Module 4

1. Constitutional Guidelines
• Right to Wholesome Environment – Evolution and Application
In order to proceed further it was necessary to present the picture of Article 21 and environment in
general. “Environment and life are interrelated and the existence of life on earth depends on the
harmonious relationship between ecosystem and environment.” Every individual, from the moment of his
birth, acquires certain rights. One such right is the right to live in a clean environment.

While framing the Constitution of India, there was no mention of specific provision relating to the
protection of environment or conservation of nature. The problems were prevalent in the earlier times also
but they were very acute as the living of the people was simple and there were not much industries,
transport facilities etc. but now with the advancement in technology and sciences, the problems have
become grave. “In India, around 70% of the population directly depends on the land-based occupations,
forests, wetlands and marine habitats, for basic subsistence requirements with regards to water, food, fuel,
housing, fodder and medicines as also for ecological livelihoods and cultural sustenance.”

The first milestone reflecting an international consensus on the nature and scope of the environment
challenge confronting world community was the Stockholm Conference. The declaration does not provide
for the definition of environment. The main gist of the declaration is the “man has the fundamental right
to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of
dignity and well being and he bears a solemn responsibility to protect and improve the environment for
present and future generation.” The conference takes into account the fact that the environment may
challenge the very existence of mankind as it has an immense impact on the life of human kind and
sustainable modification or harm.

The principle of ‘sustainable development’ came to be recognised in this declaration which says that there
must be a balance between development and ecology. “Economic development without environmental
considerations can cause serious environmental damage affecting the quality of life of the population,
both present and future.” Therefore, there is an urgent need to maintain a balance between the demands of
development and the levels of environmental protection in order to ensure sustainable development. Since
pollution is the major cause of environmental degradation and of imbalance, so, pollution control will be
of greater significance for sustainable development.

Some of the basic principles of sustainable development include:

• Inter-Generation Equity which talks about the right of every generation as the most important
principle of ‘sustainable Development’.

• The Precautionary Principle: this principle has been considers as the most important principle of
sustainable development. It means-

- Environmental measures by the state government and the local authority must anticipate, prevent and
attack the causes of environmental degradation.
- Where there are threats of serious and irreversible damage, lack of scientific certainty should not be
used as a reason for postponing measures to prevent environmental degradation.

- The ‘onus of proof’ is on the actor or the developer to proof that his action is environmentally benign.

• Polluter pays principle: it is quite obvious that the object of the above principle was to make the
polluter liable not only for the compensation to the victims but also for the cost of restoring of
environmental degradation. Once the actor is proved to be guilty, he is liable to compensate for his act
irrelevant of the fact that whether he is involved in development process or not.

The two principles, that is, the polluter pays principle and the precautionary principle came to be
recognised in the case of Vellore Citizen’s Welfare Forum vs. Union of India. In this case, water pollution
has been caused by the tanneries. “The Supreme Court recognized the common law right of the people to
a clean and healthy environment and awarded compensation to the victims of pollution on the basis of the
‘precautionary principle’ and the ‘polluter pays principle’ and also held that these both principles are a
part of the environment.”

The Constitution of India is the main source of incorporating right to clean environment. Though the
other important work of legislation is the Environment (Protection) Act, 1986 which provides a
framework of coordination of activities between the Central government and the State government to
prevent and control environmental pollution and degradation. Since the need for the protection of
environment has been felt, so in this regard the two major developments have been take place in our
Constitution.

• Relevant Provisions –19 (1) (g), 21, 48-A, 51-A(g)

- Article 19 (1)(g):

Freedom of Trade and Commerce and Environmental Protection

All the citizens of India have a fundamental right to carry on any profession or business, trade or
commerce at any place within the territory of India under Article 19 (1)(g) of the Constitution. But this is
not an absolute right and thus, has reasonable restrictions to it. Article 19(6) of the Constitution lays down
the reasonable restriction to this fundamental right to avoid the environmental hazards.

The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of
carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or
profession, one cannot cause harm to the environment.

In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were discharging effluents in the
holy river Ganga which was causing water pollution. Further, no primary treatment plant was being set up
despite the constant reminders. It was held by the court to stop the tanneries from working because the
effluents drained were ten times more noxious as compared to the ordinary sewage water which flows
into the river.

The court ordered while directing tanneries to be stopped from working which have failed to take
necessary steps as required for the primary treatment of effluents from the industries. The court while
passing this order contended that, though the court is conscious about the unemployment that might usher
due to the closure of the tanneries but health, life and ecology holds greater importance in the eyes of law.

- Article 21:

Right to life and Environment Protection

Article 21 of the constitution provides for the fundamental right of life. It states that no person shall be
deprived of his right to life or personal liberty except in accordance with procedures established by law.
The words “except in accordance with procedures established by law” can be interpreted to mean that this
provision is subject to exception and is regulated by law which varies from case to case.

Since the provision begins with the word ‘no’ that is the reason it has been given a negative impact. But
post-Maneka period this provision has been given a positive interpretation and positively casts a duty on
the state to enforce the due implementation of this law.

Right to life includes the right to have a dignified life and also the bare necessities of life like food,
shelter, clean water and clothes. The right to live extends to having a decent and clean environment in
which individuals can live safely without any threat to their lives. An environment shall be free from
diseases and all sorts of infections.

This is crucial because the right to life can be fulfilled only when one lives in a clean, safe and disease-
free environment, otherwise granting such right would prove to be meaningless. This aspect of Article 21
has been evidently discussed in the case of Rural Litigation and Entitlement Kendra, Dehradun v.
State of Uttar Pradesh, where the petitioner along with the other citizens wrote to the supreme court
expressing their views against the progressive mining which denuded the Mussoorie hills of trees and
forests and soil erosion. This lead to having an adverse effect on the environment and resulted in
landslides along with blockage of underground water channels.

The registry was ordered by the Hon’ble supreme court to consider this letter as a writ filed under article
32 of the Constitution.

An expert committee was appointed in this behalf by the Supreme Court to advise the Hon’ble court with
some technical issue. On the basis of the report provided by the expert committee, the court provided the
limestone quarries to be closed because it was infringing the right to life and personal liberty. Quarrying
operations lead to ecological degradation and air and water pollution, which affected the lives of the
people to a great extent.

Further, the scope of article 21 was broadened by the judiciary to include under its purview the right to
livelihood as well. It includes the right of citizens to earn their livelihood along with the right to life. The
wider interpretation of this article has proved to be beneficial in keeping a strict check on the conduct and
actions of the government in the context of measures taken by the authorities to protect the environment.
It is also beneficial in keeping a check on the activities of the state which can have a massive impact on
the environment, health of the individuals and threat to the livelihood of poor.
- Article 48-A:
Article 48(A) Protection and improvement of environment and safeguarding of forests and wildlife. "State
shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the
country"

Article 48A was added by the Constitution (42nd Amendment) Act, 1976.

This article have to be considered in the light of Article 21 which secures right to life and personal liberty.
The Environment (Protection) Act, 1986, and the Wildlife(Protection) Act, 1972, as amended by the Act
of 1986, are among the steps taken to give effect to the mandate contained in Article 48A. To enable
effective steps being taken for the purpose, by both Centre and State Governments 'Wildlife' and 'forests'
have now been placed in the Concurrent List of the Seventh Schedule by the Constitution (42nd
Amendment) Act,1976.

- Article 51-A(g)
Article 51A of Indian Constitution talks about Fundamental duties. These duties were added by 42nd
Amendment of the constitution of India in 1976. Such Duties are generally not found in the constitution
based on the western liberal tradition. They are invariably found in the socialist constitutions.

Article 51a– Fundamental duties It shall be the duty of every citizen of India

 to abide by the Constitution and respect its ideals and institutions, the national Flag and the
National Anthem;

 to cherish and follow the noble ideals which inspired our national struggle for freedom;

 to uphold and protect the sovereignty, unity and integrity of India;

 to defend the country and render national service when called upon to do so;

 to promote harmony and the spirit of common brotherhood among all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;

 to value and preserve the rich heritage of our composite culture;

 to protect and improve the natural environment including forests, lakes, rivers and wild life, and
to have compassion for living creatures;

 to develop the scientific temper, humanism and the spirit of inquiry and reform;

 to safeguard public property and to abjure violence;

 to strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement.
Need for Fundamental Duties

Rights and duties are correlative. The fundamental duties, are, therefore, intended to serve as a constant
reminder to every citizen that while the Constitution specifically conferred on them certain fundamental
rights, it also requires citizens to observe certain basic norms of democratic conduct and democratic
behavior.

The traditional duties have been given constitutional sanction. “If one takes care to see, he will discover
in the Constitution not only his rights but also his duties. A look at ‘ the Constitution will also thus answer
the complaint of some persons that Constitution has conferred rights on the individual but has not set out
the duties of the individuals towards the society.

By the Preamble the Constitution secures to all the citizens: “liberty of thought, expression, belief, faith
and worship”. These are fundamental right; of the citizens. The rest of the preamble emphasises only the
duties, “justice, social economic and political. In addition to this, the fundamental rights guaranteed by
the Constitution are not absolute rights. The State is empowered to impose reasonable restriction and
curtail these rights in the interest of society. Restrictions may sometimes amount to prohibition”

2. Principle of ‘No fault Liability’ and ‘Absolute Liability’

No Fault Liability:
The concept of strict liability was introduced in the late nineteenth century. The principle originates from
the idea of negligence which means having lack of care for any act. In simpler words, it can be explained
as a situation where one person has a duty of care towards the other, supposedly a tenant and breach of
such duty leads to certain harm to the other person who is the tenant. Where there is negligence on part of
the defendant, he or she is liable to pay damages and compensate the aggrieved. In contrast with the
concept of strict liability, the defendant or doer is held liable irrespective of presence of any negligence
on his part.

The concept of strict liability can be understood in a more transparent way by checking the
application of following essentials in any situation simultaneously:

i. Dangerous thing

In literal terms, the term dangerous means anything which is likely to cause any sort of harm or damage.
The first and foremost essential to constitute an act of strict liability is with the presence of a thing on the
land that is dangerous. Such presence of a particular thing is exposed to high risks to people surrounded
by it. Examples like electric item, explosives, fire related.

ii. Non-natural use of land

The second essential to satisfy the concept laid down above is there must be some kind of uncommon use
of land which can lead to harm or danger to people surrounded by it. There is a clear distinction between
natural and non-natural use of land which depends on the social conditions where a group of individuals
are living in. A natural use of land is when a justifiable amount of water is collected and kept for storage
whereas a non-natural use of land is when an immense amount of water is stored like that needed for a
reservoir.

iii. Escape

It is also essential that the thing which is causing damage to the other has escaped from the area where it
was perfectly under the control of its owner. The thing must break free from the confinement which in
turn caused damage or unlikely harm to the other person. For example, two wild dogs escaping their
house and running away to neighbours house and causing harm, owner having no knowledge of their
escape.

iv. Foreseeable damage

The damage that is likely to be caused shall be forecasted before its occurrence. Such forecast is very
essential to hold an individual liable for harm.

The whole idea of strict liability evolved in the landmark case, Rylands v/s Fletcher, passed by Justice
Blackburn. In this case, the defendants employed a group of engineers who were independent contractors
for constructing a reservoir as the defendant intended to improve his water supply. During the
construction, the contractors acted negligent and did not lock the mine shafts which they came across
during construction. As a result, immense water flooded into the coal mines of plaintiff and there was a
lot of damage caused to the mines of the plaintiff.

In furtherance of this suffering, the plaintiff sued the defendant for damages. While declaring the
defendant liable for the harm caused, Justice Blackburn laid down the rule of strict liability stating that:

“Any individual who for his own personal fulfilment of a purpose, brings something and keeps it on his
land, and this thing is of a nature that would likely cause damage if it escaped, he must keep such thing
under his control and peril, failing to do so would make him answerable for all the consequences that lay
beyond the escape.”

Therefore, the rule of strict liability is also called as the principle of No fault liability where irrespective
of the defendant acting negligent or making any mistake, he or she is going to be liable for the damage.

However, there are certain situations where a person would not be held accountable for any kind of
damage or harm caused to the other irrespective of the fact that the above-mentioned essentials are
satisfied.

These exceptional situations are as follows:

i. Act of God

An act of god is an act which takes place with the divine control and mankind has no control over the
happening and non-happening of such act. Whenever, such act takes place, the principle of no-fault
liability is not applied.
ii. Act of a Third Party

The rule of strict liability is not applicable in situations where the damage so caused is due to wrongful
act and wrongful intention of a third party and the defendant has no control over it.

iii. Plaintiff’s own fault

The defendant cannot be held liable for any harm or damage if such harm is created because of the
wrongful intention of the plaintiff for doing an act to cause harm to the defendant’s property. Example
stealing from defendant’s garden.

iv. Statutory Authority

None of the individual can be held liable for any activity causing any harm or damage to any individual,
if such act is performed for positively adhering to the provisions laid down in a statute.

Absolute Liability
The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus the
exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union of India.
This is one of the most landmark judgment which relates to the concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry. Due to
the leakage, many people were affected. The Apex Court then evolved the rule of absolute liability on the
rule of strict liability and stated that the defendant would be liable for the damage caused without
considering the exceptions to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in an inherently dangerous or
hazardous activity, and if any harm is caused to any person due to any accident which occurred during
carrying out such inherently dangerous and hazardous activity, then the person who is carrying out such
activity will be held absolutely liable. The exception to the strict liability rule also wouldn’t be
considered. The rule laid down in the case of MC Mehta v UOI was also followed by the Supreme Court
while deciding the case of Bhopal Gas Tragedy case. To ensure that victims of such accidents get quick
relief through insurance, the Indian Legislature passed the Public Liability Insurance Act in the year 1991.

3. Statutory Framework for the Protection of Environment in India

• The Water (Prevention and Control of Pollution ) Act,1974
This is an Act to provide for the prevention and control of water pollution and the maintaining or
restoring of wholesomeness of water through various management guidelines and restrictions. The act
was introduced and incorporated into the Constitution of India in 1974.

One of the prime objectives of this act is carrying out the purposes mentioned above by assigning a set of
responsibilities, powers, and functions to the Boards for the prevention and control of water pollution.
The Water Act applies in the first instance to the whole of the States of Assam, Bihar, Gujarat, Haryana,
Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and
West Bengal and the Union territories.

The act was passed in pursuance of clause (1) of article 252 of the Constitution. Resolutions have been
passed by all the Houses of the Legislatures of the States.

Clause (1) of Article 252 of the Indian Constitution

According to the Clause (1) of Article 252 of the Indian Constitution, the Parliament has no power to
make laws for the States with respect to any of the matters mentioned above, except as provided in
articles 249 and 250 of the Constitution. The Parliament can only act on laws once resolutions have been
passed by the Houses of the Legislatures of the participating states.

Central & State Pollution Control Boards (PCBs)

Under this act, one Central board and numerous State boards shall be appointed by notification in the
Official Gazette called Central Pollution Control Board (CPCB) and State Pollution Control Board
(SPCB) respectively with effect from a date not later than six months of the commencement of this Act.

The State Boards shall investigate, assess, and monitor the issues of concern regarding the quality and
pollution of the water resources available in their jurisdiction and shall report the same through quarterly
and annual reports during board meetings to the Central Board. The Central Board hereby shall look into
the State Board’s reports and also monitor and handle major issues regarding national water resources.

The composition of Central Board

The Central Pollution Control Board (CPCB) once appointed, should consist of the following key
members.

 A full-time chairman: A person having special knowledge or practical experience in respect of

matters relating to environmental protection having knowledge and experience in administering
institutions dealing with such matters, to be nominated by the Central Government

 A full-time member-secretary: Possessing qualifications, knowledge, and experience of scientific,

engineering or management aspects of pollution control, to be appointed by the Central
Government.

 Not more than 5 officials to be nominated by the Central Government to represent that
Government.

 Not more than 5 officials to be nominated by the Central Government, from amongst the
members of the State Boards.

 Not more than 3 officials to be nominated by the Central Government, to represent the interests of
agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central
Government, ought to be represented.
  2 persons to represent the companies or corporations owned, controlled or managed by the
Central Government, to be nominated by that Government.

The composition of State Board

The State Pollution Control Board (SPCB) once appointed, should consist of the following key members.

 A full-time chairman: A person having special knowledge or practical experience in respect of

matters relating to environmental protection having knowledge and experience in administering
institutions dealing with such matters, to be nominated by the State Government

 A full-time member-secretary: Possessing qualifications, knowledge, and experience of scientific,

engineering or management aspects of pollution control, to be appointed by the State
Government.

 Not more than 5 officials to be nominated by the State Government to represent that Government.

 Not more than 5 officials to be nominated by the State Government, from amongst the members
of the local authorities functioning within the state.

 Not more than 3 officials to be nominated by the State Government, to represent the interests of
agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central
Government, ought to be represented.

 2 persons to represent the companies or corporations owned, controlled or managed by the State
Government, to be nominated by that Government.

Service of board members

There are a set of terms and conditions regarding the services of the members of the boards under the
Water Act. The most important ones are as follows:

 A member of a Board (other than a member-secretary) shall hold office for a term of three years
from the date of this nomination. The member shall, notwithstanding the expiration of his term,
continue to hold office until his successor enters upon his office.

 The Central Government or the State Government may remove any member of a Board before the
expiry of his term of office, after giving him a reasonable opportunity of showing cause against
the same.

 A member of a Board, other than the member-secretary, may at any time resign his office by
writing under his hand addressed

Joint Pollution Control Board (JPCB)

In some cases, two or more states or Union territories may come together in a combined initiative with an
agreement to form Joint Boards, known as a Joint Pollution Control Board (JPCB). For any action to be
taken by the Joint Board, an official petition shall be submitted to the Central Government.
The Central Government alone shall be competent to give any direction under this Act where such
direction relates to a matter within the territorial jurisdiction of two or more States or pertaining to a
Union territory.

Annual reports and meetings

A Board shall meet at least once in every three months and shall observe such rules of procedure in regard
to the transaction of business at its meetings as may be prescribed.

Functions of the Central Board

 The primary goal of the Central Board as stated in accordance with the Water Act shall be to
promote cleanliness of streams and wells in different areas of the States.

 Highlight functions of the Central Pollution Control Board (CPCB) are as follows:

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

 Co-ordinate 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 programs for the
prevention, control or abatement of water pollution.

 Collect, compile and publish technical and statistical data relating to water pollution and the
measures devised for its effective prevention and control.

Functions of the State Board

 Highlight functions of the State Pollution Control Board (SPCB) are as follows:

 Plan a comprehensive programme for the prevention, control or abatement of pollution of streams
and wells in the State.

 Advise the State Government on any matter concerning the prevention, control or abatement of
water pollution.

 Encourage, conduct and participate in investigations and research relating to problems of water
pollution and prevention, control or abatement of water pollution.

 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 water pollution.
  Inspect sewage or trade effluents, works, and plants for the treatment of sewage and trade
effluents and to review plans, specifications or other data relating to plants set up for the
treatment of water.

 Evolve methods of utilization of sewage and suitable trade effluents in agriculture.

 Evolve economical and reliable methods of treatment of sewage and trade effluents, having
regard to the peculiar conditions of soils, climate and water resources of different regions.

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

This is an Act to provide for the prevention and control and abatement of air pollution through various
management guidelines and restrictions. One of the prime objectives of this act is carrying out the
purposes mentioned above by assigning a set of responsibilities, powers, and functions to the Boards for
the prevention and control of air pollution.

The act was introduced and incorporated into the Constitution of India in 1981 laying down guidelines for
the preservation of the quality of air and control of air pollution. In contrast to the water act of 1974
which covers only 13 states and union territories of India, the air act extends to the whole of India.

Central & State Pollution Control Boards (PCBs)

Under this act, one Central board and numerous State boards shall be appointed by notification in the
Official Gazette called Central Pollution Control Board (CPCB) and State Pollution Control Board
(SPCB) respectively with effect from a date not later than six months of the commencement of this Act.

The Central Board for the Prevention and Control of Water Pollution that was formed in 1974 post the
signing off the water act shall exercise the powers and perform the functions of the Central Board for the
Prevention and Control of Air Pollution under this Act.

The State Boards shall investigate, assess, and monitor the issues of concern regarding the quality and
pollution of the water resources available in their jurisdiction and shall report the same through quarterly
and annual reports during board meetings to the Central Board. The Central Board hereby shall look into
the State Board’s reports and also monitor and handle major issues regarding national water resources.

The composition of Central Board

The Central Pollution Control Board (CPCB) once appointed, should consist of the following key
members.

 A full-time chairman: A person having special knowledge or practical experience in respect of

matters relating to environmental protection having knowledge and experience in administering
institutions dealing with such matters, to be nominated by the Central Government

 A full-time member-secretary: Possessing qualifications, knowledge, and experience of scientific,

engineering or management aspects of pollution control, to be appointed by the Central
Government.
  Not more than 5 officials to be nominated by the Central Government to represent that
Government.

 Not more than 5 officials to be nominated by the Central Government, from amongst the
members of the State Boards.

 Not more than 3 officials to be nominated by the Central Government, to represent the interests of
agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central
Government, ought to be represented.

 2 persons to represent the companies or corporations owned, controlled or managed by the

Central Government, to be nominated by that Government.

The composition of State Board

The State Pollution Control Board (SPCB) once appointed, should consist of the following key members.

 A full-time chairman: A person having special knowledge or practical experience in respect of

matters relating to environmental protection having knowledge and experience in administering
institutions dealing with such matters, to be nominated by the State Government

 A full-time member-secretary: Possessing qualifications, knowledge, and experience of scientific,

engineering or management aspects of pollution control, to be appointed by the State
Government.

 Not more than 5 officials to be nominated by the State Government to represent that Government.

 Not more than 5 officials to be nominated by the State Government, from amongst the members
of the local authorities functioning within the state.

 Not more than 3 officials to be nominated by the State Government, to represent the interests of
agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central
Government, ought to be represented.

 2 persons to represent the companies or corporations owned, controlled or managed by the State
Government, to be nominated by that Government.

Service of board members

 There are a set of terms and conditions regarding the services of the members of the boards under
the Water Act. The most important ones are as follows:

 A member of a Board (other than a member-secretary) shall hold office for a term of three years
from the date of this nomination. The member shall, notwithstanding the expiration of his term,
continue to hold office until his successor enters upon his office.
  The Central Government or the State Government may remove any member of a Board before the
expiry of his term of office, after giving him a reasonable opportunity of showing cause against
the same.

 A member of a Board, other than the member-secretary, may at any time resign his office by
writing under his hand addressed

 In the case of chairman, tot he Central Government or, as the case may be, the State Government.

 In any other case, to the chairman of the Board.

Joint Pollution Control Board (JPCB)

In some cases, two or more states or Union territories may come together in a combined initiative with an
agreement to form Joint Boards, known as a Joint Pollution Control Board (JPCB). For any action to be
taken by the Joint Board, an official petition shall be submitted to the Central Government.

The Central Government alone shall be competent to give any direction under this Act where such
direction relates to a matter within the territorial jurisdiction of two or more States or pertaining to a
Union territory.

Annual reports and meetings

A Board shall meet at least once in every three months and shall observe such rules of procedure in regard
to the transaction of business at its meetings as may be prescribed.

Functions of the Central Board

The primary goal of the Central Board as stated in accordance with the Water Act shall be to promote
cleanliness of streams and wells in different areas of the States. 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. The
Board may also establish or recognize a laboratory or laboratories to enable the Central Board to perform
its functions under this section efficiently.

Highlight functions of the Central Pollution Control Board (CPCB) are as follows:

 Advise the Central Government on any matter concerning the improvement of the quality of air
and the prevention, control or abatement of air pollution;

 Plan and cause to be executed a nation-wide programme for the prevention, control or abatement
of air pollution;

 Co-ordinate the activities of the State 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 air pollution and prevention, control or
abatement of air pollution.
  Plan and organize the training of persons engaged or to be engaged in programmes for the
prevention, control or abatement of air pollution on such terms and conditions as the Central
Board may specify;

 Organize through mass media a comprehensive programme regarding the prevention, control or
abatement of air pollution;

 Collect, compile and publish technical and statistical data relating to air pollution and the
measures devised for its effective prevention, control or abatement and prepare manuals, codes or
guides relating to prevention, control or abatement of air pollution.

 Lay down standards for the quality of air.

 Collect and disseminate information in respect of matters relating to air pollution.

Functions of the State Board

Similar to the CPCP, a State Board may also establish or recognize a laboratory or laboratories to enable
the State Board to perform its functions under this section efficiently.

Highlight functions of the State Pollution Control Board (SPCB) are as follows:

 Plan a comprehensive programme for the prevention, control or abatement of air pollution and to
secure the execution thereof-,

 Advise the State Government on any matter concerning the prevention, control or abatement of
air pollution;

 Collect and disseminate information relating to air pollution;

 Collaborate with the Central Board in organising the training of persons engaged or to be engaged
in programmes relating to prevention, control or abatement of air pollution and to organise mass-
education programme relating thereto.

 Inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process
and to give, by order, such directions to such persons as it may consider necessary to take steps
for the prevention, control or abatement of air pollution;

 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;

 Lay down, in consultation with the Central Board and having regard to the standards for the
quality of air laid down by the Central Board, standards for emission of air pollutants into the
atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into
the atmosphere from any other source whatsoever not being a ship or an aircraft.

 Advise the State Government with respect to the suitability of any premises or location for
carrying on any industry which is likely to cause air pollution.
  Perform such other functions as may be prescribed or as may, from time to time, be entrusted to it
by the Central Board or the State Government.

Funds of Central Board

 The Central Board has its own fund, and all sums will be paid from time to time to it by the
Central Government and all other receipts by way of gifts, grants, donations, benefactions, etc. of
that Board shall be carried to the fund of the Board.

 The Central Board may expend such sums for performing its functions under this Act for any
action relating to the prevention, control or abatement or water pollution.

Funds of State Board

 The State Board has its own fund, and all sums will be paid from time to time to it by the State
Government and all other receipts by way of gifts, grants, donations, benefactions, etc. of that
Board shall be carried to the fund of the Board.

 The State Board may expend such sums for performing its functions under this Act for any action
relating to the prevention, control or abatement or water pollution.

• The Environment Protection Act, 1986

The Environment (Protection) Act was enacted in the year 1986. It was enacted with the main objective to
provide the protection and improvement of environment and for matters connected therewith. The Act is
one of the most comprehensive legislations with a pretext to protection and improvement of the
environment.

The Constitution of India also provides for the protection of the environment. Article 48A of the
Constitution specifies that the State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country. Article 51 A further provides that every citizen shall
protect the environment.

It is now generally accepted that environment is threatened by a wide variety of human activities ranging
from the instinctive drive to reproduce its kind to the restless urge of improving the standards of living,
development of technological solutions to this end, the vast amount of waste, both natural and chemical,
that these advances produce.

Objectives

As mentioned earlier, the main objective of the Act was to provide the protection and improvement of
environment and for matters connected therewith. Other objectives of the implementation of the EPA are:

 To implement the decisions made at the UN Conference on Human Environment held at

Stockholm in June 1972.

 To enact a general law on the areas of environmental protection which were left uncovered by
existing laws. The existing laws were more specific in nature and concentrated on a more specific
 type of pollution and specific categories of hazardous substances rather than on general problems
that chiefly caused major environmental hazards.

 To co-ordinate activities of the various regulatory agencies under the existing laws

 To provide for the creation of an authority or authorities for environmental protection

 To provide deterrent punishment to those who endanger the human environment, safety and
health

Scope and Applicability

The Environment (Protection) Act is applicable to the whole of India including Jammu & Kashmir. It
came into force on November 19, 1986.

Definitions

Section 2 of the EPA deals with definitions. Some important definitions provided in the Section are:

Section 2 (a) “Environment” includes water, air, and land and the interrelationship that exists among
and between water, air and land and human beings, other living creatures, plants, micro-organism and
property. This definition is not exhaustive but an inclusive one.

Section 2 (b) “Environmental Pollutant” means any solid, liquid or gaseous substance present in such
concentration as may be, or tend to be injurious to environment.

Section 2 (c) “Environmental Pollution” means the presence in the environment of any environmental
pollutant. This implies an imbalance in the environment. The materials or substances when after mixing
in air, water or land alters their properties in such manner, that the very use of all or any of the air-water
and land by man and any other living organism becomes lethal and dangerous for health.

Section 2 (e) “Hazardous Substance” means any substance or preparation which, by reasons of its
chemical or Physico-chemical properties or handling, is liable to cause harm to human beings, other
living creatures, plants, micro-organism, property or environment.

Powers of Central Government to take measures to Protect and Improve Environment

According to the provisions of the Act, the Central Government shall have the power to take all such
measures as it deems necessary or expedient for the purpose of protecting and improving the quality of
the environment and preventing controlling and abating environmental pollution.

Such measures may include measures with respect to all or any of the following matters, namely:

1. co-ordination of actions by the State Governments, officers and other authorities- (a) under this
Act, or the rules made thereunder, or (b) under any other law for the time being in force which is
relatable to the objects of this Act;

2. planning and execution of a nation-wide programme for the prevention, control and abatement of
environmental pollution;
 3. laying down standards for the quality of the environment in its various aspects;

4. laying down standards for emission or discharge of environmental pollutants from various
sources whatsoever: Provided that different standards for emission or discharge may be laid down
under this clause from different sources having regard to the quality or composition of the
emission or discharge of environmental pollutants from such sources;

5. restriction of areas in which any industries, operations or processes or class of industries,

operations or processes shall not be carried out or shall be carried out subject to certain
safeguards;

6. laying down procedures and safeguards for the prevention of accidents which may cause
environmental pollution and remedial measures for such accidents;

7. laying down procedures and safeguards for the handling of hazardous substances;

8. examination of such manufacturing processes, materials and substances as are likely to cause
environmental pollution;

9. carrying out and sponsoring investigations and research relating to problems of environmental
pollution;

10. inspection of any premises, plant, equipment, machinery, manufacturing or other processes,
materials or substances and giving, by order, of such directions to such authorities, officers or
persons as it may consider necessary to take steps for the prevention, control and abatement of
environmental pollution;

11. establishment or recognition of environmental laboratories and institutes to carry out the
functions entrusted to such environmental laboratories and institutes under this Act;

12. collection and dissemination of information in respect of matters relating to environmental

pollution;

13. preparation of manuals, codes or guides relating to the prevention, control and abatement of
environmental pollution;

14. such other matters as the Central Government deems necessary or expedient for the purpose of
securing the effective implementation of the provisions of this Act.

Powers of the Court

The Act does not curtail the powers of the Supreme Court. It has from time to time in various matters
issued directions and orders to control pollution. Some such important cases pertaining to the protection
of the environment are:

• Directions issued to control vehicular pollution

In Mehta v. Union of India (1998) 6 SCC 63, in order to control the chaotic traffic conditions and
vehicular pollution, the Supreme Court issued the following directions.
 1. All commercial/transport vehicles which are more than 20 years old should be phased out and not
permitted to ply in Delhi after October 1998

2. All such commercial /transport vehicles which are 17 to 19 years old (3200) shall not be
permitted to ply in the National Capital Territory, Delhi after 1998;

3. Such of the commercial /transport vehicles which are 15 and 16 years old (4962) shall not be
permitted to ply after December 31, 1998.

• Protection of Coastline of India

In Indian Council for Enviro-Legal Action v Union of India (1996 AIR 1446), the Supreme Court in
regard to the 600 km long coastline emphasized that it would be the duty and responsibility of the coastal
states and Union Territories in which the stretch exists, to see that the notifications issued, declaring the
coastal stretches should be properly and duly implemented.

Further, the various restrictions on the setting up and expansion of industries, operation or process, etc. in
the regulation Zone should be strictly enforced.

Prevention, Control and Abetment of Environment Pollution

Chapter III of the EPA deals with the prevention, Control and abetment of Environmental Pollution.
Some important provisions of this chapter provide that, No person carrying on any industry, operation or
process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in
excess of such standards as may be prescribed.

No person shall handle or cause to be handled any hazardous substance except in accordance with such
procedure and after complying with such safeguards as may be prescribed.

Where the discharge of any environmental pollutant in excess of the prescribed standards occurs or is
apprehended to occur due to an accident or other unforeseen act or event, the person responsible for such
discharge and the person in charge of the place at which the discharge occurs shall be bound to prevent or
mitigate the environmental pollution, and shall also:

 intimate the fact of such occurrence or apprehension of such occurrence; and

 be bound, if called upon, to render all assistance. On receipt of such information, the authorities
or agencies shall cause such remedial measures to be taken as are necessary to prevent or mitigate
environmental pollution.

The expenses incurred by any authority or agency may be recovered from the person concerned as arrears
of land revenue or of public demand.

Penalties

Section 15 provides for Penalties for contravention of the provisions of the Act as well as the Rules,
Orders and Directions. Whoever fails to comply with or contravenes any of the provisions, rules, orders
or directions of this Act shall be punishable with imprisonment for a term which may extend to five years
or with fine which may extend to one lakh rupees, or with both.
• The Biological Diversity Act, 2002
Biological diversity is a national asset of a country; hence the conservation of biodiversity assumes
greater significance.

The first attempt to bring the biodiversity into the legal framework was made by way of the biodiversity
bill 2000 which was passed by the Lok Sabha on 2nd December 2002 and by Rajya Sabha on December
2002.

Objectives of the act:

1. To conserve the Biological Diversity.

2. Sustainable use of the components of biodiversity.

3. Fair and equitable sharing of benefits arising out of the use of the B.D.

A national biodiversity authority has been established by the Biodiversity Act, 2002 to regulate act
implementing rules 2004 has been operationalised since coming in to force.

Act:

Regulating access well as pushing the officially sponsored, documentation of biological resources and
traditional practices through people’s diversity registers at the local and data bases at the national levels,
respectively. It further probes the extent to which the principles of conservation have realized.

Provisions of the Act:

1. Prohibition on transfer of Indian genetic material outside the country without specific approval of the
Indian Government.

2. Prohibition of anyone claiming an (IPR) such as a patent over biodiversity or related knowledge
without permission of Indian Government.

3. Regulation of collection and use of biodiversity by Indian national while exempting local communities
from such restrictions.

4. Measures from sharing of benefits from use of biodiversity including transfer of technology, monitory
returns, joint research and development, joint IPR ownership etc.

5. Measuring to conserve sustainable use of biological resources including habitat and species protection
(EIP) of projects, integration of biodiversity into the plans and policies of various Departments and
Sectors.
6. Provisions for local communities to have a say in the use of their resources and knowledge and to
charge fees for this.

7. Protection of indigenous or tradition laws such as registration of such knowledge.

8. Regulation of the use of the genetically modified organisms.

9. Setting up of National, state and local Biodiversity funds to be used to support conservation and benefit
sharing.

10. Setting up of Biodiversity Management committees (BMC) at local village levels. State Biodiversity
Boards at state level and National Biodiversity Authority.

Functions of Authority:

1. Advise the central Government on any matter concerning conservation of biodiversity sustainable use
of its components and fair and equitable sharing of benefits arising out of the use of biological resource
and knowledge.

2. Coordinate the activities of state biodiversity.

3. Provide the technical assistance and guidance to the state biodiversity boards.

4. Sponsor investigation and research.

5. Engage consultants for a specific period not exceeding 3 years for providing technical assistance to the
Authority in the effective discharges of its functions.

6. Collect, compile and publish technical and statistical data, manuals, codes or guides relating to
conservation of biodiversity, sustainable use of its components and fair and equitable sharing of benefits
arising out of the use of biological resource and knowledge’s.

7. Organize through mass media a comprehensive programme regarding conservation of biodiversity,

sustainable use of components and fair and equitable sharing of benefits arising out of the use of
biological resources and knowledge.

8. Plan and organize training of personal engaged or likely to be engaged in programmes for the
conservation of biodiversity and sustainable use of its components.

9. Prepare the annual budget of the authority including its own receipts as also the devaluation from the
central Government provided that the allocation by the central government shall be operated in
accordance with budget provisions approved by the central govt.

10. Recommend creation of posts to the central Government for effective discharge of the functions by
the authority.

11. Approve the method of recruitment to the officers and servants of the authority.
12. Take steps to build up data base and to create information and documentation system for biological
resources and associated traditional knowledge through biodiversity register and electronic data bases to
ensure effective management, promotion and sustainable uses.

13. Give directions to state Biodiversity Boards and the Biodiversity Management Committees in writing
for effective implementation of the act.

14. Report to the central Government about the functioning of the Authority and implementation of the
Act.

15. Sanction grants to the State Biodiversity Board and Biodiversity Management committees for specific
purposes.

16. Take necessary measures including appointment of legal experts to oppose grant of intellectual
property right in any country outside India on any biological outside India on any biological resource and
associated knowledge obtained from India and in an illegal manner.

17. Do such other functions as may be assigned to direct by the central government from time-to-time.

18. Regulates the commercial utilization or bio-survey and bio-utilization of any biological resource by
Indians.

• Wildlife (Protection) Act, 1972

Constitutional Provisions:

Article 48-A of the Constitution says that the State shall endeavour to protect and improve the
environment and to safeguard the forest and wildlife of the country. Thus the Constitution advises
(directive principle) the State to develop a mechanism and formulate Acts for the protection of wildlife.
Article 51A (g) imposes a fundamental duty on every citizen of India to protect and improve the
environment and have compassion for living creatures.

Need of the Wild Life Protection Act Wild Life, which is a part and parcel of the environment, constitutes
the wealth of the nation. it included wild animals, birds, plants, etc. However, man, in the process of
progress and development and also for his selfish ends, is causing much damage to the forests and
wildlife. The Wildlife Protection Act, 1972, provides for protection to listed species of flora and fauna
and establishes a network of ecologically-important protected areas. The Act consists of 60 Sections and
VI Schedules- divided into Eight Chapters. The Wildlife Protection Act, 1972 empowers the central and
state governments to declare any area a wildlife sanctuary, national park or closed area. It provides for
authorities to administer and implement the Act; regulate the hunting of wild animals; protect specified
plants, sanctuaries, national parks, and closed areas; restrict trade or Commerce in wild animals or animal
articles; and miscellaneous matters. The Act prohibits hunting of animals except with permission of
authorized officer when an animal has become dangerous to human life or property or as disabled or
diseased as to be beyond recovery.

Objectives of the Wild Life Protection Act:

• To prohibit hunting of wild animals; birds, etc. and impose punishment for violating the same. The
schedules give absolute protection to certain species and these cannot be infringed on any account.

• To provide security to animals that are not in danger of becoming extinct.

• To delineate animals that can be hunted like ducks and deer's. For this purpose the hunter has to apply
for a license to the District Forest Officer who will allow a hunter to shoot during a specific season and
restricted area. Any infringement can lead to cancellation of the hunting license.

• To help cultivation and plant life and gives teeth to setting up more protected animal parks.

• To give sweeping powers to law enforcement authorities to punish anybody guilty under the Act.

• empower the Central Govt. and State Govt. to declare certain areas as Sanctuaries or National Parks.

Salient Features of the Wild Life Protection Act:

• It defines wildlife-related terminology.

• It provides for the appointment of wildlife advisory Board, Wildlife Warden, their powers, duties, etc.

• It helped in becoming a party to the Convention of International Trade in Endangered Species of Fauna
and Flora (CITES, 1976).

• It supported launching a "national component of UNESCO's 'Man and Biosphere Programme' (1971).

• The Act made a comprehensive list of endangered wildlife species for the first time and prohibition of
hunting of the endangered species was mentioned.

• It also provides for the protection of some endangered plants.

• It provides for setting up of National Parks, Wildlife Sanctuaries, etc.

• It provides for the constitution of Central Zoo Authority.

• It provides for trade and commerce in some wildlife species with a license for sale, possession, transfer,
etc.

• It imposes a ban on the trade or commerce in scheduled animals.

• It provides for legal powers to officers and punishment to offenders.

• Very mild penalty and punishment are provided for an offender under the Act.

• The Act contains 66 Sections divided into seven chapters and six schedules.

Extent and Applicability (Section 1):

Wildlife (Protection) Act, 1972 has been accepted and adopted by all the states. This is the first
comprehensive legislation relating to the protection of wildlife was passed by the Parliament and it was
assented by the President on 9th September 1972 and came to be known as The Wild Life (Protection)
Act, 1972 (53 of 1972).

When this Act was passed the wildlife protection subject was in State List and states were empowered to
make law on it. The Parliament passed this Act using provisions in Article 252 of the constitution.