental harm was
predicted and there would be sufficient time to act in order to avoid such
harm.
Later, the emphasis shifted to the “precautionary principle” (11th
Principle of UN Resolution on World Charter for Nature, 1982), and this
was reiterated in the Rio Conference of 1992 in its Principle 15(„In order to
protect the environment, the precautionary approach shall be widely
applied by States according to their capacities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be
 125

used as a reason for postponing cost-effective measures to prevent

environmental degradation‟). The inadequacy of science is the real basis
that has led to the precautionary principle of 1982 [A.P. Pollution Control
Board Vs. Prof. M.V. Nayudu9.
The precautionary principle is based on the theory that it is better to
err on the side of caution and prevent environmental harm which may
indeed become irreversible. The principle of precaution involves involves
the anticipation of environmental harm and taking measures to avoid it or
to choose the least environmentally harmful activity. Environmental
protection should not only aim at protecting health, property and economic
interest but also protect the environment for its own sake [A.P. Pollution
Control Board Case].
The essential ingredients of the precautionary principle are:-
(i) Environmental measures- by the State Government and the statutory
authorities-must anticipate, prevent and attack the causes of
environmental degradation.
(ii) When there are threats of serious and irreversible damages, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
(iii) The “onus of proof” is on the actor or the developer/industrialist to
show that his action is environmentally benign (“Reversal of burden
of proof).
(iv) Precautionary duties must not only be triggered by the suspicion of
concrete danger but also by (justified) concern or risk potential.
The precautionary principle suggests that where there is an
identifiable risk of serious or irreversible harm, including, for example,
extinction of species, widespread toxic pollution in major threats to
essential ecological processes, it may be appropriate to place the burden of
9
(1992) 2 SCC 718]
 126

proof on the person or entity proposing he activity that is potentially

harmful to the environment.
In other words, the burden of proof is to be placed on those
attempting to alter the status quo. This is often termed as a “reversal of the
burden of proof”, because otherwise in environmental cases, those
opposing the change would be compelled to shoulder the evidentiary
burden, a procedure that is not fair. Therefore, it is necessary that a party
attempting to preserve the status quo by maintaining a less polluted state
should not carry the burden of proof and the party who wants to alter it,
must bear this burden. If insufficient evidence is presented by the latter to
alleviate concern about the level of uncertainty, then the presumption
should operate in favour of environmental protection [A.P. Pollution
Control Board Case].
In M.C. Mehta v. UOI (CNG Vehicles Case)10, the Supreme Court
observed that “It cannot be gainsaid that permission to use automobiles has
environmental implications, and thus any “auto policy” framed by the
Government must, therefore, of necessity conform to the constitutional
principles as well as overriding statutory duties cast upon the Government
under the EPA.” The “auto policy” must adopt the „precautionary principle‟
and make informed recommendations which balance the needs of
transportation with the need to protect the environment and reverse the
large scale degradation that has resulted over the years, priority being given
to the environment over economic issues.”
The Court then observed:
“The emission norms stipulated by the Government have
failed to check air pollution, which has grown to dangerous
levels across the country. Therefore, to recommend that the
role of the Government be limited to specifying norms is a
10
(AIR 2002 SC 1696)
 127

clear abdication of the constitutional and statutory duty cast

upon it to protect and preserve the environment, and is in the
teeth of the “precautionary principle”.
Though precautionary principle has emerged as a basic guideline for
the exercise of government discretion, the problem is that there is not much
consensus on the exact scope of the principle. Every activity is fraught with
certain risks and there can never be full scientific certainty. Taken literally,
the principle would be: “Don‟t do anything”.
In 2000, the European Commission dealt with the various aspects of
implementing the precautionary principle and stated that it would be
applicable where preliminary objective scientific evaluation indicates that
there are reasonable grounds to believe that the potentially dangerous
effects on the environment and human. etc., may be inconsistent with the
high level of protection chosen for the community.
4.22 Polluter Pays Principle
It means that „polluter should bear the cost of pollution as the
polluter is responsible for pollution.” This principle demands that the
financial costs of preventing or remedying damage caused by pollution
should lie with the undertaking which cause the pollution. Under it, 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.
The principle was promoted by the Organisation for Economic Co-
operation and Development(OCED) during the 1970s when there were
demands on Government and other institutions to introduce
polices/mechanisms to protect the environment and the public from the
threats posted by pollution in a modern industrialized society. Despite the
difficulties inherent in defining the principle, the European Community
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accepted it as a fundamental part of its strategy on environmental matters.

Thus, this principle has been incorporated into the European Community
Treaty. Art. 102 R(2) of the Treaty states that environmental
considerations are to play a part in all the policies of the Community, and
that action is to be based on three principles: the need for preventive action,
the need for environmental damage to be rectified at source, and that the
polluter should pay.
It may be noted that the polluter pays principle evolved out of the
rule of „absolute liability‟ as laid down by the apex court in Shriram Gas
Leak Case. In the Bichhri Case (see below) the apex court nicely weighed
and balanced the conspectus of absolute liability and polluter pays
principle. The court interpreted the principle to mean that the absolute
liability for harm to the environment extends to the cost of restoring the
environmental degradation in additions to compensating the victims of
pollution.
The court observed that Sec. 3 and 5 of the Environment
(Protection) Act, 1986, empower the Central Government to give directions
and take measures for giving effect to this principle. The „power to lay
down the procedures, safeguards and remedial measures‟ under the
omnibus power of taking all measures impliedly incorporated the polluter
pays principles. Also, in Vellore Citizens‟ Welfare Forum v. Union of India
(see below), the apex court directed the Central Government to constituted
separate authorities under Sec. 3(3) of the Environment Act and directed
the authorities to assess the loss to the ecology/environment and recover the
amount from the polluters.
In the Calcutta Tanneries Case11, the task of assessment and
recovery of restoration costs was assigned to an authority appointed by the
State Government. The apex court also directed polluters to pay a
11
[M.C. Mehta Vs. Union of India (1997) 2 SCC 411]
 129

“pollution fine” with the proceeds being credited to an „environment

protection fund‟ for the restoration of the local environment.
Span Motel was directed to pay compensation for restitution of the
environment and ecology in M.C. Mehta v. Kamal Nath12. In the similar
case, the apex court noted:-
“Pollution is a civil wrong. By its very nature, it is a tort
committed against the community as a whole. A person,
therefore, who is guilty of causing pollution has to pay
damages(compensation) for restoration of the environment.
He has also to pay damages to those who have suffered loss
on account of the act of the offender. Further, the offender
can also be held liable to pay exemplary damages so that it
may act as a deterrent for others not to cause pollution in any
manner. However, the court cannot impose any pollution
fine in absence of any trial and finding of guilty under the
relevant statutory provisions.”
In the similar case (2002) 3 SCC 653, the apex court held: It would
be both in public interest as well as in the interest of justice to fix the
quantum of exemplary damages payable by Span Motels at Rs.10 lakhs
only. The question relating to the quantum of damages on the principle of
“polluter pays” will be determined separately.
In Pravinbhai J. Patel v. State of Gujarat,13, the court directed the
pollution units to either shut down or pay one percent of its gross turnover
towards „Socio-economic uplift‟ of the affected villages. In Deepak Nitrite
Ltd. V. State of Gujarat,14, the issue was when damages for, on account of
„polluter to pay‟ can be awarded in case of pollution caused by industries.
The court held that compensation to be awarded must have some broad

12
(1997) 1 SCC 388
13
1995(2) Guj LR 1210
14
2004 AIR SCW 3285
 130

correlation not only with the magnitude and capacity of the enterprise but
also with the harm caused by it.
In the present case, the industrial units were not observing norms
prescribed by State PCB. However, the High Court gave no finding that
such lapse has caused damage to environment. Thus, the payment of 1% of
turnover as compensation ordered by the High Court to further investigate
in each of these case and find our broadly whether there has been any
damage caused by any of industrial units and that exercise need not be
undertaken by High Court as if present proceeding is an action in tort but
an action in public law. In this process, it is open to the High Court to
consider whether 1% of turnover itself would be an appropriate formula or
not.
In Vijay Singh Puniya v. State of Rajasthan15, the High Court, on
the principle of „Polluter pays‟ directed that each of the polluting industrial
units shall pay to State Industrial Corporation, 15% of its turnover by way
of damages.
The polluter pays principle though recognized judicially in India
does not find a place in the major environmental legislations viz. Water,
Air and Environment Acts. In Vellore Citizens Case, the apex court stated
that precautionary principle and polluter pays principle govern the law in
India as is clear from Arts. 48-A and 51-A(g) of the Constitution and that,
in fact, in various environmental statutes, such as Water Act, 1974, the
Environment (Provision) Act, 1986, and other statutes, these concepts are
already implied.
Lack of executive action in India has led someone to comment that
in essence, the “polluter pays” principle has degenerated into “pay and
pollute”. The CNG Vehicles case and so many other cases amplify the
above point.
15
(AIR 2004 RaJ.1)
 131

4.23 Judicial Observations

Vellore Citizens’ Welfare Forum v. Union Of India16
In this case, certain tanneries in the State of Tamil Nadu were
discharging untreated effluent into agricultural fields, roadsides, waterways
and open lands. The untreated effluent finally discharged in a river which
was the main source of water supply to the residents of Vellore. The
Supreme Court issued comprehensive directions for maintaining the
standards stipulated by the Pollution Control Board.
Observations- The Supreme Court observed that the “Precautionary
principle” and the “Polluter Pays Principle” are part of the environmental
law of the country. These principles are essential features of “Sustainable
development”. The “Precautionary principle” in the context of the
municipal law means: (i) Environmental measures by the State Government
and the statutory authorities-must anticipate, prevent and attack the cause
of environmental degradation (ii) where there are threats of
serious/irreversible damage, lack of scientific certainly should not be used
as a reason for postponing measures to prevent environmental degradation
(iii) The “onus of proof” is on the actor or the developer/ industrialist to
show that his action is environmentally benign.
The “Polluter Pays” principle 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 environmental degradation.
Remediation of the damaged environment is part of the process of
“Sustainable development” and as such polluter is liable to pay the cost of
the individual sufferers as well as the cost of reversing the damaged
ecology.

16
(AIR1996 SC 2715)
 132

The Supreme Court observed: “Sustainable development as a

balancing concept between ecology and development has been accepted as
a part of the customary international law though its salient features have yet
to be finalized by the international law jurists. Some of the salient
principles of “Sustainable development”, as culled-out from Brundtland
Report and other international documents, are-Inter Generational Equity,
Use and Conservation of Natural Resources, Environmental Protection, the
Precautionary Principle, Polluter Pays Principle, Obligation to assist and
co-operate, Eradication of Poverty, and, Financial Assistance to the
developing countries.”
The Supreme Court directed the Central Government to constitute
an authority under Sec. 3 of the Environment Act, 1986 and 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. The
authority (headed by a retired judge of the High Court) shall implement the
precautionary and polluter pays principles. The authority shall compute the
compensation under two heads, namely, for reversing the ecology and for
payment of individuals.
In M.C. Mehta (Badkhal & Surajkund Lakes Matter) v. UOI17, the
banning of construction activities within the radius of 1 km form the tourist
resorts of Badkhal Lake and Surajkund only in the State of Haryana was
questioned as being arbitrary and discriminatory. The Supreme Court held:
The “Precautionary principle” has been accepted as a part of the law of the
land. The principle makes it mandatory for the State Govt. to anticipate,
prevent and attack the causes of environment degradation. In order to
protect the two lakes from environmental degradation it is necessary to
limit the construction activity in the close vicinity of the lakes.

17
(1997) 3 SCC 715
 133

The judgments of the Supreme Court in Vellore case and A.P.

Pollution Control Board case have significant impact on the specialized
environmental legislations in India. The judgments are a pointer for
Pollution Control Board to grant consent for setting up industrial unit on
the basis of precautionary principle. The precautionary principle underlines
the provisions of environmental legislations which related to grant of
consent by the Pollution Control Board to the setting up of industrial units.
In Narmada Bachao Andolan v. Union of India18, however, the apex
court made crucial distinction between ecological principles in pollution
cases and in natural resource conflicts. In pollution cases, the court has
upheld the precautionary principle and the polluter pays principle. Both
these progressive pieces of law seem to be off bounds for the Narmada
case. The court noted the “it was the inadequacies of science that has led to
the precautionary principle where the burden of proof is placed on those
who wish to change the status quo.”
The precautionary principle is particularly applied to cases of
irreversible harm such as the extinction of a species of widespread toxic
pollution. But in the Narmada hydroelectric project case, the court felt that
there is no question of uncertainty, risk or irreversibility. The court argued
that where the effect is known and mitigative steps can be taken the
polluter pays principles was inapplicable. It adds “merely because there
will be change is no reason to presume that there will be ecological
disaster.” The court believed that Narmada is not a case where effects are
unknown and knowledge uncertain.
The stand taken by the Supreme Court in Narmada case, seems to
dilute the importance of precautionary principle in relation to
environmental protection and the concerned approached displayed by it in
A.P. Pollution Control Board Case wherein it observed that precautionary
18
(2000) 10 SCC 664
 134

duties must not only be triggered by the suspicion of concrete danger but
also by (justified) concern or risk potential. The court ignored one of the
„real‟ concerns in the Narmada Case, Viz., submergence of forests and loss
of biodiversity in the region by the Narmada dam. It failed to appreciate the
fact that the impact of massive deforestation could not be overcome by the
complex artificial measures (e.g. compensatory afforestation, shifting of
wildlife of adjoining forests) as envisaged by the Government.
4.24 Public Trust Doctrine
The ancient Roman Empire developed a legal theory known as the
as the “Doctrine of the Public Trust.” The 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. The said resources
being a gift of nature, they should be made freely available to everyone
irrespective of the status in life.
The doctrine enjoins upon the Government to protect the resources
for the enjoyment of the general public rather than to permit their use for
private ownership or commercial purposes. Though the public trust
doctrine under the English Common Law extended only to certain
traditional uses viz., navigation, commerce and fishing, the US Courts in
recent cases expanded the concept of the public trust doctrine.
The Supreme Court in India has also recognized the that this
doctrine is part of Indian law. The Court in the below-mentioned case held
that the doctrine of public trust implies following restrictions on
governmental authority:
“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. Secondary, the property may not be sold,
 135

even for a fair cash equivalent. Thirdly, the property, must be

maintained for particular types of uses.”
4.25 Intergenerational Equity
Intergenerational equity i.e. moral obligation of the present
generation to manage the earth in a manner without jeopardizing the
aesthetic and economic welfare of the future generations is advanced as an
argument in favour of „sustainable development‟ and natural resource use
(see Vallore Citizens Case). If present generations continue to consume and
deplete resources at unsustainable rates, future generations will suffer the
environmental (and economic) consequences.
The origins of the principle can be seen in the Principles 1 and 2 of
the 1972 Stockholm Declaration. These principles lay down the solemn
responsibility of the man to safeguard the natural resources of the earth for
the benefit of the present and future generations through careful planning
and management. The Report of WCED („Brundtland Report‟), 1987,
emphasizing the importance of sustainable development, talked not only of
equity for the present but of intergenerational equity. And thus the wheel of
human reasoning came full circle 200 years ago the Isopanishad had stated:
“All, in this manifest world, consisting of moving or non-
moving, are governed by the Lord. Use its resources with
restrain. Do not grab the property of others-distance and yet
to come.”
In Dehradun Quarrying Case19 the Supreme Court of India observed:
“We are not oblivious of the fact that natural resources have
got to the be tapped for the purposes of the social
development but one cannot forget at the same time that
tapping of resources have to be done with requisite attention
and care so that ecology and environment may not be
19
(AIR 1987 SC 359)
 136

affected in any serious way. It has always to be remembered

that these are permanent assets of mankind and not intended
to be exhausted in one generation.”
In Mathew Lukose v. Karnataka SPCB,20, explaining the principle
of „inter-generationaly equity‟, the court held :
“The world belongs to us in usufruct, but we owe a duty to
the posterity and to the unborn to leave this world at least as
beautiful as we found it.”
In State of Himachal Pradesh v. Ganesh Wood
Products21, the Supreme Court recognized the significance of
intergenerational equity and held a government department‟s
approval to establish forest-based industry to be invalid
because:
“It is contrary to public interest involved in preserving forest
wealth, maintenance of environment and ecology and
considerations of sustainable growth and intergenerational
equity. After all, the present generation has no right to
deplete all the existing forests and leave nothing for the next
and future generations.”
In Coastal Protection case22,also, the Supreme Court observed that
violation of anti-pollution laws not only adversely affects the existing
quality of life but the non-enforcement of legal provisions often results in
ecological imbalance and degradation of environment, the adverse effect of
which will have to be borne by the future generations.
In Shrimp Culture Case23, the apex court opined that sustainable
development should be the guiding principle for „shrimp aquaculture‟ and

20
1990 (2) KLT 686
21
AIR 1996 SC 149
22
(1996) 5 SCC 281
23
[S. Jagannath v. UOI(1997) 2 SCC 87]
 137

by following the natural method, though the harvest is small but sustainable
over long periods and it has no adverse effect on the environment and
ecology. It held that there must be an Environment Impact Assessment
(EIA) before permission is granted to install commercial shrimp forms. The
assessment must take into consideration the intergenerational equity.
To provide an overview of environmental legislations, a few
important legislations of each category with brief description are given
below:
(a) WATER ACTS : The green revolution and rapid industrialization
and urbanization have resulted in a profound deterioration of India‟s water
quality. To provide legislative support for prevention of water pollution,
Parliament passed India‟s first major Water legislation, called the Water
(Protection and Control of Pollution) Act, 1974. Some legislative provision
for water pollution is also made in the Environment (Protection) Act, 1986.
Some important provision, of the Water Act, 1974 and Amendment, 1988
are given below:-
The Water (Prevention and Control of Pollution) Act of 1974 and
Amendment, 1988
The main objective of this Act is to provide for the prevention and
control of water pollution and maintaining or restoring of wholesomeness
of water (in the streams of well or on land). Some important provisions of
this Act are given below:-
 The Act vests regulatory authority in the state boards, empowers
these boards to establish and enforce effluent standards for factories
discharging pollutants into bodies of water. A Central Board
performs the same functions for union territories and coordinates
activities among the states.
 138

 The boards control sewage and industrial effluent discharges by

approving, rejecting or conditioning applications for consent to
discharge.
 The state boards also minimize water pollution by advising state
governments on appropriate sites for new industry.
 Act granted power to the Board to ensure compliance with the Act
by including the power of entry for examination, testing of
equipment and other purposes and power to take the sample for the
purpose of analysis of water from any stream or well or sample of
any sewage or trade effluents.
 Prior to its amendment in 1988, enforcement under the Water Act
was achieved through criminal prosecutions initiated by the boards,
and through applications to magistrates for inculcations to restrain
polluters. The 1988 amendment strengthened the Act‟s
implementation provisions. Now, a board may close a defaulting
industrial plant or withdraw its supply of power or water by an
administrative order; the penalties are more are more stringent, and
a citizen‟s suit provision supports the enforcement machinery.
4.26 The Water (Prevention and Control of Pollution) Cess Act of 1977.
The Water Cess Act was passed to help meet the expenses of the
Central and State Water Boards. The Act creates economic incentives for
pollution control and requires local authorities and certain designated
industries to pay a cess (tax) for water consumption. These revenues are
used to implement the Water Act. The Central Government, after deducting
the expenses of collection, pays the Central Board and the states such sums,
as it deems necessary to enforce the provisions of Water Act. To
encourage capital investment in pollution control, the Act gives a polluter a
70 per cent rebate of the applicable cess upon installing effluent treatment
equipment.
 139

M.C. Mehta v. Union Of India

[Ganga Pollution (Tanneries) Case]24
FACTS- In 1985, M.C. Mehta, an activist advocate, filed a writ
petition under Art, 32 of the Constitution. The petition was directed at the
Kanpur Municipality‟s failure to prevent waste water from polluting the
Ganga. The discharge of trade effluents form tanneries at Jajmau near
Kanpur, without treating the effluents first into a primary treatment plant
has been causing considerable damage.
Sec.24 of the Water Act, 1974, prohibits the use of any stream or
well (the expression “stream” includes rivers) for disposal of polluting
matter, etc. Nothwithstanding the comprehensive provisions contained in
the Act, no effective steps appears to have been taken by the State Board to
prevent the discharge of effluents into Ganga. The fact that such effluents
are being first discharged into the municipal sewerage does not absolve the
tanneries from being proceeded against under the provision of the law in
forced since ultimately the effluents reach the Ganga from the sewerage
system of the municipality.
Further, not much has been done even under the Environment
(Protection) Act, 1986. Under Sec. 5 of the Act, the Central Government
may issue directions to any person, officer or authority, and such power
includes the power to direct the closure prohibition or regulation of any
industry, operation or process.
Observations and Decision- The court observed that under the
existing law, tanneries, like other industries, are expected to provide
treatment of their effluents to different standards depending on whether
they are discharged into stream or land. Accordingly, the court issued
direction to the tanneries to set up effluent treatment plants within a period
of six months. Each tannery is to make arrangement for the primary
24
(AIR 1988 SC 1037)
 140

treatment of their effluent (before its discharge into the municipal sewer)
and then discharge it into common treatment plant. The court also directed
the Central Government, Pollution Control Board and the District
Magistrate to oversee the work.
The court further observed that the closure of tanneries may bring
unemployment, loss of revenue, but life, health and ecology have greater
importance to the people. Just like an industry which cannot pay minimum
wages to its workers cannot be allowed to exist, a tannery which cannot set
up a primary treatment plant cannot be permitted to continue to be in
existence.
Comments-The case highlights the polluted condition of the river
Ganga more than thirteen yeas after the enactment of the Water Act. In this
case, the court issued direct orders to private tanneries, including orders to
cease operations. Normally, an order issued in an Art. 32 is directed a
public officials or authorities who are instrumentalities of the “State” under
Art.12.
M.C. Mehta v. Union of India
[Ganga Pollution(Municipalities) Case]25
Observations and Decision- The Supreme Court in this case held that the
Nagar Mahapalika of Kanpur has to bear the major responsibilities for the
pollution of the river Ganga near Kanpur city.
The court cited the excerpts from the book entitled „Water Pollution
and Disposal of Waste Water on Land (1983) by U.N. Mahida: Those who
cause pollution are seldom the people who suffer from it. The industries
discharge their untreated or partially treated sewage and industrial waste
from their own neighbourhood. But in doing so, they create intense
pollution in streams and rivers and expose the downstream riparian
population to unhygienic conditions.
25
(AIR1988 SC1115)
 141

The Court observed that in common law, the municipal corporation

can be restrained by an injunction in an action brought by a riparian owner
who has suffered on account of the pollution of water in a river caused by
the corporation. The petitioner in the present case is not a riparian owner,
but he is a person interested in protection the lives of people who make use
of the water flowing in the river Ganga. The nuisance caused by the
pollution of Ganga is a Public nuisance and it would not be reasonable to
expect any particular person to take proceedings to stop it as distinct from
the community at large. The petitioner has been entertained as a public
interest litigation. The petitioner is entitled to move the court in order to
enforce the statutory provisions which impose duties on the municipal
authorities and the Board constitution under the water Act.
The court ordered the city municipal authorities to fulfill statutory
duties [U.P. Municipalities Act] including: Removal of dairies or the
wastes from the dairies; increase of the capacity of the sewers in labour
colonies; provisions of public latrines, etc.; stricter enforcement to prevent
the placing of dead bodies in Ganga; and submission of sewer proposals to
the State within six months.
M.C. Mehta v. Union Of India
[“Calcutta Tanneries Case”]26
A decade after the Supreme Court‟s rebuke to the Knapur
Tanneries, the Calcutta tanneries were discharging untreated effluents into
the river Ganga. The court, in the absence of any possibility of setting up of
CETP (Common Effluent Treatment Plant) at the existing locations of the
tanneries ordered the relocation of industries and issued directions to that
effect. Further, the court directed the Calcutta High Court to monitor the
matter in the future.

26
1997 (2) SCC 411
 142

The court ordered the State Government to render all assistance to

the tanneries in the process of relocation. The State Government is required
to appoint an Authority/Commissioner who with the help of Board and
other expert opinion and after giving opportunity to the polluting tanneries
concerned assess the loss to the ecology/environment in the affected areas.
The said authority shall further determine the compensation to be recovered
from the polluting tanneries as cost of reversing the damaged environment.
A tannery may have set up the necessary pollution control device at
present, but it shall be liable to pay for the pat pollution generated by the
said tannery which has resulted in the environmental degradation and
suffering to the residents of the area.
The Court imposed “pollution fine” of Rs.10,000 each on all the
tanneries and directed the Collector/District Magistrate of the area
concerned to recover the said fine. The compensation amount recovered
from the polluting tanneries and the amount of fine recovered from the
tanneries shall be deposited in an „Environmental Protection Fund‟ to be
utilized for restoring the damaged environment and ecology.
Comments - The Supreme Court‟s judgment attempts to sensitize
many layers of the bureaucracy and the judiciary to the importance of
environment protection. For example, apart from the officials directly
involved in the case, the order casts implementation and oversight
responsibilities on the Collector/District Magistrate/Deputy Commissioner/
Superintendent of Police, and the „Green bench‟ of the Calcutta High
Court.]
Wetlands are very useful as-(i) they act as water purifier, (ii) they
help maintain surface moisture, (iii) they lessen the impact of both floods
as well as droughts, (iv) they contribute pure water to wells, (v) they
preserve the wildlife, and, (vi) they support the fishing industry. It has been
 143

calculated in U.S. that 1 acre of wetlands is worth tens of thousands of U.S.

dollars for the service it renders.
People United for Better Living in Calcutta v. State of W.B.27
Facts- The petitioner in a writ petition under Art. 226 prayed for the
maintenance of wetlands in the eastern fringe of the city of Calcutta. The
State-respondents wants to develop the 784 acres of Calcutta‟s wetlands for
commercial/residential purposes, under its „Salt Lake City Development
Plan‟. It contended that by the time the slogan „save wetlands‟ was raised,
3,000 acres of salt lake had already been developed by early 1980s, and
only 784 acres more were to be essentially developed now (to optimize the
use of infrastructure already created). The contemplated co-operative
housing complex facilities for the people, and a world trade centre cannot
perhaps be given up in the larger socio-economic interests.
Observations- The court observed (as per Umesh Chandra Banerjee,
J.) that there cannot be any manner of doubt that the Calcutta‟s wetlands
presents a unique ecosystem apart from the materialistic benefits to the
society at large. The court observed:
“While it is true that in a developing country there shall have
to be developments, but that development shall have to be in
closest possible harmony with the environment, as otherwise
there would be development but no environment, which
would result in total devastation….There should have to be a
proper balance between the development and environment so
that both can co-exist without affecting the other. The
environment shall have to be protected but not at the cost of
development of society, a balance has to be found out and
administrative action ought to proceed in accordance
therewith and not d‟hors the same.”
27
(AIR 1993 CAL 215)
 144

The Court Further Observed: “There is no manner of doubt that the

issue of environmental degradation cannot be termed to be a social problem
Law courts have a social duty since they are part of the society and as such
must always function having due regard to present day problems which the
society faces. In Calcutta Youth Front v. State (1986, 21 CLJ 26), the court
observed that an ecological problem is a special type of social problem.
The Court Concluded: Wetlands being a bounty of nature do have a
significant role to play in the proper development of society be it from
environment perspective of from economic perspective. This benefit to
society cannot be weighed on mathematical nicety so as to take note of the
requirements o society-what is required today may not be a relevant
consideration in the immediate future, therefore, it cannot really be
assessed to what amount of nature‟s bounty is required for the proper
maintenance of environmental equilibrium. It cannot be measured in terms
of requirement and as such, the court cannot, in fact, decry the opinion of
environmentalists in that direction.
Decision- The court ordered an injunction restraining the State from
reclaiming any further wetland, and prohibited them from granting any
permission to any person for purpose of changing use of land from
agriculture to residential/ commercial in the area. They are further directed
to maintain the nature and character of wetlands in their present form and
to stop all encroachments of wetland area.
(b) Air Acts : To provide legislative support for prevention and control
of air pollution, the Government of India enacted a central legislation
called the Air (Prevention and Control of Pollution) Act, 1981 referred to
as Air Act, 1981. The Act aims to prevention, control and reduction of air
pollution. Beside this, Environmental (Protection) Act, 1986 also covers
some aspects of air pollution. Some details of the Air Act, 1981 and
Amendment, 1987 are given below :
 145

The Air (Prevention and Control of Pollution) Act of 1981 and

Amendment, 1987
To implant the decisions taken at the United Nations Conference on
the Human Environment held at Stockholm in June 1972, Parliament
enacted the nationwide Air Act. The main objectives of this Act are to
improve the quality of air and to prevent, control and abate air pollution in
the country. Important provisions of this Act are given below :-
 The Air Act‟s framework is similar to the one created by its
predecessor, the Water Act of 1974. To enable an integrated approach to
environmental problems, the Air Act expanded the authority of the central
and state boards established under the Water Act, to include air pollution
control.
 States not having water pollution boards were required to set up air
pollution boards.
 Under the Act, all industries operating within designated air
pollution control areas must obtain „consent‟ (permit) from the State
Boards. The States are required to prescribe emission standards for
industry and automobiles after consulting the Central Board and nothing its
ambient air quality standards.
 Act granted power to the board to ensure compliance with the Act
includes the power of entry for examination, testing of equipment and other
purposes and power to take the sample for the purpose of analysis of air or
emission from any chimney, fly ash or dust or any other outlet in such
manner as may be prescribed.
 Prior to its amendment in 1987, the Air Act was enforced through
mild court-administered penalties on violations.The 1987 Amendment
strengthened the enforcement machinery and introduced stiffer penalties.
Now, the boards may close down a defaulting industrial plant or may stop
its supply of electricity or water. A board may also apply to the court to
 146

restrain emissions that exceed prescribed limits. Notably, the 1987

Amendment introduced a citizens‟ suit provision into the Air Act and
extended the Act to include Noise Pollution.
4.27 Critical Appraisal of the Air Act
The productive economic activities still dominate the minds of the
Judges and pollution control authorities. Thus, the new provisions like
citizens‟ law suits, or the expanded equity jurisdiction of magistrates, or an
increased level of penalties have not yet made their impact on the polluters.
However, in recent judgments, the Supreme Court has directed various
industries in Delhi and West Bengal to move away to another location
outside the city, as they were causing air and water pollution.
Though the Air Act is comprehensive in its contents relating to
prevention and control of air pollution from industrial pollutants, yet its
scope even after major amendments in 1987, remain limited and narrow.
For instance, the Act has narrow scope as it does not include in its gamut
“pollution through the medium of air”. Hence, noxious odours as are
emitted by some industries (e.g. breweries and leather industries) are not
covered under the Act. In Animal Feeds Dairies and Chemicals Ltd. v.
Orissa State PCB,28 an odour on account of cattle feed was not held to be
an air pollutant.
Similarly, „light pollution‟ caused by high intensity signboards,
neon advertisements and their jamming light effects is not covered by the
Act. However, noise pollution through medium of air is covered under the
Act.
The constitution of Boards under the Act is not free from
drawbacks. The prevention and control of air pollution has been given as an
additional or secondary duty of the (Water) Pollution Boards. This under-
rates the importance of control of air pollution as there remains a tendency
28
AIR 1995 Ori. 84,
 147

to attach greater importance and devotion to primary function. Further, the

Air Act like the Water Act does not provide for an integrated approach to
check pollution, as the local and municipal bodies which are armed with
statutory powers for ensuring environmental purity, have not been
integrated into the national and State level enforcement machinery.
The Air Act grants discretion to each State Government to designate
particular areas as “air pollution control areas” within which the provision
relating to regulations of pollutants discharges through permit system are to
be applicable. It seems that polluters located outside such air pollution
control areas cannot be subjected to regulations of pollution or be
prosecuted for violations of standards laid by the State Boards.
The implementation of the Act has to be improved upon. Rules have
been framed under the Air Act, 1981, viz. The Air (Prevention and Control
of Pollution) Rules, 1982. The rules provide for the procedure for
transaction of business of the Board and its committees; temporary
association of persons with the Central Board (for assistance or advice);
budget, account and annual report of the Central Board. Rules in other
areas (viz. taking of samples of emissions or air) are needed to be framed
so as to overcome the subjective satisfaction of the Board.
Thus, the Air Act is a good piece of legislation and has shown the
right path to be pursued in the direction of prevention and control of air
pollution. Nevertheless, the Act requires some amendments.
M.C. Mehta v. Union of India
(“CNG Fuel/Motor Vehicles Case”)29
The Motor Vehicle Case indicates the difficulty of the court‟s
intermittent attempts to oversee a complex problem fraught with political,
economic and technological considerations.

29
[1991) 2SCC137; AIR 1998 SC 617/2963; (1999) 6 SCC 9;
AIR 2001 SC 1948; AIR 2002 SC 1696; 2004(3) SCALE90]
 148

These cases related to vehicular emission and resulting air pollution

in Delhi. The Supreme Court directed the government to set up a high-
powered committed to come up with solutions to the problem. On the
recommendation of the Committee, the court exerted pressure on the
government to ensure that new vehicles were fitted with catalytic
converters and that lead-free petrol was introduced. It recommended
compliance with Euro I and II standards for automobile manufacturers.
The court directed the Delhi Government to use only CNG
(Compressed Natural Gas) as fuel for all public transport.
It may be noted that the terms of reference required the Committee:
(i) To make an assessment of the technologies available for vehicular
pollution control in the world.
(ii) To make an assessment of the current status of technology available
in India for controlling vehicular pollution.
(iii) To look at the low cost alternatives for operating vehicles at reduced
pollution levels in the metropolitan cites of India.
(iv) To examine the feasibility of measures to reduce/eliminate pollution
from motor vehicles both on the short tern and long term basis and make
appropriate recommendations in this regard.
(v) To make specific recommendations on the administrative/ legal
resolution required for implementing the recommendations in (iii) above.
Initially, the Committee headed by Justice Saikia submitted a report.
But the Supreme Court hardly ever relied on this report. In 1998, the apex
court endorsed the Central Government‟s decision to set up an authority
under Sec.3 of Environment Act, 1986, to be called the Environment
Pollution (Prevention and Control) Authority for the National Capital
Region (EPPCA). The authority headed by Mr. Bhure Lal submitted a
report, after the court censured the administration for delay caused in this
regard:
 149

“We are not satisfied with the performance of the concerned

authorities in tackling the acute problem of vehicular
pollution in Delhi. Environmental protection appears to have
taken a back seat. In fact, we are distressed to find that the
directions given by this court, from time to time, have not
evoked the response they were expected to revoke….The
directions issued by this court were aimed at making the
State to effectively discharge their obligations. In their
response the Delhi Administration and the Union of India
have pleaded, among other factors, lack of man power to
deal with the growing menace of chaotic traffic and decline
in the environmental quality”30.
During the course of the litigation, the Supreme Court shifted focus
from one scheme to another. In 1990, the emphasis was on the prosecution
of defaulters. In 1991, it was anxious to have buses of D.T.C. converted
from diesel to gas operation [Orders dated 3rd Oct. 1991 and 25th Oct.
1991]. In 1992, the court‟s attention shifted to bringing down emissions
from public buses [Order dated 8 Jan.1992]. Throughout 1994, the court
exerted pressure on government to ensure that new vehicles are fitted with
catalytic converters and that lead-free petrol is introduced in the four
metros by April 199531.
Thereafter the court monitored the extension of the unleaded petrol
distribution network and obtained assurances from the Centre in respect of
reduction in the lead content of petrol and the notification of year 2000
emission norms32. In 1996-97, the Supreme Court pressed the Central Govt.
to convert its vehicles to operate on a cleaner fuel-CNG33 and also sought

30
[1998 (6) SCC60]
31
[1997 (4) SCALES (SP)].
32
[1998 (8) SCC 648]
33
[1997 (4) SCALE 7 (SP)]
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technical solution to reduce harmful emissions from two and three

wheelers34 and diesel trucks and buses35.
The court endorsed a time frame fixed by the EPPCA for
eliminating lead petrol; converting auto-rickshaws, taxis and buses to clean
fuels; reducing the age of the commercial fleet; and strengthening the
clean-fuel distribution network36 .The modified its ban order and set a time
frame for a more gradual phase out of old commercial vehicles37 .The court
required all private vehicles registered after 1 June 1999 to conform to
Euro I norms and those registered after 1 April 2000 to meet the Euro II
norms. Diesel taxis were prohibited in the NCR unless they conformed to
Euro II norms38.
The „Euro norms‟ are European Community standards that have
been enforced across Europe. The court clarified that what it meant by the
„Euro I norms‟ were the India 2000 norms, notified by the Central Govt. on
28 Aug. 1997. Thus, the court advanced the statutory emission norms that
were to come into effect on 1 April 2000 to 1 June 1999; and introduced
more stringent emission standards (Euro II) w.e.f. 1 April 2000. The Euro-
II Norms were re-christened „Bharat Stage II‟ standards, and notified
through the Central Motor Vehicle (Third Amendment) Rules, 2000.
In M.C. Mehta39, the court took account of the lack of effective
action taken by the private bus operators and the governmental authorities.
On 28th July, 1998, directions were issued fixing a time scheme after taking
note of the recommendations made by the Bhure Lal Committee. One of
the important directions was to the effect that the entire city bus fleet was
to be steadily converted to a single fuel mode of CNG by 31.3.2001.

34
[1997 (4) SCALE 9 (SP)]
35
[1997 (3) SCALE 24 (SP)]
36
[(1998) 6 SCC 63]
37
(AIR 1999 SC 291)
38
[(199) 6 SCC 14]
39
(AIR 2001 SC 1948)
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Another direction was to the effect that „no either-year old buss were to
play except on CNG/other clean fuel after 1st April 2000‟.
When challenged about the correctness/mandatory import of the
Order dated 28 July, 1998, the apex court observed: “All private operators,
who operate their buses in Delhi, are bound by these orders, which were
made to safeguard the health of the citizens, being a facet of Art. 21 of the
Constitution. That apart, the Bhure Lal Committee had been set up under
the Environment Act and it was directed by this court that the Committee
could give directions towards effective implementation of the safeguards of
Environment Act, more particularly in maters aimed at preventing air
pollution. Further, the constitutional mandate of Art. 21 would override
provisions of every statute including the Motor Vehicles Act. The norms
fixed under the M.V. Act are in addition to and not in derogation of the
requirements of Environment Act.”
The court categorically declined to give nay blanket extension of its
directions contained in the aforesaid order. However, in public interest and
with a view to mitigate the sufferings of the commuter public in general
and the school children in particular, the court made certain relaxations or
exemptions. The court also directed the Bhure Lal Committee to examine
the question of „low sulphur diesel‟ being regarded as a „clean fuel‟; and to
indicate which fuel can be regarding as „clean fuel‟ which does not cause
pollution or is otherwise injurious to health.
In M.C. Mehta40, it was held that the EPPCA is a statutory authority
constituted under Sec. 3, of the Environment Act, 1986, and its directions
are final and binding on all persons and organizations concerned. Union of
India should give priority to „transport‟ sector, including private vehicle,
for the purposes of allocation of CNG. The court directed the permit-
holders having placed orders with bus manufacturers to take delivery
40
(AIR 2002 SC 1696)
 152

within 2 weeks of court‟s order or face automatic cancellation of their

permits. A fine is to be collected from owner of buses continuing to play
diesel buses after 31.3.2002 (Rs.500/- day; Rs.1,000/- day after 30 days of
operation). The National Capital Territory is to phase out 800 diesel buses
per month. Union of India was also directed to prepare a scheme containing
time schedule for supply of CNG to other polluted cities of India by
9.5.2002; and, to frame a financing scheme for taxis and for diesel bus-
owners whose permits got cancelled.
In M.C. Mehta41, the apex court directed the Bhure Lal Committee
to examine the possibility of the use of LPG as an alternate fuel; and, to lay
down a time-frame for moving to Euro III norms. The court also directed to
constitute an agency for conducting random inspetion regarding the quality
of petrol and diesel available at the petrol pumps, oil depots and tank
lorries in Delhi.
In M.C. Mehta42, the apex court held that the „CNG‟ is available
clean fuel‟. The debate “CNG good or CNG bad” is an attempt to shift
locus form a clean environment to CNG or confuse the entire issue.
(c) Forest and Wildlife Acts : India is one of the few countries, which
had a forest policy since 1894. To protect forest and wildlife, following
legislations have been enacted :
The Wildlife (Protection) Act of 1972 and Amendment, 1982
In 1972, Parliament enacted the Wildlife (Protection) Act. The
Wildlife Act provides for state wildlife advisory boards, regulations for
hunting wild animals and birds, establishment of sanctuaries and national
parks, regulations for trade in wild animals, animal products and trophies,
and judicially imposed penalties for violating the Act. Harming
endangered species listed in Schedule 1 of the Act is prohibited throughout

41
(2003) 10 SCC 570
42
2004 (3) SCALE 90.
 153

India. Hunting species, like those requiring special protection (Schedule

II), big game (Schedule IV), is regulated through licensing. A few species
classified as vermin (Schedule V), may be hunted without restrictions.
Wildlife wardens and their staff administer the Act.
An amendment to the Act in 1982, introduced a provision
permitting the capture and transportation of wild animals for the scientific
management of animal population.
India is a signatory to the Convention of International Trade in
Endangered Species of Fauna and Flora (CITES, 1976). Under this, export
or import of endangered species and their products are governed by the
conditions and stipulations laid down therein. Indian government has also
started some conservation projects for individual endangered species like
Hungal (1970), Lion (1972), Tiger (1973), Crocodiles (1974), and Brow
Antlered Deer (1981), Elephant (1991-92).
4.28 The Forest (Conservation) Act of 1980
First Forest Act was enacted in 1927. This is one of the many
surviving colonial legislations. It was enacted to consolidate the law
related to forest, the transit of forest produce and the duty leviable on
timber and other forest produce. Subsequently, the Forest (Conservation)
Act was promulgated in 1980 to make certain reforms over the preceding
Act of 1927. The 1927 Act deals with the four categories of the forests,
namely reserved forests, village forests, protected forests and private
forests. A state may declare forest lands or waste lands as reserved forest
and may sell the produce from these forests. Any unauthorized felling of
trees quarrying, grazing and hunting in reserved forests is punishable with a
fine or imprisonment, or both.
Reserved forests assigned to a village Community is called village
forests. The State Governments are empowered to designate protected
forests and may prohibit the felling of trees, quarrying and the removal of
 154

forest produce from these forests. The preservation of protected forests is

enforced through rules, licenses and criminal prosecutions. Forest officers
and their staff administer the Forest Act.
Alarmed at India‟s rapid deforestation and resulting environmental
degradation, Central Government enacted the Forest (Conservation) Act in
1980. Under the provisions of this Act, prior approval of the Central
Government required for diversion of forestlands for non-forest purposes.
An Advisory Committee constituted under the Act advises the Centre on
these approvals.
4.29 Biodiversity Act, 2000
India is one of the twelve mega-biodiversity countries of the world
and became a party to the International Convention on Biological Diversity
in 1994. The objectives of the convention are:
 The conservation of Biological Diversity,
 The sustainable use of its component, and
 The fair and equitable sharing of the benefits arising of the
utilization of genetic resources.
Following this a National Policy and Action Strategy on Biodiversity,
which seek to consolidate the ongoing efforts of conservation and
sustainable use of biological diversity and to establish a policy and
programmable regime for the purpose, released by the Government on May
2000. To achieve these goals Biodiversity Bill 2000 was introduced in
Parliament in May 2000. This has been finally passed in December 2002.
This seeks to check bio-priacy, protect biological diversity and local
growers through a three-tier structure of central and state boards and local
committees. These will regulate access to plant and animal genetic
resources and share the benefits. The National Biodiversity Authority
(NBA) will deal with all cases of access by foreigners. Its approval will be
required before obtaining any intellectual propriety right on an invention
based on a biological resourced from India, or given in other countries.
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The NBA will enjoy the power to states if it feels a naturally rich area, is
threatened by overuse, abuse or neglect.
(d) General Acts :
The most important legislation in this category is The Environment
(Protection) Act of 1986. Through this Act, Central Government gets full
power for the purpose of protecting and improving the quality of the
Environment and preventing, controlling and abating pollution. Details of
the Act are given below :-
Under the Act, the Central Government may, by notification in the
office Gazette, make rules for the enforcement of the Act. It is worth
mentioning the names of few important rules, which have been notified
under the Environment (Protection) Act, 1986 in recent past for the
management and control of hazardous substances, which include hazardous
chemicals, waste and micro-organisms.
(i) Hazardous Waste (Management and Handling) Rules of 1989:
Objective is to control generation, collection, treatment,
import, storage and handling of hazardous waste.
(ii) The Manufacture, Storage and Import of Hazardous Chemical Rules
of 1989
Defines the terms used in this context, and sets up an
Authority to inspect, once a year, the industrial activity competent
with hazardous chemicals and storage facilities.
(iii) The Manufacture, use, Import, Export and Storage of Hazardous
Micro-Organisms/Genetically Engineered Organisms or Cells Rules
of 1989
These were introduced with a view to protect the
environment, nature and health in connection with the application of
gene technology and micro-organisms.
(iv) Biomedical Waste (Management and Handling) Rules of 1998
It is a legal binding on the healthcare institutions of streamline the
process of proper handling of hospital waste such as its segregation,
disposal, collection and treatment.
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(v) Recycled Plastic Manufacture and Usage Rules of 1999 & Recycled
Plastic Manufacture and Usage Amendment Rules Of 2002.
Rules were introduced to prohibit the usage of carry bags or
containers made of recycled plastic for foodstuffs. Rules also lay down
procedures for the manufacture of virgin and recycled plastic carry bags
and recycled plastic containers.
(vi) Municipal Solid Wastes (Management and Handling) Rules, 2000
According to these rules any municipal solid waste generated in a
city or a town, shall be managed and handled in accordance with the
compliance criteria and the procedure laid down in Schedules of these
rules. The waste processing and disposal facilities to be set up by the
municipal authority on their own or through an operator of a facility shall
meet the specifications and standards as specified in Schedules.
4.30 National Environmental Tribunal Act of 1995
This has been created to award compensation for damages to
persons, property and the environment arising from any activity involving
hazardous substances.
Thus the concluding observation is that there are various
Environment Legislations in India. But the need of the hour is the effective
enforcement and implementation of these Legislations to control and
monitor ever- increasing environment polution.

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