THE ENVIRONMENT - DEFINITIONS AND ACTS
They are:
- The National Forest Policy, 1988
- Policy statement for Abatement of Pollution, 1992
- National Conservation Strategy and Policy Statement on Environment and Development, 1992
a) Water, air and land
b) The inter-relationship which exists among and between,
i) water, air, land, and
ii) human beings, other living creatures, plants, microorganisms and property
The different statutes / legislations enacted in India exclusively for environment protection are
- The Water (Prevention and Control of Pollution) Act, 1974
- The Water (Prevention and Control of Pollution) Rules, 1975
- The Water (Prevention and Control of Pollution) Cess Act, 1977
- The Water (Prevention and Control of Pollution) Cess Rules, 1978
- The Air (Prevention and Control of Pollution) Act, 1981
- The Air (Prevention and Control of Pollution) Rules, 1982
- The Environment (Protection) Act, 1986
- The Environment (Protection) Rules, 1986
- Hazardous Wastes (Management and Handling) Rules, 1989
- Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
- The Forest (Conservation) Act, 1980
- The Forest (Conservation) Rules, 1981
- The Wildlife Protection Act, 1972
- The Wildlife (Transactions and Taxidermy) Rules, 1973
- The Wildlife (Stock Declaration) Central Rules, 1973
- The Wildlife (Protection) Licensing (Additional Matters for Consideration) Rules, 1983
- The Wildlife (Protection) Rules, 1995
- The Wildlife (Specified Plants – Conditions for Possession by Licensee) Rules, 1995
- The Public Liability Insurance Act, 1991
- The Public Liability Insurance Rules, 1991
- The National Environment Tribunal Act, 1995
The National Environment Appellate Authority Act, 1997
There are about two hundred laws dealing with environmental protection both before and after independence in India. However, the pre-independence laws have not dealt with environmental protection exclusively. For example, the Indian Penal Code (IPC), 1860, had a chapter (chapter XIV) which dealt with offences affecting public health, safety and convenience, which covered aspects like water, air and noise pollution, whereas the post-independence laws mentioned above deal exclusively with environmental protection.
The Indian Penal Code has a chapter on offences affecting Public Health, Safety, Convenience (Chapter XIV). Sec. 268 provides that “a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.” The section further explains that a common nuisance is not excusable on the ground that it causes some convenience or advantage. Other concerned provisions are: a “negligent act likely to spread infection or disease dangerous to life” (Sec. 269 IPC.), a “malignant act likely to spread infection or disease dangerous to life” (Sec. 270 IPC.), “making atmosphere noxious to health” (Sec. 278 IPC.).
But the essential requirement of the provision to punish a man is the guilty intention of the accused, i.e. either the act of the accused should be negligent, malignant or voluntary, which vitiates the atmosphere. In case of public nuisance, the Penal Code provides for fines up to Rs. 200/- by way of punishment (Sec. 290 IPC.) and for making the atmosphere noxious to health Rs. 500/- only (Sec.78 IPC.).
The punishments are too meagre to meet the objectives. With these penal provisions, it is not possible to check environmental pollution.
THE CONSTITUTION OF INDIA
The State’s responsibility with regard to environmental protection has been laid down under Article 48-A of our Constitution, which reads as follows:
“The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.
Environmental protection is a fundamental duty of every citizen of this country under Article 51-A(g) of our Constitution which reads as follows:
“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”
Article 21 of the Constitution is a fundamental right which reads as follows:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Though this Article does not explicitly mention the environment, the Supreme Court and the various High Courts of the country have given a wider interpretation to the word “life” in this Article. According to the courts, the right to life includes the right to a living environment congenial to human existence.
The Supreme Court in Subhas Kumar V. State of Bihar (AIR 1991 SC 420) held that right to environment is a fundamental right of every citizen of India and is included in the “right to life” guaranteed under Article 21 of the Constitution of India. A Public Interest Litigation (PIL) is maintainable in the High Court or Supreme Court at the instance of affected persons or even by a group of social workers or journalists for prevention of pollution.
There are about two hundred laws dealing with environmental protection both before and after independence in India. However, the pre-independence laws have not dealt with environmental protection exclusively. For example, the Indian Penal Code (IPC), 1860, had a chapter (chapter XIV) which dealt with offences affecting public health, safety and convenience, which covered aspects like water, air and noise pollution, whereas the post-independence laws mentioned above deal exclusively with environmental protection.
Article 48-A of the Constitution comes under Directive Principles of State Policy and Article 51 A(g) of the Constitution comes under Fundamental Duties.
Unlike Fundamental Rights, violation of Directive Principles of State policy or Fundamental Duties cannot be questioned in a Court of Law.
The State’s responsibility with regard to raising the level of nutrition and the standard of living and to improve public health has been laid down under Article 47 of the Constitution which reads as follows:
“The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
The 42nd amendment to the Constitution was brought about in the year 1976. Two new Articles were inserted: Art.48-A and Art.51-A(g). The former, under Directive Principles of State Policy, makes it the responsibility of the State Government to protect and improve the environment and to safeguard the forests and wildlife of the country. The latter, under Fundamental Duties, makes it the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
- Industries
- Regulation and development of oil fields and mineral oil resources
- Regulation of mines and mineral development
- Regulation and development of inter-State rivers and river valleys
- Fishing and fisheries beyond territorial waters.
- Agriculture, protection against pest and prevention of plant diseases.
- Land, colonization, etc.
- Fisheries
- Regulation of mines and mineral development subject to the provisions of List-I
- Industries subject to the provisions of List-I.
- Forests
- Protection of wild animals and birds
- Economic and social planning
- Population control and family planning
As conferred by Article 246(1), while the Union is supreme to make any law over the subjects enumerated in List I, the States, under Article 246 (3), enjoy competence to legislate on the entries contained in List II, and both the Union and the States under Article 246(2) have concurrent jurisdiction on entries contained in List III. In the event of a clash, the Union enjoys a primacy over States in that its legislation in the Union and the Concurrent List prevails over State legislations. Also, the Parliament has residuary powers to legislate on any matter not covered in the three Lists (Art. 248).
Yes, Parts IX and IXA have been added to the Constitution by 73rd and 74th Amendments in 1992 to give constitutional sanction to democracy at the grassroot level through Panchayats and Muncipalities.
- Agriculture, including agricultural extension.
- Land improvement, implementation of land reforms, land consolidation and soil conservation.
- Minor irrigation, water management and watershed development.
- Animal husbandry, dairying and poultry.
- Social forestry and farm forestry.
- Minor forest produce.
- Rural housing.
- Drinking water.
- Fuel and fodder.
- Roads, culverts, bridges, ferries, waterways and other means of communication.
- Non-Conventional energy sources.
- Health and sanitation, including hospitals, primary health centres and dispensaries.
- Maintenance of community assets.
- Urban planning including town planning.
- Regulation of land-use and construction of buildings.
- Water supply for domestic, industrial and commercial and solid waste management,
- Public health, sanitation conservancy and solid waste management.
- Urban forestry, protection of the environment and promotion of ecological aspects.
- Slum improvement and upgradation.
- Provision of urban amenities and facilities such as parks, gardens, playgrounds.
- Cattle pounds; prevention of cruelty to animals.
- Regulation of slaughter houses and tanneries.
Subject to the provisions of the Constitution, the legislature of a State will endow the Panchayats and Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government.
THE ENVIRONMENT (PROTECTION) ACT, 1986 (E.P.A.)
According to Section 2 of E.P.A.
- “Environment” includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro organism and property.
- ”Environmental pollutant” means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment.
- ”Environmental pollution” means the presence in the environment of any environmental pollutant.
“Hazardous substance” means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro organisms, property or the environment
Section 3. Power of Central Government to take measures to protect and improve the environment.
- Subject to the provisions of this 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 pollution.
- In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:
- 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 theobjects of this Act
- Planning and execution of a nationwide programme for the prevention, control and abatement of environmental pollution.
- Laying down standards for the quality of environment in its various aspects.
- Laying down standards for emission or discharge of environ-mental 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.
- 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.
- Laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents.
- Laying down procedures and safeguards for the handling of hazardous substances.
- Examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution
- Carrying out and sponsoring investigations and research relating to problems of environmental pollution.
- 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.
- Establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act
- Collection and dissemination of information in respect of matters relating to environmental pollution.
- Preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution.
- 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.
- The Central Government may, if it consider it necessary or expedient so to do for the purposes of this Act, by order published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under Section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.
Section 4. Appointment of officers and their powers and functions:
- Without prejudice to the provisions of sub section(3) of Section 3, the Central Government may appoint officers with such designations as it thinks fit for the purpose of this Act and may entrust to them such of the powers and functions under this Act as it may deem fit.
- The officers appointed under sub-section (1) shall be subject to the general control and direction of the Central Government or, if so directed by that Government, also of the authority or authorities, if any, constituted under sub-section(3) of Section 3 or of any other authority or officer.
Section 5. Power to give directions:
Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation – For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct
a) The closure, prohibition or regulation or any industry, operation or process (or) b) Stoppage or regulation of the supply of electricity or water or any other service.
Section 6. Rules to regulate environmental pollution:
- The Central Government may, by notification in the Official Gazette, make rules in respect of all or any of the matters referred to in Section 3.
- In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
- a)The standards of quality of air, water or soil for various areas and purposes b)The maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas c) The procedures and safeguards for the handling of hazardous substances
d) The prohibition and restrictions on the handling of hazardous substances in different areas
e) The prohibition and restrictions on the location of industries and the carrying on of processes and operations in different areas
f) The procedures and safeguards for the prevention of accidents which may cause environmental pollution and for providing for remedial measures for such accidents.
Yes. Because under the E.P.A. Environment includes water, air and land. The sources of land pollution are:
- The unintended or incidental pollution of soil with man made chemicals
- The spent material from mining, or processing, etc.
- The discharge of sewage or waste water from urban areas on the land used for agricultural purposes, particularly that adjoining urban areas
- The indiscriminate disposal of solid waste (refuse)
According to Section 7, 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.
According to Section 8, 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.
- Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued there under, shall, in respect of each such failure or contravention, 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, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.
- If the failure or contravention referred to in sub section(1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.
Under this Act no court shall take cognizance of any offence except on a complaint made by any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid.
According to Section 24, where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act.
BIO-MEDICAL WASTES (MANAGEMENT & HANDLING) RULES 1998
The Central Government, to perform its functions effectively as contemplated under sections 6, 8, and 25 of the Environment Protection Act, 1986, and has made various Rules, Notifications and Orders including the Bio-medical wastes (Management & Handling) Rules, 1998.
Bio-medical waste means any waste, which is generated during the diagnosis, treatment or immunization of human beings or animals or in research activities or in the production or testing of biologicals.
Biologicals means any preparation made from organisms or from microorganisms or product of metabolism and bio-chemical reaction intended for use in the diagnosis, immunization or the treatment of human being or animals or in research activities.
The Bio-medical waste (Management & Handling Rules), 1998 is applicable to all persons, who generate, collect, receive, store, transport, treat, dispose or handle bio-medical waste in any form. The occupier of an institution generating bio-medical waste is required to take all steps to ensure that such waste is handled without any adverse effect or human health and the environment.
Occupier in relation to any institution generating bio-medical waste, which includes the hospital, nursing home, dispensary, clinic, veterinary institution, animal house, pathological laboratory, blood bank, means a person who has control over that institution or its premises.
- For human anatomical waste (human tissues, organs, body parts) the recommended treatment is incineration or deep burial.
- Wastes such as needles, syringes, scalpels, blades, glass, etc., are required to undergo chemical treatment, autoclaving or shredding.
- Solid waste items contaminated with blood and body fluids including cotton, dressing, soiled plaster casts, bedding and other materials are to be treated by incineration, autoclaving or microwaving.
- Solid wastes generated from disposable items such as tubes, catheters, intravenous sets are to be disinfected by chemical treatment or microwaving mutilation or shredding.
Bio-medical waste shall not be mixed with other wastes and shall be segregated into containers or bags of different colours like yellow, red, blue and black depending upon the type of waste. The untreated bio-medical waste should not be stored in the premises beyond a period of 48 hours and shall be transported only in such vehicles authorized for the purpose by the Government.
- The prescribed authority for the enforcement of these provisions of these rules shall be the State Pollution Control Boards (SPCBs) in respect of States and the Pollution Control Committees (PCC) in respect of the union territories and all pending cases with the prescribed authority appointed earlier shall stand transferred to the concerned State Pollution Control Board, or as the case may be, PCCs.
- a) The prescribed authority for enforcement of the provisions of these rules in respect of all health care establishments including hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories and blood banks of the armed forces under the Ministry of Defence shall be the Director General Armed Forces Medical Services.
- The prescribed authority for the State or Union Territory shall be appointed within one month of the coming into force of these rules.
- The prescribed authority shall function under the supervision and control of the respected Governments of the State or the Union Territory.
- An authorization shall be granted for a period of three years, including an initial trial period of one year fro the date of issue. Thereafter, an application shall be made by the occupier / operator for renewal. All such subsequent authorization shall be granted for a period of three years.
- The prescribed authority shall dispose off every application for authorization within ninety days from the date of receipt of the application.
The Government of every State / Union territory shall constitute an advisory committee. The committee will include experts in the field of medical and health, animal husbandry and veterinary sciences and other such related department / organization including NGOs.
Any person aggrieved by an order made by the prescribed authority under these rules may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority as the State Government / Union Territory may think fit to constitute.
The municipal Corporations, Municipal Boards or urban local bodies, as the case may be shall be responsible for providing suitable common disposal / incineration site for the bio-medical waste generated in the area under the jurisdictions and in areas outside the jurisdiction of any municipal body, it shall be the responsibility of the occupier generating waste / operator of a waste treatment facility to arrange for a suitable site individual or in association so as to comply with the provisions of these rules.
The environmental considerations must form an integral part of all development and be supplemented by mechanisms to see that environmental safeguards proposed are actually implemented together with systematic monitoring to assess the effectiveness of such precautions in protecting the environment.
RECYCLED PLASTICS (MANUFACTURE AND USAGE) RULES, 1999
Non-biodegradable solid waste (NBDSW) or refuse is a carpet word. It covers a variety of materials ranging from asbestos to Zinc batteries. Polythene and its related compounds are the most commonly found solid waste materials in urban environs. Many non-biodegradable solid waste materials are known to cause considerable environmental hazards when released into land, water and atmosphere. Various workers have highlighted the problems related to solid waste in recent years. The dangers are so vast that India alone generates about 800 to 3,200 tons of plastic waste per day.
In exercise of the powers conferred by clause (viii) of sub-section (2) of section 3 read with section 25 of the Environment (Protection) Act. 1986, the Central Government hereby notifies the rules for the manufacture and use of recycled plastics carry bags and containers.
“Foodstuffs” means ready-to-eat food and food products, fast food, processed and cooked food in liquid, powder, solid or semi-solid form
“Vendor” means person who sells foodstuffs as defined above packaged and stored in plastic carry bags and containers.
- The prescribed authority for enforcement of the provisions of these rules related to manufacture and recycling shall be the State Pollution Control Boards in respect of States and the Pollution Control Committees in respect of Union Territories
- The prescribed authority for enforcement of the provisions of these rules related to the use, collection, segregation, transportation and disposal shall be the District Collector/Deputy Commissioner of the concerned district where no Such Authority has been constituted by the State Government/Union Territory administration under any law regarding non-biodegradable garbage.
No vendor shall use carry bags or containers made of recycled plastics for storing, carrying, dispensing, or packaging of foodstuffs.
Conditions of Manufacture of carry bags and containers, made of plastics
Any person may manufacture carry bags or containers made of plastics if the following conditions are satisfied, namely:
- Carry bags and containers made of virgin plastic shall be in natural shade or white
- Carry bags and containers made of recycled plastic and used for purposes other than storing and packaging foodstuffs shall be manufactured using pigments colourants as per IS 9833:1981 entitled “List of pigments and colourants for use in plastics in contact with foodstuffs, pharmaceuticals and drinking water”
Recycling of plastics shall be undertaken strictly in accordance with the Bureau of Indian Standards specification: IS 14534:1998 entitled “The Guidelines for Recycling of Plastics”.
Manufacturers of recycled plastic carry bags having printing facilities shall code / mark carry bags and containers as per Bureau of Indian Standard Specification: IS 14534:1998 entitled “The Guidelines for Recycling of Plastics” and the end product made out of recycled plastics shall be marked as “recycled”. Other manufacturers, who do not have printing facilities, shall comply with the condition within one year of publication of these rules. Manufacturers shall print on each packet of carry bags as to whether these are made of “recycled material” or of “virgin plastic”.
The minimum thickness of carry bags made of virgin plastics or recycled plastics shall not be less than 20 microns
This notification also provides that the Plastics Industries Association through member units shall undertake self-regulatory measures.
SOME IMPORTANT NOTIFICATIONS AND RULES UNDER THE ENVIRONMENT (PROTECTION) ACT, 1986
- Hazardous Wastes (Management and Handling) Rules, 1989.
- Manufacture, Storage and Import of Hazardous Chemical Rules, 1989.
- Manufacture, Use, Import, Export and Storage of Hazardous Microorganism Genetically Engineered Organizations or Cells Rules, 1989.
- Coastal Regulation Zone Notification, 1991.
- Scheme of Labeling of Environment Friendly Products (Ecomarks), 1992.
- Notification on Environmental Auditing, 1992.
- Notification on Environmental Impact Assessment, 1994.
- Notification on Public Hearing 1994.
- Bio-medical Waste (Management and Handling) Rules, 1998.
- Recycled Plastics Manufacture and Usage Rules, 1999.
- Notification on Dumping and Disposal of Fly ash, 1999.
- Noise Pollution (Regulation and Control) Rules, 2000.
- Municipal Solid Wastes (Management and Handling) Rules, 2000.
- Batteries (Management and Handling) Rules, 2001.
- Forest (Conservation) Amendment Rules, 2004.
THE AIR ACT
Air pollution means the presence in the atmosphere of any air pollutant.
Air pollutant means any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment.
The objective of this Act is to provide for the prevention, control and abatement of air pollution, for the establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.
Decisions were taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972, in which India participated, to take appropriate steps for the preservation of the natural resources of the earth which, among other things, includes the preservation of the quality of air and control of air pollution.
Therefore it is considered necessary to implement the decisions aforesaid insofar as they relate to the preservation of the quality of air and control of air pollution.
The main functions of the Central Board, as specified in Section 16 of the Act.
To improve the quality of air and to prevent, control or abate air pollution in the country; and in particular, and without prejudice to the generality of the foregoing functions, the Central Board, may
- 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 provigil price
- Coordinate 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 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 Can prevention, control or abatement of air pollution on such terms and conditions as the Central Board may specify
- Organise 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
- Perform such other functions as may be prescribed, under Rules or under an Order.
In addition to the above functions, the Central Board may establish or recognize a laboratory or laboratories to enable the Central Board to perform its functions under this Section efficiently, and it may
a) delegate any of its functions under the Act generally or specially to any of the Committees appointed by it; and- b) do such other things and perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of women viagra.
The functions of the State Board, as specified in Section 17, shall be:
- To plan a comprehensive programme for the prevention, control or abatement of air pollution and to secure the execution thereof
- To advise the State Government on any matter concerning the prevention, control or abatement of air pollution
- To collect and disseminate information relating to air pollution
- To 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 air pollution and to organize mass education programme relating thereto
- To 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
- To 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
- To 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
- Provided that different standards for emission may be laid down under this clause for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants
- To 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
- To 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
- To do such other things and to perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of the Act.
- In addition to the above functions, the State Board may establish or recognize a laboratory or laboratories to enable the State Board to perform its above functions efficiently.
Section 19. Declaration of air pollution control area.
The Act has provided for measures which are
- Preventive in nature, in the case of industries to be established
- In the case of industries already established they are remedial
The primary responsibility of controlling air pollution is on the Board. The very first measure to be adopted in this respect is the declaration of any area or areas within the State as air pollution control area. The sub-section thus provides that the State Government may, after consultation with the State Board, by notification in the Official Gazette, declare in such manner as may be prescribed, any area or areas within the State as air pollution control area or areas for the purposes of the Act.
As regards power to give instructions for ensuring standards for emission from automobiles, Section 20 of the Act lays down that with a view to ensuring that the standards for emission of air pollutants from automobiles laid down by the State Board under clause (g) of sub-section(1) of Section 17 are complied with the State Government shall, in consultation with the State Board, give such instructions as may be deemed necessary to the concerned authority in charge of registration of motor vehicles under the Motor Vehicles Act, 1988, and such authority shall notwithstanding anything contained in that Act or the rules made thereunder be bound to comply with such instructions.
Section 37. Failure to comply with the provisions of section 21 or section 22 or with the directions issued under section 31-A.
- Whoever fails to comply with the provisions of section 21 or section 22 or directions issued under section 31-A, shall, in respect of each such failure, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.
- If the failure referred to in sub-section(1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment with a term which shall not be less than two years but which may extend to seven years and with fine.
Section 38. Penalties for certain acts:
Whoever
- Destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the ground or any notice or other matter put up, inscribed or placed, by or under the authority of the Board, or
- Obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under this Act, or
- Damages any works or property belonging to the Board, or
- Fails to furnish to the Board or any officer or other employee of the Board any information required by the Board or such officer or other employee for the purpose of this Act, or
- Fails to intimate the occurrence of the emission of air pollutants into the atmosphere in excess of the standards laid down by the State Board or the apprehension of such occurrence, to the State Board and other prescribed authorities or agencies as required under sub-section (1) of Section 23, or
- In giving any information which he is required to give under this Act, makes a statement which is false in any material particular, or
- For the purpose of obtaining any consent under Section 21, makes a statement which is false in any material particular,
- shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to [ten thousand rupees] or with both.
Section 39. Penalty for contravention of certain provisions of the Act.
Whoever contravenes any of the provisions of this Act or any order or direction issued thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both, and in the case of continuing contravention, with an additional fine which may extend to five thousand rupees for every day during which such contravention continues after conviction for the first such contravention.
Can companies and government departments be prosecuted under the Air Act?
Yes. This is provided under Section 40 and 41.
Section 40. Offences by companies
- Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
2. Notwithstanding anything contained in sub section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
- “Company” means any body corporate, and includes a firm or other association of individuals; and
- “Director”, in relation to a firm, means a partner in the firm.
Section 41. Offences by Government departments:
- Where an offence under this act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
- Notwithstanding anything contained in sub section (1), where an offence under this Act has been committed by a Department of Government and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any officer, other than the Head of the Department, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
No court shall take cognizance of any offence except on a complaint made by any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorized by the Board.
No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.- Where a complaint has been made by any private citizen the Board shall, on demand by such person, make available the relevant reports in its possession to that person.
The Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.
“Automobile” means any vehicle powered either by internal combustion engine or by any method of generating power to drive such vehicle by burning fuel.
As regards power to give instructions for ensuring standards for emission from automobiles, Section 20 of the Act lays down that with a view to ensuring that the standards for emission of air pollutants from automobiles laid down by the State Board under clause (g) of sub-section(1) of Section 17 are complied with, the State Government shall, in consultation with the State Board, give such instructions as may be deemed necessary to the concerned authority in charge of registration of motor vehicles under the Motor Vehicles Act, 1988, and such authority shall notwithstanding anything contained in that Act or the rules made there under be bound to comply with such instructions.
THE CIGARETTES AND OTHER TOBACCO PRODUCTS (PROHIBITION OF ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY AND DISTRIBUTION) ACT, 2003
The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
The underlying purpose of the Act is to ban advertising of cigarettes and other tobacco products and to prohibit sponsorship of sports and cultural events either directly or indirectly. In effect, there is a blanket ban on the advertising of such products.
For cigarettes, the Act is applicable within India. For other tobacco products, it extends to Goa, Punjab, Uttar Pradesh, West Bengal and all the Union territories. Other states may adopt the Act by passing a resolution in the manner prescribed by the Constitution of India.
The term ‘tobacco products’ has been broadly defined to include cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco and hookah tobacco, chewing tobacco, snuff, pan masala or any chewing material having tobacco as one of its ingredients (with whatever name called), gutka and tooth powder containing tobacco.
The term ‘advertisement’ as defined in the Act includes any visible representation by notice, circular, label, wrapper or other document, and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas.
No, as Section 4(2) of this Act prohibits a person for any direct or indirect monetary benefit to display, cause to display, or permit or authorize to display any advertisement of cigarettes or any other tobacco product through a film or video tape.
Under section 22 of the Act, punishment for advertisement of tobacco products, upon first conviction, is that a person would face imprisonment for a term which may extend to three years or with fine which may extend to one lakh rupees and in case of second or subsequent conviction, with imprisonment which may extend to three years, or with fine which may extend to two lakh rupees, or with both. Further, all the advertisements and advertisement material would be forfeited by the authorities. In the case of offences by companies, the Act also prescribes that directors/managers of the company would be held liable.
NOISE AND THE LAW
Noise, by definition, is unwanted sound. What is pleasant to some ears may be extremely unpleasant to others, depending on a number of factors. The natural environment contains many sources of noise – wind, volcanoes, oceans, and animal sounds are all familiar intrusions accepted at various levels. Man-made noises – such as those from machines, automobiles, trains, planes, explosives and firecrackers are more contentious. Both kinds of noise affect sleep, hearing and communication as well as mental and physical health.
It is now increasingly understood that pollution from noise is an important component of air pollution, which was previously understood as being limited to material pollution. Noise is an inescapable by-product of the industrial environment, which is increasing with advances in industrialization and urbanization. Even in non-industrial areas, noise from such activities such as printing, auto-repair and grinding affects those living in the immediate surroundings.
Noise travels through the air. Noise is measured in decibels. Experts believe that continuous noise levels in excess of 90 decibels can cause loss of hearing and irreversible changes in nervous systems. The World Health Organization [WHO] has fixed 45 decibels as the safe noise level for a city. Metropolitan areas in India usually register an average more than 90 decibels.
The Court directed the establishment of separate courts to deal with the problem of noise pollution. Further, all District Magistrates should be empowered to issue prohibitory orders to limit the hours for the use of loudspeakers. The Court directed the Delhi Government to restrict the use of firecrackers on occasions like religious festivals, marriages, processions.
The rules regulate noise levels in industrial, [75 decibels] commercial [65 decibels] and residential zones [55 decibels], and also establish zones of silence (100 meters) near schools, courts, hospitals, etc. The rules also assign regulatory authority for these standards to the local district courts.
No permission can be granted by any authority for use of public address system in the open after 10.00 p.m. and before 6.00 a.m. No exception is possible. Any person or organization making noise on amplified system after 10.00 pm is violation of the law and the person can be prosecuted under the provisions of the EPA 1986.
Only District Magistrates can grant permissions after 10.00 p.m. for functions within closed premises. District Magistrates cannot grant permission for use of any amplified public address system after 10.00 p.m. After permission has been procured, the sound must fall within the sound limits prescribed in the Noise Rules. This can be measured on a sound meter.
Any person violating the Rules is liable to be arrested under the stringent of the EPA. If the authorities do not act to stop violation of the Noise Rules, the citizen who has filed a complaint can approach the Court with his complaint after 60 days’ notice and the Court can initiate prosecution. The rules also fix different ambient air quality levels for firecrackers and industrial activities.
THE WATER ACT
“Pollution” means
- Contamination of water
- Alteration of the physical, chemical or biological properties of water
- Discharge of any sewage or trade effluent or any other liquid, gaseous or solid substance into water (whether directly or indirectly)
which may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms [Section 2 (e)].
- The Shore Nuisance (Bombay and Kolaba) Act, 1853
- The Orient Gas Company Act, 1857
- Indian Penal Code, 1860
- The Serais Act, 1867
- The North India Canal and Drainage Act, 1873
- The Obstruction in Fairways Act, 1881
- The Indian Easement Act, 1882
- The Indian Fisheries Act, 1897
- The Indian Ports Act, 1908
- The Indian Steam Vessels Act, 1917
- The Poison Act, 1919
- The Indian Forest Act, 1927
- The Damodar valley corporation (Prevention of Pollution of Water) Regulation Act, 1948
- The Factories Act, 1948
- The Mines Act, 1952
- The Orissa River Pollution Act, 1953
- The River Boards Act, 1956
- The Merchant Shipping Act, 1958
- The Maharashtra Prevention of Water Pollution Act, 1969
- The Water (Prevention and Control of Pollution) Act, 1974
- The Water (Prevention and Control of Pollution) Cess Act, 1977
The objectives of the Water (Prevention and Control of Pollution) Act are to provide for the Prevention and Control of Water Pollution and the maintenance or restoration of the wholesomeness of water for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.
Functions of Central Board:
- Subject to the provisions of this Act, the main function of the Central Board shall be to promote cleanliness of streams and wells in different areas of the States.
- In particular and without prejudice to the generality of the foregoing function, the Central Board may perform all or any of the following functions, namely:
- 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 programmes for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify
- Organize through mass media a comprehensive programme regarding the prevention and control of water pollution (perform such of the functions of any State Board as may be specified in an order made under sub section(2) of Section 18)
- Collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected therewith
- Lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well (Provided that different standards may be laid down for the same stream or well or for different streams or wells, having regard to the quality of waterflow characteristics of the stream or well and the nature of the use of the water in such stream or well or streams or wells)
- Plan and cause to be executed a nation-wide programme for the prevention, control or abatement of water pollution
- Perform such other functions as may be prescribed
- The Board may establish or recognize a laboratory or laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents.
Functions of the State Boards:
- Subject to the provisions of this Act, the functions of a State Board shall be:
- a)To plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and to secure the execution thereof
- b)To advise the State Government on any matter concerning the prevention, control or abatement of water pollution
- c)To collect and disseminate information relating to water pollution and the prevention, control or abatement thereof
- d)To encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution
- e)To 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 and to organise mass education programmes relating thereto
- f)To 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, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by this Act g)To lay down, modify or annul effluent standards for the sewage and trade effluents and for the quality of receiving waters (not being water in an inter-State stream) resulting from the discharge of effluents and to classify waters of the State
- h)To 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 and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution
- i)To evolve methods of utilization of sewage and suitable trade effluents in agriculture) To evolve efficient methods of disposal of sewage and trade effluents on land, as are necessary on account of the predominant conditions of scant stream flows that do not provide for major part of the year the minimum degree of dilution
- j)To lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents
- k)To make, vary or revoke any order
i) for the prevention, control or abatement of discharges of waste into streams or wells
ii) requiring any person concerned to construct new systems for the disposal of sewage and trade effluents or to modify, alter or extend any such remedial measures as are necessary to prevent, control or abate water pollution
- l)To lay down effluent standards to be complied with by persons while causing discharge of sewage or sullage or both and to lay down, modify or annul effluent standards for the sewage and trade effluents
- m)To advise the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well
- n)To 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.
2) The Board may establish or recognize a laboratory or laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents,
According to Section 24 of the Water Act, 1974
- a) No person should knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well or sewer or on land; or
b) No person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.
N.B.
However, a person shall not be guilty of an offence under sub-section(1) by reason only of having done or caused to be done any of the following acts, namely
- Constructing, improving or maintaining in or across or on the bank or bed of any stream, any building, bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain
- Depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream
- Putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream
- Causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.
Whoever contravenes the provisions of Section 24 shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine.
Yes. This is provided under sections 47 and 48 of the Water Act.
Section 47. Offences by companies
- Where an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct, of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
- (Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence) 2. Notwithstanding anything contained in sub section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation: For the purposes of this section
- a) “Company” means any body corporate, and includes a firm or other association of individuals
- b) “Director” in relation to a firm means a partner in the firm.
Section 48. Offences by Government Departments.
Where an offence under this Act has been committed by any Department of Government, the head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Emergency measures in case of pollution of stream or well:
- Where it appears to the State Board that any poisonous, noxious or polluting matter is present in [any stream or well or on land by reason of the discharge of such matter in such stream or well or on such land] or has entered into that stream or well due to any accident or other unforeseen act or event, and if the Board is of opinion that it is necessary or expedient to take immediate action, it may for reasons to be recorded in writing, carry out such operations as it may consider necessary for all or any of the following purposes, that is to say,
- a)Removing that matter from the (stream or well or on land) and disposing it off in such manner as the Board considers appropriate
- b)Remedying or mitigating any pollution caused by its presence in the stream or well
- c)Issuing orders immediately restraining or prohibiting the person concerned from discharging any poisonous, noxious or polluting matter [into the stream or well or on land], or from making insanitary use of the stream or well.
- The power conferred by sub section (1) does not include the power to construct any works other than works of a temporary character which are removed on or before the completion of the operations.
The powers given to Central / State Boards to make application to courts for restraining apprehended pollution of water in streams or wells:
- Where it is apprehended by a Board that the water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such stream or well or in any sewer or on any land, or otherwise, the Board may make an application to a court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class, for restraining the person who is likely to cause such pollution from so causing.
- On receipt of an application under sub section (1) the court may make such order as it deems fit.
- Where under sub section (2) the court makes an order restraining any person from polluting the water in any stream or well, it may in that order
- Direct the person who is likely to cause or has caused the pollution of the water in the stream or well, to desist from taking such action as is likely to cause pollution or, as the case may be, to remove from such stream or well, such matter
- Authorize the Board, if the direction under Clause (i) (being a direction for the removal of any matter from such stream or well) is not complied with by the person to whom such direction is issued, to undertake the removal and disposal of the matter in such manner as may be specified by the court.
- All expenses incurred by the Board in removing any matter in pursuance of the authorization under clause (ii) of sub-section (3) or in the disposal of any such matter may be defrayed out of any money obtained by the Board from such disposal and any balance outstanding shall be recoverable from the person concerned as arrears of land revenue or of public demand.
Section 33 A. Power to give directions
Notwithstanding anything contained in any other law, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.
Explanation
For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct
- a) Closure, prohibition or regulation of any industry, operation or process (or) b) The stoppage or regulation of supply of electricity, water or any other service.
Under this act
- No court shall take cognizance of any offence except on a complaint made by any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorized by the Board.
N.B.
1. No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act
- Where a complaint has been made by any private citizen the Board shall, on demand by such person make available the relevant reports in its possession to that person.
The Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.
According to (Ministry of Environment and Forests, Government of Tamilnadu) GO No 1 dated 6-2-84, of the a factory can come up at a distance of one kilometre from a river or natural waterbody. The Ministry of Environment and Forests passed a GO No. 213 dated 30-3-89 amending the distance from one
kilometre to five kilometres.
The Ministry of Environment and Forest, Government of Tamilnadu, in its GO No 127 dated 8-5-98, has amended its earlier reference with respect the river. (GO No 213, Mininstry of Environment and Forest, dated 30-8-89) that no industry coming under red category should be located within 5 km from major river Cauvery and its tributaries.
THE FOREST ACTS
Section 29. Protected forests:
- The (State Government) may, by notification in the (Official Gazette) declare the provisions of this chapter applicable to any forestland or wasteland which is not included in a reserved forest, but which is the property of the Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled.
- The forestland and wasteland comprised in any such notification shall be called a “protected forest”.
- No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forestland or wasteland comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the (State Government) thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved:
Provided that if, in the case of any forestland or wasteland, the (State Government) thinks that such enquiry and record are necessary but that they will occupy such length of time as in the meantime to endanger the rights of Government, the (State Government) may, pending such inquiry and record, declare such land to be a protected forest, but so as not to abridge or affect rights of individuals or communities. Of the control over Forests and Lands not being the Property of Government
Section 35. Protection of forests for special purposes:
- The State Government may, by notification in the official Gazette, regulate or prohibit in any forest or wasteland:
- a) The breaking up or clearing of land for cultivation
- b) The pasturing of cattle
- c) The firing or clearing of the vegetation
- For protection against storms, winds, rolling stones; floods and avalanches
- ii) For the preservation of the soil on the ridges and slopes and in the valleys or hilly tracts, the prevention of landslips or of the formation of ravines and torrents, or the protection of land against erosion or the deposit thereon of sand, stones or gravel
- For the maintenance of a water supply in springs, rivers and tanks
- For the protection of roads, bridges, railways and other lines of communication
- For the preservation of public health.
- The State Government may, for any, such purpose, construct as its own expense, in or up on any forest or wasteland, such work as it thinks fit.
- No notification shall be made under sub-section(1) nor shall any work be begun under sub-section (2) until after the issue of a notice to the owner of such forest or land calling on him to show cause, within a reasonable period to be specified in such notice, why such notification shall not be made or work constructed, as the case may be and until his objections, if any, and any evidence he may produce in support of the same, have been heard by an officer duly appointed for that purpose and have been considered by the State Government.
Breaking up of the soil or the clearing of the forest land seriously affects afforestation or regeneration of forest. Therefore, such breaking up of the soil can only be permitted after taking into consideration all aspects of the question, such as the overall advantages and disadvantages to the economy of the country, environmental conditions, the ecological imbalances, that are likely to occur, the effects on the flora and the fauna in the area, etc. It was, therefore, thought that the entire control of forest areas should vest in the Central Government. With that end in view, Sec.2 provided that prior approval of the Central Government should be obtained before permitting the use of the forest land for non-forest purposes.
According to Section 2 of the Forest (Conservation) Act, 1980 “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for
- a) The cultivation of tea, coffee, spices, rubber, palms, oil- bearing plants, horticultural crops or medicinal plants;
- b) Any purpose other than re-afforestation, but does not include any work relating or ancillary to conservation, development and management of forest and wildlife, namely, the establishment of check-posts, firelines, wireless communications and construction of fencing, bridges and culverts, dams, water-holes, trench marks, boundary marks, pipelines or other like purposes.
THE WILDLIFE (PROTECTION) ACT
According to the Wildlife Protection Act, 1972 “wildlife” includes any animal, bees, butterflies, crustacea, fish and moths; and aquatic or land vegetation which forms part of any habitat.
The Wildlife Protection Act was passed by the Indian Parliament in the year 1972 to protect India’s wildlife. However, in the 20 years that have passed since the Act came into force, the number of wild animals is going down alarmingly, despite of Government efforts to protect them. With the increase in population, there is greater pressure on land. Forests are being destroyed as human habitations expand, thereby shrinking the habitats of our wildlife. There is also the clandestine international trade in wildlife and wildlife products which is a major cause for their wanton destruction. Meanwhile, the growing consumer society and the increasing emphasis on luxury and vanity items has also caused the exploitation of wildlife in the name of industrial progress.
The major task of protecting wildlife cannot be handled by the Government machinery alone through its limited officials, but should be the duty of every individual. This was one of the reasons why a new provision, Article 51 A (g), was inserted into our Constitution, making it the fundamental duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
Points To Remember while making a Complaint Under the Wildlife (Protection) Act
- Of foremost importance is the correct and full identification of the “wildlife” species involved in the offence, which decides all further action.
- Provisions of the Act do not apply if the species involved does not occur wild in India (except ivory of the African elephant) or is of farm origin.
- Keep with you always, for ready reference an up to-date copy of the Wildlife (Protection) Act and Wildlife (Protection) (Tamil Nadu) Rules.
- (The Police effecting the arrest / seizure at your instance, as often also the Magistrate (who takes note of the arrest / seizure as per Section 50 (5)), might wish to refer to the Act for guidance).
- If you are a Hon.Wildllife Warden, you would be well advised to always keep with you your identity card (as Hon.Wildlife Warden).
- If possible, you may detain an offender against The Wildlife Act caught in the act, but hand him over to the Police with the least possible delay (Section 43 of the Criminal Procedure Code)
- Specify the nature of the offence in your complaint so that the same is recorded by the police in the First Information Report (FIR).
- As you wait for the police or the Wildlife Officer, please ensure that evidence of the offence is guarded, to be gathered/recorded by the authorized official.
- It would help effective prosecution if the NGO representative becomes a party to the Panchanama mahazar so that in the court trial against the accused, he could be useful as a witness.
Remember
- Fix priorities in needed action.
- Keep in mind the many constraints of the very few wildlife officials to enforce the law. Help them concentrate on priority areas by not diverting their attention to less
important offences.
Important points which must be incorporated in a Complaint to the Police / Forest officer as also in a Panchanama Mahazar:
Whereas the Wildlife or Police Officer dealing with the case would almost always get this statement recorded in a manner acceptable to the courts, it would be good for the NGO to know the salient features of the documents so as to ensure a better recording of the evidence.
- a) Name(s), occupation and full postal addresses of the witnesses (should not be less than 2 witnesses in any case)
- b) The place, date, time of commencement and completion of the document.
- c) The full names and other details of the other persons present at scene / detection of crime including those detained/arrested.
- d) The exact species with the Latin name, preferably, identifying the species as the same as that figuring in a particular schedule of the Wildlife Act.
- e) A detailed and accurate description of the animal / trophy / animal article together with any identification mark that you may affix on it to help later recognition. (Cases have been lost in the court due to failure on this count)
- f) Please ensure that evidence of the offence is gathered and recorded in a manner that will stand judicial scrutiny during the trial.Panchanama / Mahazar: This is an important document in any prosecution as much as it is a record of the facts as observed by the witnesses.
PREVENTION OF CRUELTY TO ANIMALS ACT 1960
Section 11 of PCA enumerates the following instances, which would amount to treating of animals cruelly:
- If any person willfully and unreasonably administers any injurious drug or injurious substance to any animal
- If any person confines any animal in any cage which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement
- If any person being the owner of any animal, fails to provide such animal with sufficient food, drink or shelter
- If any person solely with a view to provide entertainment, incites any animal to fight
The person shall be punished with a fine that shall not be less than Rs. 25 but which may extend to Rs. 100 or with imprisonment for a term that may extend to three months, or with both.
Yes. Under Section 25 of the Act, Magistrates are empowered to prohibit or restrict exhibition and training of performing animals on receipt of a complaint made by a police officer or any officer authorized by the prescribed tramadol drug. There is also a prohibition against all use of tigers, lions, monkeys, panthers (leopards) and bears in performances.
The Board consists of 28 members which include Members of Parliament, Humanitarians, Representatives of the Government of India, Representatives of Societies for Prevention of Cruelty to Animals and Animal Welfare Organisations
The main functions are:
- To implement provisions of the Act and advice the Government on the amendments to be undertaken and on policy formulation in respect of animal welfare
- To impart education to the humane treatment of animals
- To encourage the formation of public opinion against the infliction of unnecessary pain or suffering to animals
Is the killing of dogs by municipalities and panchayats permitted?
The Animal Birth Control (ABC) Rules of 2001 make it mandatory for all local authorities to go in for sterilization and vaccination of dogs and returning them to their original locations. Killing of staray dogs, those seriously ill or injured, has been prohibited, since it has become obvious that catch and kill has never worked in controlling either the stray dog population or the incidence of rabies. ABC, on the other hand, has been proved to be most effective phentermine vs adipex. In Chennai, official rabies figures show a 97% drop in rabies cases between 1996 and 2003. In 1996, as many as 135 dogs were being kiled by the Chennai Corporation. Since September 1996, the killing has been totally stopped and ABC introduced.
COASTAL REGULATION ZONE NOTIFICATION
In order to ensure livelihood security to the fisher communities, and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area, and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming. It shall restrict the setting up and expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazardous substances.
- Land area from High Tide Line to 500 mts on the landward side along the sea front.
- Land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies.
- Land area falling between the hazard line and 500 mts from HTL on the landward side, in case of seafront and between the hazard line and 100 mts in case of tidal influenced water body.
- The land area between HTL and Low Tide Line
- The water and bed area between LTL to the territorial water limit in case of the sea and the water and the bed area between LTL at the bank to the LTL in the opposite side of the bank, of tidal influenced water bodies.
The following activities are prohibited within CRZ:
- Setting up of new industries and expansion of existing industries
- Manufacture or handling oil storage or disposal of hazardous substances
- Setting up and expansion of fish processing units
- Land reclamation , bunding or disturbing the natural course of seawater
- Setting up and expansion of units or mechanism for disposal of wastes and effluents
- Discharge of untreated waste and effluents from industries, cities, or towns and other human settlements.
- Dumping of city or town wastes for the purpose of land filling and the like.
- Port and harbour projects in high eroding stretches of the coast.
- Reclamation for commercial purposes (shopping, housing complexes. Hotels, entertainment activities)
- Mining of sand, rocks and other sub-strata material
- Drawl of groundwater and construction related thereto within 200 mts of HTL
- Construction activities
- Dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation etc.
- Facilities required for patrolling and vigilance activities of marine/coastal police station.
But then it is to be noted that, all these prohibited activities have certain exceptions listed out individually.
Yes. The CRZ areas are classified into four categories:
- CRZ-I: The areas that are ecologically sensitive and where the geomorphological features play a role in maintaining the integrity of the coast (Example : Mangroves, corals, sand dunes, biologically active mudflats etc.). This also includes the area between the Low Tide Line and the High Tide Line.
- CRZ-II: The areas that have been developed up to or close to the shoreline.
- CRZ-III: Areas that are relatively undisturbed and those do not belong to either CRZ-I or II which include coastal zone in the rural areas and also areas within municipal limits or in other legally designated urban area which are not substantially built up.
- CRZ-IV: This includes the water area from the Low Tide Line to 12 NM on the seaward side, as well as the water area of the tidal influenced water body from the mouth of the water body at the sea up to the influence of tide.
It is according to these classifications, that further restrictions with regard to the construction of activities are imposed.
Yes. There are two states, Kerala because of its unique coastal systems of backwater and backwater islands, certain activities are regulated.
In the case of Goa too, owing to its past history and other developments, certain additional activities are also regulated.
In addition to these two states, critical vulnerable coastal areas are also identified such as the Sunderbans and other ecologically sensitive areas which are to be managed with the involvement of the local coastal communities.
- The project proponent shall apply to the Coastal Zone Management Authority.
- This CZMA shall examine the documents in accordance with the approved Coastal Zone Management Plan and make recommendations within sixty days from the date of receipt of the complete application.
- MoEF&CC or the SEIAA then shall consider the project for clearance based on recommendations of the CZMA within sixty days.
Yes, it is mandatory for the project proponent to submit half yearly compliance reports in respect of the stipulated terms and conditions of the environmental clearance on 1st June and 31st December of each year, which shall be published in public domain.
THE BIOLOGICAL DIVERSITY ACT, 2002
Biodiversity encompasses the variety of all life on earth. India is one of the 12 mega biodiversity countries of the world. With only 2.5% of the land area India already accounts for 7%-8% of the recorded species of the world. India is a party to the convention on Biological Diversity (1992). The main objectives of the convention are:
- Conservation of biological diversity
- Sustainable use of its components
- Fair and equitable sharing of the benefits arising out of utilization of genetic resources
The proposed legislation primarily addresses the issue concerning access to genetic resources and associated knowledge by foreign individuals, institutions or companies, and equitable sharing of benefits arising out of the use of these resources and knowledge by the country and the people.
It means the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-systems.
It means the use of components of biological diversity in such manner and at such rate that does not lead to the long term decline of the biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.
- a)To advice the Central Government on matters relating to the conservation of biodiversity
b)To advice the State Governments in the selection of areas of biodiversity importance to be notified as heritage sites
c) The Authority may, on behalf of the Central Government take any measures necessary to oppose the grant of Intellectual Property Rights in any country outside India on any biological resource obtained from India or knowledge associated with such biological resource which is derived from India.
Any person who is not a citizen of India; a citizen of India who is a non-resident, a body corporate, association or organization not incorporated or registered in India; or incorporated or registered in India which has any non – Indian participation in its share capital or management, who intends to obtain any biological resource occurring in India or knowledge associated for research or for commercial utilization or for bio-survey and bio-utilisation or transfer the results of any research relating to biological resources occurring in India shall make an application with prescribed fees.
Any person, aggrieved by any determination of benefit sharing or order of the Authority under this Act may file an appeal to the High Court.
It is 30 days from the date of communication to the aggrieved person of the Order of the Authority. Provided that the High Court may, if it is satisfied that the Appellant was prevented by sufficient cause from filing the Appeal within the said period, allow it to be filed within a further period not exceeding 60 days
The person shall be punished with a fine which may extend to one lakh rupees and in case of a subsequent offence the fine may extend to two lakh rupees and in case of continuous contravention with additional fine which may extend to two lakh rupees every day during which the default continues.
BIODIVERSITY RULES, 2004
In exercise of the powers conferred by Sec-62 of the Biological Diversity Act, 2002 and in supersession of the National Biodiversity Authority Rules, 2003 the Central Government hereby makes the above Rules, which came into force on 15th April, 2004.
- Every application shall be accompanied by paying a fee of five hundred rupees
- The Authority after due appraisal of the application and after collecting any additional information, on the basis of merit shall decide on the application, as far as possible within a period of three months of receipt of the same.
- The approval shall be granted in the form of a written agreement duly signed by a authorized officer of the Authority and the application. The form of the agreement may be decided by the Authority.
- The Authority may reject the application if it considers that the request cannot be acceded to after recording the reasons. Before passing order of rejection, the applicant shall be given an opportunity of hearing.
The formula for benefit sharing shall be determined on case-by-case basis. The guidelines shall provide for monetary and other benefit such a royalty, joint ventures, technology transfer, product development, education and awareness raising activities. The authority while granting approval o any person for access or transfer of results of research or applying for Patent and IPR or for a third party transfer of the accessed biological resource and associated knowledge may impose terms and conditions for ensuring equitable sharing of the benefits arising out of the use of accessed biological material and associated knowledge.
The quantum of benefits shall be mutually agreed upon between the persons applying for such approval and the Authority in consultation with the local bodies and benefit claimers and may be decided in due regard to the defined parameters of access, the extent of use, the sustainability aspect, impact and expected outcome levels including measures ensuring conservation and sustainable use of biological diversity. Depending upon each case the Authority shall stipulate the time frame for assessing benefit sharing on short, medium and long-term benefits. The Authority shall stipulate that benefits shall ensure conservation and sustainable use of biological diversity.
Where biological resources or knowledge is accessed from a specific individual or a group of individuals or organizations, the Authority may take steps to ensure that the agreed amount is paid directly to them through the district administration. Where such individuals or a group of individuals or organizations, cannot be identified, the monetary benefits shall be deposited in the National Biodiversity Fund.
If a dispute arises between the Authority or a State Biodiversity Board or between one Board and other Boards on account of implementation of any order or direction or on any issue of policy decision, either of the aggrieved parties, that is Authority or the Board, as the case may be, prefer an Appeal to the Central Government under Section 50. The memorandum of appeal shall state the facts of the case, the grounds relied upon by the appellant, for preferring the appeal and the relief sought for.
The memorandum of appeal shall be submitted in quadruplicate, either in person or through a registered post with acknowledgement due, within 30m days from the date of the orders, direction or policy decision, provided that if the Central Government is satisfied that there was good and sufficient reason for the delay in preferring the appeal, it may, for reason to be recorded in writing, allow the appeal to be preferred after the expiry of the above mentioned period of 30 days but before the expiry of 45 days from the date of the orders, direction or policy decision, as the case may be. In adjudicating a dispute, the Authority shall be guided by the principles of natural justice – that is no man should be condemned unheard as far as practicable.
INTELLECTUAL PROPERTY AND INTELLECTUAL PROPERTY RIGHTS (IPR)
Intellectual Property (IP) refers to creations of mind. For example, an invention, a new design, an article, literary and artist work, symbols / trade marks for ultimate use in commerce and which are not available in the public domain, are IP.
Intellectual Property Rights (IPR) are statutory rights and allow the creator(s) or owner(s) of the intellectual property to exclude others from exploiting the same commercially for a given period of time. It allows the creator(s) / owner(s) to have the benefits from their work when these are exploited commercially by himself or by his assignees. IPR are granted to an inventor or innovator in lieu of the discloser of his / her knowledge.
IPRs are governed in accordance with the provisions of the corresponding legislations and can be monopolized and protected under the provisions of different Acts such as,
- The Patent Act.
2.The Designs Act.
3. The Copyright Act.
4. The Trade Marks Act.
5. The Information Technology Act.
6. The Geographical Indication Act.
7. Protection of Layout Design for Integrated Circuit Act.
8. Plant Varieties Protection and Farmers Rights Act.
According to the Section 2(m), patent is an exclusive monopoly right granted by the government under the provisions of the patent laws for the discloser of the invention, for using his invention himself and / or by an authorized person(s) and preventing others from making, using and / or selling his invention for the term of a patent. After the expiry of the duration of Patent, any body can make use of the Patent.
The term of the patent is 20 years from the date of filing.
Grant of patent does not mean that the patentee can manufacture and sell all kinds of invention either himself or through authorized persons. For manufacturing and selling the invention the patentee/inventor has to complete the formalities laid down by the laws in force. But he can definitely stop others from manufacturing and selling his patented invention. For example for manufacturing and selling a drug, the patentee has to take a manufacturing license from the controller of drugs and has to complete other formalities required for manufacturing and selling the drug.
No. According to Sections 3-5, the following inventions are not Patentable:
- An invention which is frivolous
2.An invention which is contrary to well established natural laws
3. The mere discovery of a scientific principle or the formulation of an abstract theory e.g. the theory of relativity is not Patentable
4. An invention relating to Atomic Energy.
5. A method of Agriculture or Horticulture
6. An invention if already known to the public or is in use
7. An invention if already patented anywhere in the world
8. If the patent application is filed prior than yours (prior claiming) for the same invention.
However, if the IPR is not protected under the provisions of the Patent Act, it can be very well protected under the provisions of the different acts / laws as mentioned herein above, if it falls within the scope and definition of that Act.
Patents may be divided into two kinds (1) product patents and (2) process patents
- A product patent provides monopoly rights to the patentee for restricting others from manufacturing or producing the same product by any means.
2.A process patent provides monopoly rights to the patentee to restrict others manufacturing the product by the same process for which he has got a patent.
The knowledge continually developed, acquired, used, practiced, transmitted and sustained by communities / individuals through generations is called Traditional Knowledge. In India traditional knowledge including existing oral knowledge cannot be protected under the provisions of the existing IPR laws / acts, as mentioned herein above. However, if there is a substantial improvement in the existing traditional knowledge and if it can fulfill the requirements of the definition of the invention, then the patent application can be filed.
Case Study
Basmati
The 1990s have been marked by an increasingly bitter debate over modern trends in agriculture: the controversy over the so-called Terminator technology, the scandal of the turmeric and Basmati patents claimed by American companies and the imposition of a global trading and patent regime under the World Trade Organisation.
What the Government needs to do is to go a step further and register ‘Basmati’ as a Geographical Appellation indigenous to the subcontinent under the Geographical Indication of Goods (Registration and Protection) Act 1999 with the case of Scotch Whisky or Champagne as a precedent. This would guarantee that companies such as Rice Tec are not allowed to market the rice produced from their so-called ‘novel lines’ as ‘basmati’ even if the grains possesses all the characteristics attributable to Indian basmati varieties.
What role does agricultural biodiversity – the diversity of agro – ecosystems, crops and livestock, and of related husbandry practices/knowledge have to play in this? How has the modernisation process affected the diversity found in nature and on farmer’s fields and will this have an impact on the paramount goal of providing food and livelihood security?
These questions have assumed special significance because of the increasing unsustainability and ecological / social dangers of the current agricultural methods. There are many aspects of traditional farming which are still relevant, and that modern methods should at best supplement indigenous and local knowledge rather than displace it.
Turmeric
The turmeric patent was promptly challenged by Dr. R A Mashelkar, an Indian scientist who has done much to awaken India to Intellectual Property Rights issues. After four months of submissions it was established that the use of turmeric as a healing agent was well-known in India, for several centuries. The patent was annulled.
Neem
In 1996, the patent granted to the firm W.R.Grace & Co by the European Patent Office, Munich for ‘fungicidal uses of neem oil’ was challenged. The Indian farmer had over the ages integrated neem into his work. It was researched to convince that there was no ‘novelty’ factor in neem’s magical properties that Grace had unveiled. Indians had known them for long. This patent too was vacated.
But there are more battles ahead.
India leads
Two battles won indeed, but there are many ahead. It is reported that there are more than 100 Indian plants awaiting grant of patents at the US patent office. And patents have already been granted for the uses of amla, jar amla, anar and karela, to name a few household Indian names. These need to be vacated.
Recently, India was awarded proprietary rights over “Pochampalli”, a traditional woven textile of Andhra Pradesh.
GEOGRAPHICAL INDICATIONS OF GOODS (REGISTRATION & PROTECTION) ACT, 1999
It is an indication originating from a definite geographical territory. It is used to identify agricultural, natural or manufactured goods. The manufactured goods should be produced or processed or prepared in that territory. It should have a special quality or reputation or other characteristics.
Basmati Rice, Darjeeling Tea, Kanchipuram Silk Saree, Pochampalli Saree, Mysore Silk, Alphanso Mango, Nagpur Orange, Kolhapuri Chappals, Bikaneri Bhujia, Agra Petha, Mettupalayam Potato.
It confers legal protection to Geographical Indication in India and prevents unauthorized use of a Registered Geographical Indication by others.
Any association of persons, producers, organization or authority established by or under the law can apply. The application must represent the interest of the producers. The application should be in writing and in the prescribed form. It should be addressed to the Registrar of Geographical Indications along with the prescribed fee.
The persons dealing in the following three categories of goods are covered under the term producer:
- Agricultural Goods includes the production, processing, trading or dealing
- Natural Goods includes exploiting, trading or dealing
- Handicrafts or Industrial goods includes making, manufacturing, trading or dealing.
Registration is not compulsory. However, Registration affords better legal protection to facilitate an action for infringement
An authorized user has the exclusive rights to the use of Geographical Indication in relation to goods in respect of which it is registered.
The registration of a Geographical Indication is valid for a period of 10 years.
Yes. It can be renewed from time to time for a further period of 10 years.
If a registered geographical indication is not renewed it is liable to be removed.
When an unauthorized user uses a Geographical Indication that indicates or suggests that such goods originate in a Geographical area other than the true place of origin of such goods in a manner, which mislead the public as to the Geographical Origin of such goods.
When the use of another geographical indication result in false representation to the public that goods originate in a territory in respect of which a registered Geographical Indication relates.
The registered proprietor or authorized users of a Registered Geographical Indication can initiate an action.
No. A Geographical Indication is a public property belonging to the producers of the concerned goods, it can neither be assigned nor transmitted. However, when an authorized user dies, his right devolves on his successor in title.
Yes. The Appellate Board or the Registrar of Geographical Indications has the power to remove the Geographical Indication or an authorized user from the register. Further, on application by an aggrieved person action can be taken.
A Trademark is a sign, which is used in the course of trade, and it distinguishes goods or services of one enterprise from those of other enterprises. Whereas, a Geographical Indication is an indication used to identify goods having special characteristics originating from a definite Geographical Territory.
NATIONAL ENVIRONMENTAL APPELLATE AUTHORITY,ENVIRONMENTAL TRIBUNAL AND GREEN BENCHES
National Environmental Appellate Authority, Environmental Tribunal and Green Benches
National Environmental Appellate Authority Act, 1997
The National Environmental Appellate Authority Act has been brought with the purpose of providing for the establishment of a National Environmental Appellate Authority to hear appeals with respect to 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 under the Environment (Protection) Act, 1986 and for matters connected therewith or incidental thereto.
According to Section 12 of the Act the Authority shall not be bound by the procedure laid down in the code of civil procedure, 1908, but shall be guided by the principles of natural justice. Subject to the other provisions of this Act and of any rules made by Central Government, the Authority shall have power to regulate its own procedure, including the fixing of places and times of its enquiry and deciding whether to sit in public or private. Also, with the effect from the date of establishment of the Authority, no civil court or other authority shall have jurisdiction to entertain any appeal in respect of any matter with which the Authority is empowered by or under this Act.
National Environmental Tribunal Act, 1995
The National Environmental Tribunal Act has been enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to persons, property and the environment and for matters connected therewith or incidental thereto. The Act has not yet been brought into force.
Green benches are those constituted by the Chief Justice of the respective High Courts either on their own or on directions from the Chief Justice of the Supreme Court to constitute exclusively a bench (quorum consisting of more than one Judge) to deal with matters relating to environment and connected there with. The Green Bench in the respective High Courts deals with matters relating to Environment either on a particular day of the week exclusively or when and where the situation demands immediate action. West Bengal and Tamilnadu are examples of some states which have constituted Green Benches.
ENVIRONMENTAL IMPACT ASSESSMENT
An Environmental Impact Assessment is used to determine the possible (either positive or negative) impact that a particular project may have on the environment. The International Association for Impact Assessment defines an environmental impact assessment as the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made.
An Environmental Impact Assessment is used to determine the possible (either positive or negative) impact that a particular project may have on the environment. The International Association for Impact Assessment defines an environmental impact assessment as the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made.
All projects are broadly categorised into Category A and B. Category A projects shall require environmental clearance from the Central Government on the recommendations of an Expert Appraisal Committee. The category B projects shall require the clearance from the State/Union Territory Environmental Impact Assessment Authority, whose decision shall be based on the recommendations of a State or Union Territory Environmental Impact Assessment Authority.
The process of environmental clearance for these projects is a four step one:
- Screening: In this initial stage, the SEAC shall scrutinise the application submitted by the project proponent, and determine whether or not the project or activity requires the preparation of an EIA. The projects requiring an EIA are termed as B1 and the remaining projects are termed B2.
- Scoping: In this stage, the Appraisal Committees determine the TOR for the preparation of an EIA report addressing all relevant environmental concerns for the preparation of an EIA report. Certain activities such as building and construction, area development and town planning and highway expansion projects are excluded from scoping.
- Public consultation: Public consultation is a process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view by taking into account all the material concerns in the projects or activity design as appropriate. Six kinds of projects are excluded from public consultation.
- Appraisal:Appraisal involves the detailed scrutiny by the Appraisal Committee of the application, final EIA report, outcome of public consultations etc. Following which, it shall make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of application with reasons. The appraisal has to be completed within sixty days from the receipt of final EIA report.
The regulatory authority should consider the recommendations of the EAC or SEAC and convey the decision to the applicant within forty five days of the receipt of the same.
EIA is mandated for mines, power plants, Plants or processes for extraction of natural resources, industries, airports, ship breaking yards, SEZs, ports, harbours, hazardous waste treatment storage and disposal facilities, highways, building and construction projects, townships and area development projects etc. ( enumerated in Schedule of EIA notification , 2006). Certain projects such as railways are exempt from the same.
ENVIRONMENTAL STATEMENT
It is defined by the International Chamber of Commerce as “a management tool comprising a systematic, documented, periodic and objective evaluation of how well environmental organizations, management and equipment are performing with the aim of helping to safeguard the environment by
- Facilitating management control of environmental protection
- Assessing compliance with company policies which, would include muting regulatory requirements.
A gazette notification on environmental audit had been issued by the Ministry of Environment and Forests on 13th March, 1992 (amended vide notification GSR 386 (E) dated 22 April, 1993). This notification applies to every person carrying on an industry, operation or process requiring consent to operate under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) or under section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981), or both, or authorization under the Hazardous Wastes (Management and Handling) Rules, 1989, issued under the Environment (Protection) Act, 1986 (29 of 1986). The notification requires that an Environmental Statement for the financial year ending on the 31st March be submitted to the concerned State Pollution Control Board on or before the 30th September of the same year.
PUBLIC HEARINGS
Public Consultation refers to a process by which the concerns of the local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.
All category A and B1 projects or activities need to undertake public consultation.
Stage 3 i.e., Public consultation, has been defined and enunciated in paragraph 7 of the principal EIA notification 2006.The procedure for public hearing is given in Appendix IV of the same.
- A public hearing at the site or in its close proximity- district wise.
- Obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project/activity.
- The applicant shall make a request through a letter to Member Secretary of the Pollution Control Board, to arrange the public hearing, along with the draft Levitrareport in English and in the official language of the State. These copies are also to be submitted to the District magistrate/collector/Depty Commissioner/s, Zila Parishad/Municipal Corporation/Panchayat Unions, District Industries Office, Urban local Bodies, Regional Office of the MoEF&CC.
- The regional Office of the MoEF&CC shall widely publicize the EIA report, requesting the interested persons to send in their comments through the regulatory authorities. The pollution Control Boards also have to do the same and ensure that the report is available to the public.
- The member-secretary of the PCB shall finalise the date, time and venue for the conduct of public hearing within 7days of the receipt of the EIA report and advertise the same in a national daily and one regional vernacular daily. A minimum notice of thirty days is to be provided to the public for furnishing their responses.
- The District magistrate/Collector/Deputy or their representative not below the rank of an Additional District Magistrate assisted by a representative of PCB shall supervise and preside over the public hearing.
- Proceedings:
- The attendance of all present shall be noted.
- The proceedings shall be initiated with a presentation on project and summary EIA report.
- Persons present at the venue shall be granted the opportunity to seek information and clarifications on the project.
- A statement of issues raised by the public along with the comments of the applicant shall be prepared in the local language and English.
- The proceedings shall be made public by display in the offices of the Panchayat, Zila Parishad, District Magistrate/Collector/Deputy Commissioner, PCB and the latter’s website.
The public hearing shall be conducted within 45 days of a request to the effect from the applicant; failing which any other agency or authority shall be engaged to complete the process of loosing weight with phentermine.
Seven types of projects such as modernisation of irrigation projects, projects located within industrial estates, expansion of roads and highways, maintenance dredging, building, construction projects, area development projects, townships, projects concerning national defence and security and B2 projects are exempt from the process of public hearing/consultation.
Only those local affected persons and others who have a “plausible stake” in the environmental impacts of the project or activity can participate in the public hearing/consultation process.
ECO MARK
The Eco Mark is a label given to an Environment Friendly Product. Household and other consumer products which meet certain environmental criteria along with the quality requirements of the Indian Standards Institute for that product may be accredited and labelled under this scheme.
Any product which is made, used or disposed off in a way that significantly reduces the harm it would otherwise cause the environment could be considered an Environment Friendly Product.
The Ministry of Environment and Forests, Government of India, issues the Eco Mark notifications.
Till date, 18 notifications have been issued by the Ministry of Environment and Forests on different products criteria.
Sixteen product categories are covered under the Eco Mark scheme. They are soaps and detergents, paper, food items, lubricating oils, packing materials, architectural paints and electronic goods, food additives, wood substitutes, cosmetics, aerosol propellants, plastic products, textiles, fire extinguisher and leather.
OTHER ENVIRONMENT - RELATED LAWS
This is the earliest Act on the statue book concerning control of water pollution in India.
The Act enjoined upon a keeper of Serai or an inn to keep a certain quality of water fit for consumption by “persons and animals using it” to the satisfaction of the District magistrate or his nominees. Failure for maintaining the standard entailed a liability of rupees twenty.
Certain offences have been listed under the Act contained in Section 70.
Section 8 of the Act empowered the Central Government to make Rules to regulate or prohibit the throwing of rubbish in any fairway leading to a port causing or likely to give rise to a bank or shoal.
Illustrations (f), (h) and (j) of Section 7 of the Act deal with pollution of waters.
The Indian Fisheries Act, 1897 contains seven sections. Section 5 of the Act prohibits destruction of fish by poisoning waters.
Water pollution by oil has been regulated by the Indian Ports Act, 1908.
Section 26(i) of the Act makes it punishable if any person, who, in contravention of the rules made by the State Government, poisons water of a forest area. The State Government has been empowered under Section 32(f) to make rules relating to poisoning of water in forests.
The Act authorizes the Corporation to make regulations with the previous sanction of the Central Government for preventing “pollution of water”.
Factories Act, 1948 is a social welfare legislation intend to secure health, safety and welfare of the workers employed in factories. However, some of the provisions of this Act are concerned with prevention of water pollution.
Chapter V of the Act deals with provisions regarding health and Safety of the employees. Section 19(i) emphasizes upon arrangement for the quality of water for drinking purposes.
The Act provides for the creation of River Boards for regulation and development of interstate rivers and river valleys. One of the functions of the Board is to advise to the government concerned on “prevention of pollution of the waters of the interstate rivers”.
The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 is the first treaty for the reduction of oil pollution of the sea. In order to give effect to this Convention, the Merchant Shipping Act regulates and controls the discharge of oil or oil mixture by an Indian tanker or ship within any of the prohibited zones or by a foreign tanker or other ship within the prohibited zone adjoining the territories of India. Further, there is a prohibition for discharging any oil anywhere at sea from an Indian ship.
PUBLIC INTEREST LITIGATION (PIL) AND CITIZEN SUIT PROVISIONS
Public Interest Litigation (PIL) or Social Action Litigation (SAL) is permitted by the Supreme Court and High Courts under writ jurisdiction at the instance of public spirited citizens for the enforcement of constitutional and other legal rights of any person or groups of persons who because of their disadvantageous position are unable to approach the court for relief.
The Supreme Court under Article 32 and the High Courts under Article 226 can be moved by any public spirited citizen or by NGOs for the prevention of environmental pollution.
The Environment (Protection) Act, provided for the first time in 1986, citizen suit provisions in the lower courts. Under Section 19 of the Act, a citizen may prosecute a polluter by filing a complaint to a Judicial Magistrate Court. It can be done after giving 60 days notice to the State Pollution Control Board of his or her intention to the file a case. Hitherto, only the government could file a case. Later, similar provisions have been provided under Section 43 of the Air Act, 1981 and Section 49 of the Water Act, 1974, by way of amendments. All these provisions make it mandatory for the pollution control boards to disclose all relevant internal reports to a person who intends to prosecute the polluter.
SOME IMPORTANT CASES ON ENVIRONMENT
The judiciary has played a predominant role in ensuring that environmental practices are not just restricted to the law in paper, and have enforced and declared some major decisions that have come a long way in saving the environment. Though there are allegations that despite landmark judicial pronouncements, the executive and lack of will to save the environment has dampened the spirits of the judicial activism, it must be acknowledged that they have also been phenomenal in changing the course of environment destruction. The establishment of National Green Tribunals in 2010, and their active take on environmental issues have also added to such judicial gusto. The landmark cases have been categorised and listed as such:
A.Mining and Quarrying
- Rural Litigation and Entitlement Kendra, Dehradun v State of UP AIR 1987 SC 2187
- N Godavarman Thirumulpad v Union of India 2006 (14) SCALE 87
B.Public liability
- M.C Mehta & Anr. Etc v. Union of India & Ors. Etc 1986 SCR (1) 312
C.Public nuisance
- Municipal Council, Ratlam v Vardhichand AIR 1980 SC 1622.
D.Water Pollution:
- P Pollution Control Board v Prof. M.V Nayudu (Retd.) and Ors (2000) Supp 5 SCR 249
- Indian Council for Envirolegal Action v Union of India AIR 1999 SC 1502
- Vineet Kumar Mathur v Union of India (1996) 1 SCC 119
E.Sustainable Development :
- Narmada Bachao Andolan v Union of India 2000 (10) SCC 664.
F.Constitutional Interpretation of Environment
- Sachidanand Pandey v State of West Bengal AIR 1987 SC 1109
- Damodar Rao v. S.O Municipal Corporation AIR 1987 AP 171
G.Forest Conservation
- Ambica Quarry Works v State of Gujarat and others 1987 AIR 1073
H.Wildlife protection
- State of Bihar v Murad Ali Khan AIR 1989 SC 1
I.Coastal Zone Regulation
- Maria Filomena Furtado & Others v Goa Coastal Zone Management Authority & Others Appeal No. 33 of 2014 (NGT – Western Zone Bench)
- Wilfred J.Anr v MoEF & Others Appeal No. 14 of 2014 (NGT – Principal Bench)
J.Environmental Impact Assessment
- Sunil Kumar Chugh v Secretary, Ministry of Environment and Forests, New Delhi Appeal No.66 of 2014
- Sterlite Industries (India) Ltd. V. Union of India 2013 SCW 3231
- Samata and Forum of Sustainable Development v Union of India & Others (1981] 2 SCR 1
K.Public hearing/Consultation
- Adivasi Majdoor Kisan Ekta Sangathan and Another v. Ministry of Environment and Forest and Others NEAA No. 26 of 2009 Appeal no.3/2011 (T)
L.Hazardous Waste Material
- Research Foundation For Science v Union of India and Others (2012) 7 SCC 764
M.Air Pollution
- MC Mehta v. Union of India (Taj Trapezium Case) AIR 1987 Kant 82
- MC Mehta v Union of India (2002) 2 SCC 356 ( CNG case)
N.Animal Welfare
- Animal Welfare Board of India v A.Nagaraja & Ors (2014) 7 SCC 547
INTERNATIONAL CONVENTIONS / PROTOCOLS FOR PROTECTION OF THE ENVIRONMENT
Conventions on General Principles:
- Declaration of the United Nations Conference on the Human Environment , 1972
- Rio Declaration on Environment and Development, 1989
- Aarhus Convention on Access to information, Public Participation in Decision making and Access to Justice in Environmental Matters, 1998
Conventions on Biodiversity:
- International Plant Protection Convention , 1952
- The World heritage Convention , 1972
- The Ramsar Convention on Wetlands, 1971
- The International Treaty on Plant Genetic Resources for Food and Agriculture, 2004
- The Convention on International trade in Endangered Species of Wild Fauna and Flora, 1975
- The convention on Conservation of Migratory Species of Wild Animals, 1979.
- The Convention of Biological Diversity, 1993
Conventions on Marine Environment:
- Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 1972
- United Nations Convention on the Law of the Sea, 1982
Conventions on Nuclear Safety
- Convention on Nuclear Safety, 1994
- Vienna Convention on Civil Liability for Nuclear Damage, 1963
Conventions on Climate Change
- Vienna Convention for the Protection of the Ozone Layer, 1985
- Montreal Protocol on Substances that deplete the Ozone Layer.
- United Nations Framework Convention on Climate Change, 1992
Conventions on Hazardous substances
- Convention on the Control of Trans boundary Movements of Hazardous wastes and their disposal, 1989
- Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International trade, 1998
- Stockholm Convention on Persistent Organic Pollutants, 2001
Minamata Convention on Mercury, 2013.
SUSTAINABLE DEVELOPMENT
The definition which is used most often comes from the report of the Brundtland Commission, in which it was suggested that the phrase covered “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
Sustainable development means that the richness of the earth’s biodiversity would be conserved for future generations by greatly slowing and, if possible, halting extinctions, habitat and ecosystem destruction, and also by not risking significant alternations of the global environment that might – by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation – alter the opportunities available for future generations.
Perhaps the answer lies in the decision of the Supreme Court in Narmada Bachao Andolan v. Union of India wherein it was observed that “Sustainable development means what type or extent of development can take place, which can be sustained by nature/ecology with or without mitigation.” In this context, development primarily meant material or economic progress.
Being a developing country, economic progress is essential; at the same time, care has to be taken of the environment.
This can be achieved through the implementation of good legislation.
The courts have attempted to provide a balanced view of priorities while deciding environmental matters. As India is a developing country, certain ecological sacrifices are deemed necessary, while keeping in mind the nature of the environment in that area, and its criticality to the community. This is in order that future generations may benefit from policies and laws that further environmental as well as developmental goals. This ethical mix is termed sustainable development, and has also been recognized by the Supreme Court in the Taj Trapezium case.
In State of Himachal Pradesh v. Ganesh Wood Products the Supreme Court invalidated a forest-based industry, recognizing the principle of inter-generational equity as being central to the conservation of forest resources and sustainable development.