The latter half of the 20th century had the environmental concerns on a rise. It was during this time that the issues surrounding the environment were being discussed. The United Nations Conference on the Human environment was the first such initiative at Stockholm in 1972. India, who was a signatory to this, raised various environmental concerns along with many other developing countries. This led to all the countries resolving to protect and enhance the environment.
It is not just because of this conference that led to the enactment of the Environment Protection Act, 1986 but the Indian Constitution also provides for the protection of the environment. Although, the purpose was to implement the decisions of the UN Conference, it was the Bhopal Gas Tragedy, 1984 which was the trigger. Hence, came about the Environment Protection Act, 1986, passed in March but came into effect in November, soon after the Bhopal Gas Tragedy.
Salient Features of the Act
The Act was passed under Article 253 of the Indian constitution and extends to the whole of India. It has been compiled in 26 sections and divided into four chapters. Let us run through the salient points from the act:
(1) Preliminary
This part begins with defining some important terminologies closely related to the environment under section 2, and they are:
Environment
Environmental Pollutant
Environmental Pollution
Handling
Hazardous substance
Occupier
(2) General Powers of the Central Government
This part grants power to the central government to take all such measures as it deems necessary for protecting and improving the quality of the environment. That also translates into a duty to prevent, control and abate environmental pollution.
Powers of the Central Government to take measures:
The government has the power over the coordination of actions by the State Governments, officers and other authorities, related to this Act or other laws whose goal is in sync with the objects of this Act. It can also frame a national programme for the prevention, controlling and abatement of environmental pollution, along with its implementation.
The main power entails instruction on the standards for the quality of the standards of the environment. To assert the standards for emission or discharge of environmental pollutants from various sources. Provided that these standards be instructed under this clause and should have regard for the quality or composition of the emission or discharge of environmental pollutants from such sources.
The government may restrict the areas in which any of the industries, class of industries, or any operation shall not be carried out. Or if so, safeguard measures shall be followed. It is also the power and duty of the government to lay down the procedure to carry forward safeguards for the prevention of accidents which may culminate into more environmental pollution. Further, proposals of remedies should be put forth as preventives for future events. Same is the case with the handling of hazardous substances.
Even the materials used in the manufacturing processes, might cause pollution, so proper examination should be done. Along with that, the power to inspect at various premises, equipment, material and substances, and, to direct the authorities to facilitate the same.
One of the most important duties is the establishment and recognition of environmental laboratories. They would help the collection and dissemination of information relating to environmental pollution. Moreover, the government should very well support the dissemination of information and research work. Lastly, preparation of manuals, codes, guides which are considered suitable controlling measures.
Power to give directions:
To exercise its powers, the central government may issue directions in writing to a person, officer or authority. As a result, they shall be bound to comply with such directions. The government has the power to direct closure, prohibition or the regulation of any industry and its operational process. Also to order stoppage or regulation of the supply of electricity or water or any other service.
Rules pertaining to the Act:
The Central Government may, at its discretion make laws pertaining to the premises stated in section 3. It has the authority over the merit of the quality of air, water or soil. It also gets to decide on the maximum permissible limit for the accumulation of environmental pollutants.
It could lay down procedures and safeguards for the handling of hazardous substances. Along with that, on guiding its prohibition and restrictions too. It also has a say in the prohibition and restriction on the location of industries and wherever their operations get carried out.
Control over the subject of accidents is another prominence in power. It could direct on procedures and safeguards so as to prevent accidents which may cause environmental pollution. Remedial measures for such accidents is yet another. Therefore, the rules that the government is empowered to make could revolve around all or any of the aforementioned matters.
(3) Prevention, Control and Abatement of Environmental Pollution
Section 7 of this Act mentions that no person in the country shall carry out any pursuit in which there is a large emission of gases or other jeopardising substances which may lead to the environment getting polluted. It also provides for certain benchmarks that ought to be maintained. This is to be done by allowing no person to damage the environment and if at all a person is found guilty of fostering damage to the environment by polluting then the polluter pays principle will follow. In such cases, the offender can be asked for ‘exemplary damages’.
The next section says that any person who is handling the hazardous substance must comply with the procedural safeguards and guidelines. If the emission is huge or is apprehended so through an accident, the person concerned along with the in-charge is obliged to minimize the environmental pollution.
Further, the persons must also intimate the higher authorities about it and must fully assist the authorities if called upon. And on receipt of any information, the concerned authorities should take remedial measures as early as possible to curb on the spread of environmental pollution.
Penalty and Offences:
Section 15 provides for imprisonment up to five years, with fine which may extend to the term of one lakh rupees, or both. And in case violation continues for one year, the punishment can extend up to seven years.
But there is a provision that if any offence is punishable under this Act and also under any other Act, then the person shall not be punished under this Act, but only the other Act.
Section 16 deals with the offences committed by companies and lays down the principle of vicarious liability. This makes the person in charge such as the director, manager or secretary etc. liable for the offence committed by any company. An exception is a case when the offence is committed without the knowledge of the person in charge or if he has taken diligent care to prevent the commission of the offence.
(4) Miscellaneous
There is an explicit provision of no repercussions in any suit or proceedings against any government or its officials or authorised persons who act in good faith, with the motive of pursuing the objects of this Act.
Next is an explanation given on who can file a complaint. It has been clearly stated that the central government or any authority associated with the government has this right. Along with that, the Act has conferred upon the citizens, the privilege of locus-standi. This entails the right to approach a court of law provided, a notice of not less than 60 days of the alleged offence and of her intention to make a complaint to the competent authority has been given.
Another vital component mentioned is that of the bar of jurisdiction. The act bars the civil courts from acting upon or interfering with the actions taken by the central government. Since a few decades, Public Interest Litigation has been quite in trend, thus most cases in this regard have come this way.
Objectives and purposes of Environment Protection Act, 1986
The objectives and purposes of this act, first and foremost lie with the implementation of the aims of the UN Conference on the Human Environment, 1972. Apart from that, the increasing menace to the environment nationwide called for an enactment. This act acted as a deterrent to those offenders or activities that constituted harm to the environment. Not only that but the goals of sustainable development are also far related to this. In achieving these goals, the importance of protection of life has also been stressed upon, as rightly stated in Article 21 of the Indian Constitution.
For all this a tool was needed to coordinate the activities of various regulatory agencies already in existence, and, the establishment of new authority or authorities for environment protection. The act would subsequently facilitate the appointment of officers to keep a check on illicit activities.
Even the establishment of environmental laboratories was desired. This was aimed at ameliorating the strength of research and development in the country.
Thus, the Environment Protection Act of 1986 goals at preserving and safeguarding the environment, enhancing its merits, and averting perils to humans or other living beings and property collectively. The act was one that guided the several other specific legislations to unity by bridging the gaps.
Why was it enacted?
It is pertinent to mark the importance of the UN Conference on the Human Environment. It acted as a foundation ground for various future ambitions. As a result of this, several legislations were enacted in India. The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 are examples of it.
Despite the enactment of the aforementioned acts and establishment of the Ministry of Environment in 1985, there was an unattended gap. It was quite evident that the need for a general legislation was intense, amidst the specific ones. To curtail these shortcomings, the Environment Protection Act, 1986 was enacted. The infamous Bhopal Gas Tragedy expedited the Act’s coming into effect.
Moreover, the Constitution of India affirms that the state shall ‘protect and improve the environment and safeguard the forests and wildlife of the country’. The 42nd Amendment to the Constitution made relevant changes. One such was adding Article 48A and 51A(g), which come under the Directive Principle of State Policy and the Fundamental Duties respectively.
Landmark cases made under it
Let us now look at a few landmark cases under Environment Protection Act, 1986, to understand the intricacies better:
In “Indian Council for Enviro-Legal Action v Union of India (1996 AIR 1446)”, the Supreme Court considering the 600 km long coastline emphasized, that it would be the duty and responsibility of the respective coastal states and union territories in which the stretch exists, to see the proper implementation of the orders. Further, the manifold restrictions on setting up and expansion of industries, and its operations etc. in the regulation zone should be strictly enforced.
In the same case, the court stressed upon the ‘polluter pays principle’. If the activity carried out was precarious or inherently so, the person carrying on such activity is liable to indemnify any other person irrespective of the fact whether he took reasonable care while carrying on his activity.
In “Vellore Citizen Welfare Forum v. Union of India & others (AIR 1996 SC 2715)”, the polluter principle as interpreted by the apex court meant an absolute liability. It means the liability of the harm caused extends not only to compensate the victims of that wrongful act but also the cost required to undo the environmental degradation.
Remediation of the damaged environment is part of the process of “Sustainable Development” and that makes the polluter liable to pay the cost to the individual sufferer as well as the cost of reversing the damaged ecology.
In “Goa Foundation v. Diksha Holdings Pvt. Ltd (1999 (2) BomCR 550)”, the court was bent to protect the ecological balance in the coastal areas and notifications in this regard have been issued by the Central Government. There ought not to be any violation of the order. And the activities prohibited should not be allowed to occur within the area declared as a Coastal Regulation Zone (CRZ) notification.
Further, the court also highlighted that only those activities should be allowed which would ultimately lead to scientific and sustainable development and don’t pose any threat to the ecology.
Critical Analysis
Looking through the analytical lenses shows that the law has been rushed through the Parliament without proper deliberations on various accounts. The most dazzling lacuna is the exclusion of forests, that too in a country where half the energy consumed is ‘non-commercial’ or collected from fields and trees. Thus, making destruction of forests a ladder to progress in present times.
Secondly, the Environment Protection Act, 1986 (EPA) is criticised for its comprehensive approach regarding the rule of locus standi. It has been evinced ineffective by the requirement of 60 days’ notice which gives a long enough time for the offender to abscond any answerability. Thus, it indirectly paves the way for the citizens to escape liability.
Another major drawback of the EPA follows from its co-existence with the earlier Water and Air Acts. Section 24 lets the offender get away with a less stringent punishment in case the offender is liable in any other Act. This serves as a major hindrance to the effective implementation of this Act. Moreover, the areas of jurisdiction have not been demarcated and a possibility of conflict cannot be ruled out.
Lastly, the powers and responsibilities bestowed upon the central government are humongous. Power to call for information concerning pollution is remarkable as it could benefit the unaware. However, the Act gave extensive powers to the government that led to an unqualified centralisation.
Conclusion
The Environment Protection Act, 1986 was a desideratum in the Indian environmental law. Even though it had its fair share of shortcomings, it did bridge the existing rift between specific legislations. This was a prominent hole which was filled up to a great extent.
If we look at the bigger picture, it is apparent that an environmental crisis is a worldwide quandary. The current pandemic is being regarded as a crisis of our own making, by waging war against the environment. The pollution levels across even the most polluted cities have plummeted. This is because staying indoors we have no opportunity to tamper with the ways of nature nowadays. This significantly exhibits how much difference our attitudes can make. So, having numerous legislations in isolation doesn’t help. The problem lies with implementation, where often our behaviour acts as a hindrance. India has sufficient laws but lacks proper implementation. And one of the ways of achieving it could be through people’s participation.
About author –
Ayushi Shrivastava is a first-year LL.B. student at ILS Law College, Pune. She has developed an interest in constitutional law and corporate law. She has been writing for some years now and it has been a rewarding experience for her.
Also Read – Role of Statutory Bodies in Environmental Protection
