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A CRITICAL ANALYSIS ON AIR: PREVENTION AND CONTROL OF POLLUTION, ACT 1981

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This article is written by Mita Sarker of 7th Semester of University Law College , Bangalore, an intern under Legal Vidhiya

ABSTRACT

The Air (Prevention and Control of Pollution) Act, 1981, is a key piece of environmental legislation in India that focuses on addressing and mitigating the issue of air pollution. Enacted by the Parliament of India, the primary purpose of the Act is to provide a legal framework for the prevention, control, and abatement of air pollution.

KEYWORDS

Enactment, Background,  Objectives, Regulatory, Authority, Penalties, Public Awareness, Prevention and Control of Air Pollution, Fund Accounts, Audit, Drawbacks of The Act

INTRODUCTION

For over five decades, the Earth has been silently pleading for attention. Our supposed haven has transformed into a constricting victim, ensnared by the impacts of industries, waste, pollutants, deforestation, and more. Among these challenges, air pollution stands out as one of the most formidable threats to our planet. The Air (Prevention and Control of Pollution) Act, 1981, is a legislation passed by the Indian Parliament with the aim of preventing and managing air pollution across the nation. This Act led to the establishment of regulatory bodies such as the Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCBs). These entities are responsible for enforcing the stipulations outlined in the Act, which include restrictions on the release of air pollutants from diverse sources.

HISTORY OF THE ACT

The repercussions of climate change induced by various forms of pollution became increasingly evident in the early 1970s. Recognizing the need to address these detrimental impacts, it was widely acknowledged that nations should enact their own legislation. Consequently, during the  United Nations General Assembly on Human Environment in Stockholm in June 1972, a resolution was adopted, urging nations worldwide to safeguard natural resources, including air.

India faced its own challenges related to air pollution, stemming from factors such as stubble burning, improper industrial practices, and environmental considerations. In response to these challenges, a dedicated law was introduced under the framework of the Indian Constitution—the Air (Prevention and Control of Pollution) Act of 1981.

FEATURES

The Air (Prevention and Control of Pollution) Act encompasses a range of features aimed at controlling air pollution. It grants powers to regulate industrial activities, fuel usage, and appliances in designated areas. The Act emphasizes compliance through consent mechanisms, conditions on industrial operations, and legal actions for violations. Information reporting, power of entry, and air sampling provisions ensure effective monitoring. The establishment of state laboratories, appointment of analysts, and annual reporting contribute to robust air quality management. Financial contributions, budgeting, and auditing mechanisms add fiscal accountability. The Act also includes an appeals process, allowing individuals to challenge decisions. Overall, it seeks a comprehensive approach to address air pollution issues in India.

DEFINITION

The following are the definitions under the Air (Prevention and Control of Pollution) Act.

Section 2(a) of the legislation establishes the term ‘air pollutants’ as encompassing solid, liquid, or gaseous substances with the potential to cause harm to the environment, humans, plants, animals, or property. An important inclusion was made in 1987, amending the act to incorporate ‘noise’ within the category of detrimental substances.

The Air Act goes on to specifically define ‘air pollution’ in Section 2(g) as the presence of any hazardous pollutant that renders the air unfit for breathing.

Furthermore, Section 2(g) of the Act establishes the Central Pollution Control Board (CPCB) with jurisdiction over the entire nation. The CPCB is vested with the authority to issue directives aimed at environmental protection. In order to implement these directives effectively, the legislation mandates the establishment of State Pollution Control Boards (SPCB) for each individual state within India. The SPCBs function as instrumental entities responsible for executing the guidelines set forth by the CPCB at the state level.

 OBJECTIVES

  1. To facilitate the prevention, control, and reduction of air pollution.
  2. To establish central and State Boards mandated with implementing the Act.
  3. To empower these Boards with the authority to enforce the provisions of the Act and delegate functions pertaining to pollution control.

BOARDS SET UP UNDER AIR ACT

Central Pollution Control Board (CPCB)

Established in 1974 as a legal entity under Section 3 of the Water (Prevention and Control of Pollution) Act 1974, this organization holds a statutory standing. The central focus of the CPCB is to provide counsel to the Central Government on matters pertaining to the prevention, alleviation, and management of water and air pollution, along with efforts to improve air quality.

State Pollution Control Boards (SPCBs)

The State Board for the Prevention and Control of Air Pollution, constituted in accordance with Section 5 of this legislation, will be recognized as the State Board for any region where the Water (Prevention and Control of Pollution) Act of 1974 is applicable. In instances where the State Government has instituted a State Pollution Control Board for that particular state under section 4 of the mentioned Act, the State Pollution Control Board will continue to exercise its powers and fulfill its responsibilities without any interference.

Powers and Functions of Central Board

The principal responsibilities of the Central Board encompass enhancing air quality and preventing, controlling, or mitigating air pollution across the nation. Specifically, and without limiting the broad scope of these functions, the Central Board is empowered to:

Functions of the State Pollution Control Boards

Section 17 delineates the responsibilities assigned to the State Boards, which encompass:

PREVENTION AND CONTROL FOR AIR POLLUTION

Power to give instructions for ensuring emission standards from automobiles: The State Government, in consultation with the State Board, is empowered to issue necessary instructions to the relevant authority responsible for registering motor vehicles under the Motor Vehicles Act, 1939. This is to ensure compliance with emission standards set by the State Board, and the authority is obligated to adhere to these instructions, irrespective of the provisions of the Motor Vehicles Act or its rules.

Power to designate air pollution control areas:

 (1) Following consultations with the State Board, the State Government can officially declare specific areas within the state as air pollution control areas through notification in the Official Gazette.

(2) The State Government, after consulting the State Board, has the authority, through an Official Gazette notification, to:

         (a) Modify existing air pollution control areas, either by extending or reducing their boundaries.

         (b) Declare a new air pollution control area, which may involve merging existing areas or parts thereof.

(3) If, after consultation with the State Board, the State Government believes that the use of any non-approved fuel in an air pollution control area may cause or is likely to cause air pollution, it can issue a notification prohibiting such fuel’s use, effective no sooner than three months from the notification date.

(4) The State Government, in consultation with the State Board, has the power to issue a notification in the Official Gazette directing that, effective from a specified date, only approved appliances can be used in premises within an air pollution control area. Different dates may be specified for different parts of the area or for the use of different appliances.

(5) If, after consultation with the State Board, the State Government believes that the burning of any material (excluding fuel) in an air pollution control area may cause or is likely to cause air pollution, it can issue a notification prohibiting the burning of such material in that area or part thereof.

Restrictions on the use of certain industrial plants: (1) No person is allowed to establish or operate an industrial plant in an air pollution control area without prior consent from the State Board. However, a person operating such a plant before a specific amendment in 1987 can continue for three months from the amendment’s commencement or until the disposal of a consent application made within that period.

(2) Consent applications must be accompanied by prescribed fees and details of the industrial plant. The State Board can conduct inquiries and, within four months of receiving an application, either grant or refuse consent, with provisions to cancel or refuse further consent if conditions are not met.

(3) If the State Government, in consultation with the State Board, believes that the use of certain fuels (other than approved fuels) in an air pollution control area may lead to or is likely to cause air pollution, it can prohibit the use of such fuels through an official Gazette notification, with a notice period of at least three months.

(4) The State Government, in consultation with the State Board, can issue notifications in the Gazette directing that, starting from a specified date, only approved appliances can be used in premises located within an air pollution control area. Different dates may be specified for different parts of the area or for the use of different appliances.

(5) If the State Government, after consulting the State Board, determines that the burning of certain materials (excluding fuel) in an air pollution control area might cause or is likely to cause air pollution, it can prohibit the burning of such materials through an official Gazette notification.

Power to give instructions for ensuring emission standards from automobiles:

To ensure compliance with air pollutant emission standards set by the State Board, the State Government, in consultation with the State Board, can issue necessary instructions to the relevant authority responsible for vehicle registration under the Motor Vehicles Act, 1939. This authority is obligated to comply with these instructions.

Restrictions on the use of certain industrial plants:

(1) No person can establish or operate an industrial plant in an air pollution control area without the prior consent of the State Board. However, a person operating such a plant immediately before a specific amendment in 1987 can continue for three months from the commencement of the amendment or until the disposal of a consent application made within the said period.

(2) Consent applications must be accompanied by prescribed fees and details of the industrial plant. The State Board can conduct inquiries and, within four months of receiving an application, either grant or refuse consent, with the provision to cancel or refuse further consent if conditions are not met.

(3) Conditions for granted consent include installing approved control equipment, maintaining existing equipment, and complying with specified standards.

(4) If technological improvements necessitate variations in the prescribed conditions, the State Board can, after providing an opportunity for a hearing, make necessary variations.

(5) If a person granted consent transfers the industry to another person, the consent is deemed granted to the new owner, who must comply with the specified conditions.

FUND ACCOUNTS AND AUDIT

Contributions by the Central Government:

The Central Government is empowered to allocate funds through parliamentary appropriation to State Boards annually. This financial support is intended to facilitate the State Boards in effectively carrying out their responsibilities under this Act. However, this provision excludes[1] State Pollution Control Boards formed under the Water (Prevention and Control of Pollution) Act, 1974, which are authorized to use funds from their own resources under that Act for activities related to air pollution prevention, control, or abatement.

Fund of the Board:

(1) Each State Board is mandated to maintain its fund exclusively for executing activities under this Act. Contributions from the Central Government, along with other receipts such as those from the State Government, fees, gifts, grants, donations, benefactions, or any other sources, constitute the fund of the Board. All disbursements by the Board are to be made from this fund.

(2) State Boards have the discretion to allocate sums from their funds as they deem necessary to fulfill their functions under this Act.

(3) The provisions of this section do not apply to State Pollution Control Boards established under the Water (Prevention and Control of Pollution) Act, 1974, which have the authority to use funds under that Act for their activities related to air pollution control.

A Board, with the consent of, or in accordance with the terms of any general or special authority granted by the Central Government or the State Government, may borrow money from various sources through loans or the issuance of bonds, debentures, or other instruments. This borrowing capability is designed to support the discharge of the Board’s functions under this Act.

Budget:

During each financial year, the Central Board or State Board is required to prepare a budget, following the prescribed format and timeline. The budget details the anticipated receipts and expenditures under this Act. Copies of the budget are forwarded to the Central Government or the State Government, as applicable.

Annual report:

(1) The Central Board is obligated to prepare an annual report in the prescribed format, summarizing its activities under this Act during the previous financial year. Copies of this report are to be submitted to the Central Government within four months from the last date of the previous financial year. The Central Government, in turn, must present the report before both Houses of Parliament within nine months of the last date of the previous financial year.

(2) Similarly, every State Board must compile an annual report detailing its activities under this Act in the preceding financial year. The report is to be submitted to the State Government within four months from the last date of the previous financial year. The State Government is responsible for presenting this report before the State Legislature within nine months from the last date of the previous financial year.

Accounts and audit:

(1) Every Board is required to maintain accurate accounts and relevant records related to its functions under this Act. An annual statement of accounts, in a form prescribed by the Central or State Government, is to be prepared.

(2) The accounts of the Board are subject to audit by a qualified auditor, as defined in the Companies Act, 1956 (1 of 1956).

(3) The auditor is appointed by the Central or State Government, upon the advice of the Comptroller and Auditor General of India.

(4) The auditor has the right to demand the production of books, accounts, vouchers, and other documents for inspection at any Board office.

(5) The auditor is required to submit a report along with an audited copy of the accounts to the Central or State Government.

(6) The Central Government must present the audit report before both Houses of Parliament, and the State Government must present it before the State Legislature, as soon as possible after receiving it.

PENALTIES

Non-compliance with the directives of the Central Pollution Control Board may lead to imprisonment for a duration of one year. This imprisonment term can be extended to six years, accompanied by a fine. Furthermore, an additional fine of Rs 5000 per day may be imposed if the specified directives remain unaddressed.

PROCEDURES

The processes are detailed in Sections 42 to 46. As per Section 42, if actions are undertaken or intended in good faith in accordance with this Act by the government, any government officer, or any member, employee, or officer of the Board, they shall not be liable to any suit, prosecution, or legal proceedings. Section 43 specifies that the Court will only consider offenses for which a complaint has been filed by a Board or another officer duly authorized by it.

AMENDMENTS TO THIS ACT

A singular amendment was introduced in 1987.

It bolstered the authority of Boards and instituted more stringent penalties for infringements.

Post-amendment, the Act extended its applicability nationwide, no longer confined solely to industries listed in the Act’s schedule.

The financial capabilities of the Board were augmented, granting it the authority to extend loans and issue debentures.

CASE LAWS

K. Ramakrishnan And [2]Anr. vs State Of Kerala And Ors [3]

This legal case underscored the hazards associated with smoking. The petitioner sought court orders to prohibit the smoking of tobacco in any form within public spaces and urged the state to take necessary measures to prosecute and penalize individuals found smoking in public areas, treating such behavior as a nuisance under the Penal Code.

The court ruled that smoking in public spaces not only compromised the ambient air quality but also posed a health risk to individuals present. It concluded that the act of smoking tobacco in public, be it in the form of cigarettes, cigars, beedies, or any other form, was unlawful, unconstitutional, and in violation of Article 21 of the Constitution of India.

Furthermore, the court determined that public smoking of tobacco qualified as a “public nuisance” under the penal provisions of the Indian Penal Code. It also fell under the definition of air pollution outlined in environmental protection statutes, particularly the Air (Prevention and Control of Pollution) Act, 1981.

Subhash Kumar v. State of Bihar[4] [5]

The petitioner initiated a public interest litigation against two iron and steel companies, alleging that they posed health risks to the public by dumping factory waste into the nearby Bokaro river. The petitioner also contended that the State Pollution Control Board had not taken adequate measures to prevent this pollution.

In the petition, the petitioner urged the court to take legal action against the companies based on the Water (Prevention and Control of Pollution) Act of 1974. Additionally, the petitioner sought permission to personally collect waste, in the form of sludge and slurry, as interim relief.

The State Pollution Control Board argued that it had effectively monitored the quality of effluent waste entering the river. The respondent companies asserted that they had followed the Board’s instructions for pollution prevention. The Court determined that the Board had indeed taken suitable steps to prevent waste discharge into the river, leading to the dismissal of the petition.

Moreover, the court held that the petition did not qualify as a public interest litigation. It was noted that the petitioner’s motive was driven by his personal interest in obtaining larger quantities

of waste (slurry) from one of the respondent companies, with whom he had been purchasing slurry for several years prior to filing the petition.

M.C. Mehta v. Union of India 1991[6][7]

In this case, M.C. Mehta initiated a writ petition addressing the issue of air pollution resulting from vehicle emissions. He petitioned the Court to issue appropriate directives to curb pollution.

Citing the Directive Principles of State Policy, specifically Articles 48A and 51A of the Constitution, along with established court rulings, it was asserted that the State has a duty to safeguard the environment. The Supreme Court, recognizing a healthy environment as a fundamental human right, inclusive of access to clean air, affirmed this right under Article 21 of the Constitution.

In this pivotal judgment, the Court expansively interpreted Article 21, extending its scope to encompass fundamental rights to a healthy environment and clean air.

Delhi Pollution

The persistent issue of severe air pollution in Delhi prompted increased attention, leading to the establishment of pollution control boards and the enactment of additional environmental laws, particularly influenced by the 1981 Act.

In response to the dire consequences of severe smog in Delhi in 2016, the Supreme Court took proactive measures. It called upon the national government to devise a comprehensive plan to tackle episodes of air pollution, resulting in the formulation of the Graded Response Action Plan (GRAP).

DRAWBACKS OF THE ACT

The Air (Prevention and Control of Pollution) Act in India, while playing a crucial role in addressing air pollution, has certain drawbacks:

Addressing these drawbacks requires a comprehensive review of the legislation, incorporating stakeholder feedback, technological advancements, and a simplified legal framework to ensure continued relevance and effectiveness in combating air pollution in India.

CONCLUSION

In essence, the detrimental effects of pollution encompass a wide spectrum, affecting the environment, human health, and animal life. It is imperative for responsible citizens to collectively strive for a better future, taking proactive initiatives to combat this pervasive issue.

The legislative framework addressing air pollution is robust and comprehensive, incorporating both scientific principles and the coordinated efforts of State and Central bodies. Pollution Control Boards are vested with significant authority and functions to regulate emission levels and implement necessary measures. Despite these stringent regulations, the enforcement aspect remains a challenge. 

Urban air pollution in India has been a persistent and severe issue, driven by the economic significance of heavily polluting industries and political factors such as a low prioritization of environmental concerns and limited public engagement.

India grapples with diverse factors contributing to air pollution, including stubble burning, inadequate industrial practices, and environmental considerations. To address these challenges, a specialized law, the Air (Prevention and Control of Pollution) Act of 1981, was enacted under the constitutional framework of India.

REFERENCES

[1] Subs by s. 15 ibid for “State board for the Prevention and Control of water Pollution” (w.e.f 1-4-1988)

[2] K. Ramakrishnan And #Anr. vs State Of Kerala And Ors – AIR 1999 Ker 385 

[3] AIR 1999 Ker 385 

[4] 1991 AIR 420, 1991 SCR (1) 5

[5] Subhash Kumar v. State of Bihar – 1991 AIR 420, 1991 SCR (1) 5

[6] 1998(6)SCC60 AND 1998(9)SCC589

[7] M.C. Mehta v. Union of India 1991 – 1998(6)SCC60 AND 1998(9)SCC589

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