ENVIRONMENT LAW PROJECT REPORT

ENVIRONMENTAL LAW: ANALYSING THE MAJOR INDIAN STATUTES.

Only after the last tree has been cut down. Only after the last river has been poisoned. Only after the last fish has been caught. Only then will you find that money cannot be eaten.

Cree Indian Prophecy

Compiled by: Submitted to:Naina Khanna (64/10) Ms. Sabina SalimSunakshi Sharma (59/10) Salina Chalana (57/10)

Ishrat Phoolka (89/10)

Date of Submission: 7th April, 2014

CONTENT TABLE

CHAPTER NO.TOPICSUBMISSION BY

1Water Pollution and The Law in India With Reference to The Water (Prevention and Control of Pollution) Act, 1974Naina Khanna

2Comparative Analysis of Air and Water ActNaina & Sunakshi

3Air Pollution And The Law In India With Reference To The Air (Prevention And Control Of Pollution) Act, 1981Sunakshi Sharma

4Noise Pollution and the Law in IndiaSalina Chalana

5Environment Protection Act, 1986Ishrat Phoolka

CHAPTER I

WATER POLLUTION AND THE LAW IN INDIA WITH REFERENCE TO THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

Submitted by:

Naina

64/10

8th Semester, Section-B

UILS, PU

TABLE OF CONTENTS

TOPICPg. No.

INTRODUCTION1

ANCIENT INDIANS WATER JURISPRUDENCE2

WATER POLLUTION4

WATER LAWS IN CONTEMPORARY INDIA5

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

History of enactment

Main Object of the Act

Analysing the Important Aspects of the Act

Critical Analysis of the Provisions in Water Act: How Far Effective

1. Definitional shortcomings2. Shortcomings Regarding Fines and Punishments3. Procedural Shortcomings4. Shortcomings with respect to Institutional framework.5. Other Lacunas6. Conflict with The Environment Protection Act, 19867

JUDICIAL APPROACH TO CONTROL OF WATER POLLUTION

Pollution, Kawadiar, Trivandrum v. the Gwalior Rayon Silk Manufacturing Member-Secretary, Kerala State Board for Prevention & Control of Water (Weaving) Company, Ltd, Kazhikod AIR 1986 Kerala 256

U.P. Pollution Control Board v. M/S. Modi distillery AIR 1988 SC 1128

Tehri Bandh Virodhi Sangarsh Samiti and others v. The State of Uttar Pradesh and others 1990 SCR, Supl. (2) 606 M.C. Mehta v. Union of India AIR 1988 SC 1115 M.C. Mehta v. Union of India AIR 1988 SC 1037 Rajasthan State Electricity Board v. The CESS Appellate Committee AIR 1990 SC 2060

Subash Kumar v. State of Bihar AIR 1991 SC 420

Vellore Citizens Welfare Forum v. Union of India M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388 Corporate Liability under the Water Act

K.K. Nandi v. Amitabha Bannerjee 1983 Cr.L.J. 1479 U.P. PCB v. Mohan Meakins Ltd. AIR 2000 SC 145613

CONCLUSION21

ACKNOWLEDGMENT

The success and final outcome of this project required a lot of guidance and assistance from many people and I am extremely fortunate to have got this all along the completion of my project work. Whatever I have done is only due to such guidance and assistance and I would not forget to thank them.

I respect and thank Ms. Sabina Salim, for giving me an opportunity to do the project work on the topic Water Pollution and The Law in India With Reference to The Water (Prevention and Control of Pollution) Act, 1974 The topic had been so well dealt in the class room that my class notes helped me a lot to complete this project in time.

Secondly, my teams mates and friends, Sunakshi, Selina and Ishrat with whom I learnt the spirit of team work and who had always been so cooperative and passionate while compiling this project report.

I am thankful to and fortunate enough to get required help from my friends, library staff and my family while I was working on this project.

LIST OF CASES

1) A.P. pollution Board Case(2001) 2 SCC 622) K.K. Nandi v. Amitabha Bannerjee 1983 Cr.L.J. 1479

3) M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388

4) M.C. Mehta v. Union of India AIR 1988 SC 10375) M.C. Mehta v. Union of India AIR 1988 SC 1115

6) Pollution, Kawadiar, Trivandrum v. the Gwalior Rayon Silk Manufacturing Member-Secretary, Kerala State Board for Prevention & Control of Water (Weaving) Company, Ltd, Kazhikod AIR 1986 Kerala 2567) Rajasthan State Electricity Board v. The CESS Appellate Committee AIR 1990 SC 20608) Subash Kumar v. State of Bihar AIR 1991 SC 4209) Tehri Bandh Virodhi Sangarsh Samiti and others v. The State of Uttar Pradesh and others 1990 SCR, Supl. (2) 60610) U.P. PCB v. Mohan Meakins Ltd. AIR 2000 SC 1456

11) U.P. Pollution Control Board v. M/S. Modi distillery AIR 1988 SC 112812) Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 271513) Vijay Singh Punia v. Rajasthan State Board for Prevention and control of Water Pollution A.I.R. 2003 Raj. 286 at pp. 286,287,296,297

WATER POLLUTION AND THE LAW IN INDIA WITH REFERENCE TO THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

By means of water we give life to everything.The Koran, Book of the Prophets 21:30INTRODUCTIONComprising over 70% of the Earths surface, water is undoubtedly the most precious natural resource that exists on our planet. Without the seemingly invaluable compound comprised of hydrogen and oxygen, life on Earth would be non-existent: it is essential for everything on our planet to grow and prosper.

In the words of the United Nations Development Programme (UNDP), water is

the stuff of life and a basic human right.

Thus, water is an essential element for life including human life on earth and as a result is a core concern in law. From a legal perspective, the UNDP rightly emphasises the importance of the human right dimension of water. Yet, in practice, water law is made up of a number of elements comprising a human right dimension, as well as economic, environmental or agricultural aspects. In particular, historically, one of the central concerns of water law has been the development of principles concerning access to and control over water. The Apex Court of India well knows the importance of environment and points out the following Six Wholesome Principles:

All human beings have the fundamental right to unpolluted environment, pollution free water and air. The State is obligated to preserve and protect the environment. It is mandatory for the State and its agencies, to conceive, anticipate prevent and attack the cause of environmental degradations. The industry cannot be permitted to continue, as a matter of right, in case it creates pollution. The polluter must meet the cost of repairing environment and ecology and pay reparation to those, who have suffered because of the pollution, caused by him.Considerations of economy cannot prevail over concerns for environment and ecology.

Drinking water is directly essential for human life. Water is also indirectly essential, for instance, as an indispensable input in agriculture. Yet, despite the central role that water has always played in sustaining life, human lives and human economies, the development of formal water law has been relatively slow and often patchy. At the domestic level, colonial legislation first focused on the regulation of water for economic reasons, for instance, through the development of legislation concerning irrigation and navigation. Over the past few decades, increasing water pollution and decreasing per capita availability have led to the development of other measures such as water quality regulation and an emphasis on water delivery, particularly in cities, as well as environment-related measures. Yet, water law remains largely sectoral to-date. At the international level, water regulation first focused mostly on navigation in international watercourses. It has progressively evolved to encompass issues concerning the sharing of international waters. International water law has, however, not yet reached the stage where it provides an overall regime for the regulation of water uses.

ANCIENT INDIANS WATER JURISPRUDENCE

Preservation of nature is as old as civilization itself. There is evidence that the people in Harappa and Mohenjodaro were nature-worshippers, and that the forces of nature were treated with reverence and piety. The ancient and medieval Indians placed great emphases on the purity of environment. Strict religious orders were in vogue against polluting the watercourses like public wells and rivers. Yaganas were often performed to purify the air by burning fragrant materials. Rivers were considered to be sacred. These practices in the context in which they were carried on, significantly differed from the concept of purity of environment we are today striving to maintain. As the inherent nature of pollution itself has undergone a tremendous change, today pollution is no more viewed from the point of any religious order of sacredness, but is looked upon as a scientific and technological phenomenon. It emerges from the industrialization and urbanization. The answer to its cure definitely does not lie in any religious order or rite; but in self-restraint and adoption of better scientific and technological devices. The major off shoots of environmental pollution are: Water, Air and Noise. All these three are so inter-linked and sometimes, so overlapping that one cannot be controlled without controlling the other.

Manu writes in, The laws of Manu, And from light as it transforms itself come the waters, which are traditionally known to have the quality of taste; and from the waters comes earth, with the quality of smell. This is the creation in the beginning.

There are also innumerable prohibitions against the defilement of water, including a bar on urinating in water,throwing any other bodily fluids or excrement into the rivers.Years later too wrote at length about conservation of nature in his treatise, theArthashastra.He wrote about the duty of state in maintaining forests, preserving sources of water, and protecting wildlife. Many Ashokan edicts also spell out rules and guidelines for the use and preservation of natural resources.

In contemporary India, water law is made of different components. It includes international treaties, federal and state acts. It also includes a number of less formal arrangements, including water and water-related policies as well as customary rules and regulations. This project maps out the relevant legal framework concerning water in India. WATER POLLUTION

The unconscionable industrialization, the unpardonable deforestation and inhuman extermination, of living species betray an exploitative brutality and anti-social appetite for profit and pleasure which is incompatible with humanism and conservationism. Today a bath in the Yamuna and Ganga is a sin against bodily health, not a salvation for the soul, so polluted and noxious are these holy waters now.

-Justice V.R.Krishna Iyer

Water Pollution is a phenomenon that is characterized by the deterioration of the quality of land water (rivers, lakes marshes and ground water) or sea water as a result of various human activities. Water Pollution is any physical or chemical change in water that can adversely affect organisms. It is a global problem, affecting both the industrial and developing nations.

Following are the eight major types of water pollutants:

Oxygen demanding wastes (domestic sewage, animal manure and some industrial waste)

Disease causing agents (bacteria, virus & parasites)

Inorganic chemicals & minerals (acids, salts and toxic metals)

Organic chemicals (pesticides, plastics, detergents, industrial wastes and oils)

Plant nutrients (nitrates and phosphates)

Segments (soils, silt and other solids from land erosion)

Radioactive substances

Heat (from industrial and power plant cooling water)

The main sources of water pollution are:

Sewage and Domestic wastes

Industrial effluents

Agricultural discharges

Fertilizers

Detergents

Toxic metals

Siltation

Thermal pollutants Radioactive materials

WATER LAWS IN CONTEMPORARY INDIA

Clean water is sine qua non for human existence. Its importance as an industrial perquisite cannot be ruled out for any industrial nation. In India, since the advent of codified law due importance has been given to clean water. The Indian Penal Code (IPC), the first penal statute passed by the British Government as early as in 1860 contains comprehensive provisions to restraint the occurrence of pollution of water. Section 277 of the Code provides:

Whoever voluntarily corrupts or fouls the water of any public spring, reservoir so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

This section renders a person liable for public nuisance if he voluntarily fouls the water of a public spring or reservoir, so as to render it less fit for which it is ordinarily used. A similar provision is embodied in the Northern India Canal and Drainage Act of 1873. Besides, all the Municipalities Acts contain general provisions, which empower the municipalities to control pollution of water in their respective territories. All these statutes, however, had limited application. For example section 277 of I.P.C. did not apply to river pollution and private wells. Even the tortious remedy against polluter confined only to private nuisance, which could create a cause of action for an injunction, damages or both. These legal provisions thus could not prove efficacious against the spread of pollution that began to occur as a result of Indias rapidly growing population, accompanied by increasing hazards of domestic and industrial needs with the recent added array of agricultural pesticides and insecticides which have further aggravated the problem of water pollution.

Consequently, certain states began to feel that need of foreclosing the rapid growth of pollution of their water resources by passing special laws. In 1953 the State of Orissa took a lead by passing the Orissa River Pollution Prevention Act. Maharashtra, one of the most industrialized and densely populated states came out with a much more comprehensive statue: Maharashtra Prevention of Water Pollution Act, 1969. But as in the case of general statutes, like IPC, these statutes too failed to keep pace with the expanding needs of industrialization and urbanization. Therefore, the feeling began to strengthen that water pollution has become a national problem which can be tackled only at national level. Keeping this in view it was thought expedient not to depend on the efforts of individual states but to centralize the whole scheme of water pollution control. But this could be done only after having successful recourse to articles 249 and 250 of the Constitution. Because under the Constitution water constitutes a state subject on which the states enjoy the exclusive power to legislate; except in the case of regulation and development of inter-state rivers and river valleys to which only the Central Government is empowered to legislate by virtue of entry 56 of the union list of the Seventh Schedule. This formed the basis for the enacting a comprehensive statue to prevent and control water pollution in India called; The Water (Prevention and Control of Pollution), Act, 1974 (herein after referred to as the Act).THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

History of enactment

"Water" being a "state subject", the Parliament can exercise the power to legislate on "water" only under articles 249 and 252 of the Constitution of India. In pursuance of article 252(1) of the Constitution, resolutions were passed by all Houses of the Legislatures of the States of Assam, Bihar, Madhya Pradesh, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Rajasthan, Tripura and West-B0engal to the effect that the matters relating to prevention and control of water pollution should be regulated by the Parliament by law. Accordingly the Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974. The Water Act represents one of India's first attempts to deal with an environmental issue comprehensively. The Water Act was first amended in 1978. It was again amended in 1988 to conform to the provisions of the Environment (Protection) Act, 1986.

Main Object of the Act

The main aim and object of the Act of 1974 is 'to maintain or restore the wholesomeness of water and to prevent, control and abate water pollution'. To achieve these objectives, the Act has provided various chapters which are very comprehensive. The fundamental objective of the act is to provide clean drinking water to the citizens. The other main objectives are:

i) To provide for the preservation and control of water pollution, and the maintaining or restoring of wholesomeness of water.

ii) To establish Central and State Boards for the prevention and control of water pollution.

iii) To provide for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.iv) To provide penalties for the contravention of the provisions of the Water Act.v) To establish Central and State water-testing laboratories to enable the Board to assess the extent of pollution, lay down standards and establish guilt or default.Analysing the Important Aspects of the Act

In view of sub-section 2(e) read with Sections 17 and 18 of this Act, the fundamental objective of the statute is to provide clean water to citizens. The definition of water pollution in the act is a very comprehensive definition and covers all the changes in physical, chemical or biological properties of water. The definition also covers the rise in the temperature of water and discharge of radioactive substances in the water. The Act has used two terms in relation to water pollution- stream and well. The 'stream' here includes (a) river, (b) water courses (whether flowing or for the time being dry), (c) inland water (whether natural or artificial), (d) subterranean water (underground water), (e) Sea or tidal water.

This is the Act that established the Central and a State Board and also the authority and power to constitute as many committees as it feels essential to carry out specific functions for it. The Act specifically prohibits any poisonous, noxious or polluting matter into any stream or well. Consent from the State Board is required for any type of new discharge into any new stream or well. This also includes consent for temperature discharges as done by cooling tower users. In general, this means that a State consent or permit is required for all types of intake and/or discharge of any type of liquid or water either from a running stream or well.

The functions and powers of Joint Boards are similar to those of State Board as to promote cleanliness of water and to prevent pollution. Various measures have been taken for prevention of water pollution in India. The municipal bodies are entrusted with the control of solid wastes through treatment plants, throughout the country. Despite all these efforts, the massive problem of water pollution still remains unabated.

Under these rules, effluent standards to be complied with by persons while causing discharge of sewage or sullage or both have been specified. Standards for small scale industries have been specified separately.

Penalties for non-compliance with the permit or polluting in any way are imprisonment for three months and fine of Rs.10,000 (One US Dollar equals about thirty six Indian Rupees) or fine up to Rs. 5,000 per day of violation or both plus any expenses incurred by the Board for sampling, analysis, inspection etc. These penalties can also be imposed for obstructing any person acting under the orders or direction of the Board or for damages to any work or property of the Board.

There are penalties also which extend up to seven years plus other monetary fines for other similar offenses. Any director, manager, secretary or other officer of the company may also be deemed to be guilty if proved that the offense occurred with their consent or connivance. In case of the government, department head could be held liable.

Critical Analysis of the Provisions in Water Act: How Far Effective

It is often argued that our enforcement mechanism is very weak although the laws are very well drawn up. But, a careful analysis of the laws may reveal their inherent deficiencies which are closely linked to lapses in enforcement. There are manyshortcomingsin the provisions of the Water Act, 1974, which can be mentioned under different heads:

1. Definitional shortcomings:a) First,in thePreambleitself which only speaks of prevention and control of water pollution andnottotal prohibition of water pollution.b) Secondly, in the term outlet, it is not clear whether intention to pollute water is a prerequisite for application of this Act.c) Thirdly, the definition of pollution doesnotinclude pollution of water due to its radiological disintegration.d) Fourthly,the definition of the term Streamdoesnotinclude rain water, thereby givingright to pollute the rain water.e) Fifthly, some very relevant and important terms like pollutants, toxic pollutants, discharge of pollutants etc.are not defined.2. Shortcomings Regarding Fines and Punishments:a) Possible offences are not specifically defined and also the punishments prescribed are not applicable to for all probable violations.b) Punishments mentioned on the Act are not such as to give a deterrent effect. Punishment is provided only if violation is committed knowingly. It is not provided for negligent actsof the polluter.c) The Fines prescribed are also small and also, imprisonment as a punishment is not compulsory in all cases of violations.

3. Procedural Shortcomingsa) As per the legal provision for penal action against the polluters,the State Pollution Control Board has to file a case before the lower court for action against a polluting unit and the "onus of proof" is vested with the BoardIn a good number of cases where decisions are taken, the polluters have been given the benefit of doubt because of technical reasons as the Boards could not adequately meet the "onus of proof".

b) Yet another legal lacunae faced by the Pollution Control Boards relates to prosecution againstpublic servants. According" to the provisions ofSec. 197of the Cr. P.C.,permission from the Government is required for prosecution of such persons and more often than not it becomes difficult for the Boards to take legal action against them.c) The Central Pollution Control Board can issue directions to the State Boards, which are binding on them. However, at the same time, the Act makes it obligatory for the Boards to comply with the directions of the concerned State Governments. There are occasions when the directions of two authorities are not mutually complementary and, at times, totally contradictory!

d) The key person for enforcement of this Act is the Chairman of the State Pollution Control Board who should be professionally qualified and appointed on a full time basis.However, the Act does not stipulate such requirement.Several State Pollution Control Boards are headed by part-time Chairmen without requisite qualifications and experience. Also, the Member Secretaries of the Pollution Control Boards are often drawn either from administrative service or even forest service, who, do not have the requisite technical background in pollution control. As a result, it becomes difficult for them to provide proper leadership and guidance to their sub-ordinates.

4. Shortcomings with respect to Institutional framework.a) The Pollution Control Boards arehardly equipped with the necessary wherewithal to cope up with these daunting tasks.Professional manpower and laboratory infrastructure for pollution monitoring are the basic requirements for effective functioning of the pollution control machinery.

b) The inadequacy in our enforcement mechanism is evident from a comparison with other countries.In USA, the Environment Protection Agency (EPA) has more than 10,000 employees while the Central Pollution Control Board (CPCB) in India has to make it with less than 500 personnel.

c) The Pollution Control Boards are expected to function as statutory autonomous bodies. But, in reality, theBoards cannot function in such a manner for various reasons including over-dependence on the Government for their existence.For effective functioning, the Pollution Control Boards should have theautonomyandover-ridding powersto enforce the laws.

d) The Pollution Control Boards are expected to receive funds from the Government exchequer for their Plan and Non-plan expenditure. But, several State Governments have curbed and even totally stopped the "grants-in-aid" to the Boards.

5. Other Lacunasa) There is no system of compulsory public hearing

b) There is no specific provision in the Act for Public Participation, for better implementation of the Act.

c) There are no provisions in the Act for fixing up standards of quality and targets for eradication of pollution.

d) State government has the powertolimit the applicationof this Act to a particular area in a state. But this power in most of the cases is used arbitrarily.

6. Conflict with The Environment Protection Act, 1986In response to Stockholm Conference, India enacted The Environmental (Protection) Act, 1986 and the corresponding Environmental (Protection) Rules, 1986. This Act is a general enactment empowering the Central Government to prevent, control and abate environmental pollution.As the ambit of the Act includes water resources, its provisions extend to the streams, lakes, rivers etc. and a citizen has recourse to the mechanism under the EP Act. Under Section 49 of the WaterAct the public can approach the court on violation of the Act. However, like in the EPA the usefulness of this provision is debatable since only the authorized Government officials can collect the samples. Though the State Board is to make available relevant reports to the complaining citizens, it can refuse to do so if it thinks that the disclosures would harm "public interest".

The Act was amended in 1988 and the penal provisions of the Act were brought in line with the 1987 amendments to the Air Act. The penal provisions as discussed earlier are in practice ineffective. Also there is the question of conflict that may arise when both the Water Act and the Environment (Protection) Act come into play together.

JUDICIAL APPROACH TO CONTROL OF WATER POLLUTIONIn environmental litigations, the anxiety of the courts is to find out appropriate remedies for the environmental protection is given much importance. In legal sense, pollution of water means a departure from a normal sense. The normal sense denotes unaffected or least affected physical and biological conditions of water for human activities. These are some of the cases where the judiciary has interpreted the cases for the benefit and prevention of environment and water pollution.Pollution, Kawadiar, Trivandrum v. the Gwalior Rayon Silk Manufacturing Member-Secretary, Kerala State Board for Prevention & Control of Water (Weaving) Company, Ltd, Kazhikod

The Cess Act grants rebates in the cess payable to those who had installed a plant for the treatment of sewage or trade effluent. The Company claimed that it had installed a treatment plant and was therefore entitled to a rebate. This claim was declined. The legality of the levy of cess was thereupon challenged in the writ petitions. The present writ appeals are taken against the findings of the Judge in the writ petitions. If the plant installed is one, which gives a satisfactory treatment of the trade effluent, rebate could be given under Section 7 of the Cess Act so long as the treatment of the effluent is effective from the point of view of the Pollution Act. The Court was also of the view that the question involved is not a mere interpretation of a section of a statute but has larger overtones with a direct nexus to the life and health of the people. A reference to a treaty, protocol or convention is permissible while interpreting laws, which have a link or background with such document. The Court surveyed recent international action in the area of environmental protection, including the 1972 United Nations Conference on the Human Environment, and national measures to develop environmental legislation and said that these had a direct connection with the enactment of the comprehensive Pollution Act, which the Court could not disregard.

U.P. Pollution Control Board v. M/S. Modi distillery

Modi Distillery situated at Modi Nagar, Ghaziabad was engaged in the manufacture of industrial alcohol and was discharging highly noxious effluents into the Kali River in contravention of a statutory requirement to obtain a permit from the Pollution Control Board. The issue before Court was whether the Chairman, Vice Chairman, Managing Director and Members of the Board, were liable to be proceeded against under Section 47 of the Water (Prevention and Control of Pollution) Act in the absence of a prosecution of the Company owning the industry. The Court held that on a combined reading of sub sections (1) and (2) of Section 47 of the Act, it had no doubt that the Chairman, Managing Director, and members of the Board of Directors of Messers Modi Industries Limited, the Company owning the plant in question, could be prosecuted for having been in charge of and responsible to the company for the business of the industrial unit and could be deemed guilty of the offence for which they are charged.

Tehri Bandh Virodhi Sangarsh Samiti and others v. The State of Uttar Pradesh and others

A Petition was field in the SC under Article 32 of the Indian Constitution. The petitioners prayed that the Union of India, State of Uttar Pradesh and the Tehri Hydro Development Corporation be restrained from constructing and implementing the Tehri Hydro Power Project and the Tehri Dam. The main grievance of the Petitioners was that in preparing the plan for the project the safety aspects have not been adequately taken into consideration. It was asserted that as the area in which the dam is to be constructed is prone to earthquakes, the construction of the dam would pose a serious threat to the life, ecology and the environments of the entire northern India. The Court stated that it does not possess the requisite expertise to render any final opinion on the rival contentions of the experts. The Court can only "investigate and adjudicate the question as to whether the Government was conscious to the inherent danger as pointed out by the Petitioners and applied its mind to the safety of the dam. We have already given facts in detail which show that the Government has considered the question on several occasions in the light of the opinion expressed by the experts". In view of the material on record, the Court did not find any good reason to issue a direction restraining the respondents from proceeding with the implementation of the project and accordingly, the petition was dismissed. Writ Petition (Civil) No.725/1994, "And Quite Flows Maili Yamuna Vs Central Pollution Control Board & Ors. In this case the Central Pollution Control Board was filing Monitoring Reports in compliance of the Honble Supreme Court. The Central Pollution Control Board submitted its monitoring report on water quality on River Yamuna at Palla, Agra Canal and at Okhla. Besides river Yamuna the Central Board also monitor the drains at the point prior to discharge into the river Yamuna for assessing the wastewater quality and pollution load. The Central Board is monitoring the river Yamuna for its water quality at five locations along with 25 drains in compliance of the orders of the Honble Supreme Court and have submitted results of 71 rounds of monitoring since 1999. Pollution in Western Yamuna Canal: The Western Yamuna Canal is the source of raw water for drinking purposes for capital city Delhi. Earlier, the Central Pollution Control Board has received several complaints from Delhi Jal Board regarding bad quality of raw water in Westen Yamuna Canal and thereby ordered closure of Haiderpur and Nangloi water works for several hours. The officials of the Central Board conducted a survey of the pollution sources of Western Yamuna Canal. The survey revealed that the pollution in Western Yamuna Canal is caused due to the industries located in Yamuna Nagar, Haryana and also from the Municipal Council Yamunagar and Jagadhari (Sewage Treatment Plants). On the basis of the survey the Central Board has issued directions under Section 5 of the Environment (Protecting) Act, 1986 to the industries located in the Yamuna Nagar, Haryana. The Industries have filed Writ Petitions in the Punjab & Haryana High Court at Chandigarh and got stay orders against the directions issued by the Central Board. The Central Board has filed status of the Western Yamuna Canal in the Supreme Court of India vide its affidavit, dated 15.10.2003 the Honble Court on 15.4.2004 directed that the reports of the Central Pollution Control Board and Haryana State Pollution Control Board be sent to the Committee in the Ministry of Environment & Forests for examination. The matter is under consideration of the said Committee.

M.C. Mehta v. Union of India

This is a famous case of Ganga water pollution case. River Ganga is noted for its historical significance and religious importance and is considered most sacred by the Hindus in India. A number of cities, towns and villages belonging to U.P, Bihar, West Bengal etc are located on the banks of the river. Thus, the Ganga water got polluted as industrial wastes, chemical effluents, human excrete etc are being discharged into the river. Further, a number of dead bodies are being thrown into the river at Kasi with a belief that the dead persons could go to heaven directly since they consider Kasi as holy place and the river as sacred. This Ganga water was polluted in different ways with huge quantities of effluents. The Supreme Court in this case directed that whenever applications for licenses to establish new industries are made such applications should be refused unless adequate provision has been made for the treatment of trade effluents flowing out of the factories and that immediate action should be taken against the existing industries if they are found responsible for pollution of water.

The Petitioner filed a writ petition in the Supreme Court for the prevention of nuisance caused by the pollution of the River Ganga by tanneries and soap factories on the banks of the river, at Kanpur. The petition was entertained as public interest litigation to enforce the statutory provisions that impose duties on the Municipal Authorities and the Boards constituted under the Water Act. The Supreme Court issued several directives to the Kanpur Municipal Corporation to prevent and control pollution of the River Ganga at Kanpur. While making its order the Court observed that nuisance caused by the pollution of the River Ganga was widespread and was a serious public nuisance. On account of failure of authorities to carry out these statutory duties for several years, the water in the River Ganga at Kanpur has become so polluted that the people either for drinking or bathing can no longer use it. The Court also pronounced that what they have stated in this case applies mutatis mutandis to all other Mahapalikas and Municipalities that have jurisdiction over areas through which the River Ganga flows, and ordered that a copy of its judgment be sent to all such institutions. The Court also expressed the view that "having regard to the need for protecting and improving the environment which is considered a fundamental duty under the Constitution, it is the duty of the Central Government to direct all educational institutions to teach at least one hour a week lessons relating to the protection and improvement of the natural environment including forests, lakes, rivers, and wild life in the first ten classes"

M.C. Mehta v. Union of India

Public interest litigation was filed requesting the court to prevent tanneries, which were polluting the River Ganga, from operating until they installed primary effluent treatment plants. The court passed the order accordingly. The Court in its judgement quoted the following passages from the United Nations Conference of the Human Environment held in 1972 in Stockholm: "Both aspects of man's environment, the natural and the man made, are essential to his well being and the enjoyment of basic human rights - even the right to life itself. The protection and improvement of the human environment is a major issue which affects the well being of peoples and economic development throughout the world, it is the urgent desire of the peoples of the whole world and the duty of all governments." "What is needed is an enthusiastic but calm state of mind and intense but orderly work...To defend and improve the human environment for present and future generations has become an imperative goal...Achievement of this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level." The Court, while ordering the closure of certain tanneries observed that it was conscious that the closure of the tanneries might bring unemployment.

Rajasthan State Electricity Board v. The CESS Appellate Committee

The Appellant established a thermal power station on the banks of River Chambal, which consume water drawn from the river for cooling of the plant. The appellant filed an appeal under Section 13 of the Water (Prevention and Control of Pollution) Cess Act 1977 in respect of the cess claimed for a particular period. The appellate authority holding that the appellant was not entitled to a rebate dismissed the appeal. Following the dismissal of successive appeals and petitions, the appellant appealed to the Supreme Court challenging the dismissal of the petitions by the Divisional Bench of the Court of Appeal. The Supreme Court remitted the matter to the Assessing Authority for re assessment of the cess and gave further directions, which the Authority was required to comply with. The Court said that Section 25(1) has nothing to do with a plant installed for the treatment of effluent, although the grant of consent to a new outlet can be conditional on the existence of a plant for the satisfactory treatment of effluents, to safeguard against pollution of water in the stream.

Subash Kumar v. State of Bihar

Herein the Petitioner filed a public interest petition in terms of Article 32 of the Constitution, pleading infringement of the right to life guaranteed by Article 21 of the Constitution, arising from the pollution of the Bokaro river by the sludge/slurry discharged from the washeries of the Tata Iron and Steel Company Limited (TISCO). It was alleged that as a result of the release of effluent into the river, its water is not fit for drinking purposes or for irrigation. The Respondents established that TISCO and the State Pollution Control Board had complied with the statutory requirements, and that the Petitioner was motivated by self-interest. The Court observed that Article 32 is designed for the enforcement of fundamental rights. The right to life enshrined in Article 21, includes the right to enjoyment of pollution-free water and air for the full enjoyment of life. If anything endangers or impairs the quality of life, an affected person or a person genuinely interested in the protection of society would have recourse to Article 32. Pubic interest litigation envisages legal proceedings for vindication or enforcement of fundamental rights of a group of persons or community that are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. However, public interest litigation cannot be resorted to satisfy a personal grudge or enmity. Personal interest cannot be enforced through the process of Court under Article 32 in the garb of public interest litigation. Since the instant case was motivated by self-interest, it was accordingly dismissed.

Vellore Citizens Welfare Forum v. Union of India

In Vellore Citizens Welfare Forum case, the Supreme Court was approached by the petitioner to issue directions against the tannery pollution caused by the discharge of untreated effluents in Vellore area in Tamilnadu. The untreated effluents affected the agricultural lands, groundwater and health of the local people. The Court delivered a landmark judgement in this case and directed the tanneries to set up effluent treatment plants. About 20the quantum of compensation to be awarded to the affected people in the area. The court has for the first tim0 tanneries, which failed to establish effluent treatment plants, were closed in the interest of the public. The court directed the central government to constitute an authority under Environmental (Protection) Act, 1986 to deal with polluting industries. The result, the Loss of Ecology Commission was set up to assess e invented pollution fine against the tanneries that devastated the area. In this case, the Supreme Court adopted the international principles such as precautionary principle, polluter pays principle and the concept of sustainable development as part of law of the land. The Court also suggested that the Madras High Court set up a Green Bench to deal with environmental cases exclusively.

M.C. Mehta v. Kamal Nath and Others

In the impugned case, the Court took notice of an article which appeared in the Indian Express stating that a private company "Span Motels Pvt. Ltd.", to which the family of Kamal Nath, a former Minister of Environment and Forests, had a direct link, had built a motel on the bank of the River Beas on land leased by the Indian Government in 1981. Span Motels had also encroached upon an additional area of land adjoining this leasehold area, and this area was later leased out to Span Motels when Kamal Nath was Minister in 1994. The motel used earthmovers and bulldozers to turn the course of the River Beas, create a new channel and divert the river's flow. The course of the river was diverted to save the motel from future floods. Here the constitutional provisions i.e., Article 21 and 32 and Forest Conservation Act of 1980 were applied.

The Supreme Court of India in this case decided that the prior approval for the additional leasehold land, given in 1994, is quashed and the Government shall take over the area and restore it to its original condition. Span Motels will pay compensation to restore the environment, and the various constructions on the bank of the River Beas must be removed and reversed. Span motels must show why a pollution fine should not be imposed; pursuant to the polluter pays principle. Regarding the land covered by the 1981 lease, Span Motels shall construct a boundary wall around the area covered by this lease, and Span Motels shall not encroach upon any part of the river basin. In addition, this motel shall not discharge untreated effluents into the river. This ruling is based on the public trust doctrine, under which the Government is the trustee of all natural resources, which are by nature meant for public use and enjoyment. The Court reviewed the public trust cases from the United States and noted that under English common law this doctrine extended only to traditional uses such as navigation, commerce and fishing, but expressed doubts as to how the doctrine is now being extended to all ecologically important lands, including freshwater, wetlands and riparian forests.

Corporate Liability under the Water Act

The water Act has extended the liability for violations committed by companies to certain corporate employees and officials and to heads of govt. Departments. The judiciary has time and again held this provision of the Act.

K.K. Nandi v. Amitabha Bannerjee

Discussing the liability of a manager, the Calcutta High Court in the impugned case held that a person designated as a manager of a company is prima facie liable under Sec. 47. The court observed that whether or not such person was in fact the overall in-charge of the affairs of the factory and whether or not he had any knowledge of the violations of the Act, are questions of fact to be determined at the stage of trial.

U.P. PCB v. Mohan Meakins Ltd.

The Apex Court made it clear that the directors/managers/partners would also be held responsible if they were responsible for construction of the plant, for the treatment of highly polluting and toxic effluents and will be prosecuted and punished under the Act.

CONCLUSIONThe Water Act is a very useful act in the present scenario. This Act is successful in controlling the water pollution to a large extent at the Central and State level. Formation of CPSB and SPCB has made a vast difference in terms of checking the pollution and controlling it. There are still some lacunas that are present inside this act and which we can infer from the above stated case laws. The need is to make this Act more powerful and applicable. The Act gives the power to central and state government to take actions against those who pollute the water and use it unnecessary. There is also a procedure to prescribe for penalties and compensations. The Act has served a very useful in controlling the pollution of water and it has to be strengthened more, for its future implications.

There Judicial Activism forged new tools and devised new remedies and with public interest litigation, the Supreme Court has refashioned its institutional role to readily enforce rights of the people and even impose positive obligations on the State. The environmental justice in India owes to the higher judiciary. And the higher judiciary plays a rather stalwart role owing to its unique position and power, and due to the circumstances of inefficiency within the executive and the existence of a skeletal legislative framework.

BIBLIOGRAPHY

BOOKS REFERRED1) Jain, Ashok K., Law and Environment, 3rd Edn. (2005).

2) Khitoliya, R.K., Environment Protection and the Law (2009).

3) Nishtha Jaswal & Paramjit S. Jaswal, Environmental Law, 3rd Edn. (2013).

4) Rosencranz, Armin & Divan, Shyam, Environmental Law and Policy in India, OXFORD UNIVERSITY PRESS, 2nd Edn, New Delhi, 2001.

5) The Laws of Manu (Wendy Doniger and Brian Smith Trans., 1991).ARTICLE/JOURNALS/NEWS-ITEMS REFERRED

1) Cullet, Philippe, Water Law in India: Overview of Existing Framework and Proposed Reforms, INTERNATIONAL ENVIRONMENTAL LAW RESEARCH CENTRE, Working Paper (2007), http://www.ielrc.org/content/w0701.pdf 2) Kluger, Jeffery and Dorfman, Andera. The Challenge We Face, TIME, September 2, 2002.3) Krishna Iyer, Environmental Pollution and the Law, 1984 at p. 95 quoted in Chaterjee, Benimadhab, Implementation problems and Perspectives, 2002.

4) Prasoon Agrawal, Critical Analysis of Water (Prevention and Control) Act, 1974, November, 2012, INTERNATIONAL INDEXED & REFERRED RESEARCH JOURNAL, http://www.ssmrae.com/admin/images/54c835cf71cc4c76ce5a2b8691a21ccf.pdfHarish C. Sharma, Pollution Control Acts and Regulations of India, PETROLEUM BAZAAR, http://www.petroleumbazaar.com/Admin%5CActsandControls%5CPollution_control_act.pdf 5) Pushpa Kumar, CPREEC, Environment Law in India, Part III, C.P.R. ENVIRONMENT EDUCATION CENTRE, http://www.cpreec.org/143.htm 6) S.P.Sathe opinion that the Indian parliaments have stopped legislating in the last two decades. S.P.Sathe, Extracts from Judicial Activism in India, Included in THE LEGAL THEORY COURSE MATERIAL, Complied by Prof.Krishna Deva Rao (for internal circulation) GNLU, (February 2006).

7) The Energy and esource Institute, Review of the Existing Environmental Norms Concerning Power Sector, TERI Report No. 99 pg. 64, CENTRAL ELECRICITY REGULATORY COMMISSION, http://cercind.gov.in/chapter1.pdf8) United Nations Development Programme, Human Development Report 2006 Beyond Scarcity: Power, Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).9) Upendra Baxi has commented on the Indian Supreme Court as the most powerful court of the world. Upendra Baxi, The Travils of Stare Decisis in India, Butterworths, Included in the Legal Theory Course Material, Compiled by Prof.Krishna Deva Rao (for internal circulation) GNLU, (Feburary 2006)

10) Usha, Water Pollution-Judicial Response, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=95522711) Varma, Vikas, Legal Control of Water Pollution in India (January 2006), http://works.bepress.com/vikasvarma/2

CHAPTER II

AIR POLLUTION AND THE LAW IN INDIA WITH REFERENCE TO THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

There's so much pollution in the air now that if it weren't for our lungs there'd be no place to put it all.

-Robert OrbenSubmitted by:

Sunakshi Sharma

59/10

8th Semester

Section - B

TABLE OF CONTENTS

1. Introduction2. Defining Air Pollution

3. Air Pollution in India

4. Air (Prevention and Control of Pollution) Act, 19815. Judicial Approach

6. Shortcomings

7. Conclusion

8. Bibliography

ACKNOWLEDGMENT

I have given all my efforts in this project. However, it would not have been possible without the kind support and help of many individuals. I would like to extend my sincere thanks to all of them. I am highly indebted to my teacher, Ms. Sabina Salim for her guidance and providing necessary information regarding the project.I would also like to express gratitude towards my team mates and friends, Naina, Salina and Ishrat with whom I learnt the spirit of team work and who were so co-operative and dedicated while compiling this project report.

LIST OF CASES

M.C. Mehta v. Union of India and others, AIR 1997 I SC 734

MC Mehta v. Union of India, (2002) 2 SCC 356.

Murli Deora v. Union of India, AIR 2002 SC 40 207

AFD & C Ltd v. Orissa State Pollution Control Board,] AIR 1995 Ori. 84

AIR POLLUTION AND THE LAW IN INDIA WITH REFERENCE TO THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

Nature never did betrayThe heart that loved her.

William WordsworthIt is well known that the earth does not belong to man but man belongs to the earth. Whatever befalls the earth befalls the residents of the earth. To reap joy and lead a healthy life, one needs to have a clean and healthy environment all around. But man has been destroying that very environment very selfishly without taking its care. This has lead to some drastic environmental damages which have forced us to think again about our activities. Air is the most essential requirement of human survival. Access to clean air, amongst many others, is a prerequisite for public wellbeing. Since the industrial revolution in the early 1800s, the use of renewable and nonrenewable natural resources has led to large socioeconomic growth across the world. In the past century, its use has vastly improved life expectancy, education, income and living standards. During the same period, their use has also resulted in a threefold increase in our population. Sustaining an everincreasing population with a demand for an improved quality of life has meant that these resources are being used at unprecedented rates, an act that has polluted our atmosphere. Simply, it has been an inevitable externality associated with providing goods and services to a material society fuelled by human needs.

Air pollution is the emission of gaseous and particulate pollutants into the atmosphere resulting from human activities, which have the potential to, directly or indirectly, affect human health and well being. Apart from human health, air pollutants also influence the earths climate, damage vegetation, reduce visibility, induce material degradation and impair the ecosystem.

DEFINING AIR POLLUTION

According to WHO, Air Pollution is the presence in the outer atmosphere of substances or contaminants put there by man, in quantities and concentrations and of duration as to cause any discomfort to a substantial number of inhabitants of a district which are injurious to public health or to human, plant or animal life or property or which interfere with the reasonable comfortable enjoyment of life and property throughout the state or throughout the territories or areas of state.

The presence in air, beyond certain limits, of various pollutants discharged through industrial emissions and from certain human activities connected with traffic, heating, use of domestic fuel, refuse incineration, etc., has a detrimental effect on the health of the people as also on animal life, vegetation and property.

The major sources of air pollution are fuels, coal, petroleum and industries. Listed below are the major air pollutants and their sources: Carbon monoxide (CO) is a colourless, odourless gas that is produced by the incomplete burning of carbon-based fuels including petrol, diesel, and wood. It is also produced from the combustion of natural and synthetic products such as cigarettes. It lowers the amount of oxygen that enters our blood. It can slow our reflexes and make us confused and sleepy.

Carbon dioxide (CO2) is the principle greenhouse gas emitted as a result of human activities such as the burning of coal, oil, and natural gases.

Chlorofluorocarbons (CFC)are gases that are released mainly from air-conditioning systems and refrigeration. When released into the air, CFCs rise to the stratosphere, where they come in contact with few other gases, which leads to a reduction of the ozone layer that protects the earth from the harmful ultraviolet rays of the sun.

Lead is present in petrol, diesel, lead batteries, paints, hair dye products, etc. Lead affects children in particular. It can cause nervous system damage and digestive problems and, in some cases, cause cancer.

Ozoneoccurs naturally in the upper layers of the atmosphere. This important gas shields the earth from the harmful ultraviolet rays of the sun. However, at the ground level, it is a pollutant with highly toxic effects. Vehicles and industries are the major source of ground-level ozone emissions. Ozone makes our eyes itch, burn, and water. It lowers our resistance to colds and pneumonia.

Nitrogen oxide (NOx)causes smog and acid rain. It is produced from burning fuels including petrol, diesel, and coal. Nitrogen oxides can make children susceptible to respiratory diseases in winters.

Suspended particulate matter (SPM)consists of solids in the air in the form of smoke, dust, and vapour that can remain suspended for extended periods and is also the main source of haze which reduces visibility. The finer of these particles, when breathed in can lodge in our lungs and cause lung damage and respiratory problems.

Sulphur dioxide (SO2)is a gas produced from burning coal, mainly in thermal power plants. Some industrial processes, such as production of paper and smelting of metals, produce sulphur dioxide. It is a major contributor to smog and acid rain. Sulphur dioxide can lead to lung diseases.AIR POLLUTION IN INDIA

In India, air pollution is wide spread in urban areas due to rapid increase in urban population, unplanned urban development and high demands for transport, energy and other infrastructural facilities. The legislative control and judicial response to the magnitude of air pollution and its gravity will be discussed herein.

Air pollution surveys toady point out that majority of air pollution in cites is due to automobile emissions. Each day around 1000 vehicles are added on the roads of Delhi and Bombay taken together. The AIIMS hospital in Delhi has stated that due to the lead in fuels, dangerous levels of lead are found in the blood of young children in Delhi exposing them to various serious health problems. No doubt in recent years much attention has been paid to emission levels and cleaner fuels and these matters are receiving very positive response from various high courts and the Supreme Court.

It is because of such awareness that mass transit systems like elevated rail lines in Chennai, the subway in Kolkata and the Metros in Delhi are being promoted on large level. But still these steps are too little and too late, unable to keep in pace with our population rate. Compared to private vehicles the growth rate in manufacture of buses in the country is still very less. Poor infrastructure and limited capacity have forced urban users to shift to private modes of transportation .which in turn increase the emission amount and congestion on the roads.

Air pollution in India can broadly be attributed to rapid industrialization, energy production, urbanization, commercialization, and an increase in the number of motorized vehicles. Vehicles are a major source of pollutants in cities and towns. Apart from the sheer numbers, other factors contributing to the increasing vehicular pollution in urban areas include the types of engines used, age of vehicles, density of traffic, road conditions, and the status of automotive technologies and traffic management systems.

Some of the steps to reduce air pollution are as follows: Vehicular pollution control in metropolitan cities and other cities deserves top priority. Strategies which need to be adopted include the promotion of public transport and mass rapid transport systems together with traffic planning and management.

In addition, taxes on fuels and vehicles, stringent emission norms and fuel quality specifications, promotion of cleaner fuels such as CNG, replacement of two-stroke engines, and a strengthening of the inspection and maintenance system. Measures to be taken to control industrial air pollution include promotion of cleaner technologies, strengthening of emission standards, introducing economic incentives, and strengthening of the monitoring and reporting system.

A comprehensive urban air quality management strategy should be formulated using information related to urban planning, ambient air quality, an emission inventory, and air quality dispersion models.

Strengthening the monitoring network and institutional capabilities would facilitate an improvement in the enforcement mechanism

Use of cleaner fuels such as LPG in households would reduce indoor air pollution. Epidemiological studies should be undertaken to develop dose-response relationships, which will help in developing appropriate air quality standards

Economic instruments need to be put in place to encourage industries to adopt cleaner technologies and other conservation practices and to discourage the over-utilization of natural resources.AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981The legislature enacted Air (Prevention and Control of Pollution) Act, 1981 for the prevention, control and abatement of air pollution. This enactment was on the basis of the decision taken at the UN Conference on the Human Environment held in Stockholm in June, 1972. Government also enacted Air (Prevention and Control of Pollution) Rules, 1981 so as to implement the enactment. The Air pollution control and environment protection in general is a comprehensive project that requires concerted efforts by government at all levels. For the purpose of efficient and effective enforcement of this law, it is necessary to set up an Adjudicatory Body which should consist of legal as well as technical experts. Awareness and education of the masses and stricter law enforcement remains the key to success.

The Air (Prevention and Control of Pollution) Act 1981 (Air Act) was enacted on the lines of the provisions of the Water Act. The Act is an instrument of the legislature which has been enacted in order to keep a check on the pollution spread in the air, the grievance redressal system that needed to be established and the formation of State Pollution Control Board and the Central Pollution Control Board which give out certain guidelines and limits that are allowed by an industry.

Few of the significant provisions under the Act are as follows:

Section 2 of the Act deals with definitions. Some of the important ones are:

Air pollutants is defined as any solid, liquid or gaseous substance [including noise] present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment. Air Pollution means the presence in the atmosphere of any pollutant. Emission means any solid, liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet.

Occupier in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance.

Section 3 and 4 of the Act lay down that CPCB and SPSB respectively shall be the same as have been constituted under the Water (Prevention and Control of Pollution) Act, 1974. Section 5 also provides for a constitution of SPCB in states where it does not already exist. Section 6 lay down that the Central Board can exercise the powers and functions of SPCB in Union Territories. The members of the SPCB shall hold office for a period of 3 years and their tenure may be terminated in the situations mentioned in Section 7.

According to Section 10, the board has to compulsorily meet once in three months. This is an important provision in the respect that it has been incorporated to ensure that adequate safeguards are taken at regular and not prolonged intervals.

Chapter III of the Act elucidates the powers and functions of the Boards. The main function of Central Board, under Section 16, is to improve the quality of air and to prevent, control or abate air pollution in the country. The board may also advise the Central Government, plan and execute nation-wide programmes, co-ordinate the SPCBs, organise and train personnel, collect, compile and publish statistical data, and most importantly, lay down standards for the quality of air.

Section 17 lays down the functions of SPCB and their relation with the respective State Government. But the SPCB have to lay down standards for emission of air pollutants in consultation with CPCB.

Chapter IV lays down the methods to be adopted in order to prevent and control air pollution. The State Government may, after consultation with the SPCB and by notification in the official gazette, declare air pollution control areas, prohibit the use of any fuel in such areas and prohibition of burning of any material other than fuel. Under Section 20, they may set standards for emissions from automobiles and Section 21 empowers them to put restrictions on use of certain Industrial Plants.

Section 22A further empowers them to restrain a person from causing air pollution by operation of an industrial plant or other reasons, by making an application to a court not inferior to a court of Metropolitan Magistrate of JMFC. Any person can also be empowered to enter premises during reasonable hours to gather information, inspect, take samples of air pollutants, etc. Section 28 lays down that State Air Laboratories may also be constituted which will analyse these samples.

An appeal under Section 31 from an order of the SPCB shall lie to the Appellate Authority consisting of 3 persons appointed by the State Government.

Contributions to the SPCB can be made by Central Government as it deems fit. The Board shall also have its own fund which shall be paid for by the Central Government, and may also borrow money in the form of loans or issue of bonds from the Central or State Governments.

In case of failure to comply with the provisions of the Act, a person can be imprisoned for a minimum 1 year 6 months extendable up to 6 years with fine, and the continuance of the failure may lead to fine of 5 thousand rupees per day, and beyond 1 year may lead to imprisonment from 2-7 years with fine. Section 38 lays down certain acts and the specified penalties for the same. Section 40 says that in case of companies, the persons responsible in charge of the company shall be held responsible. Thus, artificial persons are also covered by the Act.

Section 42 extends protection to the Board and its members in respect of any action taken in good faith. The Cognizance of offences under Section 43 by the court can also be made by either the board or its members, or any other person who has given a notice of at least 60 days to make a complaint of an offence.

Chapter VII of the Act also lays down various provisions for dissolution of the Boards by the Central or State Government, as the case may be, if the Board is not performing its functions as elaborated under the act.

JUDICIAL APPROACH TOWARDS CONTROLLING AIR POLLUTIONIn India the environmental law has seen considerable development in the last few decades. Most of the principles under which environmental law works in India were developed within this period. The development of the laws in this area has seen a considerable share of initiative by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the High Courts of the States. The role of the administration, although a critical factor in the success of any environmental management programme, has seen its share of problems of scale and definition. The essence of the existing law relating to the environment has developed through legislative and judicial initiative. In recent years, the judiciary has played a prominent role in environment protection. A series of judgment in relation to stringent vehicle emission norms, fuel quality, phasing out of vehicles and shifting of hazardous industries have provided a great deal of momentum to improve air quality. Judicial reaction towards prevention of pollution is encouraging. Be it under penal law, torts, constitution or special statutes. The right to healthy environment and healthy and fresh air is identified as part of the right to life under Article 21 of the constitution.

The developments that followed the Supreme Courts order in 1998 which required all buses in Delhi to convert to Compressed Natural Gas (CNG) are well known. At the time, there was significant criticism of this order on the ground that it would be too costly for both the Delhi Transport Corporation (DTC) and private-operators to buy CNG vehicles, thereby affecting the large number of people who depend on public transport. As the deadline for implementation drew close in 2002, there was some inconvenience caused to the general public on account of limited CNG supplies but in the long-run the measure has succeeded in reducing the air pollution levels. This only goes to show that sometimes judges must make unpopular decisions in order to pursue the long-term objective of protecting the right to a clean environment.

Environmental Jurisprudence in India made a beginning in the mid-seventies when Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974. But soon, there was a quantum leap with the amendment of our Constitution in 1976 and incorporation of Article 48-A in the Directive Principles of State Policy and Article 51- A (g) in the Fundamental Duties of every citizen of India. Both these Articles unequivocally provide for protection and improvement of the environment. Inevitably, Parliament enacted the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. With this core group of three enactments, a modest beginning was made by Parliament. Unfortunately, soft laws were enacted (and they continue to remain so) at a time when strong legislation was critical for environmental conservation.

Other important cases are:

THE TAJ TRAPEZIUM CASE

M.C. Mehta v. Union of India and others, AIR 1997 I SC 734The precautionary principle came to be directly applied inthis casefor protecting the Taj Mahal from air pollution. Expert studies proved that emissions from coke/coal based industries in the Taj Trapezium (TTZ) had damaging effect on the Taj. The Agra foundries, chemical and hazardous industries and the refinery at Mathura were the major source of damage to the Taj. The affluents and waste of these industries led to the creation of Acid Rain, which had a corroding effect on the gleaming white marble of Taj. Industrial and refinery emissions, brick kilns, vehicular traffic and generator sets were primarily responsible for polluting the ambient air around the Taj Mahal. Thus some preventive steps were required urgently to prevent further pollution. Looking at this, the National Environment Engineering Research Institute (NEERI) gave its over view report regarding the status of air pollution around the Taj.

As a result, in this landmark case, Supreme Court directed to follow suggestions and recommendations of NEERI, of shifting the polluting industries to an area outside TTZ and setting up of the green belt development plan around the Taj Mahal to save it from the effect of air pollution. The Supreme Court observed that:

The main function of the central pollution control board and the state board is to improve the quality of air and prevent, control and abate air pollution in the country. In many cases, environmental protection means something more than the preservation of the habitat. It may cover protection of historical monuments and cultural heritage. Pollution may gradually efface such monuments into extinction. The supreme court hardly had any hesitation to interfere in such instances.The court observed that the atmospheric pollution in TTZ has to be eliminated at any cost. They stated that not even one percent chance can be taken when-human life apart-the preservation of a prestigious monument like Taj is involved. They further stated that the environmental measures must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on an industry to show that its operation with the aid of coke /coal is environmentally benign. It is rather proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of ambient air.In a similar case to control air pollution in Delhi, in M.C. Mehta v. Union of India and Others, Known as Industrial Closure and Relocation case, the apex court ordered the shifting, relocation and closure of certain industries.

SMOKING IN PUBLIC PLACEIn Murli Deora v. Union of India and others, while prohibiting smoking in Public Places, the Apex court stated that, Fundamental right guaranteed under Article 21 of the Constitution of India provides that no one shall be deprived of his life without due process of law. A non-smoker who is affected by various diseases including lung cancer, or of heart problem, only because he is required to go to public places, he is indirectly being deprived of his life without due process of law.

Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed and prohibited the smoking in Public Places and issue directions to the Union of India, State government as well as the union territory to take effective steps to ensure prohibiting smoking in public places.

CNG VEHICLES IN DELHIMC Mehta v. Union of India, (2002) 2 SCC 356. For the people living in Delhi, pollution from thousands of automobiles was a real health hazard. Supreme Court took the step to reduce this pollution on many occasions. Among the various attempts, the decision relating to conversion of diesel vehicles to compressed natural gas (CNG) vehicles merit scrutiny.

In MC Mehta v. Union of India, the attention of the court was focused on the delay to convert diesel vehicles to CNG by the central government, thereby frustrating the orders of the Supreme Court in MC Mehta v. Union of India. The plea of the central government that there is shortage of CNG supply as a major chunk of it went to the industrial sector was met with the following observation by the court,

Not only is there no shortage of CNG as far as the transport sector is concerned, but even if there be such a shortage, if crude oil can be imported and supplied to the refineries for manufacture of petrol and diesel, there is no reason why CNG, if need be, cannot be imported, so that it ensures less pollution.

The court categorically declined to give any 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 school children in particular, the court made certain relaxations.CONSENT OF THE BOARDIn AFD & C Ltd v. Orissa State Pollution Control Board, Orissa high court looked into the different parameters of the directing power under the Air Act. In this case, the secretary of the board issued a direction under s. 31- A of the Air Act to close down the petitioners cattle and poultry feed factory, and to shift the same to an isolated place.

The measures are remedial and that is the reason why in case of an established industry, consent of the board is insisted upon. However, the board can issue such direction within the ambit of section 31A only on being satisfied that the industry in question emits air pollutant by which there has been air pollution. There needs to be finding to the effect that there has been emission of air pollutant.

Such a finding only can clothe the jurisdiction of the Board to issue any direction. In the absence of any finding that the petitioners factory emits any air pollutant as defined in section 2 (a) of the act, it was not within the jurisdiction of the board to issue the direction to shift or close down the industry in exercise of power under s. 31-A of the Air Act. The court quashed the direction for the closure.

SHORTCOMINGSIndia still follows inadequate and outdated environmental laws. Further, various factors that contribute towards poor implementation of environmental laws in India, are:

Lack of appropriate skills amongst the law enforcement agencies.

Inadequate infrastructural facilities.

Lack of proper understanding of environmental laws.

Lack of coordination among the law enforcement authorities and officers.

Jurisdictional conflicts.

No initiatives are being taken to recruit law officers who possess knowledge, skills and understanding of environmental issues and laws.

The tendency to centralize the decision making power and bureaucratized structure hampers the process of proper law enforcement. The political and bureaucratic intervention in day to day activities of the law enforcement authorities affects and curbs their professional competence and efficiency.

There are many provisions in the Air Act that are outstanding and promise to reduce air pollution, like every citizen of India is vested with the locus standi to file petition with respect to air pollution matters. However there are also few lacunas in the Act. These are:

It does not make any provision relating to abrupt escape of lethal gases and is restricted in approach, as it is applicable only in areas designated as Air Pollution Control Areas. It talks about the ways to control air pollution but not prevent it.

According to this act, SPCB is required to lay down emission standards for Industries and automobiles. But in practise it is done by Police and SPCB does not have any controlling authority over police and police cannot control pollution. Therefore, this act does not have any integrated approach.

The Act also does not provide for compensated expedient remedy for the disaster and hence fails in this aspect.

This act does not create any new liability or any new right. This is a negative point in relation to individual or group of individual victims.

There are no provisions relating to monitoring and control of airborne concentration of pollutants at the source as well as in the work room. The statutes also do not prescribe the precautions to be taken to protect workers against harmful airborne substance. The Act suffers from almost same shortcomings as that of the Water Act. It does not set time limit and prescribes negligible penalties and is silent on the rights of the third parties.

Light pollution caused by high intensity signboards, neon advertisements and their jamming light effects are not covered by the Act.

The Act does not talk about pollution through the medium of air. Hence, noxious odours as are emitted by some industries, like breweries, leather industries etc., are not covered under the Act. The Act grants discretion to each State Govt. to designate particular areas as air pollution 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 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 to control air pollution as there remains a tendency to attach greater importance to the primary function.

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.

CONCLUSION

The Air Act is a good 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. The Act should ask for public input, views and suggestions with regard to controlling and preventing air pollution. It should extensively provide for creating awareness about the subject in urban as well as rural set ups. The SPCBs should be granted special rights and be allowed to take suo moto action against the polluter.The need of the hour is to act immediately and push for stricter laws for cleaning the air we breathe. The vehicles should be made to comply with the Euro IV or Bharat Stage IV norms all over India and not just the few selected cities. The industries emitting pollutants in the air should be dealt with strictly. Also the pre-requisite of setting up every industry should be a promise to sticking to environment friendly operations. The technology in all the appliances such as air conditioners, refrigerators etc. should be eco-friendly only.

When we throw it away, we must think again, after all there is no away.

BIBLIOGRAPHY

Jain, Ashok K., Law and Environment, 3rd Edn. (2005).

Khitoliya, R.K., Environment Protection and the Law (2009).

Nishtha Jaswal & Paramjit S. Jaswal, Environmental Law, 3rd Edn. (2013).

CHAPTER III

COMPARATIVE ANALYSIS: AIR ACT 1981 AND WATER ACT 1974

Submitted by:

Naina Khanna 64/10Sunakshi Sharma 59/108th Semester, Section-B

UILS, PU

COMPARATIVE ANALYSIS: AIR ACT 1981 AND WATER ACT 1974

SUBJECTWATER ACTAIR ACT

Year of enactmentAct no 6 of 19741981

Way/Reason for EnactmentResolution passed by 12 states under Art. 252(1)In consonance with UN Conference on Human Environment held in Stockholm in June 1972 & Air pollution survey by certain National Environmental Engineering Research Institutes

Amendment(s)1978 & 19881987

ObjectProvide penalties for contravention of the provision of the act; establish Centre/State water-testing laboratories etcPrevent air pollution; Provide standards to maintain the quality of air etc.

ApplicabilityS. 1(2): 12 States which initially passed the resolution other State which adopts this Act by resolutionS.1(2): Whole of India

S 2(a): Air pollutant: means any solid, liquid or gaseous substance 4 including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment;

Constitution of Central BoardS. 3(2): Chairman; Maximum five nominated members representing Govt.; five nominated members form State Boards; maximum three non-officials; two person representing corpo./companies & a SecretaryS. 3: It is similar to the Board constituted under Sec. 3 of the Water (Prevention and Control of Pollution) Act, 1974.

Constitution of State BoardS. 4(2): Chairman; Maximum five nominated members representing Govt.; five nominated members form State Boards; maximum three non-officials; two person representing corpo./companies & a SecretaryS.4: State Pollution Control Boards constituted under Sec.4 of Act 6 of 1974 to be State Boards under this

Act.

S.5: Composition of State Boards in State in which Water Act is not in force - same as that in the Water Act

S.6: Central board to exercise the powers and perform the functions of a State Board in the union

Territories.

Terms and Conditions of Service of MembersS.5: other than Secretary, term of members for 3 years; for nominated members when the term of their Govt. ends; eligible for re-nomination.S.7: other than Secretary, term of members for 3 years; for nominated members when the term of their Govt. ends; eligible for re-nomination;

DisqualificationS.6: insolvent, unsound mind, offence involving moral turpitude, convicted of an offence under this Act, partner in firm carrying business, apparatus of trade effluents etc; hay head having contact with the firm; member abused his power.S.8: Same provision as that under the Water Act.

Joint BoardsS.13: Agreement by two or more contiguous states or Central Govt.; exercise and perform the several powers and functions of the State Government; provide for consultation; make such incidental and ancillary provisions.

S.14: Composition of Joint Boards.

S.15: State/Central Govt. can still give directions notwithstanding S. 13.No such Joint Board under the Air Act.

Functions of Central BoardS.16: advice Central Govt.; coordinate with State Boards; provide technical assistance; plan and organise, collect; compile and publish technical and statistical data, collect, compile and publish technical and statistical data.S.16: advice Central Govt.; coordinate with State Boards; provide technical assistance; plan and organise national wide programmes, collect; compile and publish technical and statistical data, collect, compile and publish technical and statistical data.

Lay down standards for the quality of air; collect and disseminate information in respect of matters relating to air pollution; device effective prevention.

Functions of State BoardS.17: advise the State Government; collect and disseminate information; organising the training of persons; inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans; down, modify or annul effluent standards for the sewage and trade effluents and for the quality of receiving waters; to make, vary or revoke any order -- for the prevention, control or abatement of discharge of waste into streams or wells; establish or recognise a laboratory.S.17: plan a comprehensive programme for the prevention, control or abatement of air pollution; advise the State Government; collect and disseminate information; organizing the training of persons; to inspect air pollution areas; lay down standards of air pollution etc.

Power to Obtain Information/Give InstructionsS.20: for enabling a State Board to perform its functions. make surveys of any area and gauge and keep records of the flow or volume and other characteristics of an stream or well in such area, and may take steps for the measurement and recording of the rainfall in such area or any part thereof and for the installation and maintenance for those purposes of gauges or other apparatus and works connected therewith, and carry out stream surveys and may take such other steps as may be necessary in order to obtain any information required for the purposesS. 20 23, 25: direction to authority in charge of registration of motor vehicles under the Motor Vehicles Act for automobile emissions.

Any area the emission of any air pollutant into the atmosphere in excess of the standards laid down by the State Board;

For the purposes of carrying out the functions entrusted to it, the State Board or any officer empowered by it in that behalf may call for nay information (including information regarding the types of are pollutants emitted into the atmosphere and the level of the emission of such air pollutions).

Restrictions, NormsS.24, 25: Prohibition on use of stream or well for disposal of polluting matter, etc.

Restriction on new outlets and new discharges except with previous consent of the State Board.S. 21, 22, 22-A: Consent of State Board required before establishing or operating any industrial plant in air pollution area, follow further norms of installation and operation.

No excess discharge above the standards lay down by the State Board.

If apprehended by Board that emission of any air pollutant, in excess of the standards laid

down is likely to occur by an industrial plant or otherwise in any air pollution control area, the Board may make an application to a Court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class for restraining such person from emitting such air pollutant.

Power to take SampleS. 21, 22: For the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well; result admissible in evidence; procedure to divide and store samples.

Submission of report of the result of analysis on samples taken.

No sampling under the Act.

Power to Entry and Inspect:S.23: persons empowered by State Board to enter and inspect at reasonable times to perform functions, ensure the implementation of the Act, examine and test equipment, industrial plant, record etc.

Provisions of Cr.P.C apply.S.24: Persons empowered by State Board to enter and inspect at reasonable times to perform functions, ensure the implementation of the Act, examine and test equipment, industrial plant, record etc.

Provisions of Cr.P.C apply.

LaboratoriesS. 16, 17: Laboratories to be established by Central/State BoardS. 28: State Air Laboratories may also be constituted which will analyse the samples.

AppealsS. 28: Appeal may lie from an order of SPCB to an authority as the SPCB may think fit to constitute within 30 daysS. 31: An appeal from an order of the SPCB shall lie to the Appellate Authority consisting of 3 persons appointed by the State Government.

Contribution by appropriate Govts.S. 34, 35: Central Govt. to contribute to Central Board &State Govt. to contribute to SPCB.S. 33: Contributions to the SPCB can be made by Central Government as it deems fit. The Board shall also have its own fund which shall be paid for by the Central Government.

Borrowing PowerS. 37-A: With consent of the appropriate Govt. the Board may borrow by way of loans or issue of bonds, debentures or such other instruments.S. 33A: SPCB may also borrow money in the form of loans or issue of bonds from the Central or State Governments.

PenaltiesS. 41: for non compliance of S.20- 3 months + fine upto Rs.10,000/- and for continuance of failure Rs. 5000/- per day.

Failure to comply with S.33, 33-A- imprisonment upto 6 years, not less than 1.5 year, continuation may lead to Rs. 5000/- fine per day

If above failure continues beyond 1 year, imprisonment not less than 2 years and maximum 7 years + fine be inflicted S. 37: A person can be imprisoned for a minimum 1 year 6 months extendable up to 6 years with fine, and the continuance of the failure may lead to fine of 5 thousand rupees per day, and beyond 1 year may lead to imprisonment from 2-7 years with fine.

Offences by CompaniesS. 47: In case of companies, the persons responsible in charge of the company shall be held responsible.S. 40: Same provision as that under the Water Act.

Offence by Govt. DeptS.48: Head of the Department is li