Published on 29/05/2011
Environmental Laws and procedures in India
By Dr. Yashpal Singh
First Update 23/1/18
Second Update 24/12/2019
Public health, safety, convenience, decency and morals was covered under the Indian Penal code of 1860 and the term “Public Nuisance” defined under section 268 to include all acts and omissions likely to adversely impact public welfare . Fouling water of public springs or reservoirs was a punishable offence under section 277 and making the atmosphere noxious to health was covered as a punishable offence under section 228. (I.P.C.1860). Section 133 and 144 of The code of Criminal Procedure, India, 1973 as amended had provided for powers to the district Administration to order the removal of the nuisance including danger to public health and property. ( I.P.C.1860; Cr.P.C.1973)
India currently has a number of enactments aimed at promoting a clean and healthy environment. Some of these being the:
- The Water (Prevention and Control of Pollution) Act 1974 initiated the setting up of a regime for control of Pollution in India in the form of Central and the State Pollution Control Boards and Committees. The Act, the objective of which was to control Pollution and maintain the wholesomeness of water and to set up Boards for the management of the same also established a system of restraining pollutants, beyond the prescribed standards, from being discharged into rivers lakes, wells or land, obtaining consents to establish and operate and fixing standards. It also gave powers to regulatory agencies( The Boards) to issue directions which could include directions for closure of any activity, operation or process and/or the suspension of water and power supply and provided for punitive action including imprisonment from from 18 to 72 months and with fine.
- The Air (Prevention and Control of Pollution) Act 1981 introduced procedures for
control of Air Pollution and setting up of ambient air quality and emission standards. The
Boards and the Committees constituted to implement the Water (Prevention and Control
of Pollution) Act 1974 were also empowered to administer the provisions of the Air
(Prevention and Control of Pollution) Act 1981. Provisions for preventing discharge of
emissions beyond the prescribed standards (Section 22) and for availing of consent to
establish and operate were introduced (Section 21). The Boards were given powers to
issue directions which could include directions for suspension of water and power
supplies (Section 31) and punitive provisions were prescribed as similar to those in the
Water( Prevention and Control of Pollution) Act 1974.
- Some Specific provisions of the Water and Air Acts. The Water (Prevention and Control of Pollution) Act was a Central Act of Parliament passed in 1974, which provided for Water Pollution Control and also established the State (Water Prevention and Control of Pollution) Boards, subsequently renamed as the Pollution Control Boards. The Air (Prevention and Control of Pollution) Act 1981 and the Environment Protection Act 1986 followed. These were also Central Acts of Parliament. While the Water (Prevention and Control of Pollution) Act 1974 was to be adopted by the State legislative Assemblies, the then existing State Water Prevention and Control of Pollution Boards were entrusted with the responsibilities of the Air (Prevention and Control of Pollution) Act 1981 and the Central Government with the responsibilities of the E.P. Act 1986. The Central Government could delegate certain functions under the E.P. Act 1986 to the State Pollution Control Boards, the State Government or any other agency as prescribed.
The Water Act 1974, as the Water (Prevention and Control of Pollution) Act 1974 is also known, had amongst others the following provision:
- That no effluents, beyond the prescribed standards, shall be discharged by any person into any stream, sewer, well or on land (Section 24, Water Act 1974).
- That no effluents would be discharged into any stream, sewer, well or land without the consent of the State Pollution Control Board.(Section 25 / 26 Water Act 1974)
In the early days of implementation of the Water Act 1974 and the Air Act 1981, or immediately before the promulgation of the said Acts, many new development projects and industries had come up without adequate pollution control measures and the major problem before them was that they were not aware of the environmental implications and responsibilities while planning for the project. It was also generally observed that most financial viability assessments were undertaken without including the costs for pollution control. This was a severe impediment in Industrial growth and an administrative blockage. Industry wanted to run the plant, recover funds and then invest in pollution control – the Board could not permit this. It was then that the concept of availing a No Objection Certificate was introduced by the Boards – primarily to advise industries on their responsibilities for pollution control, make them provide for it before commissioning and assess the financial viability of their projects accordingly. The N.O.C. was also meant to enable the regulators, facilitators, bankers, etc understand the project in its complete perspective and minimise the risks involved in clearing environmentally unsound proposals. Establishment of an Industrial Plant was covered under the provisions of N.O.C. as above.
While the Air Act had already prescribed for a consent to establish under provisions of section , it was through the amendment of 1988 that specific legal provisions were made in the Water Act to legalize N.O.C. by prescribing that:
No person shall without the previous consent of the State Board (Section 26 / 26 of Water Act)
- a) Establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or an extension or addition there to which is likely to discharge sewage or trade effluents into a stream or well or sewer or an land or
- b) Bring into use any new or altered outlet for the discharge of sewage or
- c) Begin to make any new discharge of sewage
These provisions require that the concerned persons (Industries, local bodies, developers etc.) make an application for Consent to Establish and Consent to Operate to the State Pollution Control Boards as provided in Sections 25 / 26 of the Water Act 1974.
Similar provisions were also introduced through the Air Prevention and Control of Pollution Act 1981wherein it was provided that:
- No person operating any industrial plant in any air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board.(Section 22, Air Act 1981)
- No person shall without the previous consent of the State Pollution Board, establish or operate an industrial plant in an air pollution prevention control area. (Section 21, Air Act 1981)
The Board after making due enquiries, grants or refuses consents within a period of 04 months as specified. Consents are normally granted with conditions for specified validity periods by the State Pollution Control Boards. These conditions are binding as per law and have to be complied with.
Any person aggrieved by an order (order of consent) of the Board passed under section 25 / 26 of the Water (Prevention and Control of Pollution) Act 1974 or Section 21 of the Air (Prevention and Control of Pollution) Act 1981 can prefer an appeal within 30 days under Section 28 of the Water Act and Section 31 of the Air Act respectively. In case of orders of the Board passed under section 21 of the Air Act, the appeal lies with the Appellate Authority created under section 31 of the Air Act and appeals against the orders of the Appellate Authority would lie with the National Green Tribunal. In order to be within the period of limitation it is advisable to remember this deadline of 30 days.
Section 27 of the Water Act also enables the State Boards to review on their own or in an implied way, on a request made to it, the consent orders and consent conditions and make necessary variations after giving proper opportunity to be heard. The Air Act does not enable the Board on this account. The Board can however as per section 26, review the conditions and make variations after giving proper opportunity of hearing.
Closure orders under section 33A of the Water Act and section 31 A of the Air Act and orders cancelling a consent or revising the consent conditions can only be passed by the State Boards after according proper opportunity of hearing as prescribed in law. Judiciary is very particular on this and insists on this opportunity of Natural Justice. Proper compliance of procedures for replicate sampling and notice have also to be adhered to before the Board inspects a premises or collects samples. Courts do not take cognizance of a sample unless the procedures are followed. This helps in seeking judicial redressal in case of grievances.
The Pollution Control Boards have powers to make application to courts for restraining apprehended pollution of water in streams or wells (Section 33 of the Water Act 1974) and the powers to issue directions (Section 33A of the Water Act 1974) which may include directions to close any industry or process and stop or regulate the supply of electricity, water or any other service. Penalties and procedures have been prescribed and in so far as non-compliance to Section 24 / 25 / 26 / 33A of the Water Act and compliance to conditions of consent to establish or operate, are concerned, the Act provides for imprisonment for a term which may not be less than 18 months but which may extend to six years and with fine. Continued offence invites further penalties. (Section 42, 43 and 44 of the Water Act).
The Boards have powers to make application to courts for restraining persons from causing air pollution under Section 22A of the Air Act. Penalties have also been prescribed, under the Air Act, for not complying with Consent provisions and conditions ; not ensuring compliance to prescribed standards and not complying with directions of the Board. Noncompliance is punishable with imprisonment for a term which may extend from 18 months to 6 years and with fine. (Section 37 of the Air Act). Repeated offence invites penalties that are more stringent. The Boards also have the power to issue directions for closure, prohibition or regulation of any industry, operation or process or the stoppage or regulation of supply of electricity, water or any other service. (Section 31 A of the Air Act).
- The Water (Prevention and Control of Pollution) Cess Act. 1977- Repealed in 2017
The Water (Prevention and Control of Pollution) Cess Act. 1977 was an act of Parliament to provide for the levy and collection of a cess on water consumed by persons carrying on certain industries and by local authorities with a view to augment the resources of the Central Board and the State Boards for the prevention and control of water pollution constituted under the Water (Prevention and Control of Pollution) Act. 1974.The Water (Prevention and Control of Pollution) Cess Act 1977 provided that the State Pollution Control Boards and Committees shall collect a Cess on water consumed by persons carrying on any Industry and from all Local authorities. This enactment has been totally repealed through provisions of Section 18 of the Taxation Laws (Amendment Act) 2017.No Fresh Cess returns have to be submitted for periods beyond 01-07-2017 and no fresh assessments have to be made by the Pollution Control Boards/Committees for consumption beyond 01-07-2017. However Cess not collected by the Pollution Control Board for periods prior to 01-07-2017 shall be collected and paid by the Pollution Control Boards/Committees (the designated collection Authorities) to the Consolidated Fund of India and All persons liable to pay cess before 1st July, 2017 shall continue to be assessed and cess collected from the date of acquisition of such liability.
- The Environmental (Protection) Act 1986 is an act of Parliament to be executed by the Central Government. The act regulates a range of polluting activities and prescribes standards and procedures to be followed. The standards for effluents and emission as prescribed under the Environment (Protection) Act 1986 cannot be relaxed by any State Boards or Committees. They can only be made stringent on a case to case basis. It also provides for annual submission of Environmental Statements (Audits).
A number of rules and notification have been issued under the E.P. (Act) 1986.
- The E. Waste (Management) Rules 2016.
The new E. Waste (Management) Rules 2016 (GSR 338E:23.3.2016) apply to every manufacturer, producer, bulk consumer, other consumer, collection centre, refurbisher, dismantler, recycler or to any dealer and e-retailer involved in the manufacture, sale, transfer, purchase, collection, storage and processing of e-waste or electrical and electronic equipment (EEE) as detailed in schedule 1 to the E-waste Rules. The rules establish responsibilities of the manufacturer, producer, collection centre, dealers, refurbishers, consumers, bulk consumers, dismantlers, recyclers and the State Government and prescribe a procedure for obtaining an authorization to be obtained by the Manufacturer (From the SPCB), Producer (Extended Producer responsibility authorization from the CPCB), Refurbisher (One Time authorization from the CPCB), dismantler (SPCB) and Recycler (SPCB). These authorizations are required to be obtained by the occupiers (defined as the person, who in relation to any factory or premises has control over the affairs of the factory or the premises, and includes in relation to a hazardous substance the person in possession of the substance or waste).The manufacturer, producer, importer, transporter, refurbisher, dismantler, recycler shall also be liable for all damages caused to the environment or third party due to improper handling and management of E-Waste and shall also be liable to pay all financial penalties as levied for any violation of the provisions under the rules by the State Pollution Control Board with the prior approval of the Central Pollution Control Board.
- The Bio Medical Waste Management Rules 2016
The Bio Medical Waste Management Rules 2016 have superseded the earlier rules of 1998 and now apply to all persons who generate, collect, receive, store, transport, treat, dispose or handle bio medical waste in any form including hospitals, nursing homes, clinics, dispensaries, veterinary institution, animal houses, pathological laboratories, blood banks, ayush hospitals, clinical establishments, research or educational institutions, health camps, medical or surgical camps, vaccination camps, blood donation camps, first aid rooms of schools, forensic labs and research labs.The rules have established procedures for handling of biomedical wastes (Rule 4, 5, 8 and schedule I), the operation of bio medical waste treatment and disposal facilities (Rule 7), the standards ( as prescribed under Schedule II) and requirements of an authorization from the State Pollution Control Boards or Committee (Rule 10).
- The Construction and Demolition Waste Management Rules 2016
The Construction and Demolition Waste Management Rules 2016 were published by the MoEF and CC on 29-03-2016 vide G.S.R. 317 (E). These rules apply to every waste resulting from construction, remodeling, repair and demolition of any civil structure of individual or organization or authority which generates construction and demolition waste such as building materials, debris, rubble. A waste generator could be any person or association of persons or institutional, residential and commercial establishments including Indian Railways, Airport, Port and Harbors and defense establishments who undertake construction or demolition of any civil structure which generate construction and demolition waste. The rules establish procedures for segregation storage and disposal, of preparing waste management plans, seeking approvals from Municipal Authorities and payment of charges for processing and disposal of such wastes. (Rule 4) The rules also prescribe duties of service providers and contractors (Rule 5), duties of local authorities, who shall also examine and sanction the Waste Management plans (Rule 6), State Pollution Control Boards (Rule 8) who would grant authorization to the construction and demolition waste processing facilities and the duties of the State Governments/UT, (Rule 9), the CPCB (Rule 10), the BIS , the Indian Road Congress (Rule 11) and the Central Government (Rule 12).
The Solid Waste Management Rules, 2016 (Government of India)
The MoEF and CC, Govt. of India has notified The Solid Waste Management Rules 2016, in supersession to the Municipal Solid Waste (Management and Handling) Rules 2000. The new rules generally relate to Municipal Solids Waste. A new category of Domestic Hazardous Solid wastes has also been established. The new rules have also made a provision of segregation at source, specific provisions for proper disposal of sanitary napkins and diapers, collect back systems for packaging wastes and user fees and spot fine for collection. Systems for waste processing and treatment have been prescribed along with adequate provisions of disposal area, promoting use of compost, promoting waste to energy. Industries within 100 Kms of RDF plants have been asked to compulsorily replace 5% of fuel used by refuse derived fuel.Wastesbeyond 1500 Calories are prohibited from being discharged into land fills. Siting criteria for land fill sites have been prescribed along with buffer zones round landfills. Duties and responsibilities of various organization have been prescribed along with a mechanism for seeking authorization from the Pollution Control Boards.
- The Hazardous and other wastes (Management and Transboundary Movement) Rules, 2016
The Hazardous and other Wastes (Management and Transboundary Movement) Rules 2016 have been notified by the MoEF and CC and apply to wastes which by reason of their characteristic properties, (Physical, Chemical, Biological, Reactive, Toxic, Flammable, Explosive or Corrosive) causes danger or is likely to cause danger to health or environment whether alone or in contact with other waste or substances. Such waste has been indicated to also include wastes covered in the Schedule I, II and III of these rules. The notification also makes a mention of “other wastes” needing regulation. “Other Wastes” are those wastes which are included in Part B and Part D of Schedule III to the notification.
The rules provide for authorisations, granted normally for a period of 5 years by the State Pollution Control Boards) and procedures for handling Hazardous and other wastes including Temporary storage of wastes, utilisation of Hazardous waste as a resource and the import and export of Hazardous wastes. It also facilitates and encourages setting up of dedicated common Treatment, Storage and Disposal facilities( TSDF).
- The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
The Manufacture, storage and Import of Hazardous Chemical Rules, 1989 were notified under the Environment Protection Act and deal with industrial accidents involving Hazardous chemicals. The rules apply to industrial activities involving the use of Hazardous chemicals as identified through Part I of Schedule I and column II of part 2 of the rules and to isolated storages involving the storage of hazardous chemicals beyond the threshold quantities as prescribed (Schedule 2, Column 2 and 3).Occupiers having control over industrial activities involving the handling of hazardous chemicals will have to identify the manor hazards and take adequate steps to prevent major accidents and provide information, training and equipment including antidotes necessary to ensure safety. The rules also provide procedures for notifying accidents (Rule 5), Preparation of safety reports (Rule 10), notification of sites (Rule 7) and the preparation of onsite emergency plan by the occupier (Rule 13) and an offsite emergency plan by the authorities (Rules 14). Import of Hazardous chemicals is covered under Rule 18.
- The Plastics Waste Management Rules 2016
The Plastics Waste Management Rules 2016 notified by the MoEF&CC under the Environment Protection act of 1986, define “plastic” to mean material which contains as an essential ingredient a high polymer such as polyethylene terephthalate, high density polyethylene, Vinyl, low density polyethylene, polypropylene, polystyrene resins, multi-materials like acrylonitrile butadiene styrene, polyphenylene oxide, polycarbonate, Polybutylene terephthalate.
Conditions have been prescribed for the manufacture, importer stocking, distribution, sale and use of carry bags, plastic sheets or like, or cover made of plastic sheet and multilayered packaging. A few important conditions prescribe that carry bags made of virgin or recycled plastic shall not be less than fifty microns in thickness , carry bags made of recycled plastic or products made of recycled plastic shall not be used for storing, carrying, dispensing or packaging ready to eat or drink food stuff, plastic material, in any form including Vinyl Acetate – Maleic Acid – Vinyl Chloride Copolymer, shall not be used in any package for packaging gutkha, pan masala and tobacco in all forms and sachets using plastic material shall not be used for storing, packing or selling gutkha, tobacco and pan masala.
The State Pollution Control Board and Pollution Control Committee in respect of a Union territory have been designated as the the authority for enforcement of the provisions of these rules relating to registration, manufacture of plastic products and multilayered packaging, processing and disposal of plastic wastes. No person shall manufacture carry bags or recycle plastic bags or multilayered packaging unless the person has obtained a registration from the State Pollution Control Board or the Pollution Control Committee of the Union Territory concerned, as the case may be, prior to the commencement of production; Primary responsibility for collection of used multi-layered plastic sachet or pouches or packaging is of Producers, Importers and Brand Owners who introduce the products in the market. They need to establish a system for collecting back the plastic waste generated due to their products.
Responsibilities have been prescribed and every local body has been made responsible for development and setting up of infrastructure for segregation, collection, storage, transportation, processing and disposal of the plastic waste either on its own or by engaging agencies or producers.
The waste generator has been made responsible to (a) take steps to minimize generation of plastic waste and segregate plastic waste at source in accordance with the Solid Waste Management Rules, 2000 or as amended from time to time and not litter the plastic waste and ensure segregated storage of waste at source and handover segregated waste to urban local body or gram panchayat or agencies appointed by them or registered waste pickers’, registered recyclers or waste collection agencies.
All institutional generators of plastic waste, shall segregate and store the waste generated by them in accordance with the Municipal Solid Waste (Management and Handling) Rules, 2000 notified vide S.O 908(E) dated the 25th September, 2000 under the Act or amendment from time to time and handover segregated wastes to authorized waste processing or disposal facilities or deposition centers either on its own or through the authorized waste collection agency.
- The Environment Impact Assessment Notification of 2006
Recognizing the importance of Environmental Impact Assessments in siting development activities in an environmentally sustainable manner, the Ministry of Environment and Forest, Government of India has prescribed a procedure for restricting the expansion and modernization of activities being undertaken in any part in India unless environmental clearance has been accorded by the Moef, Government of India or in certain cases by the State Government. This was earlier through the E.I.A. notification of 1994 and its various amendments. The E.I.A. notification of 1994 as above was superseded and replaced by notification no S.O. 1533 dated 14-09-2006 issued by the Government of India. This notification provided for the establishment of the State Environmental Impact Assessment Authorities, the Central and State Expert Appraisal Committees and the procedures for granting environmental clearances. It is under this notification that clearances are issued by the MoEF after 2006.
The Environment Impact Assessment notification of 2006 identifies 37 activities in 8 categories of projects and activities (New projects and expansion or modernization of existing projects) where prior Environmental clearance must be obtained by the project proponents (Schedule 1). The activities are classified into two categories A and B. Category A projects are considered through an Expert Appraisal Committee constituted at the level of the Central Government and granted/refused a clearance by the MoEF and CC, GOI on the recommendation of this committee. Category B projects are considered through the State Expert Appraisal Committees and granted /refused clearances by the State Environmental Impact Assessment Authority. In the absence of a duly constituted authority/committee at the State Level, a category ‘B’ project automatically becomes a category ‘A’ project.
Screening, Scoping, public consultation (with exceptions) and appraisal constitute the various stages of project evaluation and time frames for each stage prescribed. Environmental Impact Assessments have been provided as an essential management tool (with exceptions) for the clearance mechanism. Quality Council of India, accredited consultants are authorized to make presentations on the EIA and EMP before the respective Appraisal Committees.
A six monthly monitoring schedule is also prescribed. Monitoring is done by the Ministry of Environment, Forest and Climate Change. This is essentially a clearance granted by the Ministry of Environment and Forests and the SEIAA/SEAC represent constituent entity of the Ministry at the State Level.
Validity of Environmental Clearances is generally limited to 10 years and the Environmental Clearance is transferable. This clearance is different from the consents to establish issued by the State Boards and Committees and the conditions of the Environmental Clearance are generally included as condition of consent aforementioned.
- The Central Ground Water Authority
The Central Ground Water Authority has been constituted under section 3 (3) of the Environment Protection Act, 1986 to regulate and control development and management of ground water resources in India and to issue necessary regulatory directions for the purpose. The National Green Tribunal has directed that no person shall with draw ground water without the permission of the CGWA.
- The Public Liability Insurance Act 1991
The Public Liability Insurance Act is an act of Parliament of India to provide for immediate relief to the persons affected by accidents occurring while handling any hazardous substances. This act is related to immediate relief, not compensation and is specific to relief on death or injury to any person other than a workman (as defined in the workman compensation Act 1923) or damage to any property as a result of a major accident. The victims also have a right to claim compensation under any other law in force.
Every owner handling any hazardous substance (as defined and categorized in the Act) has to take out one or more insurances policies against liability to give relief. The insurance policy shall not be less than the amount of paid up capital ( defined as the amount of the market value of all assets and stocks of the undertaking on the date of contract of insurance) and not more than 50 crore rupees. Every owner is also supposed to pay to the insurance, together with the premium, a sum equal to the amount of the premium for a relief fund.
The maximum aggregate liability on the insurer has been limited to Rs. 5 Crores in the case of a single accident and Rs. 15 Crores in case of more than one accident during the currency of the policy or one year whichever is less. Any award for relief beyond the amount shall be met from the relief fund and in case the award is for an amount greater than the sum of the insurers liability and the relief fund then the extra sum will be paid by the owner. The owner is supposed to reimburse the collector the amount which is paid from the relief fund.
The right to claim relief under the PLI Act is in addition to any right to compensation as under any other law in free. However, in case compensation is also sought, the amount of relief will be deducted from this compensation.
Section 12 of the Act empowers the Central Governments and State Government to issue directions on prohibition or regulation of the handling of any hazardous substance or for stoppage or regulation of the supply or electricity, water or any other service. Failure to comply with the directions issued under section 12 as above or not taking an insurance policy or not contributing to the relief fund will invite imprisonment which shall extend from 18 month to 72 months (24 months to 84 months in case of repeated offence). A maximum imprisonment of 3 months and a fine of Rs. 10000 is prescribed for other offences.
- The National Green Tribunal Act 2010
The National Green Tribunal constituted through the National Green Tribunal Act of 2010 deals with the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources and also adjudicates on legal rights and compensation for damages. It specifically address to questions arising out of the implementation of the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981, the Water (Prevention and Control of Pollution) Cess Act 1977, The Environment Protection Act of 1986, the Forest conservation Act of 1980, the Wild Life Protection Act 1972, the Public Liability Insurance Act of 1991 and the Biodiversity Act of 2002. This includes adjudication of disputes arising out of decisions taken by the appellate authorities constituted under the aforesaid acts and disputes arising out of orders passed by the Pollution Control Boards, Forest and Environment Departments, National and State Biodiversity Boards, Central and State Environmental Impact Assessment Authorities. The procedure for filing application prescribes that an application or appeal to the tribunal can be made by the applicant or appellant either in person or through an authorised agent or by a duly authorised legal practitioner. The highlight of this Act has been the appointment of expert Members and the inclusion of provisions for the use of scientific knowledge in the settlement of disputes.
Appeals against orders passed by the Tribunal are only maintainable at the Supreme Court of India. Section 26 (i) of the National Green Tribunal Act States that a person who fails to comply with an order or award or decision of the Tribunal is punishable with imprisonment for a term upto 3 years or with a fine upto I.N.R. 10 Crores or both. If the failure or contravention continues, an additional fine of Rs. 25000 would apply to every day of the failure after connection for the first failure.
In case of noncompliance of orders or decisions by companies, Section 26(2) provides a fine of upto Rs. 25 crores. If the failure or contravention continues, an additional fine upto Rs. 100000 per day applies.
- The Company Act 2013
The Company’s Act of 2013 has made provisions for Corporate Social Responsibility with a provision to spend 2% of the Average profits over the past 3 years and made CSR and the reporting of C.S.R. activities mandatory.( Section 135, Company Act 2013) The Environmental Impact assessment notification of 2006 enables the government to prescribe compulsory incorporation and implementation of C.S.R. initiatives. Noncompliance has been regarded as a punishable offence.
- The Forest Conservation Act, 1980
The Forest Conservation Act, 1980 is a Central Act of Parliament with a view to provide for the conservation of forests and for matters connected therewith or ancillary or incidental there to. Section 2 of the Act makes a provisions of a prior approval of the Central Government being necessary before a state Government or any other Authority issues directions for dereservation of reserved forests (which have been reserved under the forest Act 1927), use of forest land for non forest purposes, assigning forest land by way of lease or otherwise to any private person or to any authority, corporation agency, or any other organization not owned, managed or controlled by the government and clear felling of naturally grown trees. The term forest land mentioned in section 2 refers to any reserved forest, protected forest, or any area recorded as forest in the Government records. Land notified under section 4 of the Indian Forest Act would also come under the purview of the Forest conservation Act 1980. The Supreme Court of India has held that Forests as understood in the dictionary term would be regarded as forest land. The term ‘Forest’ would not be applicable to plantation raised on private lands except notified private forests. Procedures for making application have been prescribed. Appeals lie with the National Green Tribunal.
- The Wild Life Protection Act of 1972
The Wild Life Protection Act of 1972 provides for the protection of wild animals, birds and plants with a view to ensuring the ecological and environmental securities of the country and for matters ancillary and incidental thereto. The act provides for the constitution of the National Board for Wild life and the State Board for Wild Life and regulates the hunting of wild animals and protection of specified plants. It also empowers State Governments to notify Sanctuaries, National Parks and game reserves and regulate development in the fringe area through delineation and notification of Eco sensitive zones. It also provides for a system of clearances from the National Board for wild life. Any project which is proposed within 10 Kms of the boundaries of a protected area shall also require a NBWL clearance if an eco sensitive area has not already been notified for the protected area.
- Public Interest Litigation
- It was somewhere during the evolution of these tools that public interest litigation was also recognised as a cooperative effort in which the petitioner, the state or the public authority and the court endeavoured to secure legal rights, benefits and privileges conferred upon the weaker sections of society and to reach social justice to them. It was also emphasized that the state or public authority which is arrayed as a respondent in public interest litigation should in fact welcome it as it would give an opportunity to right a wrong or to redress an injustice done to the poor and weaker section of the community whose welfare is and must be the prime concern of the State or the Public authority. It was this period that witnessed the emergence of the courts as courts for the poor and struggling masses of the country and of public interest litigation as a tool to solve problems of the poor and the vulnerable sections of society.(S.P.Gupta and others vs. President of India and others, AIR 1982, S.C.149; Peoples Union for Democratic Rights and others vs Union of India and others, AIR 1982, S.C. 1973)
- Of special importance to enviro-legal action is writ Petition no. 8209 and 8821/83, which was the first public interest Litigation in the country, involving issues related to environmental and ecological balance. It brought into sharp focus the conflict between development and conservation and emphasised the need for reconciling the two in the large interests of the country. Against an imbalance to ecology and hazard to healthy environment due to working of lime stone quarries in the Mussoorie ranges, the Supreme court ordered the closure of lime stone quarries.
- The ball had been set rolling for a dynamic movement in the country. Coupled with increasing environmental awareness and an imperative need to conserve environment, individuals and groups started looking to the courts for a judicial redressal to social problems. The Supreme court stated that it would respond even to a letter addressed by any individual in matters of public interest. A number of issues were thrown up. It was recognised that non compliance of pollution control laws was a serious offence. Non conformity to standards stipulated by the Pollution Control Board elicited decisions involving immediate closure. Episodal pollution and hazards thereof brought to the fore the importance of industrial siting and absolute liability. Industries were asked to shift from non conforming land use areas. Forest rights were restored, workers rights protected, health compensations awarded. A number of important directions were given by the courts from time to time which have served as indicators of judicial thought and the seriousness with which they view environmental inaction.
- Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of an accident in the operation of such hazardous or inherently dangerous activity resulting in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected in the accident and such liability is not subject to any of the exceptions which operate vis a vis the tortious principle of strict liability. In such a case, the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation.
- Where in a public interest litigation owners of some of the tanneries did not care in spite of notice to them even to enter appearance in the Supreme Court to express their willingness to take appropriate steps to establish the pretreatment plants, it was held that so far as they were concerned an order directing them to stop working their tanneries should be passed. It was further observed that the financial capacity of the tanneries should be considered as irrelevant while requiring them to install PETPs.
- Where a person though not a riparian owner is a person interested in protecting the lives of the people who make use of the water flowing in the river Ganga his right to maintain the petition connot be disputed. Stay by High courts should not normally be granted and if granted the matter should be disposed off within a short period, say about two months.
- Where remedial measures are required, the Supreme Court directed the Central Government to assess the amount which the respondents are liable to pay to improve and restore the environment in the area, damaged by their action. In case of failure of the respondents to pay the amount, the same could be recovered by the Central Government in accordance with Law.
- The Supreme Court ordered the closure of 168 hazardous industries in Delhi and also ordered them to shift out side the capital. The court has given protection to the workers by directing that they shall be treated as continuing in their employment, with a shifting allowance. Those who want to quit their jobs or cannot shift could claim retrenchment benefits plus the shifting allowance.
- Similarly on 19 Dec 1996, the Supreme Court directed 550 tanneries to a new site by April 1997. They were asked to deposit 25% of the price of the new land. All units which deposit the money were directed to be permitted to operate till they are relocated. Directions were also issued that workmen will not be retrenched but allowed to continue at the same site. They should be considered as actively employed between the closure and relocation. The tanneries opting for closure will have to pay 6 years (Six) wages to the retrenched workers. ( Jan. 1997)
- The Supreme Court to save the Taj Mahal from pollution being caused by polluting industries at Agra ordered for the shifting/ relocation of industries and directed some to adopt gas based technologies.
- The Supreme court has ordered that compensation be paid to the heirs of the deceased workers, suspected to have succumbed to silicosis; ailing workers and even to those who have succumbed to the desease because of living in the neighbour hood of quartzite crushing units in Jhargram, West Bengal.
- The Supreme court has ordered the polluting tanneries in Tamil Nadu to compensate the affected persons and to pay the cost of restoring the damaged ecology
- The Gujrat High Court has ordered the closure of dyeing and printing units, holding them responsible for polluting the drinking water. The dyeing units were also required to pay 1% of their 3 years turn over as penalty to the people affected by the polluted water