This article is written by Gauri Patil of Parul University Vadodara Gujarat, Intern under Legal Vidhiya
ABSTRACT
The Environment (Protection) Act (EPA) was enacted in 1986 for the purpose of protecting and improving the environment.
It gives power to the central government to set up authorities charged with the mandate of preventing environmental pollution in all its forms and to overcome specific environmental problems that are peculiar to different parts of the country.
The Act is one of the most comprehensive pieces of legislation under the guise of protecting and improving the environment.
This article would be dealing with different powers and functions of the government for protection of the environment and also discuss the developing stages and various provisions of the Indian Constitution which deals with Environment law.
INTRODUCTION
Environmental laws are an important element in any governing body. It contains a set of laws and regulations relating to air, water, and other aspects of the environment.
Environmental laws in India are based on environmental legal principles and concentrate on managing specific natural resources, such as forests, minerals, or fisheries.
The Indian environmental laws are a direct reflection of what was contemplated in the Constitution. India’s Constitutional framework has given us the need to protect and preserve the environment as well as the sustainable need for natural resources.
International Environmental Law (IOL) is a discipline that brings the world together to protect a common good: our environment. At AIDA, we apply it every day to help individuals and communities stand up for the environment and the basic human rights that depend upon it.
International Environmental Law (IEC) is a discipline that involves the whole world in protecting a common good: our environment. At AIDA, we apply it every day to help individuals and communities stand up for the environment and the basic human rights that depend upon it.
The history of IEL can be divided into three stages, separated by two of the most relevant international conferences held so far: the Stockholm Colloquium (1972) and the Rio de Janeiro Earth Conference (1992). And in 2016, with the signing of the Paris Agreement, a new stage began to face humanity’s most significant natural challenge: the present climate emergency.
POWERS AND FUNCTIONS OF GOVERNMENT ACCORDING TO CONSTITUTION
Pursuant to Article 253, the Constitution of India provides for the enactment of legislation to give effect to international agreements.
United Nations Framework Convention on Climate Change.
It is an international environmental treaty that governs actions to address climate change through adaptation and mitigation efforts to control emissions of greenhouse gases (GHGs) that cause global warming.
Article 48A of the Constitution states that the State strives to protect and improve the environment and to safeguard the country’s forests and fauna. The Constitution-makers provided for Article 48 as a Directive Principle to ensure that the cattle in India, specifically cows, are protected against the potential massacre in pursuance of agriculture and animal husbandry. The provisions of the article follow the philosophy of liberalism, which is based on the morality of freedom and the idea of equality before the law. The article explains the measures taken by our constitutional lawmakers to ensure animal welfare in the country.
Article 51A further provides that any citizen shall protect and enhance the natural environment, including forests, lakes, rivers, and wildlife, and have compassion for living beings;
SECTION OF ENVIRONMENT ACT
Section 3 – Powers of the central government to take measures for the protection and improvement of the environment.
Section 3 empowers the Central Government to take all such measures as it deems necessary or expedient to protect and improve the quality of the environment, and to prevent, control, and abate environmental pollution. Among these measures are:
● To coordinate actions between State governments, staff, and other authorities.
● Plan and execute national programs.
● To set standards concerning the quality of the various aspects of the environment.
● Establish standards for the emission or release of pollutants.
● Limit the operation of certain industries, processes, or operations in particular sectors.
● Establish procedures and safeguards for the prevention of accidents resulting in pollution and take corrective measures.
● Establish procedures and safeguards for handling hazardous materials.
● Review manufacturing processes, materials, and potentially polluting substances.
● Conduct and sponsor investigations and research into issues related to pollution.
● Inspect premises, facilities, equipment, machines, fabrication or other processes, materials, or substances.
● Establish or recognize environmental laboratories and institutions.
● Gather and disseminate information about pollution issues.
● Develop codes, manuals, or guides for the prevention, control, and reduction of environmental pollution.
● Other issues that the government deems necessary or appropriate.
The central State shall also have the power to establish such powers/authorities for the exercise and performance of such powers and functions as the Government may delegate to it.
Section 4:- Powers to appoint officers
Give permits to the Central Government to appoint officers with various designations, with powers and functions as they think fit. There shall be control and direction of the government or any authority of it over the officers appointed.
Section 5:- Power to give directions
The Central Government has the power to direct any person, any authority or officer in written. which shall be binding on them.
This direction could be related to matters like:-
● To prohibit, regulate or close any industry, operation or
● To regulate or stop the supply of water, electricity or any other services.
Section 6:- Powers to lay down rules
The Central Government has also the power to lay down rules on the matters laid down in Section 3 of this act:
- The safeguards and procedures for handling dangerous substances.
- The maximum allowed limit of environmental pollutants including noise pollution.
- The restrictions and prohibitions on the handling of hazardous substances.
- The restrictions and prohibitions on the location of operations, industries, and processes.
- The safeguards and procedures for prevention of accidents which can likely cause pollution and provide remedies for such accidents.
Section 10:- Powers of Inspection and entry
According to this section, any person has the right to enter any place at any reasonable time with some assistance.
Only government-authorized persons can enter the place. For the following purposes:
- To perform any functions carried out by the government.
- To determine whether the functions are to be performed.
- To test and examine the equipment.
- To conduct a search in a building where it is believed that the offence under this act is committed.
- The seizure of equipment which is believed to cause offence under this act.
The Person running such industry, operation, and process which involves handling of dangerous substances must provide all the assistance required to the person empowered by the Government for inspection. Failure to provide such assistance to the person empowered by the government that person shall be guilty under the offence under this act and would also be liable under Code of Criminal Procedure, 1973.
Section 11:- Power to take sample and procedure shall be followed
Section 11 authorizes the Government of the State or any official authorized by it to take samples of air, water, soil, or other substances from the premises of any factory.
The prescribed procedure for specimen collection is as follows:
The person collecting the sample must serve a notice of intent to collect the sample on the person responsible for the location.
The sample should be collected in the presence of the person responsible or their agent.
The specimen must be placed in one or more containers that must be marked and sealed. It is then signed by both the person collecting the sample and the person in charge or their agent.
The container must then be sent to the laboratory set up in accordance with section 12.
In case the person in charge or his agent purposely himself or refuses to sign the containers, the containers must be sealed, marked, and signed by the person taking the sample and must be sent to the laboratory. The governmental analyst must be informed in writing of the voluntary absence or refusal of signature.
Any analysis performed without following the prescribed procedure would not be admissible as valid evidence in a court proceeding.
Section 20:- Power to ask for information, reports, or returns
For the aim of performing its function under the Act, the central government has the power to ask for any returns, reports, accounts, statistics, and other information from any state government, officers, person, or any authorities which shall be bound to do so.
Section 23:- Power to delegate
The central government has also the power to delegate its power under this Act, except the power to appoint the powers under subsection 3(3) and the rules under section 25 for any public servant, state government, or other authority. However, such delegation shall be subject to the restrictions and conditions required, which may be specified in the notification in the Official Journal.
Section 25:- Powers to make rules
For the purposes of this Act, the Central Government may make rules on the following matters:
● standards for environmental pollutants, beyond which emissions or discharges are prohibited under Article 7; the procedure and protective measures for the handling of dangerous substances in accordance with Article 8;
● The authority that must be called into question concerning the occurrence or apprehension of the occurrence of a release of any pollutant exceeding prescribed standards;
● how air, water, soil, or any other substance must be collected under subsection 11(1);
● The form in which the notice of intent to take a sample for analysis is to be served under section 11(3)(a).
● environmental laboratory functions, procedures, and loads;
● the qualifications of the government analyst appointed pursuant to section 13;
● how the notice of violation and the intent to file a complaint must be given under paragraph 19(b);
The authority or authority or agent who is required to submit reports, information or declarations to the central government pursuant to section 20; matter of concern, as may be prescribed.
The central government may also:
● Plan and execute a national program for the prevention, control, and reduction of environmental pollution.
● To set standards for environmental quality in its various facets.
● To set standards for the release or release of environmental pollutants from various sources.
● The restriction of areas in which industries, operations, or processes or categories of industries, operations or processes will/will not be performed subject to certain guarantees.
The central government as per the act also has the power to direct .
- The closure , restriction, forbidding or regulation of any industry , operations or process.
- To stop or regulate the supply of electricity , water or other services.
● Ban on pollutants discharge :- No individual or organization is allowed to emit any environmental pollutant according to the prescribed standards.
● Adherence with procedural safeguards :- No individual shall keep hazardous substances except in accordance with the prescribed manner and without complying with the safeguards as mentioned.
Any Person not maintaining the safeguards will be liable for strict liability and absolute liability.
● Powers of entry and
examination :- Any person who is authorized by the central government shall have right to enter at any place:
- For the examining of any orders, notification and direction given under the act .
- For the purpose of inspecting any equipment ,record,register,documents or any industrial plant may provide evidence of the commission of an offence/wrong punishable under the act.
● Formation of environmental laboratories:- The central government according to the Act is entitled to:
● Establishment of environmental laboratories.
● Acknowledge any laboratories or institute as environmental laboratories to run out the functions entrusted to such a laboratory.
● The Central government is also authorized to make certain rules specifying the function of the environmental lab.
● Sanction for offences :- contravention to any of the procedures prescribed, the act done is considered as an offence . Offences under EPA are punished with the imprisonment of up to 5 years or a fine upto 1 lakh rupees.
● Offences by the companies:- If any offence is done by a company under this Act ,every person in charge of the company directly, at the time of commencement of the offence is deemed to be guilty.
● Offence by the Department of government :- any offence done by the department of government under this Act , The head (HOD) will be deemed to be guilty of the offence done.
Any officer, other than the HOD, if convicted, will also be subject to prosecution and punished accordingly.
● Cognizable offence:-The Court is prohibited from becoming aware of an offence under this Act, except upon complaint by:
The central government or any authority in the first’s name.
Someone who went to court after 60 days’ notice was provided to the central government or the authority on its behalf.
Important Case laws regarding the Environment protection Act.
- M.C.MEHTA V. UNION OF INDIA
○ also known as oleum Gas leakage Case. In this case the rule of absolute liability which is more strict than the strict liability was laid down. This case is more popular in the name of the oleum Gas leakage case.
○ Shree Ram food and fertilizer Industry is a branch of the Delhi Cloth Mills Limited located in a highly populated area of delhi.
○ On December 4th 1985 There was a leakage of oleum gas from the acid plant which resulted in the death of an advocate and several injuries to other persons.
○ On December 6th there was a minor leakage from the same sulphuric acid plant.
○ A complaint was filed under section 133 Cr.P.C., the District Magistrate instructed the management of Shri Ram Food and Fertilizers Industry to shut down /close the unit and to show the reason of cause within seven days in writing
○ Later , the petitioner Mr M.C Mehta filed a PIL under Article 32 of Indian Constitution . The petitioner in his petition made a request to the court to instruct the Government to take necessary steps to avoid such leakages from the industry involved in dangerous and risky manufacturing activities. He also mentioned the recent Bhopal Gas Tragedy and prayed before the court to direct the management to shift this industry anywhere far from the city.
Issue Regarding the case before the Honorable Supreme Court - Whether the plant can be allowed to resume or not?
- If yes , then what measures are to be taken to stop the leakages, explosion , and pollution of air and water.
- Whether there are any safety appliances existing in the plant or not ?
The Supreme Court decided to permit Shri Ram Food and Fertilizers Industry for the restoration of its activities. The Court noted that, while these industries are dangerous, they are very important for the economic and social progress of the country. The court also directed the Industries to set up a green belt of 1-5
Kilometers in width around such industries.
The court directed the management to deposit rupees 20 lakh as deposit for security.
The court valued the petitioner Mr. M.C. Mehta for depositing a number of PIL and ordered the Shri Ram Food and Fertilisers to pay Rs 10,000 for expenses. The court ordered the central government to establish an environmental court.- VELLORE CITIZENS WELFARE FORUM V. UNION OF INDIA
● In this case the Supreme Court examined the relation between the environment and development.
● The petitioner i.e Vellore citizen welfare forum filed a PIL under Article 32 of Indian Constitution against the large scale pollution caused to river palar due to discharge of untreated chemicals by tanneries and other industries in the state of Tamil Nadu.
● The water of river palar is the essential source of drinking water for the people who live there.
● Further the Tamil Nadu agricultural research center Vellore found that around 35,000 hectares of agricultural land is not fit for cultivation.
- VELLORE CITIZENS WELFARE FORUM V. UNION OF INDIA
Issue Regarding the case before the Honorable Supreme Court
● The question which arose before The Supreme court was whether tanneries should be allowed to continue to run their industries at the cost of people’s life .
● The Supreme court admitted that these tanneries are the major source for earning foreign Capital but at the same time they are also destroying the environment.
● Therefore, The Court delivered judgment in favor of petitioners and directed industries and tanneries to pay a compensation of rupees 10,000 in the office of collector.
● The court also directed the state of Tamil Nadu to pay an award of rupees 50,000 to M.C Mehta as appreciation towards his efforts in protection of environment.
CONCLUSION In the Stockholm Conference and the oleum gas leak case, The concern for the environment is magnified.
The Environment Protection Act 1986, also marked a positive step toward protection of the environment and its improvements. In this Act there are certain regulations for the prevention, control and abatement of environment pollution. The Act has also provided several notifications for protection of the environment and also introduced new principles like the Environment Impact Assessment. The citizens are also empowered to play a major role in the protection of the environment by calling out the pollution causing industries under EPA which has led to a string of environmentally sound judicial decisions.
