Environmental Pollution and the Criminal Procedure Code

Introduction

India is a home for around 1.3 billion people which is nearly a fifth of the world’s population. Population is the major
problem of large scale environmental pollution and resource depletion in the country. Environmental Pollution
refers to the contamination of the components of the earth’s atmosphere which led to an adverse effect on nature
due to the pressure of technological developments and population. Thus, the Indian Constitution provides the right
of a person to a pollution-free environment under Article 21 (Right to life and personal liberty).

The Stockholm Declaration, 1972 was perhaps the first guidelines or international principles to conserve and
preserve the human environment. This declaration made the States adopt legislative measures to protect the
environment. In accordance with this, the Parliament of India amended The Indian Constitution in 1976 by inserting
a new article, i.e. Article 48A which directs that state should endeavor to protect and mitigate the environment.
After 1972, a new zeal was seen in the Indian judiciary as well as the Indian legislature to interpret and make new
laws for the protection of the environment. The Indian Penal Code, 1860, and the Criminal Procedure Code, 1973
(hereinafter CrPC) deal with the remedies and concept of the various nuisances, out of which one is environmental
pollution. In this article, we will deal with the provisions under CrPC regarding environmental pollution.

Environmental pollution is a type of public nuisance. Section 268 of the Indian Penal Code, 1960 defines the term
public nuisance as an act or omission of some act which results in annoyance or common injury to the public. In
simple words, it is an act which neglects the common good of the public and harms or annoys them by causing such
an act, whereas private nuisance is an act which only harms few individuals rather than the public at large. Section
290 of the Indian Penal Code, 1960 deals with the punishment for public nuisance.

The Code of Criminal Procedure, 1973, or the Criminal Procedure Code is the law that deals with the procedure of
administration of substantive criminal law in India. It came into force on 1st  April 1974, which contains 484 sections
that have been divided into 37 chapters.

Chapter X of the CrPC, “Maintenance of public order and tranquility ” provides efficacious, preventive, and
expeditious remedies for public nuisance cases which include air, noise, water pollution, and unsanitary conditions. It
contains the procedure for the enforcement. The entire corpus of 13 sections of CrPC under Chapter X i.e. from
Section 133 to 144A is devoted to mitigating public nuisance.

Provision for Public nuisance under Chapter X

As discussed in the earlier part, the provisions under chapter X of CrPC provide speedy and effective remedies
against public nuisance among which environmental pollution is one. 

Section 133 deals with the conditional order for removal of the nuisance, it empowers a District Magistrate and Sub-
Divisional Magistrate to stop the nuisance on receiving such information.

Section 134 deals with the service of summons or notification of order. It can only resort when order is not served in
the manner provided. 

Section 135 deals with the person against whom the order is addressed to obey or show cause. Under this section,
two contingencies are envisaged that:

1. Perform in a specified manner in the order within the time period, or

2. Appear and show cause in accordance with the order.

It also provides that the person against whom the order is made should be given a reasonable opportunity to be
heard and answer the allegations made against him.

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Section 136 deals with the penalty if the person against whom the order is made failed to comply with Section 135 of
CrPC. The penalty is prescribed under Section 188 of the Indian Penal Code, 1860.

Section 137 deals with the procedure where the existence of public rights is denied. It also applies to those cases
only where there is no decision about the existence of right by any competent civil court and strong evidence in
support of that against any magistrate.

These are some of the provisions under Chapter X of CrPC, the main and the utmost important provisions are under
Section 133, which is discussed further in detail.

Section 133

Section 133 of CrPC provides that a sub-divisional magistrate and district magistrate or any other executive
magistrate to whom the powers are granted by State Government can make a conditional order to remove such kind
of nuisance on receiving information about the same or the report of any police officer. If the person who is creating
nuisance objects to the order then the order can be made absolute by the concerned magistrate. Any order made by
the magistrate under this provision shall not be questioned in any civil court. In the case of Govind Singh v. Shanti
Sarup (1978), the word nuisance was defined in very liberal terms and it includes the disposal of substances, the
construction of structures, the conduct of occupation, and trade, and confinement or disposal of any dangerous
animal. 

If the imperative tone of this section is read with the punitive tone of Section 188 of IPC (provides punishment for a
maximum of six months and a fine extendable up to one thousand rupees) it makes the prohibited act a mandatory
rule. 

To invoke this section, it is not required to have a large number of complaints or protest against the nuisance. It can
be invoked on simply receiving a report of a public officer or other information that is deemed to be fit as a piece of
evidence. This pronouncement was made in the case of Krishna Gopal v. The State of M.P (2016).  In this case, a
complaint was registered against a glucose factory which was causing air pollution due to the discharge of steam in
the air resulting in fly ash and noise pollution. This all cumulatively caused discomfort to the residents of that
locality.  

To understand the application of the section in a facile manner is to simply understand the conditions required as
given in the case of Suhelkhan Khudayar Khan v. State of Maharashtra (2003 ), these followings conditions have to be
satisfied for providing a sanction under this section:

1. There should be a public nuisance i.e. the number of persons injuriously affected is so considerable (there
should be danger or inconvenience or it is about to be caused).

2. It should not be a private dispute between the different members of the public and if it is then the adequate
forum is the civil court.

3. It should be the case of imminent danger to the public interest.

The nature and the scope of this section is explained by the judges in the case of P.C. Cherian v. State of Kerala
(1981). In this case, the Sub-Divisional Magistrate of Kottayam directed the stoppage of mixing of carbon in two
rubber industries which were situated in the industrial area. As there was no dissemination prevention equipment.
The High Court sentenced that the dissemination of carbon black in the environment is causing a public nuisance and
also affecting the respiratory organs of the people.

Independence of Section 133

Section 133 of CrPC is independent of the other laws and statutes. Even after the creation of new legislatures the
powers of the magistrate inscribed in this section are not repealed. There are many other special and local laws
dealing with public nuisances such as Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and
Control of Pollution) Act, 1981, Environment (Protection) Act, 1986, and many more.

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Some examples of independence of Section 133 are as follows:

1. Magistrates have the power to close a factory even after no appreciation certificate from the Pollution
Control Board is produced.  – Nagarjuna Paper Mills Ltd. v. SDM and RDO (1987).

2. Section 133 doesn’t get repealed automatically after the commencement of any new law.  – Lakshmi Cement
Case (1994).

3. Section 24 of Environment Protection Act, 1986 specifically says that if any act or omission commits an
offence under this act or any other act then the offender will be liable according to that other act.

4. The Supreme Court in the case of State of M.P v. Kedia Leather & Liquor Ltd. (2000) declared that the
enactment of new pollution control laws doesn’t repeal Section 133. It was also said that areas of this
section and pollution laws are not identical in nature.

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Landmark Judgments

 Ramachandra Malojirao Bhonsle v. Rasikbhai Govardhanbhai Raiyani (2000) , in this case the petitioner who
purchased the ground floor flat in a building before the installation of motor filed a complaint of use of
electric motor by other flat members as it was causing a nuisance to him. The matter was reported to a Sub-
divisional magistrate who directed to shift the motor from below the flat to within the premises so that it
causes no pollution. The judgment was challenged on the basis of jurisdiction under Sec 133 as it can be used
in respect of public nuisance, not a private nuisance. The Gujarat High Court observed that the magistrate
should have to keep in mind that if the nuisance is not created at a public place no direction can be given
under Section 133.

 Shaukat Hussain and Anr. v. Sheodayal Saksaina (1957) , in this case an application was filed alleging that the
small particles of cotton are blown in the air by a cotton carding machine of five horsepower situated in the
town of Rewa. It was causing breathing problems to the people and the machine was also producing noise
and disturbance to public peace. It was observed that Section 133 of CrPC provides an efficacious, and
expeditious remedy in case of urgency where the danger to public health and interest is considered. 
Paragraph 3 of Section 133 runs as follows: “That the conduct of any trade or occupation, or the keeping of
any goods or merchandise, is injurious to the health or physical comfort of the community, and that in
consequence such trade or occupation should be prohibited or regulated or such goods or merchandise
should be removed or the keeping thereof regulated.” The term “community”  means that the public at large
or all the residents of that locality.        

 Ram Autar v. State of Uttar Pradesh (1962) , in this case the Supreme Court interpreted Section 133 of CrPC.
The three appellants who sold vegetables, parked their vegetable carts in front of residential houses. This
caused inconvenience and obstruction to the users of the roads. The High Court passed the order that the
business of vegetable auctioning cannot be carried without causing inconvenience to the people, it can be
prohibited even though it is conducted in a private place and the order of the magistrate is valid. But the
Supreme Court with three bench judges: Justice Das, Justice Kapur, and Justice Dayal stated that: “It appears
to us that the conduct of the trade of this nature and indeed of other trades in localities of a city where such
trades are usually carried on is bound to produce some discomfort though at the same time resulting
perhaps in the good of the community in other respects. In making the provisions of section 133 of the Code
of Criminal Procedure, the legislature cannot have intended the stoppage of such trades in such part of
town, merely because of the discomfort caused by the noise in carrying on the trade.”

Conclusion

It is clear and evident from the above discussion that the laws governing environmental protection are in existence
even before the enactment of the Environment (Protection) Act and other specific laws by the Indian Legislature and
Judiciary. They use the criminal machinery for the protection of the environment to make sure that problems

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regarding pollution can be solved rapidly and economically. Environmental pollution is one of the biggest doom for
our society and to safeguard the environment as well as the lives of the public at large should be our prima facie
concern.

Justice V.R Krishna has well said that “it is not how many laws we have, it is how effectively we implement”. Though
in the present situation we have so many laws concerning the environment but provisions like Section 133 of CrPC
help to achieve this goal efficiently, and expeditiously. These laws are not enough to preserve our environment, the
public support and awareness is also the key component for better environmental governance and also for the
abatement of the environmental nuisance.

“The Sky is like Father

The Earth is like Mother and

The Space as Their Son

The Universe consisting the Three

is like a Family and

Any kind of damage done to any one of the Three

Throws the Universe out of Balance”

                                                                 -Rigveda

How does the Indian penal code encompass environmental

pollution -
Introduction

In ancient India, environmental protection was an essential part of their Vedic culture. Forest, trees, and wildlife hold
an important reference in Hindu theology. Natural resources in our environment play a vital role in our life. But with
the industrial revolution, all these resources are being depleted at an unimaginable rate along with the waste from
this process being exposed to the environment (land, water, and air) which is contributing further to environmental
pollution. India’s pollution levels are one of the highest in the world compared to other countries which makes it
important to have certain acts and laws in place in order to protect the environment, especially from the globalized
industries that release harmful substances in the environment.

As per the Environment Protection Act, 1986, the environment includes air, water, and land, which has an
interconnection between each other and also with living creatures like human beings and animals, and with plants
and property.

Historical development

When India achieved independence and the constitution was adopted in 1950, it did not deal with any subject
relating to the environment and for its protection. Indian approach after independence was focussed more on
economic development and poverty alleviation. 

However, in the year 1972, the United Nation conference on Human Environment was held in Stockholm, Sweden,
and the Declaration on the Human Environment was adopted, making it the first step to conserve and protect the
environment at an international level. As per the declaration, states were required to take legislative measures in
order to protect and improve the environment.

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The consequence of the Declaration, with the 42nd Amendment Act in 1976, Article 48-A was added as the Directive
Principle of State Policy along with Article 51-A, making environmental protection the duty of government and the
citizens.

As per Article 48-A of the Indian Constitution, the state must try to protect and preserve the environment but also
safeguard the wildlife and forests of the country. 

Also, according to Article 51-A (g), the citizens of India must protect and improve the natural environment, including
forest, wildlife, lakes, and rivers, and also also to have compassion for the living creatures.

In Rural Litigation and Entitlement Kendra v. the State of UP, the Supreme Court observed that it is not only the duty
of the State as stated under 48-A but also the duty of citizens as under Article 51-A (g) of the constitution to protect
the environment. 

Part III of the Indian Constitution deals with fundamental rights. Article 21 talks about the right to life and in MC
Mehta v. Union of India, the Court held that the right to live in a pollution-free environment is a fundamental right
given to us under article 21 of the Indian Constitution and this right would not mean anything if there isn’t any
healthy environment for the citizens to live in.

Is there any apex administrative body in India for Environmental Protection?

Established in 1985, Ministry and Environment and Forest (MoEF) is the apex body in India for regulating and
ensuring environmental protection law and also lays down the legal and regulatory framework for the same. Various
environmental legislations have been passed since the 1970s. 

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Various Legislations for Environment Protection

Some of the important Acts that ensures environmental protection are as follows:

National Green Tribunal Act, 2010

Being established for facilitating the establishment of the National Green Tribunal (NGT), the Act ensures that the
cases related to environment protection are handled effectively, also ensuring conservation of forests and other
natural resources.

Air (Prevention and Control of Pollution) Act, 1981 

As the name suggests, the ‘Air Act’ provides for the prevention of air pollution, along with its control and abatement,
also ensures the establishment of Boards at the national and state level for carrying out aforesaid purposes. The act
combats the problem of air pollution by prohibiting the use of polluting fuels, also, it helps to regulate those
appliances that give rise to air pollution. 

Water (Prevention and Control of Pollution) Act, 1974

The Act has been enacted with the intention to prevent water pollution and control it. Moreover, it also aims to
maintain and restore the wholesomeness of water in the country. It also facilitates the establishment of Boards to
prevent and control water pollution for carrying out the aforesaid purposes. 

Environment Protection Act, 1986

The Act provides for protecting and improving the environment. It also helps to establish a framework for carrying
out a study for figuring out long-term requirements of environment safety and also lays down a system for a speedy
and adequate response to situations threatening the environment.  

As per Section 15(1), in case of non-compliance with the rules and directions mentioned under the act, the violator
can be held punishable with imprisonment for up to 5 years, or with fine up to Rs. 1 lakh or with both. 

Wildlife Protection Act, 1972

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Enacted with the motive to protect the wildlife of this country, the Act also controls smuggling, poaching, and illegal
trade in wildlife and its derivatives. Moreover, the act was amended in Jan 2003, making penalties and punishments
more stringent for offences under the act. The aim is to protect the endangered flora and fauna and also the areas
which are ecologically important.

Forest Conservation Act, 1980

As the name suggests, the Act was enacted to conserve the forests of our country. Moreover, it strictly prohibits and
regulates the de-reservation of forests or the use of forest land for non-forest purposes without Central
Government’s approval.  

Environmental Protection and Indian Penal Code

There are various sections in the Indian Penal Code, 1860 that make polluting the environment punishable. They can
be used to prevent pollution in the environment. Chapter XIV of the IPC, containing Section 268-294-A, deals with
the offences that are related to safety, public health, etc. These provisions make public health a priority and make
any act punishable which pollutes the environment and makes the life of an individual dangerous.  

Section 268 and 290

Section 268 defines the term public nuisance and says that:

1. If any person does any illegal act, or omission then he/she is guilty of an offence. 

2. Such an act must have caused a ‘common injury’ or danger. Annoyance to the public, or to the people of a
vicinity, or such an act must violate someone’s public right. 

3. A common nuisance is not excused on the ground that it causes some convenience or advantage.

Moreover, Section 290 makes the offence of public nuisance punishable with a fine extending up to Rs. 200.
Therefore, if any act or omission of polluting the environment is committed harming any citizen then the same shall
be subject to prosecution. Section 290 also makes noise pollution an offence.

In Ratlam Municipality v. Vardhi Chandra, Justice Krishna Iyer observed: “public nuisance because of the pollutant
being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice
component of the rule of law”.

In K Ramkrishnan v. the State of Kerala, the court held the smoking in public places is an offence and the same shall
amount to public nuisance. It is punishable under Section 290 of the Indian Penal Code. Moreover, according to the
reports published by the World Health Organization (WHO), carbon dioxide emission from cigarettes contributes to
almost 5% of the global greenhouse gas production. 

Section 277

Section 277 of IPC states that if anyone who voluntarily corrupts or fouls the water of public spring or reservoir, so as
to make it unfit for ordinary public use, shall be held punishable with imprisonment for up to 3 months or with fine
up to Rs. 1000 or with both.

However, the interpretation of the term “public spring or reservoir” by the Indian courts is quite restrictive as it does
not include flowing water of rivers, streams, and canals.

Fouling of running river water in a continuous stream is not an offence under this provision, however, if there is
sufficient evidence to show that the act has caused common injury or danger to the public then it can be an offence
punishable under section 290.

In Emperor v. Nama Rama, the accused and nine others were charged under this provision for fouling river water
and making it unfit for drinking by steeping therein aloe plants to extract fibres from it. The trial Court convicted
them. The Bombay High Court, after an appeal was filed, held that a river is not a public spring as mentioned in
Section 277. 
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Section 278

According to Section 278, whoever voluntarily vitiates (spoils) the atmosphere of any place so as to make it harmful
for any person’s health in a general dwelling, or carrying on a business in a neighbourhood or passing along the
public way, shall be liable to a fine of up to Rs. 500. 

Important case laws

Indian Council For Enviro-Legal v. Union Of India

In this case, Nakka Vagu, a freshwater stream, provided water for irrigation to farmers of approx 14 villages adjacent
to it. But the indiscriminately set up 250 industries, not fulfilling the condition of setting up water treatment plants,
instead, it turned the stream into a huge drain carrying industrial affluents. The Supreme Court directed the
industries to pay an amount of 20 million to the farmers who have lost their crops and cattle because of air and
water pollution. 

Taj Mahal Case

In this case, the Supreme Court took into account the damage being caused to the Taj Mahal by the emission of toxic
fuel and was facing a serious threat of acid rain. It asked coal and coke based industries in Taj Trapezium (TTZ) to
either change over to natural gas or relocate outside TTZ. The court was conscious to understand that the
environment cannot be allowed to get damaged to such a level that it becomes a health hazard for the residents of
the area.

M.C Mehta v. Union of India

In this case, in December, 1985, gas leakage from Shriram Food and Fertilizers in New Delhi, resulted in the death of
8 people. The Supreme Court promulgated the rule of Absolute liability and held that the companies that engage in
dangerous substances owe a duty of care and absolute towards the safety of the common public and they cannot
escape from liability. 

Ganges Pollution Case

In 1985, M.C Mehta filed a case against tannery industries in UP which used to discharge their effluent waste in the
Ganga. This case marked the beginning of judgements made by the Supreme Court in order to stop pollution of
Ganga water by industries and municipalities and closed down nearly 30 tanneries. 

Conclusion

Today, the uncontrolled use of natural resources is leading to their depletion. Along with it, the environment is
suffering from the waste products it is being exposed to. Moreover, in such a situation the general public, public
bodies, state, and the central government must understand the harm the developmental process has done to our
living environment as it is not only the duty of the government but the citizens of the country are also bound by the
responsibility of protecting and preserving the environment. 

For the success of local environmental laws, it is essential to create a sense of civic awareness and public hygiene in
the use of municipal services such as roads, public squares, drainage, etc. Strict compliance of the legal requirements
is also required. Law is an effective tool for obliging people to practice cleanliness and thus fight pollution. 

As Paul Bigelow Sears once said, “How far will suffering and misery go until we see that the good earth is our mother
even in the day of vast cities and powerful machines and that if we kill her we ruin ourselves.”

Do you know what is the Criminal Liability Under Environmental

Protection Act

Criminal Liability in Environmental Protection Act

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Crimes related to the environment have been a very profitable enterprise in the history of mankind. Starting from
the British era i.e, the colonial activities aimed at extracting every bit from the enormous wealth of Indian forests
and vegetation.

The cutting down of forests and clearing of land for the purpose of developing infrastructure, roads houses, real
estates industrialisation, urbanisation etc, was just a drop in the ocean, their practices aimed at wiping out
indigenous populations, treating indigenous territories as resource hotbeds, and systematically destroying large
habitats. In other words, they were continuous, without any halt, sustaining "unsustainability", driven by their greed.

The Environmental Protection Act of 1986 was passed in March and implemented on November 19, 1986, in the
aftermath of the Bhopal Gas tragedy or Bhopal Gas disaster, under Article 253 of the Indian Constitution. It includes
26 Sections in about 4 Chapters. The Environmental Protection Act is called an Umbrella Legislation as it provides for
the coordination of both the Central and the State governments and was established under the Water (Prevention
and Control) Act of 1974, and the Air ( Prevention and Control) Act of 1981.

The Environment Protection Act provides a regulatory framework and the general principles that deal with human or
anthropological activities on the environment. The framework keeps environmental pollution at the Centre of all
implementation. For a country like India, environmental law mainly focuses on Air pollution, water pollution, waste
management, forest degradation, soil degradation, sustainable development etc. The knowledge of environmental
law and its implementation is paramount in dealing with Environmental crimes.

Types of environmental crimes:-

 ●       Illegal hunting or poaching

●       Illegal trade of wildlife or vegetation for profits examples - Trade of timber, ivory, rhino horns, etc

●       Trafficking of wild animals

●       Indiscriminate logging

●       Electronic waste mismanagement

●       Dumping in rivers, aquifers

●       Unreported fishing

●       Improper handling of pesticides

Some crimes in this list are mentioned by the United Nations Interregional Crime and Justice Research Institution.

Remedies under common law for environmental protection:

●       Nuisance: Creating a condition that tends to interfere with the rights of an individual is called a nuisance.

●       Negligence: An act either done or the omission of the same, if, that causes harm to another individual is called
negligence.

●       Trespass: Direct physical interference in a person's possession, like land or property is called Trespass.

Provisions under Criminal Law for environmental protection:

●       Chapter XIV of the IPC ( Indian Penal Code of 1973) lists down crimes relating to public health and safety.

1. Section 268 classifies environmental crimes as a public nuisance.

2. Section 290 penalizes the offence of causing a nuisance.

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3 Section 277 penalizes activities causing water pollution, even imposing imprisonment.

4. Section 278 imposes punishment on anyone who voluntarily spoils surroundings to make it harmful for anyone's
health.

5. Section 426 imposes punishment for causing pollution by mischief.

6. Section 430 imposes punishment for causing a diminution of the supply of water for agricultural purposes, or for
food or drink for human beings or for animals.

7. Section 431 imposes punishment for doing any act which renders or which he knows to be likely to render any
public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or
conveying property.

8. Section 432 imposes punishment for doing any act which causes or which he knows to be likely to cause an
inundation or an obstruction to any public drainage attended with injury or damage.

Other provisions and acts that impose criminal liability for environmental protection:

●       Section 133 of the Code of Criminal Procedure( CrPC) gives the power to a district magistrate and Sub-divisional
magistrate to stop any kind of nuisance.

●       Section 47 of the Water Act makes one liable for an offence committed by a company with that person made in
charge of the business of the company.

●       Section 16 also imposes liability for the same.

Case laws relating to violation of environmental laws:

1. Murli S.Deora vs Union of India (2001): In this case, the Supreme Court held that smoking in public places is a
violation of the fundamental right of individuals who don't under Article 21.

2. Ramakrishnan vs the State of Kerala: It was held that smoking in public places is punishable under the IPC as it
causes a public nuisance.

3. Govind Singh vs Shanti Sarup: The court held that the construction of structures, the conduct of occupations and
trade, business and confinement or disposal of any dangerous animal is punishable.

Conclusion:

Although we have many laws in place to protect the environment and penalize or punish its violation. But still,
crimes against the environment are prevalent and common. A stronger approach to environmental crimes is the
need of the hour. There is a need for more stringent laws and their implementation is further, more important to
ensure that these crimes are not gotten away with.

India: Remedies Available Under Indian Legal Framework vis-à-

vis Environmental Protection: An Overview
Introduction

In India, there are a plethora of legal provisions which seek to protect the environment from attacks from the human
race. Along with the various Constitutional provisions, there are several legislative enactments passed by the
Parliament of India in order to achieve the constitutional objective of ensuring a wholesome environment to the
citizens of India. To name a few, they are Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and
Control of Pollution) Act, 1981; Environment (Protection) Act, 1986. Also, there are several provisions under the
Indian Penal Code, 1860, which highlight the penal provisions in case of injury sustained by any individual on account
of environmental damage caused by any other individual. Also, there are ample remedies available under the
common law vis-à-vis environmental protection such as nuisance, trespass, negligence and strict liability.
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Constitutional provisions vis-à-vis Environmental Protection

The directive principles of State Policy and the chapter on fundamental duties explicitly enunciate the national
commitment to protect and improve the environment. "It is now well settled judicial principle that right to pollution
free environment is the fundamental right and human right of a citizen." 1 "The Supreme Court in its judicial
pronouncements held that the "precautionary principle" and "polluter pay principle" is law of land. 2"

Before the 42nd Amendment, the word 'environment' was not mentioned in the Indian Constitution. By this
Amendment, Article 48-A was added in the directive principles of state policy and by Article 51-A, a new provision
was inserted in the form of fundamental duty. According to Article 48-A "the State shall Endeavour to protect and
improve the environment and to safeguard the forests and wildlife of the country".

As per the sub-clause (g) of Art. 51-A, "It shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife and to have compassion for living creatures".

In Rural Litigation and Entitlement Kendra v. State of UP 3, the Hon'ble Supreme Court observed that protection of
environment is not only a duty of the state under Article 48-A, but the citizens of India are also duty bound to
protect the environment under Article 51-A (g) of the Constitution. Originally fundamental duty incorporated in the
Constitution was not directly enforceable. However, with the passage of time and through judicial activism,
necessary stimulus was provided to achieve the objective behind the incorporation of fundamental duty in the
Constitution for the protection of environment. In L. K. Koolwal v. State of Rajasthan and Ors 4, the court explained
the ambit of Article 51-A. It is true that it is the duty of the citizen to protect the environment under Article 51-A (g)
of the Constitution but this Article also creates a right in the favour of the citizen to move to the court for the
enforcement of the Article 51-A(g).

In M.C.Mehta v. State of Orissa5 , court observed that there cannot be any right without the duty. So if there is
insanitation in the environment it will severely affect the life of citizens and hence it is the violation of fundamental
rights of citizens. Hence, it is the duty of the citizen to see that the rights which are provided to them under the
constitution are fulfilled by the state. In AIIMS Students' Union v. AIIMS and Ors6, Supreme Court observed that even
though fundamental duties are not enforceable by the court of law, it still gives important guidance for the
interpretation of constitutional provisions for the protection of environment. Court also emphasised that
fundamental duties should be given its full meaning as intended by the 42nd constitutional amendment. When the
court is approached to give effect to directive principles of state policy and fundamental rights, it cannot run away
from its responsibility by saying that priorities are a matter of policy.

Part III of the Constitution deals with Fundamental Rights. Herein, Article 21 deals with right to life. This right would
be meaningless if there is no healthy environment for the citizens to live in. In M.C. Mehta v. Union of India7 the
Supreme Court held that the right to live in pollution- free environment is a part of fundamental right to life under
Article-21 of the Constitution. In Subhash Kumar v. State of Bihar8, Hon'ble Supreme court held that right to life
under Article 21 includes the right to enjoyment of pollution free water and air. In P.A. Jacob v. Superintendent of
Police, Kottayam9, the court held that subjecting an unwilling person to disastrous levels of noise pollution would
amount to infringement of fundamental right of an individual under Article 21 of the Constitution of India.

Remedies available under common law vis-à-vis Environmental Protection

a) Nuisance

Nuisance is related to unlawful interference with one's enjoyment of land or any right arising from it, thereto. It may
be categorized into Public Nuisance or Private Nuisance. As the name suggests, public nuisance deals with
interference with a right pertaining to public. Whereas, private nuisance is interference with right which is exercised
exclusively by a private entity or an individual. There are a few remedies available vis-à-vis public nuisance in
Criminal Procedure Code, 1973. Section 91 of the Criminal Procedure Code, 1973 prescribes that a suit may be filed
to obtain a suitable relief or injunction for any cause of action affecting or likely to affect public nuisance. Also, in
Criminal Procedure Code, a magistrate is empowered to restrain any person from carrying out an act that may give
effect to public nuisance.10 In Ramlal v. Mustafabad Oil and Oil Ginning Factory 11, the Punjab and Haryana Court

10
observed that once a noise is found to be above the necessary threshold to attract the liability of public nuisance, it
is no valid defense to contend that such noise arose out of any legal activity. Apart from this, public nuisance has
been made punishable under the Indian Penal Code, 1860. 12

b) Negligence

It is a point to note that in order to bring a successful action vis-à-vis negligence, it is necessary to establish a direct
nexus between negligence and the damage caused. The other ingredient that constitutes negligence is that the
respondent did not take sufficient care to avoid public nuisance that the person was required to take such care
under the law. In Naresh Dutt Tyagi v. State of Uttar Pradesh 13, fumes released from the pesticides leaked to a
nearby property through ventilators that resulted in the death of three children and foetus in a pregnant woman. It
was held by the court that it was a clear-cut case of negligence.

c) Trespass

It is an unlawful interference with another's possession of property. The primary ingredient to establish a case of
trespass is that there should be an intentional invasion of another's physical possession of property. Thus, two
primary ingredients to establish a case of trespass are:

i.) There should be intentional interference

ii.) Such interference should be direct in nature

d) Strict Liability

The concept of strict liability started from the case of Rylands v. Fletcher14, "the person who, for his own purposes,
brings on his land and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his own
peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its
escape"15. The exceptions to the rule of strict liability are as follows:

i.) Act of God

ii.) Act committed by a third party

iii.) Any fault committed by plaintiff himself

iv.) An act committed after obtaining expressed or implied consent of the plaintiff

v.) Natural use of land by the defendant

The locus classicus vis-à-vis strict liability in Indian setting is M C Mehta v. Union of India16, popularly known as Oleum
Gas Leak Case. In this case, the Hon'ble Supreme Court observed that if a hazardous or inherently dangerous activity
is being carried out in any premises and in case of a release of such toxic substance any damage is caused, such
enterprise is strictly and absolutely liable for all the damages arising thereto, and any of the exceptions listed out
above are not applicable as a defense in a case of strict liability. In addition to this, the court also held in the Union
Carbide Corporation v. Union of India 17 that the compensation has to be directly proportional to magnitude and
capacity of the enterprise because such compensation needs to have a deterrent effect.

Penal Provision vis-à-vis Environmental Protection

There are specific penal provisions in various legislations for the protection of environment. Chapter XIV of the
Indian Penal Code (hereinafter referred as IPC), containing section 268 to 294-A, deals with offences relating to
public health, safety etc. The main object of these provisions is to protect the public health, safety and convenience
by rendering those act\s punishable which make the environment polluted and dangerous to the life of an individual.

Section 268 of the Indian Penal Code, 1860, defines the term public nuisance and section 290 of the IPC makes public
nuisance punishable. Thus, under these provisions if any act or omission causing injury to any person by polluting the
environment takes place, the same can be subjected to prosecution. Noise pollution is also punishable under Section
268 of IPC. In K Ramkrishnan v. State of Kerala.18, the court held that smoking in public place comes under the
11
category of public nuisance. It is punishable under section 290 of Indian Penal Code. Also, in Murli S. Deora v. Union
of India19, the Supreme Court held that under Article 21, smoking in public place is a violation of fundamental right of
those who don't smoke.

Sections 269 to 271 deal with negligent acts which are likely to spread infection of diseases dangerous to the life of
people. These acts are punishable under sections 269 to 271. The punishment provided u/s 269 and 271 is
imprisonment up to six months or fine or both. Section 277 can be used for preventing the water pollution. Under
section 277 punishment of imprisonment is up to three months or a fine up to 500 Rupees or both. Apart from
these, under section 426, 430, 431 and 432 of IPC, pollution caused by mischief is also punishable.

There are two primary legislations that enlist penal provisions for violation of the law propounded in those
legislations. They are The Water (Prevention and Control of Pollution) Act, 1974, and Environment (Protection) Act,
1986. According to Section 47 of The Water Pollution Act, a person is vicariously liable for the offence committed by
the company if such person is in charge of the functions committed by the company or for conduct of business of the
company. This is indispensible ingredient to constitute a case under S. 47 of the Act. However, the defense available
under this section is that the offence in question must have been committed without knowledge or consent of the
accused in question.

"It also needs to be noted that Section 16 of Environment Act and Section 47 of The Water Act are parimateria to
each other. Herein, it is paramount that the complaint contains specific averments against the accused. It is not out
of place to mention that the provisions of Section 16 of the Environment (Protection) Act 1986 are parimateria to the
Section 141 of the Negotiable Instrument Act as well as Section 25 of the Contract Labour (Regulation and Abolition)
Act, 1970, and Section 278 B of the Income Tax Act. The Hon'ble Supreme Court while dealing with the cases under
Negotiable Instruments Act in National Small Industries Corporation Ltd. vs Harmeet Singh Pental and another
reported in 2010 (3) S.C.C. 330 has held that it is mandatory for the complainant to make averments in the complaint
petition that the accused is directly in charge and was responsible to the company for the conduct of the business of
the company. The Hon'ble Supreme Court said that if the said necessary ingredient is missing in the complaint
petition, then in that case, prosecution launched against the accused cannot be sustained." 20

Conclusion

It has been observed that there are more than enough legislations that try to deal with the menace of environment
degradation. The massive amount of legislation has led to a situation of confusion and difficulty in enforcement. To
deal with the same, there is a need for a strong integrated legislation that can provide a much clearer and integrated
approach which can provide the necessary protection to environment. Also, the pollution boards have been given
the powers to launch prosecution before the court of law to bring the violators to book as far as environmental
degradation is concerned. The idea of giving quasijudicial powers to these boards can be considered so they can
impose penalty upon those who violate the law and also reduce the burden on the already overburdened courts.

12
Role of Indian judiciary in protection of the environment
Introduction

Man became more materialistic as civilization progressed. His primary purpose in life was to amass increasing
amounts of material wealth. This sparked scientific innovation and new technology, paving the door for natural
resource exploitation. The deterioration of the environment became a possible threat because of rapid and
unregulated industrialization. Large-scale pollution and damage to the earth’s ecology occurred as a result of the
Second World War and the industrial disaster. People began to realize that if this persisted, man’s very life would be
risked.

Environmental contamination has long been a problem in India. As a result, Articles 47, 48, and 48A were already
included in the Constitution by the framers. The state is entrusted with a set of responsibilities under these articles
to protect the environment and conserve the country’s natural resources. The Parliament added Article 51(1)(g) into
the constitution since India was a signatory to the Stockholm Declaration of 1972. Individuals have a responsibility to
maintain and improve the natural environment, including forests, lakes, rivers, and wildlife, as well as to have
compassion for living creatures, according to this article. Apart from that, the Parliament passed numerous anti-
pollution laws, such as the Environmental (Protection) Act 1986, The Water (Prevention and Control of Pollution) Act
1974, The Air (Prevention and Control of Pollution Act 1981, The Hazardous Wastes (Management and Handling) Act
1972, The Biological Diversity Act 2002, etc. to protect the Environment.

The Supreme Court of India is a well-respected institution; in general, the public views the Supreme Court of India
favorably compared to the state’s legislative and executive branches. The Supreme Court has successfully dealt with
a complex, multifaceted, and rapidly increasing and changing field of technology and multi-disciplines. Judicial
activism has resulted in numerous developments and has provided the valuable raw material for the development of
a comprehensive Indian environmental law. Thus, in the sphere of environmental justice administration, the
Supreme Court of India has stood tallest not only before the legislature and executive but also before its
counterparts in developed and developing countries, whether old or young.

The Indian Constitution ensures that the judiciary is free from the influence of the legislature and the executive
branch of government, making it less vulnerable to pressure from both organs of government.

The remaining part of the paper is split into five sections. The following part delves into the existing literature on
Sustainable Development. Part 3: the Indian judiciary’s crucial role in interpreting laws to suit the sustainable
development doctrine, followed by a court verdict pertaining to Environment protection in Part 4. The conclusion
and Suggestions are presented in the final section.

The Supreme Court of India has adopted the sustainable development principles

Sustainable development is not a new notion; many societies throughout history have recognized the importance of
achieving a balance between the environment, society, and economics. The articulation of this concept of global
industrial and information society in the twenty-first century is novel. Sustainable development means many things
to different individuals, but according to the Brundtland Report.

“Sustainable Development is a development that meets the needs of the present without compromising the ability
of future generations to meet their own needs.”

Sustainable development focuses on raising the living standards of all people on the planet without risking the
environment’s ability to supply them indefinitely; it necessitates an understanding that actions have consequences,
and we must find innovative ways to change institutional structures and individual behavior, in other words, it’s
about taking action, changing policy, and practice at all levels.

13
The Supreme Court of India has stated that the United Nations Conference on Human Environment raised
environmental consciousness. The idea of “sustainable development” was also established for the first time at the
Stockholm Conference in 1972, and it is now recognized as a part of Customary International Law

The Supreme Court of India recognizes the following principles of sustainable development, which can be defined as
a programme or strategy for sustained economic and social progress without compromising the environment and
natural resources on which continued activity and development are dependent.

1. Inter-general equity consists of: – “Right development must be accomplished so that equality meets
developmental and environmental demands to current generations,” says Principle 3 of the Rio de Janeiro
Declaration. In the case of Bombay Dyeing & Mfg. Co. Ltd. vs. Bombay Environmental Action Group, the
Supreme Court of India supported this approach. The principle’s major goal is to ensure that the current
generation does not misuse nonrenewable resources in order to deprive future generations of their benefits.

2. The Precautionary Principle is as follows: – “In order to conserve the environment, the precautionary
approach shall be extensively adopted by States according to their capacities,” says Principle 15 of the Rio de
Janeiro Declaration. “Lack of full scientific certainty shall not be used as an excuse to postpone cost-effective
steps to avoid environmental degradation where there is a threat of catastrophic or permanent damage.”
The Indian Supreme Court embraced this approach in a modified version, explaining that it has resulted in
the principle of burden of proof in environmental matters, where those seeking to change the status quo
bear the burden of proof as to the absence of detrimental effects of the proposed acts.

3. Principle 16 of the Rio Declaration: states that “national authorities should endeavor to promote the
internationalization of environmental costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of pollution, with due regard for the public
interest and without distorting international trade and investment.” It is obvious from the preceding note
that the goal of the above concept is to hold polluters responsible not just for compensating victims, but also
for the costs of rehabilitating the ecosystem.

The Indian judiciary’s crucial role in interpreting laws to suit the sustainable development doctrine

The Indian Supreme Court and High Courts have played a significant role in upholding the Sustainable Development
Doctrine. Various laws have been enacted in India to avoid environmental deterioration. In this case, the higher
court has played a critical role in interpreting those statutes in accordance with the Sustainable Development
Doctrine.

The Indian judiciary has played a vital role in promoting sustainable development and fostering public and private
industry while minimising the risk of irreversible damage to the natural environment, which is necessary to maintain
the planet’s and India’s healthy flora and fauna. It should be mentioned that all lawsuits involving environmental
issues have been brought before the court through Public Interest Litigation (PIL) under Article 32 or Article 226 of
the Indian Constitution.

The Supreme Court of India has made a tremendous contribution to environmental and ecological protection, as well
as the protection of forest wildlife, among other things. Despite the court’s limited jurisdiction, it has played an
important role in this regard. True, we have enough environmental regulations, but their execution is in the hands of
administrative authorities, and in this regard, excellent governance devoid of corruption is the most important
requirement for environmental protection.

Court verdicts pertaining to the environmental protection

This should be noted that the Indian judiciary has taken a leading role in environmental protection and sustainable
development in India. The judiciary’s commitment to social good in general, and environmental protection in
particular, has resulted in the innovative use of “public interest litigation” under Articles 32 and 226 of the Indian
Constitution as a tool for social and environmental justice.

14
The right to a healthy environment has been incorporated directly and indirectly into Indian top court judgments,
with the first link between environmental quality and the right to life being established in the case of Charan Lal
Sahu Etc. vs. Union of India and Others, also known as the Bhopal Case.

In Subhash Kumar vs. the State of Bihar, the Supreme Court of India construed Article 21 of the Indian Constitution
to hold that the right to life includes the right to a healthy environment, which includes the right to pollution-free
water and air for full enjoyment of life. The Supreme Court has recognized the right to a healthy environment as a
basic right in this judgment.

The Supreme Court introduced the new concept of “absolute liability” for disasters arising from the storage or use of
hazardous materials from their factories in M.C. Mehta vs. Union of India & others, also known as the Oleum Gas
Leak case. The enterprise must ensure that no harm has been caused whether negligence occurred or not.

The Supreme Court of India held in Vellore Citizen Welfare Forum vs. Union of India while businesses are important
for a country’s development, the doctrine of sustainable development must be adopted by them as a balancing
concept, and the ‘precautionary principle’ and the ‘polluter pays principle’ must also be accepted as part of the law.

The Supreme Court stated in M. C. Mehta vs. Kamal Nath that “any disruption of the basic environment elements,
namely air, water, and soul, which are necessary for existence, would be hazardous to life.” As a result, a court
exercising jurisdiction under Article 32 can award not only damages but also fines for environmental degradation.

The Gujarat High Court stated in Abhilash Textiles vs. Rajkot Municipal Corpn. that “the petitioners cannot be
allowed to harvest profit at the expense of the public health.”

Conclusion 

The environment and development are two sides of the same coin, and none can be sacrificed for the sake of the
other. Both, on the other hand, are equally important for our better future. In this situation, it is up to the Supreme
Court and the High Courts to handle these matters with extreme caution; only then will we be able to fulfill our goal
of ensuring a pollution-free developed country for our next generation.

Another issue that needs to be addressed is the location of the industry. In this regard, it is recommended that,
when an industry is hazardous, it is not to be in a location where many people live or near a colony, considering the
happiness and health of the inhabitant. It pertains to the provisions of Directives Principles of State Policy Articles
48A and 51A (g).

We always kept in mind Resource management, which is another major issue that focuses on the idea of
“sustainable development,” which emphasizes that the right to development should not have an adverse impact on
the potentiality of natural resources.

Public Interest Litigation (PIL) under Articles 32 and 226 of the Indian Constitution has also played an essential part in
protecting the environment, as most of the Supreme Court’s environmental cases are the outcome of this Public
Interest Litigation.

The World Commission on Environment and Development observes, “What is required is a new approach in which
all nations aim at a type of development that integrates production with resource conservation and enhancement,
and that links both to the provision for all of an adequate livelihood base and equitable access to resources.”

These industries or businesses/trades are sometimes found to be carried on in a way that endangers vegetation
cover, animals, aquatic life, and human health, but we now know that any trade or business that is harmful to flora
and fauna or human beings cannot be carried on in the name of the fundamental right. In this light, we can only
hope that the judiciary would play an essential role in protecting the environment and assisting India’s industrial
development by adopting a sustainable development policy.

Judicial Activism in environment legislation in India

15
The Indian judiciary always wanted to exercise its power whenever the other two organs of the government i.e.
legislative and executive fails to discharge their functions. This inquisitiveness of the judiciary with overpowering
over other organs and to be in action when the other two can't properly work is termed as judicial activism.

This concept came in India in nearly 1980's which was borrowed from US constitution and this concept's scope and
use rapidly started increasing when article 21 of the Indian Constitution included right to clean and healthy
environment as part of our fundamental right. The most significant reason for introduction of judicial activism in
environment legislation is the relaxation of rule of locus standi as of which people were provided with a chance to
move to the court under Article 32 and 226 of the Constitution of India.

This research paper focuses on elaborating the contribution of judiciary in formation of environment laws through
various principles and doctrines of environmental importance by way of environment litigations and judicial
pronouncements. The scope of study is limited to Indian environment laws only.

Introduction
The first international conference which took place for preservation and protection of environment was the UN
Conference on Human Environment (commonly known as Stockholm Conference), 1972[i] which led to the
enactment of 42nd Constitutional Amendment, 1976[ii] in India i.e. certain environmental duties were imposed both
on the part of the citizens [Article 51A (g)] as well as on the state (Article 48-A)[iii].

The journey from Stockholm Conference to Earth Summit at Rio de Janeiro (Rio+20) held in June 2012 [iv] led to the
recognition that:
all human beings are entitled to a healthy and productive life in harmony and it was considered that protection of
environment is not just another issue which could be left behind. Due to liberalisation, globalisation and privatization
environmental degradation started rapidly increasing which resulted in harming human life existence.

So now, it has become a necessity and a part of legal and moral duty of every citizen to protect and improve the
environment condition. Therefore, the judiciary came forward to protect and preserve the environment by not only
developing a mandate on individuals, but also on organisations, body corporate or industrial houses.

The role of judiciary depends on the very nature of political system a country has, which is why their role varies in
different forms of government and have results distinctively. The judiciary plays a significant role in a country like
India which exercises liberal democracy. Various onlookers including Professor S.P. Sathe and Upendra Baxi were of
the view that Indian Supreme Court is one of the strongest courts among the world[v].

The character of the Supreme Court can be rightly observed by the writings of Professor S.P. Sathe and Upendra Baxi
as they have were in favour of judicial activism in India and Prof. Upendra Baxi quoted that Supreme Court of India
has become Supreme Court for Indians [vi] which could be observed from various judicial pronouncements.

So, it can be said that judiciary has played a very important role in expansion of scope of environment protection in
India by the manner of interpretation of Constitutional provisions.

What is Judicial Activism?

Judicial Activism is a concept that was originated in US in 1947. It can be defined as a philosophy of judicial decision
making where by judges allow their personal views regarding a public policy instead of constitutionalism. This
concept mainly deals with the involvement of Judiciary in making legislations that deems fit for the society. As
through development of various legislations as well as our legal system it is clearly evident that with the involvement
of judiciary, the legislation are coming more effectively.

So, this active role of judiciary in preserving the rights of citizens as well as preserving the constitutional and legal
system of the country is known as judicial activism. The engagement of judiciary have led to arrival of more
16
prominent environment legislation in India as with the introduction of this concept in our country environment
issues were given proper regard which led to the inclusion of right to clean and healthy environment as a part of our
fundamental right which is guaranteed by the constitution.

Role of Judiciary in formation of Environment Legislation

The role of judiciary in formulation of environment legislation in India can be clearly understood by landmark cases
which have given a new face to environmental laws, because of these leading cases only, today we are having
various number of doctrines and principles present for protection and preservation of environment and to achieve
sustainable development goals.

1. Municipal Council, Ratlam Vs. Shri Vardichand and Ors.,1980 [vii]

Until this case, there was not very much involvement of judiciary in formation of environment legislation or its
protection, so this case can be considered as the initial stage of the formation of more protective environment laws.
The facts of the case was thatRatlam is a city in Madhya Pradesh in India where some of the residents of the
municipality filed a complaint regarding the improper drainage facility before the Sub-Divisional Magistrate under
Section 133 of Criminal Procedure Code, 1973.

The Sub-divisional Magistrate directed the municipality to draft a plan within six months to eradicate this problem
faced by the people. Later on, this case was moved to the High Court by the municipality seeking that they have
shortage of funds in preparing proper drainage facility but the High Court approved the decision of Sub-Divisional
magistrate so the municipality later moved to Supreme court through an appeal but the superior court also ruled
against the municipality and said that shortage of funds is not an excuse against their duty towards the public.

As this was a public health issue so the ruling was based on the interests of society preserving their social interest
which was inferred from the preamble and Article 38 of the Constitution of India, 1950. So, the municipality was
ordered to take immediate action within six months regarding sanitization and contamination and pollution of
streets.

2. Rural Litigation and Entitlement Kendra Vs. State of Uttar Pradesh and Ors., 1985 [viii] (Dehradun Valley's
Case)

During 1955 to 1965 there was sudden increase in limestone mining operation in Doon valley a part of Mussoorie hill
range of Himalayas) because of which various lease were granted in 1962. But later on due to increase in mining
certain negative effects came forward like deforestation, decline in food production, loss of agricultural land, loss of
irrigation facilities, etc. which were clearly disturbing the ecological balance of the society at a very large scale. This
mining also forced the local people to shift their employment resources from agricultural to non-agricultural sector
as mining was destroying the fertility of land and was degrading the water level and its quality too.

So, on 11.8.1983, the Supreme Court made an expert committee to inspect the mines except those which either
belong to State of Uttar Pradesh and Union of India regarding the safety standards laid down under Mines
Act,1952[ix] and all the rules laid down regarding it. Later on when the report came forward, the Supreme Court
directed the closure of certain mines and asked certain mine owners to abide by the rules and make changes
regarding it, under Article 32 of the Constitution of India, 1950 as these mines were violating the fundamental right
of the people guaranteed under Article 21 of the Constitution.

The Court also asked the Uttar Pradesh Government to reallocate these mines and also asked for providing
employment to the people who got unemployed by the closure of certain mines. This judgement is considered as a
historic one as the court took step regarding the protection and preservation of environment, keeping in view about
employment opportunities too so that everything could be taken care off.

3. Union Carbide Corporation Vs. Union of India [x] (Bhopal Gas Tragedy)

17
On December 3, 1984, almost forty tons of Methyl Isocyanate (MIC), a toxic gasmixed with water creating an
exothermic reaction leaked from Union Carbide India Limited (UCIL) plant and spread in Bhopal, a city in Madhya
Pradesh in India. This gas leakage effects were so hazardous that thousands of people were killed on the spot and
various were effected through this at large and many generation faced the hard consequences of it as children's use
to get born with certain disorders like visual impairment etc. and this all was caused due to the negligence of the
company. Despite repetitive complaints regarding the safety measures of the pesticide plant by the agronomic
engineer of the plant, UCIL ignoring all these complaints kept on producing dangerous & hazardous chemicals in the
plant.

On June 7, 2010, the court applied the absolute liability principle, relying upon which seven ex-employees including
the former chairman of UCIL were convicted by the court of causing death by negligence under Section 304-A of IPC
and were also charged under Section 35, 336, 337, 338 of IPC, 1860, by which all were sentenced to two years of
imprisonment. In addition to it,fine was also imposed on the company. Later on, the Government of India passed the
Bhopal Gas Leak Disaster Act which gave the government a right to represent all victims in or outside India and
applied the polluter pay principle to detect the amount of compensation payable by the company as a result of
which the UCIL had to bay US $470 million in a full and final settlement of civil and criminal liability.

4. M.C. Mehta Vs. Union of India, 1986[xi] (Shriram Fertilizer Case) (Oleum Gas Leak Case)

A writ petition was filed under Article 32 of the Constitution which was made on reference by the bench of three
judges as questions of seminal importance and high constitutional significance was raised in the petition which was
originally heard. The facts of the case was that on December 4th and 6th of 1985, a major leakage of Oleum gas took
place from one of the units of Shriram Food and Fertilizer's Limited, a cloth mill which was producing caustic and
chlorine and was located at Delhi by which various persons were severely affected and some died on the spot. This
leakage took place twice i.e., on 4th and 6th of December, 1985 by which it gave more adverse effect to the situation
and condition of the city people.

The three bench judges was of the view that we should make more protective laws as per the requirement of the
society regardless of the fact that whether English Courts have made any particular law for any situation or not and
neither we should wait for them to introduce some laws. If there is a need to make any new principle of liability then
we should not waste any time in making it. As the companies which are involved in these hazardous activities need
to take very high safety measures so that damages or loss which takes place because of them could be controlled
and this could be only possible when strict laws will be applicable to them.

These type of activities needs proper care and as these activities are frequently happening, the environment
condition is deteriorating at a very high pace so, there is an urgent need for the applicability of new and strict laws
by which the environment can be protected as well as the company can realise their duties and responsibilities
towards the society. So the court herein referred to the absolute liability principle which was needed to be adopted
seeing the present scenario of the incidents and through which companies can be held completely liable for their
negligent act and it was also mentioned by the court that this concept would not include any exception to it as the
essence of this new principle of liability will be washed away.

By adding this concept, the company will be notified during their establishment only that if they are carrying on or
are involved in any activity or production which is hazardous to human health then they will be solely and
completely liable for any harm caused by it regardless of the fact that they took any precautionary measures or not
i.e., they cannot escape on the ground that they took all the precautionary measures that was needed to be taken so
they can't be held liable for the loss and it was also being held by the court that it shall be presumed that if any
industry is involved in such hazardous activity and any accident or loss occurs because of them whether it be a
negligent act or not on the part of the industry, they will be held absolutely and strictly liable for the harm caused
and would be liable to pay damages caused by it. This rule or new principle of liability will be subjected to no
exceptions like the rule in Rylands vs. Fletcher[xii].

18
So, the court in this case held that Shriram Food and Fertilizer's limited are liable to pay Rs. 20 lakhs as compensation
to the victims and they were also asked to write in an undertaking that if these types of accidents happen in future
again then they will pay compensation in regard to the harm caused and in addition to it a bank guarantee of Rs.
15lakhs to be made which would be used if this kind of tragedy happens in the next three years.

5. M.C. Mehta Vs. Union of India (Ganga Pollution Case) [xiii] [xiv]

There was a petition filed under writ of mandamus against the respondents (leather tanneries) as they were
discharging and deposing the chemicals of industries without being properly treated to holy river ganga and also the
sewage was being discharged there which was harming the river ganga and was also causing water pollution. This
was being continued for very long and still people were not taking charge neither were they doing anything to stop
this. So, the Supreme Court bifurcated this writ petition into two: Mehta I[xv] and Mehta II[xvi].

In Mehta I[xvii] case, the Supreme Court ordered under ORDER 1 RULE 8 OF CPC, 1908, that there should be no
discharge of any chemicals or and liquid substance of the industries or sewage without being properly treated. The
court also highlighted important constitutional provisions that are made for protecting the environment as well as
the importance of Water (Prevention and Control of Pollution) Act, 1974 which is made for controlling water
pollution.

The court talked about the term trade effluent' ,it is a substance which can be in any form whether solid, liquid or in
gaseous state, discharged from industries, which was basically the root cause of the water pollution being caused.
So, in this case the court ordered the industries to establish at least primary treatment plant as a necessity for
continuation of any particular industry, if secondary treatment plant is not affordable to the industry and ordered to
make a Ganga Action plan for preserving the holiness of river Ganga and making it pollution free.

While the Mehta II[xviii] case dealt with petition against municipal body i.e., Kanpur Nagar Mahapalika. The court
looked into the matter that Kanpur Nagar Mahapalika is established under UP Nagar Mahapalika Adhiniyam, 1959
whose function is to maintain cleanliness in the areas that are under their jurisdiction and the court also looked upon
the objective of water act[xix] which was to curb water pollution and referred to certain sections of it.

The court relied on the common law principle that injunction orders can be applied to Municipal Corporation only
when a riparian owner brings a suit against them as he will be adversely affected by the water pollution caused by
the industries. The court came up with the view that regardless of M.C. Mehta not being a riparian owner he can also
file a suit against the nuisance caused by the industries on behalf of the people who are being affected by the
pollution caused in the river Ganga. So the court ordered the Kanpur Nagar Mahapalika to ask those pollution
causing industries to either stop functioning or to move their waste to an area outside the city and it was further
stated by the court that from now on if any industry applies for license then that particular industry must possess
adequate provisions needed for the treatment of trade effluents flowing out of the factories.

6. M.C. Mehta Vs. Union of India (Delhi Stone Crushing Case), 1992 [xx]

In this case, a petition was filed under Article 32 of the Constitution against the activity like mining, stone crushing
and pulverizing which was degrading the environment condition. The issue was that whether for preservation and
protection of environment and control over pollution, these activity should be stopped within the radius of 5kms or
not from the tourist resorts of Badlal Lake and Surajkund in the State of Haryana.

So, the Supreme Court directed that:

A. No mining activity should be allowed within 2km of the tourist resorts.

B. No construction activity would be allowed within 5km of the tourist resorts.

C. No renewal of leases would be made within the tourist areas.

19
 The Supreme Court basically came up with a view that for protection of environment only air[xxi]
and water act[xxii] implementation is not enough and for better and proper enforcement of law
there should be public awareness programme conducted so that people could be more aware of the
fact that what law is all about and what they need to do to abide by the law and by this the laws can
give more positive effect in the society and environment can be preserved in a more better way as
environment damage affects the public only so they should be more acknowledged in preserving and
protecting the environment.

7. Vellore Citizen Welfare Forum Vs. Union of India [xxiii]

This is a landmark case as principles like polluter pay and precautionary were applied here as well as the concept of
sustainable development was recognized and for the first time Court analyzed the relationship between
environment and development. The facts of the case were that some industries were discharging untreated effluents
in the river Palar which was the main source of drinking and bathing water for the nearby people of Tamil Nadu. It
was not only making water unfit for use but was also deteriorating the land fertility.

So, Vellore Citizen Forum brought an action against these activities and latterly it was found by the Tamil Nadu
Agricultural University Research Centre that nearly 35,000 hectares of land has become unfit for cultivation because
of this.

The court applied the doctrines and declared that industries are liable to pay compensation as they have adversely
affected the environment and certain changes were needed to be made in working of the industries so that this
could not happen again and it was also stated by the court that those industries who do not follow the above
instructions will be permanently closed. The Supreme Court further stated that fine of Rs. 10,000 need to be paid by
all the involved industries in Environment Protection Fund and that amount would be used to cover the harm
incurred to the environment as well as in compensating the affected persons.

The Precautionary Principle

The basic idea behind this principle is that prevention is better than cure. It says that preventive measures should be
taken while carrying out an activity which can lead to environment degradation i.e. we should not wait for the harm
caused. It's better to be take safety precaution beforehand only.

Like if any industry is engaged in any hazardous activity then it should properly perform such activities by taking all
precautionary measure like proper machines, proper drainage systems, and time-to-time check on machines, etc. so
that there could be less chances in environmental damage. This principle has been into picture since the Stockholm
Conference, 1972. The Supreme Court has considered this principle as a part of environmental law of India [xxiv]
[xxv].

8. Indian Council for Enviro-legal ActionVs. Union of India [xxvi] (Polluter Pay Principle)

In this case, a number of unlicensed private chemical companies were creating hazardous wastes in the soil by which
pollution was caused which was affecting the nearby village people in a negative way. So, an NGO named Indian
Council for Environment Legal Action filed a writ petition under Article 32 of the Constitution of India which
compelled the State Pollution Control Board and Central Pollution Control Board to recover costs for the damages
caused by the company.

The Court ruled that:

Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to
make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable
care while carrying on his activity.

So here the industries were held absolutely liable in degrading the environment and were bound to bear all the
consequences thereof. Here, the polluter pay principle was applied which states that the pollution causing agent
20
must not be only asked to compensate for the harm caused to the environment but should also be asked to make
certain arrangements for restoration of environment any by applying this principle fine of Rs 1,00,000 was imposed
upon the industries.

The Polluter Pay Principle

For the first time in this case[xxvii], the polluter pay principle was recognised in India as a part of environmental
law[xxviii]. This principle says that the polluters should not only pay compensation in regard to the harm cause to the
environment but should also bear the cost which would be needed in regard to the restoration of the environment
into its original position. This came up with the idea that why the taxpayers bear the burden of the loss caused by
any particular individual or entity i.e. the polluter must pay for the wrong doing not by the ones who were not
involved in such activities. Section 3 and 5 of the Environment Protection Act, 1986 [xxix] deals with the effectiveness
of this principle.

This principle would be applied without making any distinction on large scale and small scale industries i.e., it would
be applied uniformly on every polluter and the onus or the burden of proof lies on the polluter [xxx]. The central
government is authorised to evaluate the amount of compensation required for any pollution caused. This principle
has broadened the scope of environmental law and helped in preserving and protecting the environment effectively.

9. M.C. Mehta Vs. Union of India and Ors., 1986[xxxi](Taj Trapezium Case)

The TajMahal in Agra is one of the most beautiful monuments on the earth and in 1983, it was also recognized in the
UNESCO World Heritage Site. This monument was made by Mughal emperor Shah Jahan in memory of his dead wife
MumtajMahal. The monument is made of white marble and its beauty attracts the tourist from all over the world.
But, due to increase in pollution this monument started turning yellow and developed certain patches in it which
was deteriorating its beauty. Seeing this an environmentalist and a Supreme Court attorney, M.C. Mehta filed a
petition before the court that this monument need to be preserved.

After which it came into notice that nearby industries were emanating Sulphur Dioxide which when reacted with rain
water gives acid rain by which all the harm was caused to the beauty of TajMahal. So, here the court ordered the
Uttar Pradesh Pollution Control Board to make a list of industries situated in Taj Trapezium Zone (a 10,400 sq. km
trapezium shaped area covering the five districts of Agra region and comprises of 40 protected monuments including
three world heritage site- TajMahal, FatehpurSikri and Agra Fort) so that they can be notified to control their
pollution level as it is important to preserve and protect the beauty of the TajMahal. In this case, the court gave
order on the basis of two principles that are precautionary principle and polluter pay principle as the court presumed
that they are the two key elements or features of sustainable development.

10. M.C. Mehta Vs. Kamal Nath [xxxii] (Public Trust Doctrine)

In this case, the State Government granted lease of riparian forestland to a private company for building a motel at
the bank of River Beas. Next day, a report came into a national newspaper stating that this motel will divert the
natural flow of river Beas, for protecting it through future flood. Seeing this, the Supreme Court took a suo moto
action considering the fact that if national newspaper report is true then then it a serious matter of environment
degradation.

The court applied the public trust doctrine for the first time and stated that certain resources like sea, water air and
forest are for public use and it constitute nation's natural health and it would be unjustified to make this a subject of
private ownership. The state as a trustee in under a legal duty to protect natural resources and resources that are
meant for public use and enjoyment cannot be converted into private ownership. The court also applied the concept
of sustainable development here as resources need to be preserved for upcoming generation and it cannot be
wholly consumed by the present generation and every generation owes a duty to preserve and conserve the natural
resources in the best possible way they can.

21
Applying the above mentioned principle, the court quashed the lease of the Motel Company.

The Public Trust Doctrine

This doctrine says that certain resources like sea, water, air, land, flora, fauna and others which represent the natural
system are of public use and cannot be privately owned by any particular individual and it is duty of everyone to
safeguard them and preserve them for the future generation[xxxiii]. This concept has been developed in India
through various judicial pronouncements.

In M.I. Builders Pvt. Ltd. vs. RadheyShyamSahu [xxxiv], this doctrine was applied and the construction of shopping
complex was stopped as it was made in the place of public garden which was a public resource.

Conclusion
Environment and development go hand in hand with each other i.e. for development of the country environment
conditions need to be good and vice-versa. The public health and environment related topics can be not left aside as
they are key part to the country's growth and development. The environment provides and fulfills our every basic
necessity of life and without healthy environment, human existence is not possible. But with the development we
are lacking behind in saving our environment although there are various measures taken by the government and
various conventions held so far, but for preserving and protecting the environment human co-operation is must as
they share a very close connection between them.

The judiciary has played a very important role in formulation of various principles and doctrines and development of
environmental legislation especially by including right to clean and healthy environment as a part of our
fundamental right under Article 21 of the Constitution. But still for better environment condition public awareness
programmes need to be conducted so that people can be aware of their right and duties and environment can be
preserved in a more better way.

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Environment (Protection) Act, 1986
Introduction 

In wake of the Stockholm Conference held in 1972 that advocated environmental protection at the international
level and was one of the most devastating incidents of all time, the Bhopal Gas Tragedy of 1984 highlighted an
urgent need for a comprehensive law with respect to environmental protection, domestically, the need for
Environment (Protection) Act, 1986 was felt. The preamble of the Act states the objective of the Act to be the
protection and improvement of the environment. It seeks to protect human beings, other living creatures, plants,
and property from environmental hazards. It extends to the whole of India and aims to prevent, control, and abate
environmental pollution. Even though we had the Water Act, 1974, the Air Act, 1981, and the Indian Forest Policy,
1988, there was a pressing need for general legislation with stringent penal provisions in order to safeguard the
environmental rights.  

Background of the Environment Protection Act

The concern for the environment in India is nothing new. From ancient times we have believed in ‘Vasudhaiva
Kutumbakam’, i.e. the entire world is one family. Indians have believed that all the creatures on the Earth are a
family, including all the plants, animals, and microorganisms.

Our present-day Constitution also provides testimony to our old principles. Some of them are as follows:

1. By the 42nd Amendment Act, Article 48A was added as a part of the Directive Principles of State Policy which
stated that it was the state’s responsibility to make efforts in order to “protect and improve the
environment, and to safeguard the forests and wildlife of the country.”

2. Article 51A(g) declares that it is the fundamental duty of each and every citizen of the country to “protect
and improve the natural environment including the forests, lakes, rivers, and wildlife and to have compassion
for living creatures.”

3. Our judiciary has outlined in a number of judgments that Article 21, which guarantees the right to life and
dignity, also encompasses the right to live in a healthy and safe environment. In the case of Subhash Kumar
v. the State of Bihar, it was observed that the right to get pollution-free water and air is a fundamental right
under Article 21. 

4. Article 253 of the Indian Constitution empowers the Parliament to bring any legislation to give effect to any
international treaty, agreement, convention, or decision taken at a conference. It was with the help of Article
253 that the Indian Parliament enacted the Environment (Protection) Act, 1986 to give effect to the
decisions taken at the UN Conference on the Human Environment held in Stockholm in 1972. 

Stockholm Conference, 1972 

The United Nations Conference on Environment, in Stockholm was the first Conference held at the world level that
took the environment as a serious international concern. It led to the formulation of the Stockholm Declaration and
Action Plan for the Human Environment and other numerous resolutions that aimed at sound management of the
environment. The Declaration basically consisted of 26 principles that mainly aimed at facilitating dialogue between
industrialized and developing nations on the matters of economic growth, air and water pollution, and the overall
well-being of the people across the globe. One of the most impactful results of this conference was the formulation
of the United Nations Environment Programme. India also participated in the conference and vociferously raised its
concern for the environment. In order to implement the decisions adopted at this conference, the Indian Parliament
exercised its powers under Article 253 to enact the Environment (Protection) Act, 1986. 

Objectives of the Environment Protection Act

The following are the main objectives behind bringing this legislation:

23
 1. To implement the significant decisions taken, relating to environment safety and protection, at the United
Nations Conference on the Human Environment held in Stockholm in June 1972.

2. India already had some legislation related to different aspects of the environment but there was a need for
comprehensive legislation that filled the gaps in the existing laws. Thus, it was enacted to bring general
legislation in environment protection and cover other major areas of environmental hazards that were
previously uncovered.

3. To create new authorities for the purpose of protecting and improving the environment and also to
coordinate the activities of already existing authorities constituted under previous laws.

4. To provide for stringent and deterrent punishment to the offenders of the natural environment who
endanger its safety and health.

5. To facilitate the growth of subordinate and delegated legislation on ecologically sensitive topics and
environment protection.

6. To promote sustainable development, i.e. balance the overall development with environmental protection.

Need for the Environment Protection Act in India 

The need for stringent legislation for environment protection was felt in India because of the following reasons:

1. The first was the Stockholm Conference which highlighted internationally, the impact human activities were
having on the environment. Development and the environment were at crossroads with each other and the
conference brought into focus the urgency of their reconciliation for the benefit of humanity and the planet
as a whole. 

2. The second was the Bhopal Gas Tragedy. It was about the leak of Oleum gas from an industry that proved to
be fatal for the people around and the environment. This incident underlined the importance of regulating
the industries so that they do not get away easily from the punishment of causing harm to the environment. 

3. Also, the need was felt because India had some laws for protecting the environment like the Air Act and
Water Act but there was no comprehensive law that connected them and coordinated their activities and
functions.

Why is Environment Protection Act called an ‘Umbrella Act’

The Environment Protection Act is called an ‘Umbrella Act’ because of the following reasons:

1. It establishes the basic framework for planning and executing large-scale strategies to protect and improve
the overall environment, rather than focusing on specific aspects. 

2. It provides for coordination between the Central government, state government, and authorities that are
established under various other legislation related to the environment. 

3. It fills the lacuna created by several other distinct legislation like the Water Act and Air Act. It connects them
together and makes them more effective. 

4. It is broad and comprehensive legislation that covers the definitions, powers, and responsibilities of the
central government towards the environment, and penal provisions as well. 

The concept of Environment Impact Assessment 

Environment Impact Assessment has been defined by the International Association for Impact Assessment as, “the
process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of
development protocols prior to major decisions being taken commitments made.”

Basically, it is a concept that attempts to reconcile anthropogenic developmental activities with environment
protection by assessing the impact of such activities on the environment and addressing them at the planning and
24
design stage of the project itself. Thus, it majorly involves identifying the future implications of a proposed activity
on the environment. It has originated from the concept of the ‘precautionary principle’ which says that a consent
must be obtained from a competent authority before taking up any developmental activity posing a serious or
irreversible threat to the environment. Now, in order to gauge the effect of that activity, EIA plays an instrumental
role. 

The concept of EIA reached India in 1976-77 with the Planning Commission asking the Department of Science and
Technology to assess the river valley projects for their impact on the environment. Subsequently, it was expanded to
include other projects as well. They were subjected to the approval of the Public Investment Board. But these were
mainly administrative decisions and had no statutory backing. But it got support with the coming of the Environment
Protection Act, 1986. After EPA came into force, a notification was issued under the Act which made EIA compulsory
for 30 specified activities. The responsibility for giving a clearance has been given to the Ministry of Environment and
Forest. The Notification was revised in 2006. 

Section 2 of Environment Protection Act

Section 2 of the Act defined various terms used in its provisions. These definitions are as follows:

1. Environment– Environment has been defined to include air, water, and land, and the inter-relationship
among and between air, water, land and human beings, other living creatures, microorganisms, plants and
property.

2. Environment pollutant- A pollutant is any substance in a solid, liquid, or gaseous state, which when present
in a certain concentration can be injurious to the environment. 

3. Environment pollution– The presence of an environmental pollutant in the environment is called

environment pollution. 

4. Handling– Handling, in respect of any substance, is deemed to imply its “manufacture, processing,
treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale or its
transfer.”

5. Hazardous substance– It refers to any substance or preparation which can cause harm to humans, plants,
other living creatures, property, or the environment due to its chemical or physico-chemical properties or
handling. 

6. Occupier- In respect of any factory or premises, it refers to the person who is in control over the affairs of
the factory or premises, and in respect of any substance, it refers to the person who is in possession of that
substance.

Powers and functions of the Central Government 

Section 3- Powers of the Central Government to take measures to protect and improve the environment 

Section 3 empowers the Central Government to take all such measures as it deems necessary or expedient to
protect and improve the quality of the environment, and to prevent, control, and abate environmental pollution.
Some of these measures include:

1. To coordinate actions among state governments, officers, and other authorities.

2. To plan and execute nationwide programs.

3. To lay down standards for the quality of different aspects of the environment. 

4. To lay down the standards for emission or discharge of pollutants.

5. To restrict the operation of certain industries, processes, or operations in specific areas.

25
 6. To lay down procedures and safeguards for the prevention of pollution-causing accidents and take remedial
measures. 

7. To lay down procedures and safeguards for the handling of hazardous substances.

8. To examine the manufacturing processes, materials, and substances that are capable of causing pollution. 

9. To carry out and sponsor investigations and research on the issues related to pollution. 

10. To inspect the premises, plant, equipment, machinery, manufacturing, or other processes, materials, or
substances. 

11. To establish or recognise environmental laboratories and institutes. 

12. To collect and disseminate information on pollution matters. 

13. To prepare codes, manuals, or guides related to the prevention, control, and abatement of environmental
pollution.

14. Such other matters as the government deem necessary or expedient. 

The Central Government is also authorised to constitute such authority/authorities for the purpose of exercising and
performing such powers and functions as the government may delegate to it. 

Section 4- Power to appoint officers 

Section 4 authorizes the Central Government to appoint officers with such designations, powers, and functions as it
thinks fit. The officers appointed shall be under the control and direction of the government or any authority
empowered by it. 

Section 5- Power to give directions

 As per Section 5, the Central Government has got the power to issue directions in writing to any person, officer, or
any authority, which shall be binding on such person, officer, or authority. 

These directions could be related to matters as follows:

1. To close, prohibit, or regulate any industry, operation, or process; or 

2. To stop or regulate the supply of electricity, water, or any other service. 

Section 6- Power to lay down rules to regulate  environmental pollution 

The Central Government has also been authorised to frame rules on the matters mentioned in Section 3 of this Act.
Some of these matters include:

1. The standards of quality of air, water, or soil.

2. The maximum allowable limits of environmental pollutants (including noise).

3. The procedures and safeguards for the handling of hazardous substances.

4. The prohibition and restrictions on the handling of hazardous substances.

5. The prohibition and restrictions on the location of industries, operations, and processes.

6. The procedures and safeguards for the prevention of accidents likely to cause pollution and provide for
remedial measures for such accidents. 

Section 10- Power of entry and inspection 

Under this Section, any person authorised by the Central Government has the right to enter any place, at reasonable
times with some assistance for the following purposes:
26
 1. To perform any function entrusted by the Government,

2. To determine whether and how such functions are to be performed, or whether the provisions of this Act,
rules made under any notice, order, direction, or authorisation granted has been complied with,

3. To examine and test any equipment, industrial plant, record, register, document, or any other material
object.

4. To conduct a search in my building where there is reason to believe that an offence under the Act has been
committed. 

5. To seize any such equipment, industrial plant, record, register, document, or other material objects if there
is reason to believe that it would serve as evidence for the offence committed or that the seizure is
necessary to mitigate the pollution. 

Also, any person carrying on such industry, process, or operation which involves handling of hazardous substances
must render all the assistance required to the person empowered by the Central Government for inspection. Failure
to provide the assistance without any reasonable cause, or wilfully delays or obstructs that person shall be guilty of
an offence under this Act. Also, for such search and seizure, provisions of the Code of Criminal Procedure, 1973 or
any corresponding law in force shall be applicable. 

Section 11- Power to take sample and procedure to be followed

Section 11 empowers the State Government or any officer authorised by it to take the samples of air, water, soil, or
other substances from the premises of any factory. 

The procedure prescribed for sample taking is as follows:

1. The person taking the sample must serve a notice of his intention to take the sample to the person in charge
of the place. 

2. The sample must be taken in the presence of the person in charge or his agent. 

3. The sample must be placed in a container or containers, which shall be marked and sealed. Thereafter, it
shall be signed by both the person taking the sample and the person in charge or his agent. 

4. The container then must be sent to the laboratory established under Section 12. 

5. In case the person in charge or his agent wilfully absents himself or refuses to sign the containers, the
containers must be sealed, marked, and signed by the person taking the sample and must be sent to the
laboratory. The government analyst must be informed in writing about the wilful absence or refusal to sign. 

Any analysis taken without following the procedure prescribed would not be admissible as valid evidence in any legal
proceedings. 

Section 20- Power to ask for information, reports, or returns  

For the purpose of performing its functions under the Act, the Central Government has the power to ask for any
reports,  returns, statistics, accounts, and other information from any person, officer, state government, or any
authority, which shall be bound to do so. 

Section 23- Power to delegate 

The Central Government is also authorised to delegate its powers under the Act, except the power to appoint
authorities under Section 3(3) and to make rules under Section 25, to any officer, state government, or other
authority. However, such delegation shall be subject to the requisite limitations and conditions, as may be specified
in the notification in the Official Gazette. 

Section 25- Power to make rules  

27
To carry out the purposes of this Act, the central government may frame rules on the following matters:

1. The standards of environmental pollutants, beyond which the emission or discharge is prohibited under
Section 7;

2. The procedure and safeguards for the handling of hazardous substances under Section 8;

3. The authority which is to be intimated about the occurrence or apprehension of occurrence of discharge of
any pollutants in excess of the prescribed standards;

4. The manner in which samples of air, water, soil, or any other substance are to be taken under Section 11(1);

5. The form in which the notice of intention to take a sample for analysis is to be served under Section 11(3)
(a). 

6. The functions, procedures, and fees payable to environmental laboratories;

7. The qualifications of the Government Analyst appointed under Section 13;

8. The manner in which the notice of offence and the intention to make a complaint is to be given under
Section 19(b);

9. The authority or officer who is required to submit the reports, information, or returns to the Central
Government under Section 20; 

10. Any other matter of concern, as may be prescribed. 

Prevention, control, and abatement of environmental pollution 

Section 7- Emission or discharge of environmental pollutants in excess of the standards 

According to Section 7, it is prohibited for any person to discharge or emit any environmental pollutant in excess of
the prescribed standards from any industry, operation, or process. 

Section 8- Handling of hazardous substances 

Section 8 lays down that all the persons handling any hazardous substances shall do so by complying with all the
procedures and safeguards as may be prescribed. 

Sample analysis 

Section 12- Environmental laboratories

The Central Government is empowered to establish one or more environmental laboratories, or recognise any
laboratory as an environmental laboratory to carry out the functions assigned under this Act. Rules regarding the
functions, procedures, and other matters related to the environmental laboratory are to be framed by the Central
Government by Notification in the Official Gazette. 

Penal provisions under the Environment Protection Act

Section 15- General offences 

Section 15 prescribes the penalty for general offences committed under this Act. if any person fails to comply with or
contravenes any provisions of this Act, or rules made or orders or directions issued, he would be punishable with
imprisonment for a term which may extend to five years or with a fine up to Rs. 1 Lakh, or with both. If the failure or
contravention continues, then an additional fine which may extend to Rs. 5000 may be laid for every day the failure
or contravention continues. And if this failure or contravention extends beyond one year after the date of
convection, then the imprisonment can extend upto seven years. 

Section 16- Offences by companies

28
For an offence committed by a company, Section 16 holds responsible the person who at the time the offence was
committed was in charge of and responsible for the conduct of the company as well as the company. However, if it
proved that any such person was liable exercised due diligence or that the offence was committed without his
knowledge. Also, if it is proved that the offence was committed with the consent, connivance, or negligence of any
director, manager, secretary, or another officer, then such person shall be liable to be proceeded against. 

It is also specified that ‘company’ includes any body corporate, a firm, or any other association of individuals. The
word ‘director’ also means ‘partner’ in relation to a firm. 

Section 17- Offences by government departments  

Section 17 lays down that for an offence committed by a government department, the Head of the Department shall
be held responsible unless he proves that the offence was committed without his knowledge or that due diligence
was exercised. However, if it is proved that the offence has been committed with the consent, connivance, or neglect
of any officer other than the Head of the Department, then that officer shall be proceeded against and punished
accordingly. 

Other important provisions under the Environment Protection Act

Section 5A- Appeal to National Green Tribunal 

Section 5A provides for the provision to appeal against an order or decision of the Appellate Authority under Section
31, by the aggrieved person. As per the Section, the appeal can be filed to the National Green Tribunal established
under Section 3 of the National Green Tribunal Act, 2010. 

Section 22- Bar of jurisdiction 

Section 22 takes away the jurisdiction of civil courts from entertaining any suit or proceeding related to anything
done or direction issued by the central government or an officer or authority in order to discharge the functions
assigned by this Act. 

Benefits of the Environment Protection Act 

The following are some of the benefits of having the Act:

1. Protection of public health– It seeks to prevent, control and abate environment pollution so as to keep the
environment clean and safe. This ensures that we get a healthy environment to live in, free from all sorts of
pollutants harmful to our health. Thus, the Act aims to protect public health. 

2. Promotes sustainable development– It seeks to prevent the exploitation of natural resources and preserve
them for future generations. 

3. Positively empowers the central government to take concrete steps to protect the environment– The
Central Government has been given immense powers to not only appoint authorities to carry out various
functions but also to take all the possible measures to further the objectives of the Act. 

4. Strict penal provisions– The Act contains penal provisions for the breach of its provisions. It also lays down
the liability of companies and government departments for polluting the environment. 

5. Protecting ecological integrity– By providing for penal provisions and laying down various guidelines for the
Central Government to take active steps for environment protection, the Act aims at preserving the
ecological integrity by maintaining it in its unpolluted and natural form. 

Drawbacks of the Environment Protection Act

Despite many effective provisions that the Act contains to protect the environment, it is not free from some
limitations and drawbacks that dilute its effectiveness. Some of them are the following:

29
 1. Too general in nature– The Act is a comprehensive legislation that tries to cover all the aspects of the
environment but it does so only superficially. It covers only the broad aspects and leaves out the details. 

2. Conflicting jurisdiction– Section 24 talks about the overriding effect of this Act. It mentions that if an offence
is punishable by both this Act and some other legislation, then the offender is to be punished under the
other law and not this. This provision lessens the effectiveness of this Act as an offender can easily flout the
rules and protect himself from the penalty, prescribed under this Act. 

3. Flexible penalty– The penal provisions prescribed under the Act are not adequately stringent and deterrent.
In most of the provisions, there is no minimum penalty provided. Also, the offenders have been provided
with a room to escape liability by proving things like the offence was committed without knowledge or that
due diligence was exercised. 

4. Weak citizens’ suit provision- Common citizens are not allowed to file a suit against the environmental
offenders unless 60 days prior notice is given. Those 60 days could be easily utilised by the offender to wipe
out the evidence of his fault. Only the central government or its authorised officers or authorities can file a
complaint under this Act. it is important that citizens are given the right to file complaints in cases where
they see the environment is being harmed. 

5. Lack of coverage of certain specific aspects of environmental damage– The ambit of environment pollution
has widened with the march of time and technological advancements. But the definitions under the Act have
not kept up with the pace. Specifically, the definition of ‘pollutant’ covers only the particulate aspects.
Nowadays, pollution caused by noise and radiation would fall out of this definition. It fails to cover soil
erosion, effects of flood and drought, and other important aspects related to environmental degradation. 

Important case laws regarding the Environment Protection Act

Vellore Citizens’ Welfare Forum v. Union of India (1996)

Facts

River Palar is a river in the State of Tamil Nadu, which is also one of the main sources of drinking and bathing water
for the surrounding people. The petition was filed against excessive pollution caused by tanneries and other
industries in the State. The Tamil Nadu Agricultural University Research Centre also revealed that a significant
portion of agricultural land had turned either partially or completely unsuitable for cultivation. 

Issue 

Should the tanneries and industries be allowed to operate at the expense of damage to the surrounding
environment?

Held

The Court highlighted that the main purpose of the Environment Protection Act is to create an authority under
Section 3(3) with all the necessary powers and functions to protect and improve the environment. However, it was
disappointing that not enough authorities were appointed for the same. Thus, it directed the Central Government to
appoint an authority within one month and confer on it all the adequate powers required to deal with the situation
created by tanneries and other polluting industries in Tamil Nadu. It also directed the authority to implement the
‘precautionary principle’ and ‘polluter pays principle’. A fund called ‘Environment Protection Fund’ was also to be
constituted. The compensation received was to be employed for reversing the damage done to the environment and
to the victims of the damage. 

Narula Dyeing and Printing Works v. Union of India (1995)

Facts 

The Narula Dyeing and Printing Works were allegedly discharging untreated pollutants into an irrigation canal
resulting in significant water pollution. The State Government as well as Gujarat State Pollution Control Board issued
30
directions under Section 5 of the Environment Protection Act to close down the factory. The Petitioners challenged
this order citing that no personal hearing was provided to them and no time was granted to comply with the said
directions. 

Issue

Were the State Government and the Board right in closing down the factory without providing an opportunity for a
personal hearing to the petitioners?

Held 

The Gujarat High Court held that the government was absolutely right in issuing the orders for closing down the
factory under Section 5. In cases where there is a grave injury caused to the environment, the government is
empowered to dispense with the opportunity of hearing. It is intended to protect the environment from serious
damage done by discharging untreated effluents. 

M.C. Mehta v. Union of India (The Ganga Pollution Case) (1988)

Facts 

Kanpur has been the hub of tannery business in India for a long time. Most of these industries are located on the
southern banks of the river Ganga. These industries have been known to have contaminated the river. In 1985, a
matchstick tossed into the river resulted in a massive fire in the river because of the presence of a toxic layer of
chemicals formed on its surface. Thus, M.C. Mehta, a famous environment advocate, and an activist filed a petition
in the Supreme Court against the tanneries and also the Municipal Corporation of Kanpur to stop them from
discharging untreated effluents into the river, polluting it. 

Issues involved 

1. Whether the authorities had been negligent in protecting the river Ganga from pollution?

2. Should the smaller industries be aided financially for the installation of treatment plants and what standards
should determine ‘smaller industries’?

Held 

The Court held that there were several laws in force in India that sought to prevent environment pollution including
the Environment Protection Act, 1986, and the Water (Prevention and Control of Pollution) Act, 1974. However, the
authorities had been negligent in discharging their duties prescribed under these laws. It also observed that the
financial capabilities of industries are irrelevant when considering the issue of installing primary treatment plants.
Thus, each tannery was directed to at least install primary treatment plants, if not secondary plants. 

The Court also laid down the following guidelines:

1. It was the duty of the Central Government to direct all the educational institutions across India to teach
lessons on environment protection and improvement, at least for an hour every week. 

2. Also, the Central Government must publish environment textbooks and distribute them among the
students.  

M.C. Mehta v. Union of India (The Vehicular Pollution Case) (1991)

Facts 

Delhi is the National Capital of India and yet is included as one of the most polluted cities of the world. Over the
years, the population of Delhi has become multifold and as one of the results of that, the pollution levels have been
sky high. The main source of pollution has been the two-wheelers. Thus, M.C. Mehta filed the petition in the Apex
Court to highlight the plight of the capital due to vehicular pollution and suggest practical solutions to the problem. 

Issue involved
31
 1. What steps should be taken to prevent and reduce vehicular pollution in the National Capital?

Held 

With reference to technological and other solutions suggested by the petitioner and the literature presented, the
Court passed the following interim orders:

1. It is the duty of the state under the DPSPs and also as mentioned in Section 51A as a fundamental duty, to
protect the environment, life, flora, and fauna.

2. Awareness is the key to reducing environmental pollution. People must be made aware of the harmful
effects of vehicular pollution on environmental health. 

3. A committee was formed to look into vehicular pollution in the capital and suggest practical solutions to
prevent it. 

Conclusion 

Post the Stockholm Conference and the Oleum gas leak case, the concern for the environment has magnified. The
provisions of the Environment (Protection) Act, 1986 mark a positive step towards environment protection and
improvement. It has stipulated some stringent regulations for the prevention, control, and abatement of
environment pollution. The central government has been given a wide scope of powers to frame rules and appoint
authorities to further the purposes of this Act. Additionally, the Act has facilitated the coming of several notifications
for environment protection which have introduced new protective principles like the Environment Impact
Assessment. It has also empowered the citizens to play a proactive role in environment protection by calling out the
pollution-causing industries under EPA which has led to a string of environmentally sound judicial decisions.
However, there are still some lacunas present in the Act that need to be filled with subsequent amendments to
update the Act with changing times. 

32
The Water (prevention and control of pollution) Act, 1974
The Act came into force in 1974 and is applicable to the states of Assam, Bihar, Madhya Pradesh, Gujarat, Haryana,
Tripura, West Bengal, Jammu and Kashmir, Rajasthan, Kerala, and the union territories. The Water (Prevention &
Control of Pollution) Act, 1974 is a comprehensive legislation that regulates agencies responsible for checking on
water pollution and ambit of pollution control boards both at the centre and states.

It was adopted by the Indian parliament with the aim of prevention and control of Water Pollution in India and to
restore and maintain the wholesomeness of water for the establishment. The Act also confers some powers to the
established bodies such as the central board and the state board to control pollution of the water bodies.

Objectives of Water Act

 To provide for prevention, control and abatement of water pollution

 For maintenance or restoration of the wholesomeness of water.

 For the establishment of pollution control water boards.

 To assess pollution levels and punish polluters.

Defintions

Section 2:

(d) Occupier- It means the person who has control over the affairs of the factory or the premises, and it includes the
person in possession of the substance.

(dd) Outlet- It includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any other
holding arrangement which causes, or is likely to cause, pollution.

(e) Pollution- It means such contamination of water or such alteration of the physical, chemical or biological
properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid
substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water
harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate
uses, or to the life and health of animals or plants or of acquatic organisms.

(g) Sewage effluent- It means effluent from any sewerage system or sewage disposal works and includes sullage from
open drains.

(j) Stream- It includes river, water course (whether flowing or for the time being dry), inland water (whether natural
or artificial), sub-terranean waters, sea or tidal waters to such extent or, as the State Government may, by
notification in the Official Gazette, specify in this behalf.

(k) Trade effluent- It includes any liquid, gaseous or solid substance which is discharged from any premises used for
carrying on any [industry, operation or process, or treatment and disposal system], other than domestic sewage.

Agencies for controlling Water Pollution:

There are two agencies set up as per the Act for controlling and preventing water pollution

1. Central Board- Central Pollution Control Board:

o Constitution and Composition (Section 3)

The Central Government through a notice in the official gazette has the power to assign or set up a
Central Board named as Central Pollution Control Board. As far as the composition of the board is
concerned the Central Board is to contain the following members:

33
  A chairman who has the knowledge or has practical experience in dealing with cases relating
to environmental protection. The chairman is to be appointed by the central government
only

 Not more than 5 officials to represent the central government.

 Not more than 5 members to be nominated by the central government from the members
of the State Board.

 Maximum 3 members appointed by the central government to represent the interests of

agriculture, fisheries, trade or any other interest as the government may seem fit.

 2 persons to represent the companies or corporations owned, controlled or by the central

government.

 A full-time member secretary having complete knowledge, experience and qualification of

scientific management and prevention of environmental pollution.

o Functions of Central Board (Section 16):

 Advise the Central Government on any matter concerning the prevention and control of
water pollution.

 Coordinate the activities of the State Boards and resolve disputes among them.

 provide technical assistance and guidance to the State Boards, carry out and sponsor
investigations and research relating to problems of water pollution and prevention, control
or abatement of water pollution.

 Plan and organize the training of persons engaged or to be engaged in for the prevention,
control or abatement of water pollution on such terms and conditions as the Central Board
may specify.

 Organize through mass media a comprehensive program regarding the prevention and
control of water pollution.
 

2. State Board- State Pollution Control Board:

o Constitution and Composition (Section 4)

The state government through an official notice in the Gazette has the power to assign or set up a
state board named as State Pollution Control Board. The composition of the state board is as
follows:

 A Chairman who either has the knowledge or some experience in dealing with cases relating
to environmental pollution.

 Not more than 5 members appointed by the state government to represent the
government.

 Not more than 2 persons by the state government who are functioning as members of the
local authorities within the state

 Not more than 3 persons nominated by the state government to represent the interest of
fisheries, agriculture, trade and any other interest as the government may seem fit.

 2 person from companies, corporations which are either controlled, owned or managed by
the state.

34
  A member secretary who has the knowledge, qualifications, and experience in dealing with
cases pertaining to environmental pollution.

o Functions of State Board (Section 17):

 To plan a comprehensive program for preventing and controlling the pollution of the wells
and streams in the state and to secure its execution.

 To advise the State Government on matters relating to prevention and controlling water
pollution.

 Collaborating with the central board to train persons employed or to be employed in

preventing, controlling water pollution.

 To lay down, modify the effluent standards of sewage and trade effluents and for the quality
of receiving water resulting from the discharge of effluents and to classify waters of the
state.

 To evolve methods of utilizing the sewage and suitable trade effluents in agriculture.

 The state Board has the authority to set up laboratories to enable the board to perform its
function efficiently, including collecting samples of water from any stream or sewage or
trade effluents.

Joint Board
An agreement may be entered into by the state government of one state with the state government of another state
to set up a joint Board. Similarly, the Central Government and the government of other union territories can also
enter into an agreement for constituting a joint board.

o Composition of Joint Board (Section 14):

 A chairman who has the knowledge, experience, and qualifications in matters relating to
prevention and controlling environmental pollution.

 2 members from each state government nominated by their respective state to represent
the state.

 A nonofficial appointed by each state to represent the interests of agriculture, fisheries,

trade or any other interest of the participating state.

 2 members from the companies, corporations nominated by the central government which
is owned, controlled or managed by the participating state.

 A full-time member secretary who has the required skills, experience and qualifications in
science, engineering or management aspect of controlling and preventing pollution to be
appointed by the central government.

Disqualification of Members (Section 6)

 A person who is judged insolvent or has not paid his debts or has compounded with his creditors cannot
become a member.

 A person of unsound mind or who has been convicted of such an offense which according to the central
government or state government may involve moral turpitude.

35
  If a person is holding any office of profit or is a salaried employee of any company, firm which is connected
with the board in that situation also he can be a member of any board.

 If a member has misused his powers by virtue of being a member or holding any position in connection with
the board, then the central government or for that matter the state government may disqualify that
member in the general interest of the public.

Meetings: (Section 8)

The Board shall meet at least once in three months.

Appointment of Committees: (Section 9)

It empowers the Board to constitute/appoint as many committees as it may think fit.

Penalties

 If any person fails to comply with the orders of the board under subsection 2 and 3 of Section 20 then in that
case on conviction he is punishable for imprisonment for 3 months or fine or both.

 If the person fails to comply with orders of the board under clause e of subsection 1 of Section 32 or with
subsection 2 of Section 33 then, in that case, the person would be punishable with imprisonment for 6
months extending to 6 years or a fine or both.

 Apart from the above-mentioned penalties. Section 42 mentions penalties for different kinds of Acts namely:

o If any person removes, destroys or pull down any notice put up by the board.

o If someone obstructs the member of the board or any other person who is Acting under the board.

o If a person fails to produce any information as required by the member of the board for the
performance of his duties.

o Or if he gives any information to the members which he knows to be false.

Then In all the above Acts if the person is convicted he would be punishable by imprisonment for a maximum period
of 3 months or fine that may extend up to 10,000 rupees or both.

Conclusion:
Water pollution is a big issue in India and controlling and preventing it is another big issue, till now we are not able
to create awareness among the people regarding the importance of conserving water bodies, this Act certainly
provides various agencies that will look to prevent and control water pollution, the Act lays down various procedures
for filing a complaint and the powers of each and every board.

However more needs to be done and the Act should be made more comprehensive, more participation should be
given to the locals and punishments should be made stricter so that it Acts as a strong deterrence. Above all these
more emphasis should be given on the implementation aspect as just by making laws you cannot control pollution,
proper implementation is also required.

AIR: Prevention And Control Of Pollution, Act 1981

The Act specifically empowers State Government to designate air pollution areas and to prescribe the type of fuel to
be used in these particular areas and according to this Act, no person can operate certain types of industries
including the asbestos, cement, fertilizer and petroleum industries without consent of the State Board.

Decisions were taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972,
in which India participated, to take suitable steps for the preservation of the natural resources of the Earth which,
amid other things, include the preservation of the quality of air pollution.
36
The Government passed this Act in 1981 to clean up our air by controlling pollution and this Act also safeguards
controlling the level of air pollution. Accordingly, the Indian government enacted exact laws under Article 253 of the
Constitution for the preservation of natural resources and the law enacted for air preservation as this act applies to
Whole of India.

The dominant factor for air pollution is the emergence of India pollutants, discharge of automobiles, smoke etc. and
the polluted air case diseases like tuberculosis, lung cancer, asthma, bronchus, etc. and see is very dangerous
pollutant which grows due to combination of smoke. It affects not only human health but likewise materials and
plants. The part of the body which is affected maximum by smog is respiratory system.

AIR: Prevention And Control Of Pollution, Act 1981

It is mixture of gases that forms earth's atmosphere and it contains 20.95% oxygen, 78% nitrogen, 0.93% orogan,
0.03% carbon-dioxide with smallest quantities of ozone and inert gases water vapour differs between 0 and 4% and
in industrial areas sulpher gases may be present in it and in this way it is clear that various components of air are
present in it in a definite proportion.

Fresh Air" is that air in which various constituents are present in the scientifically recognized proportion and no such
other element is present in it rendering it unfit for use and according to scientifically acknowledged norm in one unit
of fresh air there is present 78% of nitrogen, .03% of carbon-dioxide and 20% of oxygen.

In addition to these, there are also current in it gases like Ozone, Hydrogen Sulfide, Sulpher-dioxide and Carbon-
monoxide. If this ratio is disturbed owed to presence of any foreign substance in it the air cannot be said to be fresh
air rather it would be polluted or contaminated air, unfit for use and air is also polluted by foul.

This is the Act that provide for the prevention, control and abatement of air pollution, for the establishment, with a
view to carrying out these purposes, of Boards, for conferring on and assigning to such Boards powers and functions
connecting thereto and for matters connect therewith.

An Act to provide for the prevention, control and abatement of air pollution, for the establishment, with a view to
carrying out the aforesaid purposes, of Boards, for discussing on and assigning to such Boards powers and functions
relating thereto and for matters connected therewith.

Whereas decisions were taken at the United Nations Conference on the Human Environment held in Stockholm in
June, 1972, in which India participated, to take appropriate steps for the protection of the natural resources of the
earth which, among other things, include the preservation of the quality of air and control of air pollution; and
whereas it is careful necessary to implement the choices aforesaid in so far as they relate to the preservation of the
quality of air and control of air pollution.

According to the World Health Organization, the capital city New Delhi is one of the top most polluted cities in the
world and as surveys indicate that in New Delhi the incidence of respiratory disease due to air pollution is about 12
times the national average.

The act Provides for the prevention, control and abatement of air pollution and it makes provisions, Interalia, for
Central and State Boards, power to state pollution control areas, restrictions on certain industrial units, expert of the
Boards to limit emission of air pollutants, power of entry, inspection, taking samples and analysis, penalties, offences
by companies and Government and cognizance of offences etc..

Objectives Of The Act

The Air (Prevention and Control of Pollution) Act, 1981 is a specialized legislation designed to tackle one side of
environmental pollution and the main objectives of the Act are as follows:

1. To Provide For The Prevention, Control And Abatement Of Air Pollution.

Follow these Tips Every Day to Reduce Pollution:

37
 o Conserve Energy:
At home, at work, everywhere and look for the ENERGY STAR label when buying home or office
equipment.

Carpool, use public transportation, bike, or walk whenever possible and follow gasoline refueling instructions for
well-organized vapor recovery, being careful not to spill fuel and always tightening your gas cap securely and
consider purchasing portable gasoline containers labeled "spill-proof," where available.

Keep car, boat, and additional engines properly tuned and be sure your tires are properly inflated and use
environmentally safe paints and cleaning products whenever possible.

Mulch or compost leaves and yard waste and consider using gas logs instead of wood.

o On Days when High Ozone Levels are Expected, Take these Extra Steps to Reduce Pollution:
Choose a cleaner commute:
share a ride to work or use public transportation and combine errands and reduce trips and walk to
errands when possible.

Avoid excessive idling of your automobile and refuel your car in the evening when its cooler and conserve electricity
and set air conditioners no lower than 78 degrees.

Defer lawn and gardening tasks that use gasoline-powered equipment, or wait until evening.

o On Days when High Particle Levels are Expected, Take these Extra Steps to Reduce Pollution:
Reduce the number of trips you take in your car and reduce or eliminate fireplace and wood stove
use and avoid burning leaves, trash, and other materials and avoid using gas-powered lawn and
garden equipment.
 

2. To Provide For The Establishment Of Central And State Boards With A View To Implement The Act.

Section 2(a) defines 'air pollutant' as any solid, liquid or gaseous substance that may be harming or injuring the
environment, humans, other living creatures, plants or even property and through a 1987 Amendment, the noise
was also included in the list of substances that are considered to be harmful to the environment and therefore, this
Act also provides for the regulation of noise pollution.

Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 states that the constitution of the Central
Pollution Control Board:

o It shall have a full-time Chairman, having special knowledge and practical expertise in matters of
environmental protection and taking knowledge and experience in administering institutions dealing
with such matters and the Chairman will be nominated by the Central Government.
 

o It shall have a full-time Secretary, who shall have the qualifications, knowledge and experience of
scientific, engineering and management features of environmental protection and the Secretary will
be appointed by the Central Government.
 

o It shall have not more than five officials nominated by the Central Government to represent that
Government and it shall not have more than five members nominated by the Central Government,
chosen from amongst the members of the State Boards.
 

o It shall not have more than three officials who represent the interests of the fishery, agriculture, or
any other industry or trade, which the Government may think fit to be represented and it shall have

38
 2 persons from the companies or corporations, owned, managed or controlled by the Central
Government, nominated by that Government.

Section 5(2) of the Act explains the constitution of a State Board:

o A person, nominated by the State Government, who has special knowledge and practical experience
of dealing with issues related to environmental protection, shall serve as the Chairman of the State
Pollution Control Board. This Chairman may be whole-time or part-time. This decision will be left to
the discretion of the State Government.
 

o The Board shall further constitute of not more than five officials, nominated by the State
Government, to serve as representatives of that Government.
 

o Not more than five people from the local authorities, nominated by the State Government.
 

o Not more than three officials nominated by the State Government, who are believed to be
representing the interests of the industries of fishery, agriculture or any other industry or trade
which the Central Government thinks ought to be represented.
 

o Two persons from companies or corporations owned, managed or controlled by the State
Government, and are nominated by that State Government.
 

Section 6 states that in the case of Union Territories, the Central Board shall exercise the powers of a State Board
under that Act, or it may even delegate these powers or functions to any person or body of persons.

Therefore, we observe that while the, applies to only those States in which it has been given effect but the Air
( Prevention and Control of Air Pollution) Act 1981 applies to the whole of India in the first instance.

3. To Confer On The Boards The Powers To Implement The Provisions Of The Act And Assign To The Boards
Functions Relating To Pollution.

Functions of the Central Board:

The main functions of the Central Board shall be to improve the quality of air and to prevent, control or abate air
pollution in the country. These are:

o To advise the Central Government on any matter concerning the improvement of the quality of air
and the prevention, control or abatement of air pollution

o To plan and cause to be executed a nation-wide programme for the prevention, control or
abatement of air pollution.

o To co-ordinate the activities of the State and resolve disputes among them.

o To provide technical assistance and guidance to the State Boards, carry out and sponsor
investigations and research relating to problems of air pollution and prevention, control or
abatement of air pollution.

Functions of the State Board:

The function of any State Board may be specified that are as follows:

o To plan a comprehensive programme for the prevention, control or abatement of air pollution and
to secure the execution thereof.

39
 o To advise the State Government on any matter concerning the prevention, control or abatement of
air pollution.

o To collect and disseminate information relating to air pollution.

o To collaborate with the Central Board in organizing the training of persons engaged or to be engaged
in programmes relating to prevention, control or abatement of air pollution and to organize mass-
education programme relating thereto.

o To inspect air pollution control areas at such intervals as it may think necessary, assess the quality of
air therein and take steps for the prevention, control or abatement of air pollution in such areas.

Scope Of The Air (Prevention And Control Of Pollution) Act

The Air (Prevention and Control of Pollution) Act, 1981 came into force on 16th May, 1981. It extends to the whole
of India [Section 1 (2)] including Jammu and Kashmir. The statute is of general significance and that is why Jammu
and Kashmir has not been excluded from its purview.

It will come into operation when it is proved that an activity results in air pollution, Schedule IV of the Environment
Protection Rules 1986, framed under the Act, provides when air shall be deemed to be polluted by smoke or vapour
from motor vehicles.

The Air Act has the primary aim of providing provisions to abate and control air pollution in the country, and sets up
Boards in the centre and the state to carry out the necessary steps to achieve this aim. The Boards are given the
power to set up regulations to ensure that air pollution is controlled in the country. The legislation also gives the
Boards power to take action on the entities that fail to meet the air quality standards that are set.

The Act contains 54 sections, and VII chapters. Chapter II and Chapter III sets out the roles and responsibilities of the
pollution control boards, Chapter IV regulates the pollution standards that are set and how they can be monitored
and Chapter VI describes the penalties imposed in case of noncompliance.

This Act applies to the whole of India. The Act contains certain definitions which fall under the scope of this Act.
Knowing these definitions is important as they will help to understand what qualifies as air pollution according to
Indian law so that air polluters can be punished under this Act.

Definitions:
Under Section 2 of the Act, 15 expressions have been defined. Five definitions of them are formal which seek to
summarise the language of the various provisions namely-Board, Central Board, member, prescribe and State Board.
Other ten definitions are concerning such matters a indirectly affect the air.

a. Air Pollutant. "Air Pollutant" means any solid, liquid substance including noise present in the atmosphere in
such concentration may be or tend to be injurious to human beings or other living creatures or a plants or
property or environment-[Section 2 (a)). Air pollutant has been comprehensively defined. It includes the
following elements

i. presence of any solid, gaseous or liquid substance including noise in air.

ii. in such concentration;

iii. which may be or tend to be injurious;

iv. to human beings, or other living creatures or plants or property or environment. Kerala High Court
laid down in K. Ram Krishanan v. State of Kerala laid down that smoking at public places will be
considered to be air pollutant.

b. Air Pollution-"Air Pollution" means the presence in the atmosphere of any air pollutant-[Section 2 (4)].

Air pollution has been, thus, defined in the perspective of the presence of polluting elements in the atmosphere.
Hence the definitions of 'air pollutant and "air pollution" are complementary to each other.
40
 c. Approved appliance- "Approved appliance" means any equipment or gadget used for the burning of any
combustible material or for generating or consuming any fume, gas or particular matter and approved by the
State Board for the purposes of this Act-[Section 2 (C)].
 

d. Approved fuel- "Approved fuel" means any fuel approved by the State Board for the purposes of this Act.
 

e. Automobile -"Automobile" means any vehicle powered either by internal combustion engine or by any
method of generating power to drive each vehicle by burning fuel. (f) Board-Board' means the Central Board
or a State Board.
 

f. Central Board- "Central Board" means the Central Pollution Control Board constituted under Section 3 of the
Water (Prevention and Control of Pollution) Act, 1974.
 

g. Chimney-"Chimney" includes any structure with an opening of outlet from or through which any air
pollutant may be emitted.
 

h. Control equipment- "Control equipment" means any apparatus, device, equipment or system to control the
quality and manner of emission of any air pollution and includes any device used for securing the efficient
operation of any industrial plant.
 

i. Emission-"Emission" means any solid or liquid or gaseous substance coming out of any chimney, duct or flue
or any other outlet. Industrial plant- "Industrial plant" means any plant used for any industrial or trade
purposes and emitting any pollutant into the atmosphere.
 

j. Member-"Member" means a member of the Central Board or a State Board as the case may be and includes
the chairman thereof.
 

k. Occupier- "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.
 

l. Prescribed-"Prescribed" means prescribed by rules made under this Act by the Central Government or, as
the case may be, the State Government. (o) State Board- "State Board" means in relation to a State in which
the Water (Prevention and Control of pollution) Act, 1974 is in force and the State Government has
constituted for that State a State Pollution Control Board under Section 4 of that Act, the said State Board,
and (ii) in relation to any other State, the State Board for the Prevention and Control of Air Pollution
constituted by the State Government under Section 5 of this Act.

Case Laws:

1. K. Ramakrishnan And Anr. vs State Of Kerala And Ors AIR 1999 Ker 385
This case highlighted the danger of smoking. The Petitioner sought orders to prevent the smoking of tobacco
in any form in public places and to order the state to take appropriate measures to prosecute and punish all
persons guilty of smoking in public places and to treat such smoking as a nuisance under the Penal Code.

The court held that smoking in public places violated the atmosphere and was noxious to the health of persons
present. It decided that public smoking of tobacco in any form whether in the form of cigarettes, cigars, beedies or
otherwise was illegal, unconstitutional and violated Article 21 of the Constitution of India.
41
Moreover, tobacco smoking in public places fell within the mischief of the penal provisions relating to "public
nuisance" as contained in the Indian Penal Code and also the definition of air pollution as contained in the statutes
dealing with the protection and preservation of the environment, in particular the Air (Prevention and Control of
Pollution) Act, 1981.

2. Subhash Kumar v. State of Bihar 1991 AIR 420, 1991 SCR (1) 5
The petitioner filed a public interest litigation claim against two iron and steel companies, because they
allegedly created health risks to the public by dumping waste from their factories into the nearby Bokaro
river. The petitioner also claimed that the State Pollution Control Board had failed to take appropriate
measures for preventing this pollution.

As part of his claim, the asked the Curt to take legal action against the company based on the Water (Prevention and
Control of Pollution) Act of 1974 and furthermore requested permission to collect waste in the form of sludge and
slurry by himself as interim relief.

The State Pollution and Control Board claimed that it had sufficiently monitored the quality of effluent waste
entering the river and the respondent companies claimed that they had adhered to the Board's instructions
concerning the prevention of pollution. The Court found that the Board had indeed taken effective steps to prevent
the waste discharge from the factories into the river and thus dismissed the petition.

Furthermore, it was held that the petition did not qualify as a public interest litigation, because it was filed by the
petitioner's own interest in obtaining larger quantities of waste in the form of slurry from one of the respondent
companies from which he started to purchase slurry several years prior to the petition.

Suggestions

1. Research about the causes and impact of Air Pollution. Spread awareness to stop air pollution.

2. The most basic solution for air pollution is to move away from fossil fuels, replacing them with alternative
energies like solar, wind and geothermal. Producing clean energy is crucial.

3. Equally important is to reduce our consumption of energy by adopting responsible habits and using more
efficient devices.

4. To establish central and State Boards and empower them to monitor air quality and control pollution.

Conclusion
In a nutshell, every kind of pollution leaves a huge negative impact on our environment, human lives, animals etc.
We, as responsible citizens, must take steps towards a better tomorrow. We must join hands to take various
initiatives and fight against this problem

It is observed that the legislation to deal with air pollution is pretty strict and well formulated. It encompasses the
scientific aspects of managing air pollution with the actions of State and Central bodies. The Pollution Control Boards
are bestowed with a wide range of powers and functions to check emission limits and take appropriate action.
However, enforcement still remains lax.

Urban air pollution has long been a serious problem in the India , reflecting both the importance of highly polluting
industries for the national economy and political factors such as the low priority of environmental issues and lack of
public participation.

India itself had issues regarding air pollution due to a wide variety of factors such as stubble burning, improper
industrial practices, environmental factors etc. To combat these factors a special law was enacted under the
Constitution of India, which was the Air (Prevention and Control of Pollution) Act of 1981.

42
Fundamental principles of International Environmental Law
Introduction

International Environmental Law comprises various multilateral or bilateral agreements, Conventions, etc. The main
concern of such international law is to protect the environment and thereby create certain legislation in view of it. 
In the mid-twentieth century, the onset of International Environmental Law was observed. Before this, there were
only local movements or protests in order to protect the environment but there was no legislation. 

The source of International Environmental Law cannot be particularly mentioned in a kind. However, it can be stated
that International Environmental Law has derived its roots from public international law. 

Through this article, I will be discussing the fundamental principles of International Environmental Law.

The sources of International Environmental Law cannot be mentioned in a definite manner. However, after analysing
its way of making laws, development, etc; few sources can be carved out. They are:

 Treaties

 Agreements

 Customs

It has also been observed that developing international law is less traditional i.e. the laws made are based on
present-day circumstances and are constantly changing with time, thus, it is not based solely on customs or
traditions, and have more binding source; it is said so because the importance of environmental law is recognised
worldwide and many countries have also made legislation regarding it. 

Principles of International Environmental Law

Sovereignty and responsibility

The above-mentioned principle is quite contradictory to each other in apparent vision. It is so because the principle
of sovereignty tells that every state has sovereign rights over its natural resources. On the other hand, the principle
of responsibility tells that no damage should be made to the environment by the state. It is now clearly evident that
one principle tells that one has sovereign power and another principle states certain rules the sovereign power has
to maintain. 

Now the question which arises is whether such contradicting principles can be implemented or not.

In the 1992 Rio Declaration, it was stated that:

“States have, in accordance with the Charter of the United Nations and the principles of the international law, the
sovereign right to exploit their own resources pursuant to their own environmental and development policies, and
the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the
environment of other states or areas beyond the limits of national jurisdiction.”

This shows that sovereign power is not absolute. It is subjected to certain restrictions. Therefore, here in this
principle though the state enjoys a sovereign power over its natural resources its responsibility to not cause any
damage to the environment is mandatory and not contradictory. 

Over time, the duty to not cause any damage to the environment has been accepted worldwide and it has also been
backed by international treaties and laws. 

Now there are certain areas that are not under any jurisdiction of states like the high sea, In such cases what should
one do? It is stated that here the principle of sovereignty may not apply but the principle of responsibility should
always prevail. States should protect and conserve such environmental areas as common heritage.
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Principle of good neighborliness and international cooperation

The principle of good neighborliness denotes the duty of states in view of not damaging the environment. The
principle of international cooperation means that there should be an obligation where one cannot perform any such
activities which are contrary to other states’ rights or which might harm their environment. This principle of
international cooperation is believed to be based on this legal maxim sic utere tuo et alienum non laedas; meaning
one should use their property in such a manner that they do not cause any harm to another. 

Besides avoiding any environmental damage, the principle of good neighborliness also states the duty of cooperation
in identifying, investigating any damages. One might think that there already lies legislation among states regarding
cooperation in the field of science, technology, socioeconomic, etc, then why does an international environmental
law put emphasis on cooperation. This is so because the legislation regarding cooperation is not absolute. They are
mostly limited to the cooperation regarding patents. 

Some other benefits of the principle of good neighborliness and international cooperation are the functions of prior
notification and consultation. Due to prior notification and consultation, other states might provide some vital
information about the environment. For example in times of natural calamities and emergencies. Other states on
request can also provide consultation in times of need. 

Principle of preventive action 

Under this principle, the states remain under the obligation of not causing any damage to the environment within
their own territory. However, this principle should be differentiated from the duty to avoid environmental harm. This
principle mainly states that there should be some preventive action in the state regarding reducing wastes, reducing
liability, and increasing efficiency. Discharge of toxic substances which exceed the reasonable limit should be
stopped, it should rather be stopped at an early stage so that irreversible damage to the environment is not inflicted
upon. There are certain ways in which the states have tried to implement preventive action. The ways are:

 Use of penalties

 Authorities established to particularly look into these preventive actions

 Establishing environmental standards

It is believed that these ways are the golden ways in which irreversible damage can be stopped. This principle is
recognised by various international instruments, treaties, etc. This principle is also reflected in the fifteen Rio
Declaration.          

“Where there are warnings of serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation. “It was the basis of the Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989.      

Precautionary principle

This principle was first codified in the fifteen Rio Declaration. It was stated that “In order to protect the environment,
the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats
of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.”

Another Convention on Biological Diversity stated that “ where there is a threat of significant reduction or loss of
biological diversity, lack of full scientific uncertainty should not be used as a reason for postponing measures to avoid
or minimize such a threat.” This principle was mainly carved out because there are certain elements present in our
environment which can cause certain extreme damages. However, at times waiting for scientific clarity and proper
judgment regarding the burden of proof, the damage on the other hand can become irreversible. 

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Now the question may arise why do the states need to wait for any scientific clarity when damage is already visible
or is known. The answer is that whenever any states adopt any protective measures, the state has to prove beyond
doubt that a specific substance or substances have caused damage, therefore states have to wait. But because of the
precautionary principle, now states do not have to wait for proof of harm before taking any action. The first treaty to
embody this principle was the 1985 Vienna Convention for the Protection of the Ozone Layer. Subsequently, it was
widely addressed in various other instruments. However, it should be noted that the precautionary principle is
always changing based on its circumstances, therefore, there is no precise formulae in its regard.

Principle of common but differentiated responsibility

The meaning of common but differentiated responsibility is that the common aim of all states should be protecting
the environment, but having said that, certain states owing to their different ecological systems, physical
appearances, geographical features might have to take more responsibility than other states. The basic idea of this
principle is that all states should follow and obey international laws on the basis of equity and in accordance with
their common but differentiated responsibilities and respective capacities. Two major principles of this principle are:

Common responsibility

It signifies that all the states must aim to conserve the environment together. They should not disregard their
responsibility at any cost. They should not take advantage of their fellow states and not perform their own duty,

Differentiated responsibility 

States comprised of heavy industries, factories have to bear more precautionary measures or perform actions
compared to a state which is filled with flaura and fauna. But each state has to keep in mind that while performing
their differentiated responsibility, they cannot perform or form any such policies which are harmful or derogatory to
their own state or other states.

The principle of sustainable development

The 1987 Brundtland Report first discussed the principle of sustainable development. It stated that the principle of
sustainable development means a kind of development where the essential needs of especially the poor are met in
the present without compromising the future generation’s ability to meet their needs. The primary focus of
sustainable development in this regard is environmental protection. This principle has been accepted regionally as
well as globally. There are three elements of sustainable development. The three elements are:

 Integrational Equity- This means that each person must leave some kind of wealth (in this regard natural
resources) for future generations, not less than what they have enjoyed in their lifetime so that the future
generation can enjoy natural resources.

 Sustainable use of natural resources- This aims at judicious, wise, careful, or rational use of natural
resources.

 Integration of environment and development- It is believed that without the integration of environment and
development, the aim of sustainable development cannot be achieved. Thus, while making any
environmental obligations, ecological and sociological development should also be taken into consideration.
For example, in microeconomics, sustainable development would require the cost of environmental damage
on the state which caused the damage. 

In the case of MC Mehta v Union of India and others (2001), the Supreme Court was analysing the case of vehicle
pollution and it was held that non-CNG vehicles would be stopped and the country should enhance the use of CNG
vehicles. In this case, the Supreme Court also stated that the principle of sustainable development is an important
feature of environmental law.

The principle of absolute liability

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The principle of absolute liability is implemented in a legal aspect in environmental law. It is applied in the
environmental law to assess the risks of environmental law, and thereby the liability can be given to the person for
unlawful acts. In a lot of states, the procedure of lawsuits regarding environmental cases or how one should file
cases are not properly stated. In such cases compensation for the damage is hard to get. However, the application of
absolute responsibility in the environmental law system makes it easier to get compensation. 

Polluter Pays principle

The basic meaning of this principle is that those who commence the act of pollution shall bear the cost of its
management and prevention so that it does not harm the environment and human beings. The 1992 Rio Declaration
has recognised the polluter pays principle. The primary arena of this principle is land, air, and water. We all know
how much greenhouse gases have affected our environment. This principle can be applied to greenhouse gases. The
principle can be implemented through a carbon price. The carbon price is a small charge which is paid by greenhouse
gas emitters equivalent to the corresponding potential cost caused through future climate change, thus forcing
emitters to internalize the cost of pollution. The carbon price can be paid in two ways:

 In form of the carbon tax (direct method).

 In the form of quota, here a certain limit is set and beyond it, the price has to be paid.

In the landmark case of MC Mehta v Kamal Nath (1996), the Court established the polluter pays principle in India. It
was observed that the Motel Company encroached upon 27.12 bighas of land which also included forest land. This
encroachment caused huge problems as there was constant movement of bulldozers and earthmovers to turn the
course of the river for almost 5 months. This caused floods in the river and property worth 105 crores was
destroyed. The Court held that the Motel Company should pay compensation for the destruction of the
environment, thereby establishing the polluter pays principle.

Ecocentrism

Before discussing the principle of ecocentrism, let us understand what is the traditional concept of human beings
towards the environment. Traditionally and even from a religious point of view, it has been observed that some
people or groups of people believe that they are in dominion over the environment. Therefore, they can do
whatever they like towards it. However, ecocentrism denotes a nature-centered concept. Here, it is stated that the
human species are the consumers of almost everything in nature. They have the responsibility of conserving nature
irrespective of the fact that they are getting any benefit from it or not. The ill-treatment of humans towards the
environment is very dangerous as they are capable of harming the environment in such a way that the damage
becomes irreversible. Thus, humans should take care, protect and conserve the environment.

Conclusion

The above-mentioned are some of the principles of environmental law. It is to be noted that international
environmental law is still developing. Therefore, the interpretations of these principles remain open. There is no
such precise boundary given to these principles. 

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