ENVIRONMENTAL LAW

PALLAVI BHOGLE

ENVIRONMENTAL LAW

POLLUTION: CAUSES AND KINDS

What is environmental pollution? Explain the causes and factors of environmental pollution. [16] Dec 08, 07, 05, Dec 05, 04, 03, Dec 02 What is Environment? Explain the various sources of environmental pollution. [16] 09, Dec 07, Dec 03, 02 The main cause of environmental degradation is human activity. Discuss the above statement, explaining the term Environment and causes of environmental problems. [16] Dec 03

Introduction: Man is both creator and moulder of his environment, which gives him physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet, a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Thus, the natural environment, i.e. air, water, land, trees, plants, animals, micro-organisms, rivers, lakes, mountains, etc., is adversely affected by manmade environment, by scientific and technological advancements through various inventions and discoveries. Industries, particularly chemical industries, development in the field of atomic energy, concrete jungles, excessive use of fossil fuel and rise in quality and standard of life resulting in exponential growth of population has badly affected the natural environment. Now, a point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance and indifference we can do massive and irreversible harm to the earthly environment on which our life and well-being depend. To defend and improve the human environment for present and future generations has become an imperative goal for mankind - a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social development. Meaning and Definition The environment is everything that surrounds us. It is the surrounding conditions, influences, or forces, by which living forms are influenced and modified in their growth and development. The presence of offensive, but not necessarily infectious, matter in the environment is called Environmental Pollution. For example, pollution may be by PALLAVI BHOGLE 2

ENVIRONMENTAL LAW specific organic or inorganic chemicals, by physical agents such as dust, volcanic fallout, smoke, automobile fumes, radioactive material and animal feces and urine. Causes of pollution and environmental degradation are of two types: 1. Natural causes 2. Man-made causes

Natural Causes Drought, flood, cyclone, earthquake, molten lava of volcano, hurricane, twister, torrents, epidemic are the main natural causes / factors which cause environmental pollution. Since they are agents of nature and man has no control over them, they are known as natural causes. Man-Made Causes There are four main man-made causes: 1. Population growth 2. Poverty 3. Urbanization 4. Industrialization Population Growth The Earth is finite and world population is infinite. Every new face consumes lots of natural and non-natural products, which are also ultimately provided after exploiting natural resources. Thus, every birth increases the consumption of natural resources. But it is true that a finite world can support only a finite population. In other words natural resources shrink as people multiply. The worlds population has grown almost fivefold from 1.17 billion to 5.1 billion in this century. The rise in urban population is at a very high rate. This indicates an increasing demand for fuel, food, water, pollution - free air, space to live in and healthy conditions of life. Increasing population of urban areas has created the problem of land pollution, air pollution, water pollution, unsanitary conditions, slums - all cumulatively adversely affecting the quality of life. This is why Kolkata and Delhi are rated as choked cities. The Supreme Court had to order shifting of polluting industries from Delhi and not to ply vehicles which are more than 15 years old. Continuous rise in population has enhanced the density of population in various areas which has also created various social, physical and psychological problems for the people. Space required for the population has also resulted in deforestation and disappearance of vegetation cover, which is only 13% of the total area against 33% which is very essential. Increasing population also results in poverty which is also a cause of pollution. Daily increase in population means more coal, diesel, petrol to burn, more iron and other metals for daily use, more means of transportation creating air pollution, more clothes to put on PALLAVI BHOGLE 3

ENVIRONMENTAL LAW which also use up natural resources, more furniture and paper to use which in turn result in cutting of more space for trees, more space to live in, more water to drink and for agricultural purposes. As a matter of fact increased population of India has caused housing problems, shortage of food and transportation, unsanitary conditions, loss of nutritious food. All this cumulatively affects the quality of life which is implicit in the Right to Life in Article 21 of the Indian Constitution. Thus, all this makes an impact on the human environment. For example, if we want to increase food production, pesticides will be used which may yield more production but cause chemical pollution of land, water and air and hazardous waste. Disappearance of vegetation cover has also reduced the animal kingdom. It is also to be noted that sustainable development is closely linked to the dynamics of population growth. Poverty Poverty contributes equally to both population growth and environmental pollution. Poverty has been defined as the inability of an individual or household to attain a minimal standard of living. The poor usually have low life expectancy, high infant mortality, higher incidence of disablement and higher consumption of natural resources in the form of food, fodder and fuel. Unhygienic and unsanitary conditions are another by-product of poverty affecting human health. Poverty reduces peoples capacity to use resources in a sustainable manner, it intensifies pressure on the environment. Sadly, the impoverishment of the poor is accompanied by simultaneous and systematic erosion of the basic means of their subsistence, the environment, with its life-supporting natural resources-land, water and forest. It has now aptly been observed that we need no magnifying glasses to see how inextricably the poor and poverty are linked to the environment. Planned and unbridled destruction of forests has affected the poor, nomadic groups and tribes in forests and who fulfill their fundamental needs from the forest and its products. Thus, if trees disappear, rains will be scarce, water resources will dry up, water table would go down-food, fodder, fuel will not be available, and, lastly, destruction of vegetation means increased chances of drought and dry season. It may be slow but definite destruction of human environment, because poor in rural areas totally depend upon forests and their products. In urban areas, problems of slums, pavement dwelling, unsanitary conditions, commotion, shortage of food, increased demand of coal, firewood and kerosene, shelter and energy are intimately connected with poverty leading to environmental degradation and human health problems. Therefore, the need of the times is some strategy including legal strategy to contain the problem of poverty and to have sustainable development and healthy environment. In the case of Olga Tellis v. Bombay Municipal Corpn., the Supreme Court observed that before pavement dwellers and slum dwellers are evicted they must be provided alternative sites with basic amenities like water, community latrines, paved streets and lighting as to guarantee wholesome environment under the expanded horizon of the right to life.

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ENVIRONMENTAL LAW Urbanization Rapid and unplanned urbanization had also contributed to environmental pollution and degradation of human environment. This is the result of rapid population growth and unending migration of the poor from small towns and villages to urban centres. Now more than one-fifth population of the nation lives in urban areas. Therefore, urban population of metropolitan cities is increasing day by day. Slums are a major problem of big cities and significant contributors to environmental degradation. The case of L.K. Koolwal v. State of Rajasthan highlighted the insanitary condition prevailing in Jaipur. The Court gave six months time to clean up the city as it was the primary, mandatory and obligatory duty of the Municipality to clean the city and remove filth. The plea of poor finance and paucity of staff cannot be the reason for nonperformance of the statutory duty. It was observed by the Court that keeping the city unclean and non-removal of filth amounts to violation of Right to Life under Article 21 as it amounts to slow poisoning and reducing the life of the citizen because of the hazard created. Industrialization Industry is the axis to gear up the economy of a modern society - known as the indispensable motor of growth and development. On the other side, it has been identified as a major source of environmental degradation and pollution. Therefore, development without destruction and sustainable development are the crying needs of the day. The problem we face is how to strike a balance between the benefits of rising standard of living, and its cost in terms of deterioration of the physical environment and quality of life. In the past the danger of polluting air, water and wind was not fully recognized, but now there is no doubt that it is a matter of great concern. The famous Minamata disease in Japan (1956), the Bhopal Gas Tragedy (1984), the Hiroshima bombing of 1945 have all shown that industrialization has posed a serious threat not only to human beings but also to animals, aquatic life and vegetation cover. On one hand industrialization has helped us to raise the standard and quality of life, on the other it has deteriorated the environment. Thus, pollutants enter the environment through human activity. Acid Rain is one of the worst possible forms of pollution which is a result of industrialization. Industries degrade the environment and pollute it in the following ways: 1. Use of natural resources by industries destroys nature and affects the natural environment. The great demand and need of industries has resulted in overexploitation and stress on natural resources. 2. Residues of industries known as effluents are released in water and land without any treatment which pollutes the water and land, affecting the aquatic life and underground water. 3. Fossil fuel used by industries like coal, kerosene, diesel and atomic energy also pollutes the air in the form of smoke and radioactive particles.

PALLAVI BHOGLE

ENVIRONMENTAL LAW 4. Noise, also a major by-product of industries and industrial products, causes noise pollution. 5. Industrial wastes - particularly hazardous waste and radioactive waste - have also become a major environmental pollution problem. Thus, industrial activity produces four kinds of stresses on the environment. entrophic, exploitative, disruptive substance hazardous material, like lead, mercury, chromium, cadmium, and others.

The use of CFC (Chlorofluorocarbon) by industries and industrial products has also caused global warming and depletion of ozone layer. All this cumulatively polluted the environment to a dangerous level.

Conclusion

PALLAVI BHOGLE

ENVIRONMENTAL LAW

THE INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION

Examine the constitutional obligations to protect the environment with reference to cases. [16] 07, Dec 06, Dec 05, 03, Dec 03 Discuss the various constitutional provisions relating to environmental protection with reference to cases. [16] 08 Right to wholesome environment is a fundamental right. Discuss with reference to decided cases. [16] Dec 07, 06, 04, Dec 03, 02, 01 Discuss the role of the Indian Judiciary in protection of environment. [16] 06, Dec 03 Explain in brief international commitments of India in the matter of protection of environment. [16] Dec 03 Describe the duties of State and Citizen towards Environment. [4] 01

Introduction: The Constitution is known as the basic law of the land from which all other laws derive their sanctity or validity. Therefore, it must be a living and growing law, meaning it must be able to cope with the newer situations and development. That is why, as and when it is felt that a special situation has arisen and the present constitutional provisions are not adequate and cannot deal with the new development effectively, they are amended by Parliament from time to time. The then Prime Minister of India, Mrs Indira Gandhi, was the first head of State to address the first International Conference on Human Environment at Stockholm in 1972, and voiced deep concern about the degradation of the environment and eco-imbalances. She also emphasized that pollution, population and poverty are interrelated problems and there must be an integrated approach to deal with them. India was also one of the signatories of the Stockholm Declaration which is known as the Magna Carta on Human Environment. Therefore, to fulfill its promise made at the Stockholm Conference, the Indian Parliament passed the forty-second amendment to the Constitution in 1976 and incorporated specially two 7

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ENVIRONMENTAL LAW Articles relating to protection and improvement of the environment. Thus, India became the first country in the world to have provisions on the environment in the Constitution. Constitutional and International Obligations The Constitution of India, under Chapter XI, provided for legislative relations between the Centre and State Governments. It provides a scheme under which the Centre and the States can make laws on the items provided in the Union List and State List attached with the Seventh Schedule. Article 253 of the Constitution empowers Parliament to legislate on any matter for implementing the international obligations and decisions taken at the international conference, association or other body's meeting. Under Article 253, implementing the decisions of the Stockholm Conference of 1972, which was an international conference, was within the competence of the Parliament and accordingly Parliament passed many laws, viz. the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977 and the Air (Prevention and Control of Pollution) Act, 1981. The Environment (Protection) Act of 1986 has also been passed to implement decisions arrived at the International Conference at Stockholm (1972) to preserve natural resources. Thus, inclusion of Articles 48-A and 51-A(g) relating to environment was a reassertion of the powers of Parliament provided under Article 253. Thus, in a way it was an implementation of the international obligation of the country as per the decisions taken at the Stockholm Conference of 1972. It is to be noted that this power of the Indian Parliament has never been disputed. Moreover, it is an enabling provision for the Parliament to legislate on the various aspects of environmental laws. List III (Concurrent List) of Schedule VII also provides power to the Indian Parliament on various aspects related to the environment. This list includes subjects like forests, protection of wildlife, mines and minerals, development, population control and family planning, and minor ports and factories. Exercising its powers, Parliament has passed various laws on these subjects. Constitution and Forty-Second Amendment of 1976 Originally the Indian Constitution of 1950 did not have explicit reference to environment protection, so there was no independent and separate provision dealing with the protection or improvement of the environment. But taking note of the Stockholm Conference and growing awareness for environmental pollution and eco-imbalances, the Indian Parliament passed a historic amendment 42nd Constitution Amendment Act, 1976. This 42nd Amendment incorporated two significant Articles - Articles 48-A and 51A(g) to protect and improve the environment. Article 48-A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-1(g): It shall be a duty of every citizen of India...(g) to protect and improve the natural environment including forests, lakes, and wildlife and to have compassion for living creatures. PALLAVI BHOGLE 8

ENVIRONMENTAL LAW

Right to Pollution free and Healthful Environment - Fundamental Right The Environmental laws which have been passed by the Parliament and State legislatures are based on the recognition of clean environment as a human right or fundamental right. As it has been recognized that a clean environment is the basic need for the survival of humanity and it cannot be ensured without ecological balance, thus, this right belongs to all as survival of mankind depends on clean, healthful or pollution-free environment. Any attempt to defile, damage the natural environment would amount to violation of the human right to a clean environment. The Stockholm Conference of 1972 also declared that man has the fundamental right to freedom of equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being... Chapter III dealing with fundamental right (Articles 12 to 35) does not have any direct bearing on environmental degradation or eco-imbalances, and has not even referred to these words at all. But the judicial pronouncements of the Supreme Court of India and State High Courts have significantly contributed in giving a newer and finer perspective to environment protection in the form of fundamental right. The Courts, while dealing with environmental cases, have referred and based their judgments on Right to Equality (Article 14), Right to Life (Article 21), Right to Freedom of Trade and Commerce [Article 19(1)(g)]. We will study various aspects of right to healthful, pollution-free environment vis-a-vis fundamental rights provided under Chapter III of the Indian Constitution. The Constitutional Scheme to protect and preserve the environment has been provided under Articles 21, 48-A and 51-A(g) which includes fundamental right to have healthful & pollution free environment, constitutional obligation of the State and fundamental duty of all the citizens of India to protect and improve the natural environment. The Supreme Court has clarified it in many cases. It has also been observed by the court that this scheme is based on the constitutional policy of sustainable development which must be implemented. It is also to be noted that Articles 14, 21, 48-A of the Constitution of India must be applied both in relation to an executive action as also in relation to a legislation. In judicial review of the executive and legislation can be made, may be on different principles. Ecological principles are relevant consideration in continuing town planning statutes. Right to Equality and Environment The Indian Constitution guarantees right to equality to all persons without any discrimination. This indicates that any action of the State relating to environment must not infringe upon the right to equality as enshrined in Article 14 of the Constitution. The Stockholm Declaration, 1972 also recognized this principle of equality in environment management and it called up all the world's nations to abide by this principle. PALLAVI BHOGLE 9

ENVIRONMENTAL LAW

The Courts in India, on various occasions, have struck down the arbitrary official sanction in environmental matters on the basis that it was violative of Article 14 (Right to equality) because sometimes arbitrary grant of lease and indiscriminate operation of mines may jeopardize the wildlife and natural wealth of the nation. It has also been made very clear that where arbitrariness and perversion are writ large, the Court has no option but to issue a writ to advance public interest and avoid public mischief which are the paramount considerations. In Kisan Bhagwan Gawali v. State of Maharashtra the exclusion of a particular class of grazers from consideration and inclusion of some on the ground that the excluded class was indulging in illegal grazing is violative of Article 14 and invalid. Such a policy decision is against the right to equality. The Gujarat High Court declared that imposition of restriction on the trade and operation of melting gold and silver ornaments by running furnaces and thus causing nuisance is not unreasonable and violative of Article 14 of the Constitution. It has aptly been observed that concept of social justice and equality are complementary to each other and practical contents of right to life. Freedom of Trade and Commerce and the Environment Most of the pollution is mainly from trade and business - particularly from industries. It has been found that tanneries, acid factories, tie and dye factories, distilleries and nowadays the hotel industries are contributing to environmental pollution. Thus, it all relates to fundamental right to freedom of trade and commerce/business guaranteed under Article 19(1)(g) of the Indian Constitution. Some of these industries or businesses/trades are carried on in a manner which endangers vegetation cover, animals, aquatic life and human health. But, time and again, it has been made clear that this freedom of trade and commerce is not absolute and is subject to certain reasonable restrictions. Therefore, any trade or business which is offensive to flora or fauna or human beings cannot be permitted to be carried on in the name of the fundamental right. In M.C. Mehta v. Kamal Nath, the Supreme Court made it abundantly clear that if a hotel is discharging untreated effluent into the river Beas, thereby disturbing the aquatic life and causing water pollution, it cannot be permitted to work. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for life, would be hazardous to life. Thus, the court in the exercise of jurisdiction under Article 32 cannot only award damages but can also levy fine - exemplary damages on the erring industry / hotel which will act as a deterrent for others not to cause pollution. In Wing Commander Utpal Barbara v. State of Assam, the Court declared that a total ban on the use of polythene bags by the magistrate by issuing an order under Section 144 of the Criminal Procedure Code, 1973 is violative of freedom of trade and business. The remedy instead of a ban could have been to take appropriate steps regulating its use and disposal and to resort to appropriate legislation for it. Right to Life and Right to Clean, Healthy Environment PALLAVI BHOGLE 10

ENVIRONMENTAL LAW

Article 21 of the Indian Constitution, though it guarantees right to life and personal liberty, does not directly confer right to clean, unpolluted and healthy environment. But the various judicial pronouncements on various occasions have expanded the right to life and personal liberty to include this right by recognizing various unarticulated liberties as recognized implicitly by Article 21. In M.C. Mehta v. Kamal Nath, Justice Saghir Ahmad explained that, in order to afford protection to life, in order to protect the environment and in order to protect air, water and soil from pollution, this court through its various judgments has given effect to the rights available, to the citizens and other persons alike, under Article 21 of the Constitution. It was clarified by the Supreme Court that any disturbance of the basic environment elements, namely air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution'.35 Various provisions of the other environmental laws, e.g. provisions of the Water (Prevention and Control of Pollution) Act, 1974, or the Air (Prevention and Control of Pollution) Act, 1981 have also been enforced by the Court under Article 21 of the Constitution. All this means that the right to life means (a) right to live with human dignity and (b) the quality of life as understood in its richness and fullness by the ambit of the Constitution. It also encompasses within its fold, some of the finer facets of human civilization which make life worth living. Thus, this includes the right to have a living environment congenial to human existence. Any activity which pollutes the environment and makes it unhealthy, hazardous to human health or health of flora and fauna, is violative of right to have living environment, implicitly guaranteed by Article 21. Similarly, the slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation by Article 21 of the Constitution. And the fulfillment guaranteed by Article 21 also embraces the protection and preservation of Nature's gift without which life cannot be fully enjoyed. Right to Constitutional Remedies and Environment A survey of the cases related to environment pollution and eco-imbalances reveals that most of the cases were filed under Articles 32 and 226 of the Constitution of India. Artic1e 32 is one of the fundamental rights - known as right to constitutional remedies for the enforcement of the fundamental rights. This constitutional duty of protection of fundamental rights has been cast on the Supreme Court of India under Article 32 and on the State High Courts under Article 226 of the Constitution. The Courts while granting relief to the aggrieved and checking activities injurious to environment have issued orders, directions and writs from time to time. Under Public Interest Litigation (PIL) Courts possess wide powers to grant relief and PALLAVI BHOGLE 11

ENVIRONMENTAL LAW prevent any activity endangering humans and damaging the environment. A PIL can be brought by any public-spirited person, who may not be an aggrieved person, for a common cause or against any activity or conduct which adversely affects the public at large or group of persons. Even a voluntary organization can initiate Public Interest Litigation. Article 32 is a fundamental right and the Supreme Court of India entertains a writ petition for the enforcement of fundamental rights. Since the denial of the right to clean, healthful and unpolluted environment and its various attributes have been recognized by the Supreme Court as violative of right to equality [Article 14], right to freedom [Article 19(1)], right to life [Article 21], the Supreme Court has issued orders, directions and writs of mandamus. certiorari, etc from time to time. Similarly, the High Courts of the States are also empowered to issue orders, directions and writs under Article 226 for the enforcement of fundamental rights. Pollution Fine (Exemplary Damages) In a PIL initiated by Shri M.C. Mehta (M.C. Mehta v. Kamal Nath), the Supreme Court declared that powers of the Court under Article 32 are not restricted and it can award damages in a PIL and in addition to damages available under the Polluter Pays Principle', the person held guilty of causing pollution can be held liable to pay exemplary damages so it may act as deterrent for others not to cause pollution. In this case M/s Span Motel was found guilty of interfering with the natural flow of a river, and thus disturbing the environment and ecology of the area. The Court also proposed to award pollution fine on the industry. The Court made it clear that powers under Article 32 are not restricted and it can award damages under PIL or a writ petition. Directive Principles of State Policy and the Environment Chapter IV (Article 36 to Article 51) deals with the Directive Principles of State Policy. Some of them specifically deal with the various facets of human health and environment. These Directive Principles sometimes become complimentary to the fundamental rights and are enforced by Courts of law. The following are some of the Directive Principles related to environment 1. Article 47: The State shall regard the raising of the level of nutrition and standard of living of its people and the improvement of public health as among its primary duties 2. Article 48-A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. It has been declared time and again by Courts that Article 48-A is a constitutional pointer, mandate to the State and the State has to carry out its obligation provided under it.

Conclusion

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ENVIRONMENTAL LAW Polluter pays elucidates the phrase with reference to the relevant case law. [16] 09, Dec 07, 06, Dec 06, Dec 05, Dec 04, Dec 03, Dec 02, Dec 01

Synopsis: 1. Genesis of Precautionary Principle 2. Polluter Pays Principle Part of the principle of sustainable development Absolute liability for harm to environment Pay cost of restoring environmental degradation Indian Council for Enviro-Legal Action v. UOI Deepak Nitrite Ltd. v. St. of Gujarat Introduction: Basically, Precautionary Principle (PP) is a rule of evidence and particularly it deals with the burden of proof in environmental cases. This principle shifts the burden on the polluter individual / industrialist / entrepreneur to prove that his activity / industry / process / operation is not a health hazard, damaging the environment and his action is environmentally benign. Earlier the concept of assimilative capacity was prevailing which was provided by Principle 6 of the Stockholm Declaration of 1972 (U.N. Conference on Human Environment). This principle of assimilative capacity assumed that science could provide policy makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it is presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. Later on the Precautionary Principle approach was emphasized and the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982 emphasized for Precautionary Principle in place of assimilative capacity principle. And ultimately the Earth Summit - Rio de Janeiro Conference of 1992 declared it in unequivocal terms. Principle 15 of the Rio Declaration on Environment and Development, 1992 provided: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall be used as a reason for postponing costeffective measures to prevent environmental degradation. Later on, it was adopted by others. The basis for the emergence of the principle is the non-availability of full information about the widespread ramifications, serious and irreversible harm which may be caused, based on scientific experiments. This is known as inadequacies of science. It was based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible and based on scientific uncertainty and inadequacies of science. PALLAVI BHOGLE 13

ENVIRONMENTAL LAW

The Indian Supreme Court has also adopted the Precautionary Principle but in a modified form. The Court adopting the principle explained that this principle has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the status quo. The person who wants to maintain status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it by carrying on some activity must bear this burden. In case insufficient proof is presented, the presumption of the Court will operate in favour of environmental protection and the activity would not be allowed to operate or continue to operate. In the light of the above discussion and the problems present - day courts are facing, the Supreme Court has suggested to fortify the appellate authority under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Hazardous Wastes (Management and Handling) Rules, 1989 and the National Environment Tribunal Act, 1995 by appointing Technical Members well versed in environmental laws and special knowledge in scientific and technical fields about environmental science/management. This will provide the courts with expert opinion for fair adjudication of disputes relating to environment and pollution. Polluter Pays Principle The Supreme Court has also, in a recently decided case, held that this principle envisages precautionary protection against environmental hazards by avoiding or reducing environmental risk before specific harm is expected. Thus it has become a part of the principle of sustainable development. In Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law Society of India, while applying the Precautionary Principle in a given situation, the public interest must be kept in view. Moreover, we have to live with certain risks, which are counterbalanced by services and amenities provided by these entities. Many factories, plants and utilities are vulnerable to certain risk but they cannot be decommissioned or dismantled. We have to live with them if they are serving public interest and do not pose grave threat to the environment. In this case the appellant, a fertilizer company was having ammonia storage tank. The petitioners contended that in the event of earthquake, Terrorist attack, sabotage or air crash into the tank, there would be human tragedy on account of leakage of ammonia from the storage tank. While deciding if these should be relocated, the court discussed the precautionary principle and decided the risk to environment or to human health must be decided in public interest according to reasonable person test. In Indian Council for Enviro-Legal Action v. Union of India, the Polluter Pays Principle was explained: Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make the loss caused to any other person by his activity irrespective of fact whether he took reasonable care while carrying on his activity. . (a) The polluting industry is absolutely liable to compensate for harm caused to the environment. PALLAVI BHOGLE 14

ENVIRONMENTAL LAW (b) He is also liable to pay the cost of restoring the environmental degradation reversing the damaged ecology. This principle means the absolute liability for harm to the environment. Thus, it became a principle of remediation of the damaged environment - a part of the process of sustainable development. Now it is well settled that this principle has become a part of environmental jurisprudence. But a study of the decision pronounced by the Supreme Court reveals that there still exist doubt with regard to its contents and scope. The Supreme Court in Deepak Nitrite Ltd. v. State of Gujarat got an occasion to explain the principle and its finer contours. The court declared that the compensation to be awarded must have some broad correlation not only with the magnitude of the risk and the capacity of the enterprise, but with harm caused by it. The Polluter Pay Principle can be applied only where it is proved that some damage has been caused to the man & material or to the environment by the industrial unit by their activity. Mere violation of the legal provisions laying down the standards does not attract this principle. In this case, a PIL was filed alleging that large scale pollution has been causing by the industries located in Gujarat Development Corporation Estate of Nandesari as the effluents discharged by the industries exceeded the parameters fixed by the Gujarat Pollution Board. The High Court passed on order directing industries to pay 1% of the maximum turnover of last three years by applying the Polluter pays principle without ascertaining whether these were degradation of environment or any of the component of environment.

Conclusion

Public Trust Doctrine [10] 08, Dec 05, 02, Dec 01, 01

Introduction: The Supreme Court, in M.C. Mehta v. Kamal Nath, declared in unequivocal terms that Our legal system - based on English Common Law - includes the public trust doctrine as a part of jurisprudence. The State is the trustee of all national resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources; these resources meant for public use cannot be converted into private ownership. Most of the judgments pronounced by Indian courts are based on this English Common Law doctrine. This constitutional mandate to preserve the environment and maintain ecological balance is a task of the State under Article 48-A and the State should give priority to such issues as they have wide and serious ramifications. Justice Chinnappa Reddy in Sachidanand Pandey v. State of W.B explained: Whenever a problem of PALLAVI BHOGLE 15

ENVIRONMENTAL LAW ecology is brought before the Court, the Court is bound to bear in mind Article 48-A of the Constitution... and Article 51-A(g) which proclaims it to be the fundamental 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. When the Court is called upon to give effect to the Directive Principles and Fundamental Duties, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The term protect indicates that the State has to protect the natural environment whatever we have and the term improves indicates that the State must improve its quality if the environment has degraded or is degrading. It provides a positive and dynamic connotation, so that the State may deliberately take steps and impose restrictions on the use of resources which adversely affect the environment. Constitutional obligation of Article 48-A has also been referred to by Courts in many cases and they have based their judgments on it. In Consumer Education & Research Centre v. Union of India, the Supreme Court declared that right to health, medical aid to protect health and vigour of women is a fundamental right, if Article 21 is read with Arts. 39(e), 41, 43 and 48-A. Thus, the life of a workman becomes meaningful and purposeful with dignity of person. It is also a duty of the State to create awareness of the environmental issues and education. Therefore, the Supreme Court accepted the syllabus prepared by NCERT for introduction in all schools in the country. Conclusion

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ENVIRONMENTAL LAW

ENVIRONMENTAL POLLUTION AND ITS CONTROL

UNDER

OTHER LAWS

Explain the various remedies under a law of tort for environmental hazards. [16] 09, Dec 08, 04, 03, Dec 01 Tort of nuisance [10] Dec 08, 04, Dec 02 Discuss the common law and environmental problems [16] Dec 08, Dec 06, Dec 01 criminal law remedies available for

Abetment of public nuisance under the Criminal Procedure Code [8] 06

Introduction: There are various other laws which deal with environmental pollution. Some of the important laws which have effectively been used to contain and control the various forms of environmental pollution are as follows: 1. Law of Tort 2. Indian Penal Code, 1860 3. Criminal Procedure Code, 1973 4. Factories Act, 1948 5. Public Liability Insurance Act, 1991 6. National Environment Tribunal Act, 1995 Environmental Pollution as a Tort Justice Saghir Ahmed of the Supreme Court has aptly observed, in unequivocal terms, that: Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. In addition to damages, the person guilty of causing pollution can also be held liable to pay exemplary damages, so that it may act as a deterrent for others not to cause pollution in any manner. In the case of M.C Mehta v. Kamal Nath, a motel was discharging its untreated effluents in river Beas, thereby causing water/river pollution. The construction of the motel also interfered with the natural flow of the river. The motel was directed to pay compensation

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ENVIRONMENTAL LAW and it was also declared that a pollution fine can be imposed on such polluters by following the statutory procedure. Law of Tort, basically a part of common law, is based on judicial pronouncements. There are various torts which provide relief for environmental pollution under various headings. Torts relating to environmental pollution are: Tort of Nuisance. Tresspass Tort of Negligence Strict Liability

Tort of Nuisance and Environmental Pollution It has rightly been observed that the deepest doctrinal roots of modern environmental law are found in the common law principles of nuisance. The law of nuisance covers various kinds of activities which pollute the environment. Nuisance means an unlawful interference with the use and enjoyment of land or property, or some right over, or in connection with it. It is a recurring state of affairs. This covers the escape of deleterious things and inconvenience to another. Nuisance ordinarily means anything which annoys, hurts or that which is offensive. It may be through escape of water, smoke, fumes, gas, noise, heat, vibrations, electricity, disease, germs, trees, etc. There are two categories of Nuisance - Public and Private. Public Nuisance is a crime and is covered under the Indian Penal Code (Sections 268 to 291) and Criminal Procedure Code (Sections 133 to 144).. In Dhannal Lal v. Chittar Singh, the M.P. High Court held that the constant noise, if abnormal or unusual, can be actionable if it interferes with anothers physical comfort. The person causing nuisance may be restrained by injunction, although he may be conducting his business in a proper manner according to rules framed in this behalf either by the municipality or by the State. The focal point of Law of Nuisance is the material interference with the ordinary comfort of human existence. The following factors are material in deciding whether the discomfort is substantial as to make it actionable (a) degree of intensity (b) duration (c) locality (d) the mode of using the property The case of Ram Raj Singh (Dr.) v. Babulal is an instance where an individual can claim damages for causing public nuisance if he can prove some special damage and substantial injury from such nuisance to him. In this case the plaintiff - appellant, a medical practitioner, constructed a consulting chamber opposite the brick-grinding machine erected by the defendant-respondent. There was a distance of 40 feet between the two and a road intervened between the grinding machine and the consulting chamber. The plaintiff alleged that the machine generated dust which polluted the general atmosphere and entered the consulting chamber causing physical inconvenience to him PALLAVI BHOGLE 18

ENVIRONMENTAL LAW and the patients sitting inside the chamber. These allegations were denied by the defendant. The Court held the defendant liable as the facts proved that plaintiff could prove special damage. Following are the remedies for Private Nuisance: 1. Abatement - means the removal of a nuisance by the party injured but it must be peaceably, without danger to life or limb. For this, a prior notice and adequate opportunity must be given to the other party before entering upon the land of the other person. 2. Damages - Aggrieved party/parties can bring an action for damages. 3. Injunction - It is a courts order for restraining the other party from continuing an activity which is causing a nuisance. It must be proved before the court that the injury cannot adequately be compensated. Injunctions have been dealt with by the Specific Relief Act, 1963. Trespass Trespass is very closely related to nuisance and is occasionally invoked in environmental cases. Trespass requires an intentional invasion of the plaintiff's interest in the exclusive possession of property. No substantial injury need be shown for a plaintiff to succeed in an action for trespass. The only requirement to establish a trespass is that there must be an intentional unprivileged physical entry by a person or object on land possessed by another. In Fairview Farms, Incorporated v. Reynolds Metals Company the Court held that airborne liquids and solids deposited upon Fairview land constituted trespass and allowed damages for a six-year period applying the statute of limitation. Nevertheless, the trespass theory is inadequate to control air pollution. The difficulty in identifying the correct source of air pollution in an area, the cost of litigation and willingness of the people to accept the status quo, etc. tends to discourage the filing of trespass suits. Negligence Negligence is another specific tort which can help us in preventing environmental pollution. Negligence is the failure to exercise that care which the circumstances demand in any given situation. Where there is a duty to take care, reasonable care must be taken which can be foreseen to be likely to cause physical injury to person or property. The degree of care differs from case to case and circumstances to circumstances. Casual relation must be shown by the plaintiff between the negligence of the defendant and the injury to the plaintiff. In Mukesh Textile Mills (P) Ltd. v. H.R. Subramanya Shastri, common law action for negligence was applied to prevent any activity causing environmental pollution. In this case appellant had a sugar factory and used to store molasses - a by-product in the manufacture of sugar, in tanks, two of them were steel tanks and one was of mud, one with earthen embankment close to respondents land separated by a water channel. One

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ENVIRONMENTAL LAW day, this third tank collapsed as it was in a dilapidated condition and it emptied into the water channel ultimately inundated the paddy fields of the respondent causing damage to the raised crops. The Court based the liability of the appellant-defendant on two grounds. One - who had stored large quantities of molasses in the mud tank had the duty to take reasonable care in the matter of maintenance. The duty to take care was not properly performed which showed negligence on the part of the appellantdefendant. The appellant could reasonably have foreseen that damage was likely to be caused if there was a breach in the tank. Thus, it was reasonably foreseeable. Secondly, liability arises as the land was put to the non-natural use. The Court held, in both situations, a duty-situation emerges and the appellant must be held liable for the consequences of the escape of the fluid from its tank. Doctrine of Strict Liability The tort is comparatively new. The rule in Rylands v. Fletcher is known as a tort of strict liability. The rule propounded in this, case by Blackburn, J. is, the person who for his own purpose brings on his land and collects and keeps there anything likely to do a mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage, which is the natural consequence of its escape. The doctrine of strict liability - a liability without fault on the part of the defendant - is very significant in relation to cases arising from environmental pollution because it has been applied to a remarkable variety of things Fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, poisonous vegetation, etc. Further, this rule applies equally to the injuries caused to person and property. But unless there is an escape of the noxious substance or article from the land of the defendant where it is kept, to the land of the plaintiff, there is no liability under the rule. It was applied by the Indian Court in many cases. Rejecting the theory of strict liability propounded in Rylands v. Fletcher, the Supreme Court of India in the case M.C. Mehta v. Union of India (Oleum Gas Leakage or Shriram Food and Fertilizer Industry case) declared that we have to develop our own law and if we find that is necessary to construct a new principle or liability to deal with unusual situationon account of hazardous or inherently dangerous industry...we should not hesitate to evolve principle of liability though such principle might have been evolved in England. Further, it was explained that such industry must be held strictly and absolutely liable for causing harm as a part of social cost for carrying on hazardous or inherently dangerous activity.

Conclusion to Civil Remedies: Law of nuisance for environmental protection is a less effective measure because in case of public nuisance some special injury is necessary to prove to succeed, and in private nuisance, the individuals do not take interest in coming to a court of law. The common law action of trespass is less known to India and is not PALLAVI BHOGLE 20

ENVIRONMENTAL LAW suited to deal with the general issues of environmental degradation as it requires some direct physical interference by one against the person or property of another. Environmental degradation is generally indirect in its nature and effect. So person aggrieved by it may find it difficult to establish a successful legal action for trespass. In case of an action for negligence, environment pollution cases have some inherent difficulties. Firstly, the plaintiff has to prove the casual connection between the negligent act and the plaintiffs injury, and that it was foreseeable by the defendant. Secondly, the standard of care is seriously affected by the state of scientific knowledge as to causes and effects of air and water pollution. Therefore, the M. C. Mehta case principle of absolute liability with non-delegable duty rule is an appropriate remedy to check environmental pollution effectively. Insurance against abnormally dangerous harm may be a proper remedy in deciding the question of liability. Considering the pollution problem in its totality, interests of the public may considerably overshadow the interests of the parties concernedThis requires that the public point of view be searched out and decisions be taken in the light of social policy. Related Provisions of the Indian Penal Code, 1860 The Indian Penal Code has a chapter on Offences affecting the public health, safety, convenience (Chapter XIV). Section 268 defines Public nuisance as, 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 excused on the ground that it causes some convenience or advantage. Thus, an act which tends to or causes interference with the health, safety, comfort, convenience of the public at large will be considered as public nuisance It covers all types of pollutions - land pollution, air pollution, water pollution, noise pollution, etc, Section 290 provides punishment for public nuisance which otherwise is not punishable under the Act, with a fine which may extend to Rs 200. In Kurnool Municipality case, it was held that Municipality can be convicted for not maintaining the cleanliness of the town under Section 290. It is to be noted that no prescriptive right can be acquired to maintain nuisance, and no length of time can legalize a public nuisance. The Kerala High Court held that smoking, in any form, in a public place is a public nuisance and cases can be filed under Section 290 of the Penal Code and is violative of Right to life provided under Article 21 of the Constitution. In this chapter, there are some other provisions which deal with specific pollution cases/kinds. These provisions are as follows: S. 269 - Negligent act likely to spread infection of disease dangerous to life. S. 270 - Malignant act likely to spread infection of disease dangerous to life. S. 277 - Fouling water of public spring or reservoir

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ENVIRONMENTAL LAW S. 278 - Making atmosphere noxious to health S. 284 - Negligent conduct with respect to poisonous substance. S. 285 - Negligent conduct with respect to fire or combustible matter S. 286 - Negligent conduct with respect to explosive substance Ss. 425-440 - Include various types of mischief including mischief by killing or maiming animals, cattle.

Since the punishments provided for the above-mentioned offences are too meagre, looking to present-day gigantic problem of environmental pollution, therefore, most of the provisions are ineffective and are not helpful in curbing the problem of environmental pollution. Provisions under the Criminal Procedure Code, 1973 Chapter X of the Criminal Procedure Code, 1973 (CrPC) - Part B, has provided a provision for public nuisance which relates to environmental pollution. Section 133 of CrPC empowers a District Magistrate, Sub-Divisional Magistrate, to stop the nuisance on receiving information. Nuisance is defined in very liberal terms and includes construction of structures, disposal of substances, conduct of trade or occupation; under this section, the court issues conditional order for the removal of nuisance. But in case of disobedience of the orders, the court can impose penalties provided under Section 188 of Indian Penal Code which includes imprisonment for a maximum period of six months and a fine which may extend to one thousand rupees. The imperative tone of Section 133 of CrPC read with punitive temper of Section 188 of IPC make the prohibitory act a mandatory duty. The decision of the Supreme Court in Ratlam Municipality case has made it clear that a citizen can always bank upon Section 133 of the CrPC for the removal of the nuisance of pollution. It is of greater significance in view of the fact that the Water Act and the Air Act do not provide for the affected parties a right to prosecute violators of the provisions. Another significant point is that corporate bodies like companies and corporations can also be held responsible for pollution nuisance under these provisions. The court observed that whenever there is a public nuisance, the presence of Section 133, CrPC must be felt and any contrary opinion is contrary to the law. But it is not clear that municipalities and other local bodies (other than the affected parties) can initiate prosecution proceedings against industries and factories for causing environmental pollution. Therefore, it is suggested that the prosecution power may also be vested in the municipalities and other local body authorities of the Pollution Control Board. In Oleum Gas leakage from the Shriram Food and Fertilizer Industry, New Delhi, the District Magistrate, Delhi ordered to close down the factory under Section 133 of the Code. This case culminated into a historical case in the field of the liability of industries/operations/process engaged in a hazardous or inherently dangerous activity. Section 133 is independent and different from other pollution Laws

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ENVIRONMENTAL LAW The Supreme Court in the State of M.P. v. Kedia Leather & Liquor Ltd. has declared that the area of Section 133 of the Code and pollution laws like the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, are different and not identical in nature. While Section 133 is in the nature of preventive measure, the provision contained in the above two Acts are not only curative but also preventive and penal. The provisions appear to be mutually exclusive and different in their respective fields and there was no impediment for their existence side by side. Moreover, passing of new pollution control laws, as mentioned above, does not repeal Section 133 of the Code. Conclusion

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ENVIRONMENTAL LAW

THE ENVIRONMENT (PROTECTION) ACT, 1986

Discuss the scope and importance of Environmental Protection Act, 1986. [16] Dec 03 Introduction: Unbridled use of science and unprecedented use of technology have given birth to many problems including the problem of eco-imbalances and environmental degradation. With the advancement of science and technology, this problem has assumed threatening dimensions. This problem has not only caused damage to flora and fauna but threatened the very existence of mankind. Everyday there is a new problem about the degrading environment, depredated earth, traumatic subversion of the eco-system, poisoning of air, water and food and technological plunder of the resources of Nature. That is why environmental hygiene is a very urgent problem of mankind. Its solution and immediate adoption of remedial measures would save Nature and failure or inordinate delay to adopt such measures could mean the destruction of natural environment. The seriousness of the problem is now evident from the fact that all the countries - developing and developed - and their scientists, economists, policy-makers and administrators have started giving serious thought to degrading environment and eco-imbalances. Moreover, the air, water, land pollution and radiation have led to the contamination of food with chemicals which led the scientists to believe that the bacteriological era has come to an end and the new era called chemical era has set in. The problem of the protection of water resources from pollution with oil and metal, organic chrolic compounds, radioactive waste and various other toxic substances is also a threat to aquatic life of a country, particularly a country which has a long coastline or other water bodies like India. To meet these challenges to mankind various measures have been adopted in India including legal measures. Many laws have been passed by the Indian Parliament and the State legislatures to contain and control the problem of air, water, land, radiation pollution and eco-imbalances. These laws include the Wildlife (Protection) Act, 1972, The Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution) Cess Act, 1977, The Forest (Conservation) Act, 1980, The Air (Prevention and Control of Pollution) Act, 1981 and The Environment (Protection) Act of 1986. Order and Reasons The Environment (Protection) Act was passed with a foreign background and to fulfill constitutional obligation as provided under Article 48-A. The Act was passed to fulfill the obligation as provided under the Stockholm Declaration of 1972. It was an International Conference on Human Environment held at Stockholm (June 5-16, 1972), attended by PALLAVI BHOGLE 24

ENVIRONMENTAL LAW more than 130 nations. This Declaration came out with 26 principles which are known as the Magna Carta on Human Environment. It was suggested by the Stockholm Declaration of 1972 that Governments must evolve necessary laws to protect and improve the flora and fauna, non-renewable resources, wildlife and human health. It was further provided that appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of the States with the view of enhancing environmental quality. India was also one of the signatories to the declaration. The objects and reasons as provided by the Act are as follows Concern over the State environment has grown the world over since the sixties. The decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life-support systems. The world community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on Human Environment held in Stockholm in June 1972. Government of India participated in the Conference and strongly voiced the environmental concerns. While several measures have been taken for environmental protection both before and after the Conference, the need for a general legislation further to implement the decisions of the Conference has become increasingly evident. Although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation for environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build-up of hazardous substances, especially new chemicals, in the environment are weak. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long-term requirements of environmental safety and to give direction to and co-ordinate a system of speedy and adequate response to emergency situations threatening the environment. In view of what has been stated above, there is an urgent need for the enactment of a general legislation on environmental protection which, inter alia, should enable coordination of activities of the various regulatory agencies, creation of an authority or authorities with advocate powers for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances, speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health. The Bill seeks to achieve the above objects. Conclusion

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ENVIRONMENTAL LAW Define Pollution under the Environment Protection Act. [4] Dec 01

Introduction: The term environment has been derived from the term environ, which means to surround, French term environner, Latin in viron. Thus, etymologically environment means surrounding conditions, circumstances affecting peoples life. Environmental Pollutant has been defined under Section 2(b) of the Environment (Protection) Act. It is said to mean any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment. Any substance in any form - whether in the form of liquid, gas or solid - if injurious to any component of the environment, i.e. land, air, water, plant, micro-organism, human being or property, or which is likely to harm them will be named as environmental pollutant. Solid particulate material, and gases are already in the air, but if the concentration of these reaches a level which affects adversely the health of human beings, animals or plants, it will be environmental pollution. Noise has also been recognized as a pollutant, though Section 2(b) has not mentioned it specifically as a pollutant, but Section 6 refers to it. Further, by an amendment in 1987, the Air (Prevention and Control of Pollution) Act, 1981 under Section 2(l) mentioned noise as one of the pollutants of air. Thus, it is a part of atmospheric pollution as such Noise pollution has already crossed the danger point and noise like smog is threatening as a slow agent of death. Noise, if it crosses permissible limits, becomes an environmental pollutant, because of the high pitch of noise - noise beyond 65 decibels or more than 100 dB, would be intolerable and affects the health of humans and animal adversely. Noise is a pollutant when it becomes undesirable, unwanted or unpleasant. It is now a potent environmental pollutant. Air Pollutants Smoke, vapour, carbon monoxide, noise, hydrocarbons, nitrogen oxides, suspended solid particulates, temperature, chlorine, oleum, methyl-isocynate, ammonia, rodenticides, pesticides, fly ash, steam, sprays, cement, asbestos, suspended solids and others are known as air pollutants. Land Pollutants Bio-medical wastes, hazardous wastes, untreated effluents of chemical industries, household wastes, oil, grease, pesticides, rodenticides, fungicides, tannery effluents, waste-water discharge from paint industry, inorganic chemicals; waste-water from tie and dye industry, effluents or wastes from slaughterhouses, seafood products, food and fruitprocessing industry, confectionery, pulp and paper news effluents, organic chemicals manufacturing industry, pharmaceutical industry, soda ash industry effluents, coal wash washieries, dairy wastes, fertilizer industry wastes and aluminium plant wastes.

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ENVIRONMENTAL LAW Water Pollutants Household wastes, solid wastes, municipal wastes, dead bodies, defecation, sludge, urination, copper, mercury, lead, zinc, cadmium, caustic soda, agro-residue, tannery effluents, pesticides, fertilizers, rodenticides, fungicides, temperature, ammonia, nitrogen, arsenic, chromium, nickel, sulphide, radioactive materials, manganese, oil, diesel, petrol, grease, tanneries effluent, waste-water discharge from tie and dye and pulp industry, colour and odour, etc. are water pollutants. Most essential is the concentration of the pollutant. If the concentration is within permissible and tolerable limits, it cannot be said to be a pollutant. Conclusion

Discuss the powers and functions of the Central Govt. under the Environment (Protection) Act, 1986 [16] Dec 07 What are the general powers of the Central Government to take measures to protect and improve the environment under the Environment Protection Act, 1986? [16] 07, 06, Dec 04, Dec 02 Explain the composition, powers and functions of Central Pollution Control Board and State Pollution Control Board under the Environment (Protection) Act, 1986. [16] Dec 03, 01

Introduction: Section 3(1) empowers the Central Government to take all such measures as it deems necessary or expedient for the purpose of protection and improvement of (a) quality of the environment, and (b) prevent, control, and abate the environmental pollution. Power of Central Government to take measures to protect and improve environment [Section 3] (1) 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 and preventing, controlling and abating environmental pollution. (2) 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 PALLAVI BHOGLE 27

ENVIRONMENTAL LAW co-ordination of actions by the State Governments, officers and other authorities (a) under this Act, or the rules made thereunder, or (b) under any other law for the time being in force which is relatable to the objects of this Act; (ii) planning and execution of a nationwide programme for the prevention, control and abatement of environmental pollution; (iii) laying down standards for the quality of environment in its various aspects; (iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever: Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources; (v) 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; (vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents; (vii) laying down procedures and safeguards for the handling of hazardous substances; (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution; (ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution; (x) 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; (xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act; (xii) collection and dissemination of information in respect of matters relating to environmental pollution; (xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution; (xiv) 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. (i) (3) The Central Government may, if it considers 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 of such of the matters referred to in subsection (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

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ENVIRONMENTAL LAW mentioned in the order as if such authority or authorities had been empowered by this Act or exercise those powers or perform those functions or take such measures. Appointment of Officers and their Powers and Functions Section 4 authorizes the Central Government to appoint officers with proper designation as it thinks fit and entrust them with powers and functions. Such appointed officers are under general control of (i) Central Government; (ii) Authority or authorities constituted under Section 3(3); or (iii) any other authority or officer as the Central Government provides. In the exercise of this power, the Central Government has appointed various officers in Central and State Pollution Control Boards. Section 5 of the Act empowers the Central Government to issue directions to any person / officer / authority appointed under Section 4 of the Act. It also states that: Such directions shall be in writing. Such person / officer / authority shall be bound to comply with the directions. Such directions shall include the power to issue directions regarding (i) The closure, prohibition or regulation of any industry, operation or process; or (ii) Stoppage or regulation of the supply of electricity or water, or any other service. Control Measures: Powers of the Central Government Section 10 deals with the powers of any person empowered by the Central Government for entry and inspection and Section 11 empowers that person to take sample and the procedure to be followed for taking sample. Power to establish environmental laboratories and Government Analysts have been provided under Sections 12 and 13 respectively. Powers of Entry and Inspection [S. 10] a. This section empowers the Central Government to designate / empower any person to exercise the power of entry and inspection. b. Such a person can have a right of entry at all reasonable times. c. Such a person can enter any place. d. Such a person can take such necessary assistance for the said purpose as he considers necessary. e. Such a person can enter for the following purposes into any place i. For the purpose of performing any of the functions as entrusted by the Central Government. ii. For ascertaining compliance with the provisions of the Act / directions issued: to determine whether and in what manner any provision or rule made under the Act and to know whether the notice, order, direction or sithorisation given / granted

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ENVIRONMENTAL LAW have been complied with; or rule made under the Act and to know whether the notice, order, direction or authorization given / granted have been complied with or For the purpose of examining or testing of the (a) equipment, (b) industrial plant, (c) record, (e) document, (f) other material object. For conducting search of any building in which he has reason to believe that an offence under the Act - (a) has been, or (b) is being, or (c) is about to be committed. For seizure - for seizing any equipment, industrial plant, record, register, document, or other material object which may furnish evidence of the commission of an offence - (a) under the Act, or (b) the rule made thereunder, or (c) that such seizure is necessary to prevent or mitigate environmental pollution.

iii. iv.

v.

Duty of the person carrying on any industry, operation or process, etc Section 10, clause (2) makes it a mandatory duty of all the persons carrying on any industry, operation or process or handling any hazardous substances to render all assistance to the person so empowered by the Central Government while carrying out the functions provided under Section 10, clause 1 of entry and inspection. But i. ii. if the person carrying on an industry, operation or process, etc. does not render his help as envisaged, he would be guilty of an offence under this Act. Similarly, if any person willfully delays or obstructs any person so empowered, he shall be guilty of an offence under the Act.

It is important to note that penalty for the contravention of the provisions of the Act, including the violation / non-compliance with the above provisions, have been provided under Section 15 of the Act. Procedure for Search and Seizure Sub-section 3 of Section 10 provides that the procedure as provided under the provisions of the Code of Criminal Procedure, 1973 shall be applied in cases of search and seizure, as are applied for the authority of a warrant issued under Section 94 of the said Code. Such a procedure for search and seizure has been mentioned under Sections 94, 100 and 165 of the Code of Criminal Procedure, 1973. But the Supreme Court in the famous case of Rural Litigation and Entitlement Kendra v. State of U.P made it clear that the procedural law is not available as a defence in the matter of grave public importance is for consideration before the Court. And a plea of res judicata could not be entertained only because the case started in 1983 and the Environment (Protection) Act came into force in November 1986. Meanwhile, various reportable orders were given by the Court. Thus, the Act of 1986 cannot take away the jurisdiction of the Supreme Court to deal with a case of this type. The Court declared that, ordinarily the Court would not entertain a dispute for the adjudication of which a

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ENVIRONMENTAL LAW special provision has been made by law but the rule is not attracted in the instant case. Besides, it is a rule of practice and prudence and not one of jurisdiction. Power to take sample and procedure to be followed in connection therewith [S.11] Section 11 provided power and procedure to take samples. (1) Only the Central Government or any officer empowered by the Central Government shall have power to take samples. (2) Samples can be taken for the purpose of analysis of air, water, soil or of other substance. (3) Result of such analysis shall be admissible in legal proceedings only when subsections (3) and (4) are complied with. (4) The procedure to take samples has been prescribed under sub-section (3) and (4) of Section 11.The procedure in sub-section (3) prescribes that notice of the intention to take sample be served to the occupier, or his agent or person in charge of the place; secondly, the sample be collected in occupier/agent/person in charge of the place; the presence of the

thirdly, sample so taken be marked, sealed and signed by the person taking the sample and occupier/agent/person in charge of the place; fourthly, such sample so taken be sent to the laboratory established or recognized by the Central Government, without delay.

(5) Sub-section (4) prescribes the procedure where a person willfully absents himself though a notice has been served to him, or when he refuses to sign the marked and sealed container. In such cases sample will be taken by the authorized person and he will sign the marked and sealed container of the sample and shall inform the Government Analyst in writing of such refusal or non-cooperation. The noncooperation/willful absence or refusal to sign amounts to non-compliance with the provisions of the Act, which is punishable under Section 15 of the Act. (6) Procedure to take sample has been provided under Rule 16 of the Environment (Protection) Rules, 1986. And the procedure of service of notice, procedure for submission of samples for analysis and form of laboratory have been provided under Rules 7 and 8 of the Environment (Protection) Act, 1986. Environmental laboratories [S. 12] Section 12 provides for establishing Environmental Laboratories by the Central Government, and appointment and recognition of Government Analysts has been mentioned under Section 13 of the Act. Section 12 empowers the Central Government either to establish one or more environmental laboratories; or

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ENVIRONMENTAL LAW recognize one or more laboratories/institutes, which will carry out the functions of environmental laboratories. Functions of such laboratories have been provided under Rule 9 of the Environment (Protection) Rules, 1986. Government Analysts [S. 13] The Central Government may, by notification in the Official Gazette, appoint or recognize such persons as it thinks fit and having the prescribed qualifications to be a Government Analysts for the purpose of analysis of samples of air, water, soil or other substance sent for analysis to any environmental laboratory established or recognized under sub-section (1) of S. 12. Conclusion

Other Question Discuss the liability of managers and directors of industries violating pollution control laws. [16] 05, 01

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ENVIRONMENTAL LAW

LAW RELATING TO HAZARDOUS WASTES MANAGEMENT AN INDIAN PROFILE

Discuss the law concerning bio-medical wastes and hazardous wastes. [16] 07, 05, 02, Dec 01, 01 Trans-boundary movement of hazardous wastes [8] 06, Dec 01 What are the provisions and practical measures regarding Hazardous waste management? [16] Dec 08, Dec 06, 03, Dec 03

Introduction: India has been undergoing an industrial revolution in a big way during the last three decades. The recent liberalization of our industrial policy has given it a further boost. The time is not far when India will be counted amongst the highly-industrialized countries. Consumer goods will be available freely and of best quality. Exports will go up considerably. Foreign exchange will gush in. Gross net productivity will be elevated. The economic condition of the common man will improve and prosperity will prevail. However, this is all proverbially one side of the coin. The other side of the coin is not very bright. It is a well-known fact that industries spew solid, liquid and gaseous substances into the environment. Unless such wastes are effectively managed, our environment may get damaged irreparably. Already, some of our highly urbanized and industrialized areas are staggering under the impact of the induction of pollutants in the environment. Our natural resources like air, water (both surface and ground) and soil are being subjected to environmental stress and deserve immediate attention. Scientific and technological advancements and mismanagement of natural resources have given rise to numerous environmental problems such as pollution of water, soil, air radiation and noise, with consequent adverse effects on flora and fauna, human health and well-being. These problems are actually caused by rapid, unprecedented and unplanned development programmes in the guise of industrialization. Industries though contribute to the development and progress of a nation, their wastes and toxic effluents discharged freely in the air, water and on land are doing irreversible and irreparable damage to mankind. Similarly, unbridled exploitation of renewable and non-renewable natural resources without caring for the waste debris has caused ecological imbalance and environmental pollution problems. This, in turn, has not only affected the quality of life but threatened the very existence of mankind. Due to this we have lost thousands of

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ENVIRONMENTAL LAW species of animals, birds and plants and some more are under constant threat of extinction. The Bhopal holocaust (1984), where more than 3000 persons died and about 2 lakh were affected by the leakage of Methyl Isocyanate (MIC) gas, Love Canal Incident of the USA (1978) where residents of an area were evacuated and the US Government spent more than $ 30 million in a clean-up operation, and at Chernobylin in the then USSR are representative samples of the worst kind of threat to the present generation and to posterity. Studies of these incidents reveal various kinds of short-term and long-term effects on human beings, flora and fauna, A complete list of the various kinds of ailments and reversible and non-reversible effects is still to be drawn up. Some ill-effects have been identified and evaluated and some have not been realized. The evaluation is not easy. Chemical pesticides, fungicides, rodenticides have also added fuel to the fire. Their persistence and ubiquitous nature, coupled with their tendency to concentrate in organisms as they move up the food chain, increase their toxicity to fish, birds and wildlife and, in turn, ultimately to man. Looking to the multitudinous and menacing adverse effects of toxic wastes, a number of measures have been adopted at regional, national and international levels from time to time. The Stockholm Declaration (1972) on Human Environment also raised its voice concerning the rapid acceleration of Science and Technology. India one of the participants at the Stockholm Conference on Human Environment has also taken various steps to regulate and manage industrial wastes and toxic substances. There are various laws which directly or indirectly deal with hazardous wastes and toxic substances. One of those is the Indian Penal Code (IPC) of 1860. The Penal Code declares the acts and omissions affecting public health, safety and convenience as offences under various sections under Chapter XIV. But this old enactment has not been able to make any dent in the problem and is not sufficiently equipped to deal with newer aspects of hazardous wastes. The Environment (Protection) Act, 1986 comprehensively deals with environmental problems. Section 6 expressly empowered the Central Government to make rules on various items including (a) the procedures lit safeguards for the handling of hazardous substances, and (b) the prohibition and restriction on the handling of hazardous substances in different areas. In the exercise of the powers conferred by Sections 6, 8 and 25 of the Environment (Protection) Act, the Central Government passed important rules to deal with hazardous waste and toxic chemicals. These are: 1. Hazardous Wastes (Management and Handling) Rules, 1989. 2. Manufacture, Storage and Import of Hazardous Chemicals, 1989. 3. Hazardous Micro-Organisms Rules, 1989. 4. National Environment Tribunal Act, 1995. 5. National Environment Appellate Authority Act, 1997. 6. Bio-Medical Waste (Management & Handling) Rules, 1998. 7. Recycled Plastics Manufacture and Uses Rules, 1999. PALLAVI BHOGLE 34

ENVIRONMENTAL LAW 8. Municipal Solid Waste (Management and Handling) Rules, 2000, 9. Batteries (Manufacture and Handling) Rules, 2001. Hazardous Wastes (Management and Handling) Rules, 1989 These rules aim to deal with the problem of hazardous wastes comprehensively. But they do not apply to: (a) Waste, Water and exhaust gases as covered under the provisions of the Water (Prevention and Control of Pollution) Act of 1981, (b) Waste arising out of operations on ships five kilometers from the coast as this is covered under the Merchant Shipping Act of 1958, and (c) Radioactive waste as it has been covered under the provisions of the Atomic Energy Act of 1962. These Rules consist of 18 Rules and four Schedules. The term Hazardous Wastes has not been defined by the Rules, but Rule 3(i) provides that Hazardous Wastes means - (a) Waste substances which are generated in the processes indicated in the Schedule. Schedule I provides a list of processes generating hazardous wastes which consists of 44 processes, Schedule II consists of a list of waste substances with concentration limits, divided in 5 categories and Schedule III consists of the lists of wastes to be applicable for imports and exports. Part B of Schedule III has provided hazardous characteristics of fourteen substances; and Schedule IV provides a list of five authorities and duties to be performed by them. Rule 4 fixes the responsibility of the occupier and operator of the facility for proper collection, reception, treatment, storage and disposal of hazardous wastes without any adverse effect on the environment. Rule 4-A describes the duties of the occupier and operator of a facility as follows (a) contain contaminants and prevent accidents and limit their consequences on humans and the environment; and (b) provide persons working on the site with information, training and equipment necessary to ensure their safety. Control Mechanism Proper authorization by the State Pollution Control Board is really the control mechanism. This authorization letter or permit is issued to a man who is well versed in this technique and who possesses proper and adequate facilities, technical capabilities and equipment to handle hazardous wastes safely (Rule 5). When the authorization is renewed, the Board once again satisfies itself that these conditions are implemented and that he is doing the work satisfactorily. The power to suspend or cancel the authorization at any time during the authorized time is another

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ENVIRONMENTAL LAW check on the authorized person to handle the hazardous wastes properly after giving an opportunity to show cause and after recording reasons thereof. Another control mechanism is the package and labeling of the hazardous waste. Rule 7 provides that before hazardous waste is delivered at the hazardous waste site, the occupier or operator of a facility shall ensure that the hazardous waste is packaged in a manner suitable for handling, storage and transport and the labeling and packaging shall be easily visible which should be able to withstand physical conditions and climatic factors. It is further provided that packaging, labeling and transportation, shall be in accordance with the provisions of the Motor Vehicles Act, 1988. Different classes of labels have been designated for different types of dangerous and hazardous wastes which a carrier should display. Further, the occupier shall provide six copies of the manifest to the transporter. In case an accident occurs at the facility or waste site or during transportation of hazardous wastes, the occupier is under an obligation to report to the State Pollution Control Board about the accident immediately furnishing complete details including the steps taken to prevent, contain and alleviate the effects of the accident. (Rule 10). Import of Hazardous Wastes Import and export of hazardous wastes has been completely prohibited for dumping and disposal by the Rules. As an exception such waste may be permitted to be imposed only as raw material for recycling or reuse (Rule 12). Such waste can be used for processing and reuse as raw material only after procuring a proper permit from the State Pollution Control Board. In such a case the exporting country should also inform and seek permission from the Central Government which may be granted or refused by it. The occupier exporting or importing hazardous waste from or to India shall comply with the Articles of the Basel Convention to which India is a signatory. Further, the Ministry of Environment and Forests shall be the nodal ministry to deal with transboundary movement of hazardous wastes. Movement of hazardous wastes from or to the Country shall be considered illegal if it is without the prior permission of the Central Government, or if the permission is obtained through falsification, misrepresentation or fraud (Rule 15). Rules of 1989 versus Basel Convention The International Basel Convention deals with the trans-boundary movements of hazardous waste. But if a Country (India) makes more stringent rules to check the import of hazardous waste, the guidelines of Basel Convention will be of no consequence. Under such condition only national law i.e. Indian Rules of 1989 will prevail over the Basel convention. In the case of Research Foundation for Science v. Union of India, the hazardous waste oil was imported in the garb of furnace oil, which had the presence of polychlorinated biphenyls (PCBs) contents of dectable level, which were permissible under the Basel convention but not under the Hazardous Rules of 1989. Thus, the court ordered that such oil should either be re-exported or destroyed by incineration as the import of such oil was permissible under these rules. PALLAVI BHOGLE 36

ENVIRONMENTAL LAW Rule 16 fixes the liability of the occupier for the damage caused to the environment resulting from improper handling and disposal of hazardous wastes; and liable to reinstate or restore damaged or destroyed elements of the environment.

Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 Hazardous chemicals have been dealt with separately under these Rules of 1989. The following are the requirements which a chemical industry shall be required to fulfill before it starts working or in case of an existing industry within a period of ninety days of coming into operation of these rules, i.e. November 27, 1989. These rules consist of 20 Rules and 12 Schedules. (i) Notification of Sites - No one can undertake any industrial activity which would produce a threshold quantity or more of an additional hazardous chemical unless he submits a written detailed report about the industry in accordance with Schedule 7 of the Rules at least 3 months before commencing that activity (Rule 7). Rules of 1989 have provided a list of 684 such hazardous chemicals. Therefore, an industry before its commencement is required to give the above notice. (ii) Safety Report - Before a chemical industry starts functioning it has to prepare a safety report containing information specified in Schedule 8 at least ninety days before commencing that activity and in case of an existing industry within a period of 6 months after coming into operation of these rules (Rule 10). The Report should be prepared with the help of experts not associated with such industrial activity. (iii)Preparation of on-site emergency plan by the occupier Under Rule 13, the occupier is required to prepare and keep up-to-date on site emergency plan furnishing the details of how major accidents will be dealt with. This plan shall include the names of persons responsible for safety and who can take action according to the plan. A mock drill based on the on-site emergency plan shall be conducted every six months. (iv) Preparation of off-site emergency plans - Rule 14 makes it obligatory on the authorities concerned to prepare and keep up-to date an adequate off-site emergency plan detailing how emergencies relating to a possible major accident on that site will be dealt with. Further, such plans should be prepared by the authority before a new industry starts its activity or in case of an existing industrial activity within six months of coming into operation of these rules (Rule 14). The authority concerned shall ensure the rehearsal of the off-site emergency plan at least once in a calendar year. (v) Information to the persons liable to be affected - One of the important features of the Rules is to impose a mandatory duty on the occupier of the industry to take appropriate steps to inform persons outside the site who are likely to be affected by a major accident (Rule 15). Such information shall include . (a) the nature of the major accident hazard; and (b) the safety measures and the do's and donts which adopted in the event of a major accident.

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ENVIRONMENTAL LAW (vi) Safety Data Sheet - There is also a provision that the occupier of an industry shall arrange to obtain or develop information in the form of Safety Data Sheet of the acute toxic, flammable or explosive substance (Rule 17). It should be in accordance with the provisions of Schedule 9 of the Rules. Accordingly, Safety Data Sheet shall include chemical identity, physical and chemical data, fire and explosive hazard data, reactivity data, health hazard data, preventive measures, emergency and first aid measures and manufactures/suppliers data, etc. Every container of hazardous chemical shall be clearly labeled or marked to identify (a) the contents of the container; (b) name and address of the manufacturer or importer of the hazardous chemical; (c) the physical, chemical and toxicological data as per Schedule 1. Penalty for contravention of the provisions of the Act or Rules Section 15 of the Environment (Protection) Act, 1986 provides that whoever fails to comply with or contravenes any of the above-mentioned provisions or rules, shall, in respect of each failure or contravention be punished with imprisonment for a term which may extend to five years or fine up to one lakh rupees or with both. In case the failure or contravention continues, an additional fine up to five thousand rupees per day can be levied which can further be extended. Bio-Medical Waste (Management and Handling) Rules, 1998 These Rules are applicable to all those persons who generate, collect, receive, store, transport, treat, dispose, or handle bio-medical waste in any form. Bio-medical waste has been defined as any waste which is generated during the diagnosis, treatment or immunization of human beings or animals or in research activities pertaining thereto or in the production or testing of biologicals and including categories mentioned in Schedule I. Schedule I has mentioned 10 categories of bio-medical wastes which include human anatomical waste, animal waste, microbiology and biotechnology waste, waste sharps, discarded medicines and cytotoxic drugs, solid waste, liquid waste, chemical waste, incinerating ash. Rule 4 makes a duty of every occupier of an institution generating bio- medical waste which includes a hospital, nursing-home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank, to take all steps to ensure that such waste is handled without any adverse effect on ill health and the environment. Schedule I provides various methods for disposal of such wastes according to their nature. Such methods include incineration deep burial, local autoclaving micro-waving mutilation, disposal in landfills, disinfection PALLAVI BHOGLE 38

ENVIRONMENTAL LAW chemical treatment, according to the nature of the category provided in the schedule.

Rule 6 provides for segregation of wastes in different coloured plastic bags and labeled as per Schedule III, and they be packed safely. Such waste shall be transported only in authorized vehicles. Further, no untreated bio-medical waste shall be kept beyond a period of 48 hours without the permission of the competent authority in this regard. Proper records regarding the generation, collection, reception, storage, transportation treatment and disposal of bio-medical wastes is to be maintained by the institution (Rule 11). The institutions are also under an obligation to report an accident at a site where biomedical waste is handled or during transportation to the authority prescribed for the purpose. There are 13 rules in all and 6 schedules attached to them. It is a welcome venture to deal with noxious hazardous wastes produced in cities.

Conclusion

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ENVIRONMENTAL LAW

NOISE POLLUTION, PUBLIC HEALTH AND PROTECTION

What is meant by noise pollution? Explain in detail the sources of noise pollution. Examine the law relating to noise pollution in India. [16] Dec 08, 07, 06, Dec 06, 05, 04, Dec 04, Dec 03, Dec 02, Dec 01

Introduction: Environmental pollution is a grave problem all over the world. Industrialization and urbanization have led to an unprecedented growth of environmental hazards. Environmental quality has declined significantly because of loss of vegetation cover and biological diversity. In other words, we can say that there is a severe imbalance in the Ecosystem. Environmental pollutants mean the excessive presence of solid, gaseous, liquid and noise in the atmosphere in such concentration as may be injurious to living and non-living things. Noise is also considered to be a pollutant and it has significant harmful effects not only on human beings but also on animals, birds, plants and non-living things. Problems due to noise are increasing day by day especially in the urban and industrial areas. Highways, airports, industries and centres where construction activities are carried on, are also considered high-noise-level areas. Meaning and Definition The word noise is derived from the Latin term 'nausea'. It may be defined in Law as excessive, offensive, persistent or startling sound. Many Industrial psychologists and environmentalists have defined the term noise. According to Blum, noise acts as a distracter and, therefore, it interferes with the efficiency of people. J. Tiffin states that noise is a sound which is disagreeable to the individual and which disturbs the normal activities of an individual. Harrell defines noise as an unwanted sound which increases fatigue and under some industrial conditions it causes deafness. The Encyclopaedia Britannica defines noise as any undesired sound. According to this definition, a sound of church bells may be music to some and noise to others. Usually noise is a mixture of many tones combined in a non-musical manner. Sources of Noise Pollution Sources of noise may be broadly classified into two classes: Industrial, Non-Industrial.

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ENVIRONMENTAL LAW Industrial sources The industrial sources may include noise from various industries operating in cities like boiler, machinery, foundry, flour-mill, cutting machines, etc. Noise is a by-product of energy conservation and every industry produces noise. Pollution due to big machines working at a high speed have high-noise intensity. Non-Industrial sources Non-Industrial sources of noise can further be divided into the following 1. Loudspeaker 2. Automobiles or road traffic 3. Trains 4. Aircraft 5. Construction work 6. Projection of satellites in space 7. Domestic noise from T.V., radio, mixer machines, etc. 8. Crowded bazaars 9. Religious rituals and festivals 10. Schools. 11. Social, religious and political gatherings including sports fields 12. Lawn-mowers 13. Sirens 14. Domestic animals 15. Office congregation 16. Typing machines 17. Generator Sets Noise problem may also be due to mining activities and the sufferers are workers, community or those who dwell near it. Noise and vibrations are caused by quarrying equipments, heavy earth-moving machines, drills and blasting operations. The major categories of such noise on the basis of sources are fixed plants, mobile plants and transportation vehicles. Looking to the serious and disastrous effects of noise pollution on human life it is essential to take preventive and protective measures. The management of noise pollution may be as follows: 1. Non-Legislative or General Measures 2. Legislative Measures

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ENVIRONMENTAL LAW Non-Legislative Measures Noise is an environmental problem of the present day. It can be reduced and controlled at its source point, by the regular repairs of machinery. Noise level can also be lowered if the noise source is lubricated timely and adequately and other noise-absorbing materials are used. Noise may be reduced by keeping reasonable distance between source and listener. If noise is inevitable then workers should be provided ear-defenders, ear-plugs to protect them from hazardous effects. Plants are efficient absorbers of noise, especially noise of high frequency. Planting of trees like casurina, banyan, tamarind and neem along highways or streets helps in abating noise in cities and towns. Small trees should be planted towards the noise source and taller towards the hearer. This conventional technique of controlling noise will involve low cost too. Noise-insulating and noise-absorbing roads and buildings should be constructed. Strict check on industries and mining operations for noise control is essential while issuing of and renewal of licences. Intervals between blasting of rocks and explosion should be 17 milliseconds or more. Noise insulation scheme be introduced in and around international airports and 'Noise insulation grants' be given to the nearby dwellers. Loudspeakers and amplifiers should be so manufactured that they do not produce more than 80 dB of noise. There should be a complete ban on the use of loudspeakers during 10:00 p.m. to 5:00 a.m. Public awareness is a must for the betterment of the environment Railway tracks and highways should be away from residential areas.

Legislative Measures Legislative prevention and protection is essential for the management of noise pollution. Many countries have enacted specific legislations to control noise pollution. Law of Tort and Noise Under the Law of Torts no person has an absolute right to make noise on his land to the detriment of another person's comfort. Courts have declared in unequivocal terms that the interference with the comfort of a person should be substantial. It is not necessary to prove any injury to health. The M.P. High Court in Dhanna Lal v. Chittar Singh laid down the law relating to noise in very clear terms as follows: 1. Constant noise, if abnormal or unusual, can be an actionable nuisance, if it interferes with ones physical comfort; 2. The test of nuisance, personal discomfort is the actual local standard of comfort, and not an ideal or absolute standard;

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ENVIRONMENTAL LAW 3. General, unusual or abnormal noise on the defendant's premises which disturbs the sleep of the occupants of the plaintiff's house during the night, or which is so loud during the daytime that due to it one cannot hear ordinary conversation in the plaintiff's house, or which cannot allow the occupants of the plaintiff's house to carry on their ordinary work, is deemed to be noise which interferes with one's physical comforts; 4. Even in a noisy locality, if there is substantial addition to the noise by the introduction of some machine, instrument or performances at defendant's premises, which materially affect the physical comforts of the occupants of the plaintiff's house then also the noise will amount to actionable nuisance; 5. If the noise amounts to an actionable nuisance, the defence that the defendant is making reasonable use of his own property will be ineffectual. No use of one's property is reasonable if it causes substantial discomfort to other persons; 6. If the defendant is found to be carrying on this business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards them, even though he may be conducting his business in a proper manner and according to the rules framed in that behalf either by the municipality or by the Government. The latter's defence can be effective in a case of public nuisance but not in a case of private nuisance; and 7. If an operation of the defendant's premises, cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the consent of those injured by it. The above-mentioned principles were followed by the Allahabad High Court in Radhey Shyam v. Gur Prasad Saxena. It has held that abnormal noise produced by the flour-mill which materially impairs the physical comforts of the occupants of the nearby house amounts to actionable nuisance. Noise Control under the Indian Penal Code, 1860 The Indian Penal Code recognizes noise as a public nuisance under S. 268. It 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. A common nuisance is not excused on the ground that it causes some convenience or advantage. Section 290 provides punishment for the public nuisance. Nuisance by noise has so far been dealt with under Section 268 as none of the specific provisions expressly bring it within their purview. In Kirori Mal Bishambar Dayal v. State, a flour-mill was set up on the outskirts of the village In 1928, which was later on converted into a metal factory. Within a period of twenty years, residential houses sprang up in the vicinity of the factory. The residents complained of noise caused by the factory interfering unreasonably with the comfort and enjoyment of their private properties. The vibrations caused by the heavy machinery of PALLAVI BHOGLE 43

ENVIRONMENTAL LAW the factory were affecting the foundations of their buildings. Chief Justice Bhandari enunciating the following principles of nuisance by noise, held that: (a) Although a person is at liberty to carryon trade or business on the property belonging to him, he has no right to do so if such trade or business deprives another of the reasonable and comfortable use of his property. Even a lawful trade would become a nuisance if it interferes with the comfort and enjoyment of the neighbour. (b) The question whether a particular trade or business is or is not a nuisance can be determined only after taking into consideration a number of circumstances, such as the place where it is located or carried on, the number of people whose rights are prejudicially affected thereby and extent of the injury, discomfort and annoyance caused to normal human beings. (c) A particular trade or business may be lawful to start with, but may become a nuisance by reason of changed circumstances such as growth of population. The mere fact that the factory was allowed to operate for several years without any objection having been raised by neighbours would not render the accused immune from punishment if it is found that its existence constitutes a nuisance to the people of the neighbourhood. No prescriptive right can be acquired to maintain and no length of time can legalise a public nuisance." On the basis of the above principles the appellants were held liable for creating public nuisance under Section 290 of the Penal Code. Noise Control under the Code of Criminal Procedure, 1973 The Criminal Procedure Code of 1973 does not have any direct provisions on noise pollution, but in Chapter X, Section 133 prescribes for the abatement of nuisance in ordinary cases and Chapter XI under Section 144 in urgent nuisance. Noise pollution is also included in nuisance. Under Section 133 of Criminal Procedure Code, Magistrates have been empowered to make conditional order requiring the person causing nuisance to remove such nuisance. In Emperor v. Ram Charan Ahir the Oudh High Court decided that if noise was made by the night chowkidar of a house at night, with the intention to scare away thieves and bad characters, it would not amount to public nuisance to enable the Magistrate to take action under Section 133 of the Code, and, similarly, a printing press in a residential locality may also not amount to public nuisance if it was not causing excessive noise interfering with the daily routine of nearby dwellers. In Phiraya Mal v. Emperor a factory was working day and night, thereby causing sufficient noise to annoy the inhabitants of the locality. The court ordered the closure of the factory immediately under Section 133 of the Code. The Environment (Protection) Act, 1986 The Indian Parliament enacted the Environment (Protection) Act, 1986 to prevent, control and abate environmental pollution which came into force on November 19,1986, PALLAVI BHOGLE 44

ENVIRONMENTAL LAW the birth anniversary of the late Prime Minister, Mrs Indira Gandhi. Section 2 of the Act has defined various terms including Environment, Environmental Pollutants and Environmental Pollution comprehensively, but it does not specifically refer to noise. Only Section 6(2)(b) mentions the word noise and provides that the government may make rules for allowable limits of environmental pollutants including noise for different areas. Rule 5 of the Environment (Protection) Rules, 1986 under clause (1)(ii) empowers the Central Government to make rules regarding the maximum allowable limits of various environmental pollutants (including noise) for an area. Thus, in the exercise of Sections 3, 6 and 25 read with Rule 5 of the Environment (Protection) Rules 1986, the Central Government has recently notified Noise Pollution (Regulation and Control) Rules, 2000 on February 19, 2000 for preventing adverse impact on human health, including harmful psychological effects. Noise Pollution (Regulation and Control) Rules, 2000 have been noticed regulate the level of noise pollution in urban areas, including metropolitan cities from various sources. This also includes ban on use of loudspeakers without written permission and also generator sets. The Rules notified by the Central Government are as follows Noise Pollution (Regulation and Control) Rules, 2000 The Noise Pollution (Regulation and Control) Rules, 2000 framed by the Central Government under the provisions of the Environment (Protection) Act, 1986 read with Rule 5 of the Environment (Protection) Rules, 1986. Rule 3 of the Noise Pollution (Regulation and Control) Rules, 2000 provides for ambient air quality standards in respect of noise for different areas/zones as specified in the Schedule annexed to the rule. Rule 4: Responsibility as to enforcement of noise pollution control measures (1) The noise levels in any area/zone shall not exceed the ambient air quality standards in respect of noise as specified in the Schedule. (2) The authority shall be responsible for the enforcement of noise pollution control measures and due compliance with the ambient air quality standards in respect of noise. Rule 5: Restrictions on the use of loudspeakers/public address systems (1) A loudspeaker or a public address system shall not be used except after obtaining written permission from the authority. (2) A loudspeaker or a public address system shall not be used at night (between 10:00 p.m. to 6:00 a.m.) except in closed premises for communication within, e.g. auditoriums, conference rooms, community halls and banquet halls. But the State Government may, subject to such terms and conditions as are necessary to reduce noise pollution permit use of loudspeakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or during cultural or religious festive occasions of a limited duration not exceeding fifteen days in all during a calendar year.

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ENVIRONMENTAL LAW Rule 6: Consequences of any violation in silence zone/area Whoever, in any place covered under the silence zone/area, commits any of the following offences, shall be liable for penalty under the provisions of the Act a. whoever plays any music or uses any sound amplifiers, b. whoever beats a drum or tom-tom or blows a horn either musical or pressure or trumpet or beats or sounds any instrument, or c. whoever exhibits any mimetic, musical or other performances of a nature to attract crowds. Rule 7: Complaints to be made to the authority i. A person may, if the noise level exceeds the ambient noise standards by 10 dB (A) or more given in the corresponding columns against any area/zone, make a complaint to the authority. The authority shall act on the complaint and take action against the violator in accordance with the provisions of these rules and any other law in force. Rule 8: Power to prohibit, etc. continuance of music, sound or noise (1) If the authority is satisfied from the report of an officer in charge of a police station or other information received by him that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk of annoyance, disturbance, discomfort or injury to the public or to any person who dwells or occupies property in the vicinity, he may, by a written order, issue such directions as he may consider necessary to any person for preventing prohibiting, controlling or regulating (a) the incidence or continuance in or upon any premises of any vocal or instrumental music, sounds caused by playing, beating, clashing, blowing or use in any manner whatsoever of any instrument including loud-speakers, public address systems, appliance or apparatus or contrivance which is capable of producing or reproducing sound, or

ii.

the carrying on, in or upon, any premises of any trade, avocation or operation or process resulting in or attended with noise. (2) The authority empowered under sub-rule (1) may, either on its own motion, or on the application of any person aggrieved by an order made under sub-rule (1), either rescind, modify or alter any such order: (b) Provided that before any such application is disposed of, the said authority shall afford to the applicant an opportunity of appearing before it, either in person or by a person representing him and showing cause against the order and shall, if it rejects any such application either wholly or in part, record its reasons for such rejection.

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ENVIRONMENTAL LAW Noise Control under Other Statutes There are also provisions to control noise pollution under other Acts like, 1. Aircraft Act, 1934 2. Noise Control under Railway Act, 1890 3. Motor Vehicles Act, 1988 and Noise Control 4. Madhya Pradesh Control of Music and Noises Act, 1951 5. Bihar Control of the Use and Play of Loudspeakers Act of 1958 6. The Rajasthan Noises Control Act, 1963 7. The Bengal Motor Vehicles Act, 1940 8. The Uttar Pradesh Nagar Mahapalika (Prohibition of Noise and Regulation of Loudspeakers) Rules, 1987 Conclusion

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ENVIRONMENTAL LAW

WATER POLLUTION AND THE LAW

Define Water pollution and examine the powers and functions of Controlling Boards in controlling water pollution. [16] 09, 08, 07, Dec 06, Dec 05, 02, Dec 02

Introduction: The main aim and object of the Water (Prevention and Control of Pollution) Act, 1974 is to maintain or restore the wholesomeness of water and to prevent, control and abate water pollution. To achieve these objectives, the Act has provided various chapters which are very comprehensive. In view of sub-section 2(e) read with Sections 17 and 18 of this Act, the fundamental objective of the statute is to provide clean water to citizens. The Supreme Court in Susetha v. State of T.N., made it clear that the state is under a constitutional obligation under Article 48 to protect the natural water bodies but not necessarily all the man-made water tanks if they have become useless and are no more in use. Thus, the State is under an obligation to protect natural lakes, rivers, Wetland, Marshland, but the same principle is not applicable in relation to artificial tanks which were in a dilapidated conditions. In some of the cases, it has been made clear that to supply potable drinking water in sufficient quantity through an efficient water supply system must be given precedence over other developmental projects of the area. Such Water project must be completed at the earliest even at the costly other projects. Section 2 of the Act has defined certain basic terms used in the Act. While defining water pollution it provides that: Pollution means such contamination of water or such alteration of physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as 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)] Thus, Pollution means (a) contamination of water, or (b) alteration of physical, chemical or biological properties of water, or (c) discharge of sewage or trade effluent, or (d) any other solid, liquid or gaseous substance which mayor is likely to create 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.

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ENVIRONMENTAL LAW

Thus, it is a very comprehensive definition and covers all changes in physical, chemical or biological properties of water. The definition also covers the rise in the temperature of water and discharge of radioactive substances in the water Further, the Act has used two terms in relation to water pollution stream and well. The stream here includes river, water courses (whether flowing or for the time being dry), inland water (whether natural or artificial) subterranean water (underground water), Sea or tidal water. Controlling Boards Section 3 and Section 4 provide for the formation of a Central Pollution Control Board and State Pollution Control Boards respectively, to perform functions under the Act. Functions of the Central Board The main function of the Central Board shall be to promote cleanliness of streams and wells in different areas of the State. Other functions prescribed under the Act are as follows: (a) to advise the Central Government on any matter concerning the prevention and control of water pollution; (b) to co-ordinate the activities of the State Boards and resolve disputes among them; (c) to 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; (d) to 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; (e) to organize through mass media a comprehensive programme regarding the prevention and control of water pollution; (ee) to perform such of the functions of any State Board as may be specified in an order made under sub-section (2) of Section 18; (f) to 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; (g) to 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 water, flow

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ENVIRONMENTAL LAW characteristics of the stream or well and the nature of the use of the water in such stream or well, or streams or wells; (h) to plan and cause to be executed a nationwide programme for the prevention, control or abatement of water pollution; (i) to perform such other functions as may be prescribed. Further, the Board has also been empowered to establish or recognize laboratories to analyse the samples of water collected from a stream, well, sewage or from trade effluents. Section 18(2) enjoins the Central Government to direct the Central Pollution Control Board to perform the functions of the State Pollution Control Board where the State Board has defaulted and a grave emergency has arisen and where it is necessary or expedient in the public interest for such a specified period and area. The Central Board can recover the expenses incurred while performing such functions, with interest, from the State Board. The Central Board is also bound by such directions as the Central Government may give to it. And the Central Board may give directions to the State Pollution Control Boards and the State Boards are bound to abide by them. Functions of the State Boards Section 17 of the Act mentions fifteen functions of the State Pollution Control Boards. These are very comprehensive and detailed. They are as follows: (a) 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) advise the State Government on any matter concerning the prevention, control or abatement of water pollution; (c) collect and disseminate information relating to water pollution and the prevention, control or abatement thereof; (d) encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; (e) collaborate with the Central Board in organizing the training of persons engaged or to be engaged in programmes relating to the prevention, control or abatement of water pollution and to organize mass education programmes relating thereto; (f) 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;

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ENVIRONMENTAL LAW (g) lay down, modify or annul effluent standards for 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) evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soil, climate and water resources of different regions and especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution; (i) evolve methods of utilization of sewage and suitable trade effluents in agriculture; (j) evolve efficient methods for disposal of sewage and trade effluents on land, as are necessary on account of the predominant conditions of scant stream flow that do not provide for major part of the year the minimum degree of dilution; (k) lay down standards of treatment for 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; (l) 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 existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution; (m) lay down effluent standards to be complied with by persons while causing discharge of sewage or sludge or both and to lay down, modify or annul effluent standards for sewage and trade effluents; (n) 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; The Supreme Court in A.P. Pollution Control Board v. Prof M. V. Nayudu held that having laid down the policy prohibiting location of industries within 10 kms., the State could not grant exemption to anyone' industry to install its industry in a prohibited area. Such exemption would be without statutory backing and also wholly arbitrary and violative of Article 21 as the location of the industry was a potential danger which could pollute the two reservoirs as the industry was to use hazardous substances. (o) 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. The State Board Board shall also establish or recognize laboratory or laboratories to help in performing its functions and to analyze the samples of water. Every State Board is bound by the directions given by the Central Board or the State Government.

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ENVIRONMENTAL LAW

Measures to Prevent and Control Water Pollution Chapter V of the Act, which runs from Section 19 to Section 33-A consisting of 16 sections, provides the following measures to prevent, control and abate water pollution. These measures are as follows Power of the State Government to restrict the areas for the application of the Act The State Government in consultation with or on recommendation of the State Board, may, by notification, restrict the application of the Act for certain area(s). The provisions of the Act shall apply to such declared area(s) only. Such order/notification can be altered or modified by the State Government. But this Section did not enable the State to grant exemption to a particular industry in a prohibited area for location of a polluting industry. Exercise or such power is violative of the right to clean water under Article 21 of the Constitution of India. Power to obtain information The State Board and its officers may make surveys, gauge and keep records of flow or volume and other characteristics of streams and wells and obtain information regarding them. The Board may also give directions requiring any person to give information as to the abstraction of water from a stream or well which is substantial in relation to the flow or volume of the stream or well. And it may also give directions to any person who is in charge of any industry, operation or process, treatment or disposal system to furnish information regarding any disposal system or any extension or alteration thereto in the establishment with a view to prevent and control pollution of water. Power to take samples of effluents and the procedure to be followed The State Board or officer can take sample from any stream or well, sewage or trade effluent. Such sample is admissible as evidence in a legal proceeding if the procedure provided under sub-sections (3), (4), (5) of Section 21 are complied with. The procedure requires: a prior notice of his intention to take sample and, that the two sample be taken be in the presence of the occupier or his agent, that the sample so taken be marked, sealed and signed by both the persons (person taking sample and the occupier or agent),

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ENVIRONMENTAL LAW that one of the samples be sent forthwith to the State laboratory or any other recognized laboratory.

The sample shall be analysed by the Central / State / recognised laboratory and the report shall be sent to the Board, occupier or his agent. Such report can be produced before a court of law. Power of entry and inspection Any person empowered by the State Board has a right to enter any place including a vessel for the purpose of (i) performing any function of the Board; (ii) determining whether the industry, etc. is abiding by its duties/or carrying out the directions, orders of the Board; (iii) examining any plant, record, register, document, etc. or to conduct a search of any place in which he has reasons to believe that an offence is being or is about to be committed; and to seize plant, record or other material object to furnish evidence of the commission of an offence. The provisions of the Criminal Procedure Code of 1973 regarding search and seizure shall apply in such cases. All the members, officers and servants of a Board when acting or purporting to act under the Act shall be deemed to be public servants within the meaning of S. 21 of the Indian Penal Code of 1860. Prohibition of use of stream or well for disposal of polluting matter, etc The Act declares that no person (a) shall knowingly cause or permit any poisonous, noxious or polluting matter to enter into any stream or well, or sewer or on land; or (b) shall knowingly cause or permit to enter into any stream any matter which directly or in combination with any other matter impedes the proper flow of the water of a stream and which may aggravate the pollution substantially. A person shall not be guilty of an offence if he has a right to construct, improve or maintain any stream, well, building, bridge, weir, dam, dock, pier, drain, sewer, or deposit material for reclaiming land or to support or protect the banks of a stream, or does accumulation of such material with the consent of the Board. The abovementioned acts are punishable under the Act. The State Government may by notification exempt the operation of the above clause. Section 24 of the Water Pollution Control Act contains a prohibition on use of stream (includes river, watercourse, inland water, subterranean water, sea or tidal) or well for disposal of polluting matter, otherwise than in accordance with the standards laid down by the Board. A new or altered outlet for trade effluents into a stream is also prohibited, unless the Board consents to it. It was further observed that the provision is also applicable to old industries, which were in existence before the commencement of the

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ENVIRONMENTAL LAW Act. They had to obtain the consent or sanction of the Board within three months from the commencement of the Act. Thus, the Boards under the Water Pollution Control Act of 1974 are responsible for monitoring industrial effluents, water quality in important rivers like Ganga, Jamuna, Brahmaputra and research for pollution treatment, etc. Restriction on new outlets and new discharges If a person establishes an industry, operation, or process or any treatment and disposal system, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land, he must obtain prior consent of the State Board. It is also applicable in bringing into use new or altered outlets. An application shall be made to the Board in a prescribed form and with the prescribed fee. On the receipt of the application, the State Board may make such enquiry as it may deem fit. The Board may either grant or refuse the consent for reasons to be recorded in writing. The consent may be granted with conditions relating to nature, composition, temperature, volume or rate of discharge of the effluent. The period of consent may also be specified in the order. Furnishing of information to the State Board and others When, due to an accident or other foreseen act or event, any poisonous, noxious or polluting matter is discharged from an industry, operation or process into stream or well or on land which pollutes or is likely to pollute water, the industry / unit is bound to inform the State Board or any other prescribed authority about such discharge. This duty to supply information is mandatory and its non-compliance attracts punishment under Section 42 of the Act. If such discharge of poisonous, noxious or polluting matter pollutes any stream, well or land, the State Board is empowered to take emergency measures. Such measures include (a) removal of that matter and disposal of it in an appropriate manner by the Board; (b) remedying or mitigating any pollution (c) issuing order immediately restraining or prohibiting person concerned from discharging any poisonous, noxious or polluting matter into a stream or well or on land. The Board can also undertake work of temporary character to restrain water pollution. Power to move the court for restraining apprehended pollution of water Where there is an apprehension by the Board that the water in any stream or well is likely to be polluted, the Board may make an application to a Court of Metropolitan or Judicial Magistrate of the first class for restraining the person who is likely to cause water pollution. The Court, on the receipt of such application, can make any order which it deems fit. If the court makes an order to restrain any person from polluting water in any stream or well, it may: direct the person to desist from causing pollution and to remove from such stream or well such matter; and PALLAVI BHOGLE 54

ENVIRONMENTAL LAW if the person does not remove such matter, authorize the Board to remove and dispose of the matter. If the matter is removed by the Board, the expenses so incurred can be recovered from the person concerned as arrears of land revenue or of public demands.

In Delhi Bottling Co. (P) Ltd. v. Central Board for the Prevention & Control of Water Pollution it was declared by the Delhi High Court that if the treatment plant was not erected as per the consent order, a restraint order can be passed against the petitioners restraining them from discharging their effluents in the stream and thereby arrest causing pollution of the stream. For non-erection of treatment plant the Board has to launch prosecution against the industry under Section 41 of the Act. Power to give directions The Central Government and the Boards have been empowered, in the exercise of their powers in the performance of their functions under the Act, to issue any direction to any person, officer or authority and he is bound to comply with it. Non-compliance with such direction is punishable under sub-section (2) of Section 41 with imprisonment for a term which shall not be less than one year and six months and it may extend to six years and be accompanied with fine. In case failure continues one can be punished with additional fine which may extend to five thousand rupees for every day during which the failure continues. If the failure continues up to one year after the date of conviction, the offender shall be punishable with imprisonment for a term which shall not be less than two years and can extend to seven years. Power to giving directions issued by the Central Government or the Board includes (a) to close, prohibit or regulate any industry, operation or process; or (b) to stop or regulate the supply of electricity, water or any other service.

Conclusion

Other Question Summarize the Water Act. [16] 03

Objectives of the Act: This specialized legislative measure is meant to tackle one facet of environmental pollution. The fundamental objective of the Water Act is to provide clean drinking water to the citizens. Its other main objectives are: 1. To provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water. PALLAVI BHOGLE 55

ENVIRONMENTAL LAW 2. To establish Central and State Boards for the prevention and control of water pollution. 3. To provide for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith. 4. To provide penalties for the contravention of the provisions of the Water Act. 5. To establish Central and State water-testing laboratories to enable the Board to assess the extent of pollution, lay down standards and establish guilt or default.

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ENVIRONMENTAL LAW

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

Explain the objectives and salient features of the Air (Prevention and Control) Pollution Act, 1981 [16] 09, Dec 07, Dec 06, Dec 03, Dec 02

Introduction: With the increasing industrialization and the tendency of the majority of industries to congregate in areas, which are already heavily industrialized, the problem of air pollution has begun to be felt in the country. The presence in air, beyond certain limits of various pollutants discharged through industrial emissions and from certain human activities connected with traffic, heating, use of domestic fuel, refuse incineration, etc. has a detrimental effect on the health of the people as also animal life, vegetation and property. The Air (Prevention and Control of Pollution) Act, 1981 (in short called the Air Act) was enacted by the Parliament under Article 253 of the Constitution to implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972 in which India participated. It was decided to take appropriate steps for the preservation of the natural resources of the earth, which among other things include the preservation of the quality of air and control of air pollution. Objectives The Air (Prevention and Control of Pollution) Act, 1981 is a specialized legislative measure, meant to tackle one facet of environment pollution. Its main objectives are the following: 1. To provide for the prevention, control and abatement of air pollution; 2. To provide for the establishment of Central and State Boards, with a view to implement the aforesaid purpose; 3. To provide for conferring on such Boards powers and assigning to such Boards functions relating thereto; and 4. To lay down the standards to maintain the quality of air. Keeping in view these objectives the Air Act has provided for measures, which are preventive in nature, in the cases of industries to be established; and in the cases of industries already established, they are remedial. In the case of established industries, it insists on obtaining consent of the Board, making the industry amenable to the administrative control of the Board.

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ENVIRONMENTAL LAW Scope and Application The Air Act came into force on 16th May, 1981 and it extends to the whole of India. Salient Features of the Air Act This is an Act to provide for the prevention, control and abatement of air pollution in the country so as to preserve the quality of air. Central and State Boards constituted under section 3 and 4 of Water (Prevention and Control Pollution) Act, 1974 were deemed also as Central and State Boards for Prevention and Control of Air Pollution. The salient features of the Act are: 1. The Act is applicable to whole India. 2. U/S 19 of the Act, the State Government in consultation with SPCB is vested with power to declare Air Pollution Control Area in which provisions of the Act shall be applicable. Presently entire Uttar Pradesh has been declared pollution control area. 3. As per provisions in Ss. 21(1) & (2), no person can establish or operate any industrial plant without the previous consent of State Pollution Control Board. Every application for consent shall be made in Form-I and shall be accompanied by prescribed fee. 4. Within a period of four months after the receipt of application, the Board shall complete the formalities to either grant, or refuse consent. During the course of processing consent application, Board may seek any information about the industry after giving notice in Form II. 5. U/S 22, 22 (A) operating any industrial plant so as to cause emission of any air pollutant in excess of standard laid down by state Board is liable for litigation by the board. Powers of State Board Besides providing consultation to State Government for declaring or restricting an areas as Air Pollution Control Area, State Board is vested with following powers : 1. Power of entry and inspection - Any person empowered by State Board shall have right to enter the industry premises for determining the status of pollution control equipment or otherwise necessary for compliance of the Act, and the person concerned of the industry shall be bound to render assistance as deemed necessary for ensuring measures, and carrying out functions laid down in the Act. [u/s 24] 2. Power to take samples - State Board or any person empowered by it shall have power to take samples of air or emission from any chimney, flue or any duct or any other outlet in such manner as may be prescribed. [u/s 26].

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ENVIRONMENTAL LAW 3. Power to give direction - State Board may issue any direction to any person, authority including closure, prohibition or regulation of any industry and can also issue directives for the stoppage or regulation of supply of electricity, water or any other services. The direction should however be preceded by proposed directive in writhing giving opportunity of being heard unless grave injury to the environment is likely, in which proposed directive may be avoided [u/s 31A] Penalties Whoever fails to comply with the provision of Ss 21, 22 or with direction as per S. 31(A), shall be punishable with minimum imprisonment of one and half year extending up to 6 years and with fine, in case the failure continues, an additional fine extending to five thousand rupees for every day during which such failure continues. The above terms of imprisonment in extreme case may extend to seven years with fine [u/s 37]. The penalties shall also be meted in following cases: 1. Tampering with notice of the Board. 2. Obstructing the act of the person authorized by the Board. 3. Damaging any work or property of the Board. 4. Failure to intimate emission of air pollutant in excess of prescribed norms. 5. Making false statement. Appeals Any person aggrieved by an order made by the State board under this act may appeal within 30 days of receipt of the order. The appeal shall be made to an appellate authority constituted by State Govt. On receipt of an appeal, its disposal shall be ensured as expeditiously as possible. The rules made under the Act, provides procedures for filing an appeal. Conclusion

Explain in detail sources of Air Pollution. Examine the enforcement machineries with respect to Air Pollution. [16] 08, 01

Introduction: With the increasing industrialization and the tendency of the majority of industries to congregate in areas, which are already heavily industrialized, the problem of air pollution has begun to be felt in the country. The presence in air, beyond certain limits

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ENVIRONMENTAL LAW of various pollutants discharged through industrial emissions and from certain human activities connected with traffic, heating, use of domestic fuel, refuse incineration, etc. has a detrimental effect on the health of the people as also animal life, vegetation and property. Sources and Effects of Air Pollution The major sources of air pollution are fuels, coal, petroleum and industries. Coal consists of carbon but it also contains some incombustible minerals, sulphur and nitrogen. Petroleum consists of hydrocarbons, sulphur and nitrogen. Burning of fossil fuels produces oxides of carbon, nitrogen and sulphur, which cause air pollution. Industries also release out oxides, which are formed in combination of coal and petroleum released and many harmful chemicals in the air. There are also various other activities of human beings, which result in the release of various harmful gases in the air and result in air pollution. Some of the major pollutants are ammonia, sulphur dioxide, carbon monoxide and nitrogen dioxide. Air pollution can also be in the form of smoke, heat, fly-ash, fume, dust etc. Some small quantity of gases, Suspended Particulate Matter (SPM)3 or vapour, noise, which if tolerable are not designated as pollutants. But if their concentration, volume or quantity is such which becomes deleterious or injurious to health, flora and fauna then they may become environmental pollutants resulting in air pollution. Air pollution adversely affects human beings and the environment. The extent of air pollution depends heavily on how weather disposes of the pollutants. The ability of the atmosphere to dilute and disperse them is limited to three factors - Wind speed, the depth in atmosphere to which air near the surface can be mixed and rain. It has generally been observed that after the rainfall the concentration of SPM decreases and the air pollution comes down. Although considerable variation occurs from day to day in the extent to which these factors disperse air pollution the same patterns tend to repeat themselves over months to years. The main culprit is Suspended Particulate Matter (SPM), dust and ash particles laden with toxic chemicals. The primary sources of SPM are power plants, industrial units and auto emissions. Tobacco smoking also adds to air pollution. According to World Health Organization tobacco related deaths can rise to seven million per year. According to this organization, in the last half century in the developing countries alone smoking has killed more than 60 million people. Environmental Tobacco Smoke (ETS) also contributes to respiratory morbidity of children. The danger of passive smoking is real and broader than once believed and parallels to those of direct smoking. Exposing unsuspecting individual to Environmental Tobacco Smoke (ETS) with ominous consequences amounts to taking away their life not by execution of death sentence but by slow and gradual process by robbing him of all his qualities and graces, a process which is much more cruel than sending a man to gallows. Smokers did not only dig their own graves prematurely but also pose a serious threat to the lives of lacks of innocent non-smokers.

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ENVIRONMENTAL LAW Realizing the gravity of situation and considering the adverse effect of smoking on smokers and passive smokers, the Supreme Court of India in Murli S. Deora v. Union of India has directed the Union of India, State Governments as well as Union Territories to take effective steps to ensure prohibiting smoking in public places. The Air (Prevention and Control-of Pollution) Act, 1981 was passed by the Indian Parliament in the exercise of its powers conferred under Article 253 of the Constitution. Chapter II of the Act, which runs from Sections 3 to 15, provides for the constitution of a Board, qualifications of its members, terms and conditions of their service, meetings, vacation of seats and temporary association of persons with the Board, etc. The Act envisages two types of Boards - one at the Centre and others in the respective States. Powers and Functions of Boards Ss. 16, 17 and 18 deal with the powers and functions of the Central and State Boards. Functions of the Central Board Section 16 of the Act prescribes the following functions of the Central Pollution Control Board: 1. Main function of the Central Board shall be (a) to improve the quality of air, and (b) to prevent, control or abate air pollution in the country. 2. Clause (2) of Section 16 prescribes the following eleven functions which the Central Board may perform (a) advise the Central Government on any matter concerning the improvement of the quality of air and the prevention, control or abatement of air pollution; (b) plan and cause to be executed a nationwide programme for the prevention, control or abatement of air pollution; (c) co-ordinate the activities of the State Boards and resolve disputes among them; (d) 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; (dd) perform such of the functions of any State Board as may be specified in an order made under sub-section (2) of Section 18; (e) plan and organize the training of persons engaged or to be engaged in programmes for the prevention, control or abatement of air pollution on such terms and conditions as the Central Board may specify; (f) organize through mass media a comprehensive programme regarding the prevention, control or abatement of air pollution; (g) 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; (h) lay down standards for the quality of air; (i) collect and disseminate information in respect of matters relating to air pollution; 61

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ENVIRONMENTAL LAW (j) perform such other functions as may be prescribed. 3. The Central Board may also establish or recognize a laboratory or laboratories to perform its functions and analyse air samples. It is so because the report signed by the Government analyst is of evidentiary value. The Central Board may also delegate its functions stated above, generally or specially, to any of the committees appointed by it. In M.C Mehta v. Union of India (Taj Trapezium case) the Supreme Court observed that the main function of the Central Pollution Control Board and the State Board is to improve the quality of air and to prevent, control and abate air pollution in the country. Functions of the State Board Section 17 of the Act provides 10 functions to be performed by State Pollution Control Boards. They are as follows: (a) to plan a comprehensive programme for the prevention, control or abatement of air pollution and to secure the execution thereof. (b) to advise the State Government on any matter concerning the prevention, control or abatement of air pollution; (c) to collect and disseminate information relating to air pollution; (d) 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 programmes relating thereto; (e) 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; (f) 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; (g) 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 pollutants 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; (h) 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;

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ENVIRONMENTAL LAW (i) 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; (j) 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 this Act. A State Board may establish or recognize a laboratory or laboratories to enable it to perform its functions under this section efficiently. Measures to Prevent and Control Air Pollution Chapter IV of the Act (from Sections 17 to 31-A) provides various measures which can be adopted by the Government and Boards to improve the quality of air and prevent, control and abate air pollution. These measures can be studied under the following headings: Power of the State Government to Prevent and Control Air Pollution The State Government has been empowered under Sections 19, 20, 28 and 29 to contain and control air pollution. These powers are as follows: Powers to declare air pollution control areas S. 19 empowers the State Government, in consultation with the State Board to declare any area or areas within the State as air pollution control area / areas for the purpose of this Act. Such declaration will be made by a notification in the Official Gazette in such manner as may be prescribed by the rules made under the Act. Power to give Instructions for Ensuring Standards for Emission from Automobiles As per Section 20, one of the functions of the State Board under Section 17 is to lay down the standards for the emission of air pollutants from automobiles and ensure that the standards are complied with. In this regard, the State Government is empowered to give such instructions as may be deemed necessary to the authority in-charge of motor vehicles under the Motor Vehicles Act, 1988 and such authority shall be bound to comply with such instructions. State Air Laboratory Section 28 empowers the State Government to establish one or more State Air Laboratories, or specify any laboratory/institute as State Air Laboratory to carry out the functions entrusted by the Act.

The Government must publish a notification in the Official Gazette to establish such laboratories.

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ENVIRONMENTAL LAW Power of the State Government to Appoint Government Analyst Section 29 authorises the State Government to appoint a Government Analyst for the purposes of analysis of samples of air or emissions in the laboratory. Such appointment shall be made after a notification in the Official Gazette mentioning the necessary qualifications. Powers of the State Board to Prevent, Control Air Pollution The following are the powers provided under the Act to the State Boards to prevent, control and abate air pollution: 1. Power to give permission to operate industrial plant in an air pollution control area. 2. Power of the Board to make application to court for restraining persons causing air pollution 3. Power of the Board to take remedial measures on receiving information of emission of air pollutants. 4. Power of Entry and Inspection [S. 24] 5. Power to Obtain Information [S. 25] 6. Powers to take Samples of Air or Emission and the Procedure to be followed 7. Report of the Result of Analysis on Samples taken under S. 26 8. Power to give Directions

Conclusion

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ENVIRONMENTAL LAW

FOREST AND CONSERVATION LAWS

Examine the provisions for the protection of forests under the Forest Act. [16] 09, 07, Dec 06, 04, 03, Dec 03 Discuss the law relating to conservation of forests in India. [16] Dec 08

Introduction: The forests are natural renewable resource. They are one of the major terrestrial eco-systems. They also constitute one of the most vital sources of national wealth. Forests cover nearly 40% of the world's land. Depending upon the potential of climate and land area, all countries differ in their forest resources. There has been reduction in the forest cover throughout the world but it is more prevalent in the developing Asian countries like India, Sri Lanka and Mynamar, where population explosion, urbanization and industrialization is building the pressure. Constitutional Mandate and Forest Conservation The Constitution (Forty-second Amendment) Act, 1976 has introduced a new directive principle of state policy - article 48-A and a fundamental duty under article 51(A)(g) for the protection and improvement of environment including forests. These provisions provide as under: Protection and improvement of environment and safeguarding of forests and wild life [Article 48-A] - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51 A (g) provides - It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. A perusal of the above provisions clearly shows that both State and the citizens are under an obligation to protect and safeguard forests, which will have an impact on the environment. Forest was initially a State subject covered by Entry 19 in List II of the VII Schedule. The Indian Parliament realizing the national significance of the forest has also made changes in the VII Schedule. Entry 19 in List II of the VII Schedule has been deleted and a new entry 17 - A relating to forests has been introduced in the Concurrent List of the VII Schedule by the Constitution (Forty-second Amendment) Act, 1976. Thus, State as well as Center can make the law relating to forests. The State Government can

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ENVIRONMENTAL LAW make laws relating to forest administration provided it is in consonance with the forests policy of centre for preservation and development of the nation's forest resources. Forest Conservation and Legislative Action The first codification, which came on the statute book in relation to administration of forest in India was the Indian Forest Act, 1865. Thus, the history of forest law in India is more than a century old. The Act of 1865 was amended from time to time and ultimately it was repealed and replaced by the Indian Forest Act, 1927 which not only consolidated but also re-shaped the law relating to forests. The said Act of 1927 was also amended from time to time. The Indian Forest Act, 1927 The Indian Forest Act, 1927 contains 86 sections and it deals with four categories of forests namely: 1. Reserve Forests in Chapter II 2. Village Forests in Chapter III 3. Protected Forests in Chapter IV 4. Non-Government Forests in Chapter V. Thus, the Act is wide enough to cover all categories of forests. Besides forests specified under the Act on a functional basis as reserve forests, village forests, protected forests and non-governmental forests, the Act contemplates the protection of forest land under certain conditions. Since before 1976, forest was in Entry 19 of the List II of the VII Schedule, the States also had the jurisdiction to enact laws in relation to the forests and accordingly the Act has been supplemented with extensive State legislations so as to suit the requirements of various States. There have been about 117 such Acts. The Indian Forest Act, 1927 was clearly one step to considering the importance of ecology and environmental balance. Most of the private forests covered under the fourth category mentioned above were earlier parts of estates which have now been abolished and thus such forests have also become government property. The Act sought to consolidate the law relating to forests, the transit of forests produce and the duty leviable on timber and other forests produce. The State Governments have also been vested with powers to impose duty on timber and other forest-produce and to control transit of timber and other forest produce and to impose penalties for offences committed under the Act. Chapter IX deals with penalties and procedure to be followed in case of seizure of property. However, the Act has not fully appreciated the concept of damage caused to the forests due to illicit cutting of trees or due to fire or because of breaking of forest cover for agricultural purposes. For example, section 33 of the Act enumerates certain offences and provides for punishment of imprisonment for a term which may extend to six months or with fine which may extend to Rs. 500/ - or with both. Section 26 of the Act, of course, recognizes the concept of compensation for damage done to the forest as the convicting court may direct to be

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ENVIRONMENTAL LAW paid in addition to the sentence of imprisonment for a term which may extend to six months or fine which may extend to Rs. 500/- or both, for the acts prohibited in the reserved forests. But this provision too has its shortcomings because this section does not confer any power on the appellate court to award compensation. The words used in this section are the convicting court and the appellate court is not the convicting court. Therefore, it is only the trial court which can be called the convicting court, and thus only the trial court can direct for the compensation for damage done to the forest. In 1980, the Parliament in response to the rapid decline in the forest cover in India and also to fulfill the constitutional obligation under article 48-A of the Constitution enacted a new legislation, the Forest (Conservation) Act. 1980. The Forest (Conservation) Act, 1980 This Act has been passed with a view to check deforestation which has been taking place in the country on a large scale and which had caused ecological imbalance and thus led to environmental deterioration. The President of India promulgated the Forest (Conservation) Ordinance on 25th October, 1980. Section 5 of the Forest (Conservation) Act, 1980 has repealed this Ordinance. This Act has not taken into consideration those aspects which were covered by the Indian Forest Act, 1927. It simply aims at putting restriction on the dereservation of forests or use of forest-land for non-forest purposes. The Act is intended to serve a laudable purpose as is evident from the Statement of Objects and Reasons of the Act, which reads: 1. Deforestation causes ecological imbalance and leads to environmental deterioration. Deforestation had been taking place on a large scale in the country and it had caused widespread concern. 2. With a view to checking further deforestation, the President promulgated on 25th October, 1980, the Forest (Conservation) Ordinance, 1980. The Ordinance made the prior approval of the Central Government necessary for dereservation of reserved forests and for use of forest-land for non-forest purposes. The Ordinance also provided for the constitution of an Advisory Committee to advise the Central Government with regard to such approval. Scope and Application This Act extends to whole of India except the States of Jammu & Kashmir, which has its own State Act. The Forest (Conservation) Act, 1980 came into force on 25th October. 1980, i.e., the date on which the Forest (Conservation) Ordinance, 1980 was promulgated. Restriction on the Dereservation of Forests or Use of Forest-land for Non-Forest Purposes Section 2 of the Act deals with restriction on the dereservation of forests or use of forestland for non-forest purposes. It provides that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with prior approval of the Central Government, any order directing.

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ENVIRONMENTAL LAW (i) (ii) (iii) that any reserved forest declared under any law for the time being in force in that State or any portion thereof, shall cease to be reserved; that any forest land or any portion thereof may be used for any non-forest purpose; that any forest land any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government; that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.

(iv)

For the purposes of this section non-forest purpose means the breaking up or clearing or any forest-land or portion thereof for: (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants; or (b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes. Constitution of Advisory Committee The Central Government may constitute a Committee consisting of such number of persons as it may deem fit to advise that Government with regard to: (i) the grant of approval under section 2; and (ii) any other matter connected with the conservation of forests which may be referred to it by the Central Government. Rule 3 of the Forest (Conservation) Rules, 2003 provides for the composition of the Committee. It says that the Committee shall be composed of the following members: 1. Director-General of Forests, Ministry of Environment and Forests-Chairman 2. Additional Director-General of Forests, Ministry of Environment and ForestsMember (He win act as chairperson in the absence of Director General of Forests). 3. Additional Commissioner (Soil Conservation), Ministry of Agriculture - Member. 4. Three eminent experts in forestry and allied discipline Environment Scientists (non-officials)-Member; 5. Inspector-General of Forests (Forests Conservation), Ministry of Environment and Forests-Member-Secretary. . A non-official member shall hold his office for a period of two years, a non-official member shall cease to hold the office if he, becomes of unsound mind, becomes insolvent or is convicted by a court of law on a criminal offence involving moral turpitude. The non-official member may be removed from his office if he fails to attend three consecutive meetings without sufficient cause or reasons. The Government, for the unexpired portion of two years term shall fin any vacancy of the non-official member.

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ENVIRONMENTAL LAW Penalty for Contravention of the Provisions of the Act Section 3-A of the Act provides that whoever contravenes or abets the contravention of any of the provisions of section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days. A perusal of this section shows that the Act contemplates only the punishment of simple imprisonment and it does not contemplate any punishment in terms of fine.

Conclusion

Discuss the classification of forest under the Indian Forest Act [16] 08, Dec 05, Dec 03, 02, 01 Introduction: The forests are natural renewable resource. They are one of the major terrestrial eco-systems. They also constitute one of the most vital sources of national wealth. Forests cover nearly 40% of the world's land. Depending upon the potential of climate and land area, all countries differ in their forest resources. There has been reduction in the forest cover throughout the world but it is more prevalent in the developing Asian countries like India, Sri Lanka and Mynamar, where population explosion, urbanization and industrialization is building the pressure. Classification of Forests The first codification, which came on the statute book in relation to administration of forest in India was the Indian Forest Act, 1865. Thus, the history of forest law in India is more than a century old. The Act of 1865 was amended from time to time and ultimately it was repealed and replaced by the Indian Forest Act, 1927 which not only consolidated but also re-shaped the law relating to forests. The said Act of 1927 was also amended from time to time. The Indian Forest Act, 1927 contains 86 sections and it deals with four categories of forests namely: 1. Reserve Forests in Chapter II 2. Village Forests in Chapter III 3. Protected Forests in Chapter IV 4. Non-Government Forests in Chapter V. Thus, the Act is wide enough to cover all categories of forests. Besides forests specified under the Act on a functional basis as reserve forests, village forests, protected forests and non-governmental forests, the Act contemplates the protection of forest land under certain conditions. Since before 1976, forest was in Entry 19 of the List II of the VII 69

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ENVIRONMENTAL LAW Schedule, the States also had the jurisdiction to enact laws in relation to the forests and accordingly the Act has been supplemented with extensive State legislations so as to suit the requirements of various States. There have been about 117 such Acts. The Indian Forest Act, 1927 was clearly one step to considering the importance of ecology and environmental balance. Most of the private forests covered under the fourth category mentioned above were earlier parts of estates which have now been abolished and thus such forests have also become government property. The Act sought to consolidate the law relating to forests, the transit of forests produce and the duty leviable on timber and other forests produce. The Act empowers the State Government to constitute any forest-land or waste-land as reserved forest and to issue notification in the official gazette. The notification is required to be published in the official gazette and unless it is published it is of no effect. After the notification under section 4 of the Act, no right shall be acquired in or over the land comprised in such notification and previously recognized individual and community rights over the forest are extinguished upon such a notification and access to forest and forest products becomes a matter of privilege subject to permission of forest officials acting under governing laws and regulations. The Act includes procedures for making claims against the Government for the loss of legal rights over the forests. The village forests are established when State assigns to a village community rights over any land which has been constituted a reserve forest. The State Governments make rules for managing the village forests and prescribe conditions under which the village community is provided with timber, other forest products or pasture. The rules may also assign duties to the village for the protection and improvement of the forests. The State Government has also been empowered to declare any forest-land or waste-land which is not included in the reserve forest but in which the Government has proprietary right or rights to any part or the forest products as protected forests. Thus, protected forests cannot be created from reserve forests. The Government must survey the rights and claims of private persons in forest being considered for protection but may declare the forest area a protected forest pending the completion of survey. Under Section 30 of the Act, the State Governments can close portion of the forests, for such term not exceeding thirty years, as long as the remainder of the forests is sufficient for individuals and communities to exercise their existing legal rights to use forests. The State Governments may prohibit certain activities such as grazing, cultivation, charcoal burning and stone quarrying. The State Government may also regulate all rights and privileges for the use of protected forests. State Governments have been empowered to notify certain trees and forests to be protected forests and penalize for cutting, converting, collecting or removing forest produce without licence being granted by the respective States. Chapter V of the Act deals with the control over forests and land not being the property of the Government. The provisions of this Chapter show that the Act is intended to be a piece of legislation not only in respect of government forest but also in respect of forests and lands not belonging to the government. In other words, the Act covers non70

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ENVIRONMENTAL LAW governmental forests also. The State Government can, by notification, regulate or prohibit the breaking up or clearing of land for cultivation, the pasturing of cattle or the firing or clearing of the vegetation to protect against storms, winds, rolling stones, floods and avalanches, to preserve soil from erosion, to maintain water supply in springs, rivers and tanks, to protect roads, bridges, railways, lines of communication and to preserve public health, etc. The Act also authorizes the State Government to acquire private land for public purposes under the Land Acquisition Act, 1894. The State Governments have also been vested with powers to impose duty on timber and other forest-produce and to control transit of timber and other forest produce and to impose penalties for offences committed under the Act. Chapter IX deals with penalties and procedure to be followed in case of seizure of property. However, the Act has not fully appreciated the concept of damage caused to the forests due to illicit cutting of trees or due to fire or because of breaking of forest cover for agricultural purposes. For example, section 33 of the Act enumerates certain offences and provides for punishment of imprisonment for a term which may extend to six months or with fine which may extend to Rs. 500/ - or with both. Section 26 of the Act, of course, recognizes the concept of compensation for damage done to the forest as the convicting court may direct to be paid in addition to the sentence of imprisonment for a term which may extend to six months or fine which may extend to Rs. 500/- or both, for the acts prohibited in the reserved forests. But this provision too has its shortcomings because this section does not confer any power on the appellate court to award compensation. The words used in this section are the convicting court and the appellate court is not the convicting court. Therefore, it is only the trial court which can be called the convicting court, and thus only the trial court can direct for the compensation for damage done to the forest. In 1980, the Parliament in response to the rapid decline in the forest cover in India and also to fulfill the constitutional obligation under article 48-A of the Constitution enacted a new legislation, the Forest (Conservation) Act. 1980.

Conclusion

Other Question Describe the forest policy resolution of 1988 [4] Dec 01

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WILDLIFE PROTECTION AND THE LAW

Wildlife Protection [10] Dec 05, Dec 03

Introduction: Wildlife is one of our basic and natural resources that satisfies the needs or wants of civilization. Therefore, this resource must be conserved, preserved and protected for the existence of mankind. Wildlife is also an intricate part of our ecosystem as the green plants (producers) and animals are members of the trophic levet in which man is at the top. Thus, conservation of living natural resources - plants, animals and microorganisms and the non-living elements of the environment on which they depend - is crucial for existence and development of mankind. To save the number and diversity of species and their ecosystem is an indispensable prerequisite for sustainable development. The world Commission on Environment and Development, in its report Our Common Future (1987), emphasized the preservation of our biological diversity and ecosystems. The Constitution of India, under Article 48-A, has provided that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. It is a directive and constitutional pointer to the State. In the exercise of the above powers, the Parliament of India has passed the following major Acts to protect, preserve and improve wildlife: 1. Wildlife (Protection) Act, 1972. 2. Prevention of Cruelty to Animals Act, 1960. 3. Biological Diversity Act, 2002. Wildlife (Protection) Act, 1972 In 1972, the Indian Parliament passed a comprehensive national law, The Wildlife (Protection) Act, 1972, with the sole aim of protecting wildlife birds and plants and for matters connected thereto or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country. It not only prohibits hunting but also created protected areas and controls trade in wildlife products. To achieve these objectives it has created a separate and independent authority to protect and improve wildlife. The Act has been accepted and adopted by all the States except Jammu and Kashmir. The first and foremost purpose of this Act is to protect the habitats of wild animals. As a sequel to it, various national parks and game sanctuaries have been established to ensure greater protection to wildlife. Some special provisions also aim to preserve endangered species like Project Tiger, Gir Lion Sanctuary, Himalayan Musk Deer Project, etc.

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ENVIRONMENTAL LAW Widespread changes have been made by the newly passed Wildlife (Protection) Amendment Act, 2002 and a new chapter has been incorporated Chapter VI-A to deal with the forfeiture of property derived from illegal hunting and trade. Further, the new amendment Act has also introduced the concept of co-operative management through conservation reserve management committee and community reserve committees. The Act consists of 60 Sections and VI Schedules - divided into 8 Chapters. Meaning According to Section 2(37), Wildlife includes any animal, aquatic or land vegetation which forms part of any habitat. This definition is wider in its connotation. Hunting of Wild Animals Hunting of wild animals has been prohibited altogether. But the Chief Wildlife Warden has been authorized to grant permission to hunt animals under certain circumstances. These circumstances are as follows: 1. If the Chief Wildlife Warden is satisfied that any wild animal, specified in Schedule I has become (i) dangerous to human life or (ii) is disabled or (iii) diseased beyond recovery; (no wild animal shall be ordered to be killed unless the Chief Wildlife Warden is satisfied that such animal cannot be captured, tranquilized or translocated); 2. When the Chief Wildlife Warden, or the authorized officer, is satisfied that any wild animal specified in Schedule II, III, or IV, has become dangerous to human life or to property, or is so disabled or diseased so as to be beyond recovery. he shall permit any person in writing and stating the reasons to hunt. The killing in good faith of any wild animal in defence of oneself or of any other person is not an offence. Any wild animal killed or wounded in defence of any person shall be Government property. Protection of Specified Plants Chapter III-A of the Act has specified provisions to protect specified plants of sanctuaries, national parks, forests or areas specified by notification. All the specified plants, or part or derivation thereof, have been declared to be the property of the State Governments, and if they are a part of a sanctuary or national park they shall be the property of the Central Government. Therefore, a person must have a licence from the Chief Wildlife Warden, or other officer, to commence or carry on business or occupation as a dealer in specified plants. It also prohibits to: willfully pick, uproot, damage, destroy, acquire or collect; or

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ENVIRONMENTAL LAW possess, sell, offer for sale or transfer by way of gift or otherwise, or transport any specified plant, whether dead or alive or part or derivative. But this provision is not applicable to the member of a Scheduled Tribe.

Similarly, cultivation, dealing in, or possession of specified plants without a licence has also been declared to be a punishable act. Further, no person shall purchase, receive or acquire any specified plant, or part or derivative otherwise than from a licensed dealer. Conservation and its Management The amendment Act of 2000 has also introduced a new method of conservation in cooperation with the local people of the area. As per Section 36-A, the State Government may in consultation with the local community declare any area, particularly areas adjacent to national parks and sanctuaries and areas which link two protected areas, as conservation reserve. To manage such area, the State government shall constitute a conservation reserve management committee, to advise the Chief Wildlife Warden to conserve, manage and maintain the conservation reserve. Such committee shall consist of a representative of the forest wildlife department who shall act as member secretary, one representative of each village Panchayat in whose jurisdiction the reserve is located, three representatives of non-governmental organizations working in the field of wildlife conservation, and one representative of each of the departments of Agriculture and Animal Husbandry. (Section 36-B).

Protected Area Section 18 provides that the State Government may, by notification, declare its intention to constitute an area other than an area comprising any reserve forest or territorial waters, as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting, propagating or developing wildlife or its environment. Such declaration aims at protecting wildlife and forests and such a notification shall specify the situation and limits of an area by roads, bridges or other well-known intelligible boundaries. The Collector of the district shall inquire into, and determine the existence, nature, and the extent of the rights of any person in or over the land comprising the limits of the sanctuary. Closed Area The State Government may, by notification, declare any area closed to hunting for a specified period and hunting during that period will be prohibited.

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ENVIRONMENTAL LAW Central Zoo Authority and Recognition of Zoos The Central Government shall constitute the Central Zoo Authority consisting of a chairperson, ten members and a member-secretary. They shall hold office for a period of three years. Such an Authority shall perform the following functions: 1. specify the minimum standards for housing, upkeep and veterinary care of the animals kept in a zoo; 2. evaluate and assess the functioning of zoos with regard to such standards; 3. recognize or derecognize zoos; 4. identify endangered species of animals; 5. co-ordinate the acquisition, exchange and loaning of animals for breeding purposes; 6. ensure maintenance of stud-banks of endangered species of wild animals bred in captivity; 7. identify priorities and themes with regard to display of captive animals in zoos; 8. co-ordinate training of zoo personnel in India and outside India; 9. co-ordinate research in captive breeding and educational programmes for zoos; 10. provide technical and other assistance to zoos for their proper management and development on scientific lines; 11. perform such functions as may be necessary to carry out the purposes of this Act as regards zoos. Trade or Commerce in Wild Animals, Animal Articles and Trophies Prohibited The Act has declared that (i) every wild animal, other than vermin, which is hunted with the permission of the Wildlife Warden, or (ii) kept or bred in captivity, or (iii) hunted in contravention of this Act or Rules, etc., (iv) found dead or killed by mistake, (v) animal article, trophy or uncured trophy, (vi) meat derived from any wild animal, (vii) ivory imported in India and any article made of such ivory, (viii) vehicle, vessel, weapon, trap or tool used for committing an offence under the provisions of the Act shall be the property of the State Government or the Central Government if the place of hunting falls in their respective areas. If a person obtains possession of an animal or article mentioned above by any means, he must inform the nearest Police Station within a period of forty-eight hours of obtaining such possession. Further, no person who gets the above-mentioned things shall acquire or keep them in his possession, custody or control, or PALLAVI BHOGLE 75

ENVIRONMENTAL LAW transfer them by way of gift, sale or otherwise, or destroy or damage them without the permission of the Chief Wildlife Warden [Section 39(3)]. Therefore, whoever possesses them must make a declaration to the Chief Wildlife Warden, who shall issue a certificate of ownership for the same. A person who has a certificate of ownership shall not transfer any captive animal, animal article, trophy or uncured trophy by way of sale or by any other mode of consideration of commercial nature. If he transfers them from the State he resides in to another State, he shall, within 30 days of transfer or transport, report to the Chief Wildlife Warden or the authorized officer within whose jurisdiction the transfer or transport is effected. Prevention and Detection of Offences Notwithstanding any other law in force, the (i) (ii) (iii) (iv) Director, or any officer authorized by the Chief Wildlife Warden, or any forest officer, or any police officer below the rank of sub-inspector, if he has reasonable grounds for believing that any person has committed an offence under the Act, shall

(a) require any such person to produce for inspection any captive animal, animal article, meat, trophy, uncured trophy, specified plant or part or derivative thereof in his control, custody or possession or any licence, permit or any other document granted to him or required to be kept by him under the provisions of this Act; (b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel in the occupation of such person and open and search any baggage or other things in his possession; (c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy or any specified plant or part or derivative thereof in respect of which an offence under this Act appears to have been committed, in the possession of any person together with any trap tool, vehicle, vessel or weapon used for committing any such offence and unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant and detain him. Forfeiture of Property Derived From Illegal Hunting and Trade A new chapter VI-A had been incorporated by the Wildlife (Protection) Amendment Act of 2002. this gives wide powers to forfeit the property derived from illegal hunting and trade. It runs from Section 58-A to 58-Y. According to this new chapter, if any person/associate of persons/trust acquires property from illegal hunting or trade of wildlife, it shall be forfeited to the State Government by the competent authority. Such property can be forfeited after taking all necessary steps

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ENVIRONMENTAL LAW (inquiry, investigation or survey in respect of any person, place, property, documents institution, etc.) and after tracing and identifying any such property. Provision for Reward The Act provides that where a court imposes a sentence of fine or a sentence of which fine forms a part, the Court may order reward to be paid to the person who renders assistance in the detection of the crime, or apprehension of the offenders out of the proceeds of the fine not exceeding 50% of such fine. When a case is compounded, the officer compounding the offence may also order for such a reward.

Conclusion

Other Questions

Discuss the law relating to the prevention of cruelty to animals [16] 08, 05, 03 Conservation of biological diversity [8] 06, Dec 01 National Park [10] 05

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ENVIRONMENTAL LAW Global warming [8] 09, Dec 07, 06, Dec 03, 02, Dec 02, Dec 01, 01

Introduction: The average facade temperature of the globe has augmented more than 1 degree Fahrenheit since 1900 and the speed of warming has been almost three folds the century long average since 1970. This increase in earths average temperature is called Global warming. More or less all specialists studying the climate record of the earth have the same opinion now that human actions, mainly the discharge of green house gases from smokestacks, vehicles, and burning forests, are perhaps the leading power driving the fashion. The gases append to the planet's normal greenhouse effect, permitting sunlight in, but stopping some of the ensuing heat from radiating back to space. Based on the study on past climate shifts, notes of current situations, and computer simulations, many climate scientists say that lacking of big curbs in greenhouse gas discharges, the 21st century might see temperatures rise of about 3 to 8 degrees, climate patterns piercingly shift, ice sheets contract and seas rise several feet. With the probable exemption of one more world war, a huge asteroid, or a fatal plague, global warming may be considered the most dangerous threat to our planet. Global Warming Causes As said, the major cause of global warming is the emission of green house gases like carbon dioxide, methane, nitrous oxide etc into the atmosphere. The major source of carbon dioxide is the power plants. These power plants emit large amounts of carbon dioxide produced from burning of fossil fuels for the purpose of electricity generation. About twenty percent of carbon dioxide emitted in the atmosphere comes from burning of gasoline in the engines of the vehicles. This is true for most of the developed countries. Buildings, both commercial and residential represent a larger source of global warming pollution than cars and trucks. Building of these structures requires a lot of fuel to be burnt which emits a large amount of carbon dioxide in the atmosphere. Methane is more than 20 times as effectual as CO2 at entrapping heat in the atmosphere. Methane is obtained from resources such as rice paddies, bovine flatulence, bacteria in bogs and fossil fuel manufacture. When fields are flooded, anaerobic situation build up and the organic matter in the soil decays, releasing methane to the atmosphere. The main sources of nitrous oxide include nylon and nitric acid production, cars with catalytic converters, the use of fertilizers in agriculture and the burning of organic matter. Another cause of global warming is deforestation that is caused by cutting and burning of forests for the purpose of residence and industrialization. Consequences of Global Warming The increase in the temperature of the earth and its atmosphere is called global warming. In fact, we have already started feeling the effect of global warming. The present

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ENVIRONMENTAL LAW generation is noting the considerable change in weather conditions. The winters are delayed. The summer comes early and stays for a longer period. As per the findings of the UN Inter-governmental Panel on Climate Change (IPCC), in the 20th century the global average surface temperature has increased by about 0.6 degree C, more than earlier estimated to 1994. This appears to be the largest increase in any of the last ten years. Globally, 1990s was the warmest decade and 1998 the warmest year recorded since 1861. Since the 1950s the lower part of the atmosphere has warmed at about 0.1 degrees C per decade, as snow and ice cover have decreased in extent by about 10% and arctic sea ice thickness more than this. The carbon dioxide (CO2) has now increased by 31% since 1750 to a higher level than in anytime in the last 420.000 years, and probably 20 million years. The methane concentration in the atmosphere has increased 150% since 1750 and contributes a fifth of the warming effect. The global warming has following effects: 1. Global warming can lead to the melting of ice peaks and thereby leading to rise in the sea level. Thus, there is threat to the coastal cities like Mumbai, Chennai and Kolkata etc. of being immersed under water. 2. Global warming may change the rainfall pattern, which may effect the agricultural outputs in the various regions of the world. 3. Global warming will bring about major changes in water distribution and have impact on water resources. The flow of water in streams located in high altitudes and South East Asia will increase while it will decrease in Central Asia, Southern Africa, Australia and the Mediterranean. 4. The other effect of global warming will be the change of global wind pattern due to more energy being pumped into the atmosphere. This will, in turn, cause extreme climates. 5. The change in weather pattern will have major implications on the cropping pattern. 6. The rise in the sea level and its temperature is likely to pose an adverse effect on the coral reef ecosystem. 7. The rise in temperature due to global warming may lead to the death of microorganisms like phytoplankton, zooplanktons & bacteria and thus ecosystems will be disturbed. 8. Due to climatic change, the plant production will be adversely affected and thus there is a danger of extinction of many important species. 9. The global warming will have also socio economic impacts. Many economic sectors, particularly physical infrastructure, will be affected by the climate change. The flooding and landslide will result into a large-scale human migration. This will adversely affect the living conditions in other human settlements. Global Warming and Action Plan As we know the cause of global warming is the increase of carbon dioxide (C02) concentration in the atmosphere, so in order to protect ourselves from the harmful effects of global warming, we should try to control the emission of carbon dioxide in the atmosphere of the earth. Urbanization, industrialization, increased population, increasing

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ENVIRONMENTAL LAW vehicular use, changing life style and decrease in forest cover are some of the factors responsible for increased rate of emission of carbon dioxide in the atmosphere. In 1992, at Rio-de-Janeiro Conference two important conventional were signed. The first one was the Convention on Climate Change and the second one was on Biological Diversity. The Convention on Climatic Change puts an obligation on every signatory state to take effective step to reduce the emission of green house gases so as to protect the earth and its atmosphere from global warming. In June 1997, at the Earth Summit Plus Five at New York, it was pointed out that from 1992 to 1997 there has been increase of carbon dioxide concentration by 2% in the atmosphere of the earth leading to further global warming. In December 1997, World Climate Conference was held at Kyoto (Japan) where a historic accord was signed by the participating countries for mandatory cuts in emission of green house gases particularly by the industrialized nations in the next millennium to help in saving the planet from global warming. Conclusion

Green house effect [10] 09, 06, Dec 04, Dec 03, Dec 02 Introduction: There is a protective layer of ozone in the stratosphere, that is, in the upper part of the atmosphere. There is also a blanket or layer of carbon dioxide (CO2) gas in the lower atmosphere. When the sunlight consisting of ultraviolet rays, visible light and infra-red rays fall on the top of the atmosphere, then first the harmful ultraviolet (UV) radiations are absorbed by the ozone layer. The visible and infra-red rays pass through the layer of carbon dioxide and fall on the surface of the earth. It must be noted that the infra-red rays coming from the sun are of short wavelength and they pass through the layer of carbon dioxide easily. The infra-red rays have the unique heating effect in them so they heat the earth and various objects on the surface of the earth. Since the earth and its objects become hot, they also start emitting heat rays or infra-red rays. These infra-red rays are of long wavelength and thus they cannot escape out from the carbon dioxide layer in the atmosphere. In other word, the blanket of carbon dioxide gas in the atmosphere traps all the infra-red rays or heat rays in the atmosphere and the atmosphere of the earth is heated up. This heating up of the atmosphere of the earth due to the trapping of infra-red rays of long wavelength by the carbon dioxide layer in the atmosphere is called green house effect. Thus, green house effect is the progressive warming up of the earth's surface due to blanketing effect of carbon dioxide (C02) in the atmosphere. The thick layer of carbon dioxide (C02) in the atmosphere works like the glass panels of greenhouse or just like the glass windows of motor-car that allows the sunlight to filter through it, but prevent the heat from being x-radiated in outer space.

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Green House Gases Those gases which can trap the infra-red rays to produce green house effect leading to heating up of the environment are called green house gases. We have already stated that basically it is the carbon dioxide (C02) alone, which is responsible for causing the green house effect. However, in addition to carbon dioxide (CO2), water vapours, methane gas, nitrous oxide and ozone layer also have the ability to trap the infrared-radiations and thus they are also called green house gases. But water vapour are present very near to the surface of the earth and the ozone layer is present in the upper part of the atmosphere and as such they do not contribute much to the green house effect. It is mainly the carbon dioxide which is responsible for causing the green house effect. It is estimated that 72% of the global warming is contributed by carbon dioxide (CO2) whereas methane is responsible to the extent of 18% for causing global warming. Importance of Green House Effect The green effect results in the heating of earth and its atmosphere, which is very necessary for our existence because without it the whole planet earth would be converted into an extremely cold planet, making the existence of life very difficult. Without green house effect earth would be frozen waste land. Conclusion

Ozone problem [10] 07, 05, Dec 04, 02

Introduction: Ozone (O3) is a colourless gas, which is an allotropy of oxygen (O2). Thus, it has three atoms as compared to oxygen, which bas two atoms. Ozone is produced by recombination of oxygen under the influence of ultraviolet radiations from sun in the upper layers of atmosphere. The ozone formation occurs 16 km above the surface of the earth. It is mainly found in the stratosphere and extends from 12 km to 35 km. This part of the stratosphere, which is rich in ozone is called ozone sphere, ozone umbrella or ozone layer. Ozone Layer as Protective Umbrella The presence of ozone layer in the stratosphere forms a protective umbrella around the earth. It absorbs the harmful short wave ionizing ultraviolet (UV) radiations coming from the sun and thus prevents them from reaching the surface of the earth. These ultraviolet (UV) radiations are very harmful and if all the ultraviolet (UV) radiations coming from the sun reach the surface of the earth then there would be no life on this planet. Thus, the ozone layer forms a protective umbrella around the earth and protects all the living

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ENVIRONMENTAL LAW organisms on the earth from the harmful effects of ultraviolet (UV) radiations coming from the sun. In this way the ozone layer acts as a great friend of mankind and all other living creatures. It also plays a crucial role in controlling the earth's temperature, wind pattern and rain, etc. Depletion of Ozone Layer and Ozone Hole This highly useful ozone layer blanket in the upper atmosphere has been under threat by a wide range of human activities. Though most of the ozone is produced above the equator of the earth as the maximum sun rays fall directly in that region, yet the highest concentration of ozone has been noted in the polar region. This is due to global air circulation. In the year 1985, Farman and his team of scientists noted that a gap or hole in ozone layer exists over the Antarctica region of the earth. This is called Antarctica Hole or Ozone Hole. In fact there is no actual hole in the ozone layer, it is actually a thinning of the concentration of ozone and ozone layer over the Antarctica region and generally called as the hole. This depletion of ozone layer has many adverse effects. The ultraviolet (UV) rays, which were earlier almost completely blocked by this ozone layer, can now enter the earths lower atmosphere to some extent through this ozone hole. This will increase gradually as the level of ultraviolet (UV) radiations reaching the surface of the earth increases. As stated earlier, high level of ultraviolet (UV) radiations are harmful to nearly all forms of life. Causes for Depletion of Ozone Layer One of the most important causes for the formation of ozone hole and depletion of the ozone layer is the use of chemicals called aerosols like Fluoro-carbons, Chlorofluorocarbons (CFCs) and nitrous oxide which are depleting it by 14% and 3.5% respectively at the current emission rate. The Fluoro-carbons are compounds of fluorine and carbon whereas Chlorofluorocarbons are compounds containing carbon, chlorine and fluorine. The Chlorofluorocarbons, which are used in spray and as refrigerants, react with them and chlorine gas is released. This chlorine gas reacts with the ozone and destroys it. It is estimated that one atom of chlorine may destroy over 5000 molecules of ozone per month. Similarly, the oxides of sulphur and nitrogen also eat the ozone molecules and destroy the ozone layer. The emissions produced by supersonic jet aero planes and nuclear explosions also cause the depletion of ozone layer in the upper atmosphere. Since the Chlorofluorocarbons (CFCs) deplete the useful ozone layer, their use is now being banned throughout the world to protect the ozone layer. If no proper precaution is taken to control the release of Chlorofluorocarbons (CFCs), then there is a danger that the entire ozone layer may deplete allowing all the ultraviolet (UV) radiation to fall on the earth and thus destroying the very life on this planet. Harmful Effects of Depletion of Ozone Layer As explained earlier that due to the depletion of the ozone layer, more ultraviolet (UV) radiations will fall on the surface of the earth and it will cause the following harmful effects:

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ENVIRONMENTAL LAW 1. Increase in ultraviolet (UV) radiations will result in the increase of skin cancer among human beings and animals. 2. The increase in ultraviolet (UV) radiations reduces considerably the photosynthetic pigment of the plants. Thus, it adversely affects the productivity and growth of plants. 3. Ultraviolet (UV) radiations suppress the immune system of the body and thus many more new diseases will occur in the body. 4. The increased ultraviolet (UV) radiations will also kill many plants and animals and thus the food chain will be disturbed and consequently ecosystem will also be affected. 5. The increase in ultraviolet (UV) radiations will increase the carbon dioxide (CO2) near the surface of the earth which will result in global warming. 6. Due to the increase in ultraviolet (UV) radiations, the life on earth will become impossible.

Conclusion

Sustainable development [10] 09, Dec 08, 06, Dec 06, Dec 05, Dec 04, Dec 03 Introduction: The term sustainable development was used at the time of Cocoyoc Declaration on Environment and Development in the early 1970s. Since then it has become the trademark of international organizations dedicated to achieving environmentally benign or beneficial development. Sustainable development means an integration of developmental and environmental imperatives. To be sustainable, development must possess both economical and ecological sustainability. It indicates the way in which developmental planning should be approached. The environment and development are means not ends in themselves. The environment and development are for people, not people for environmental and development. In fact, the idea that for the benefit of future generations present generations should be modest in their exploitation of natural resources has found wide spread international approval since the Maltese Proposal at the UN General Assembly of 1967, which contended that there was a common heritage of mankind and that this also required legal protection by the international community. This whole concept is based on the idea that natural resources such as sea bed are not the fruits of the labour of present generations and thus these resources can only be exploited with adequate consideration of the rights of future generations. Salient Principles of Sustainable Development The concept of sustainable development has grown since its inception at the international fora and it has acquired different dimensions in terms of economic growth,

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ENVIRONMENTAL LAW development and environment protection. However, some of the salient principles of sustainable development as culled out from Brundtland Report and other international documents such as Rio Declaration and Agenda 21; are as under: 1. Inter-Generational Equity, 2. Use and Conservation of Natural Resources, 3. Environmental Protection, 4. The Precautionary Principle, 5. The Polluter Pays Principle, 6. Obligation to Assist and Co-operate. 7. Eradication of Poverty, and 8. Financial Assistance to the Developing Countries. Inter Generational Equity The central theme of the theory of inter-generational equity is the right of each generation of human beings to benefit from the cultural and natural inheritance of the past generations as well as the obligation to preserve such heritage for future generations. Inter-Generational equity requires conserving the diversity and quality of biological resources, and of renewable resources such as forests, water and soils. The principle of inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations. These principles have been recognized in several international covenants and treaties. In fact several imaginative proposals have been submitted including the locus standi of individuals or groups to take out actions as representatives of future generations or appointing an Ombudsman to take care of rights of the future against the present. The satisfaction of human needs and aspirations is the major objective of development. Meeting the essential needs depends in part on achieving full growth potential and sustainable development clearly requires economic growth in places where such needs are not being met. The Brundtland Report has defined the sustainable development as that development which meets the needs of the present without compromising the ability of future generations to meet their own needs. The present generation is under an obligation to leave something for the next generation. In other words, there is an inter-generational equity and the development process to meet the essential needs of the present generation by using the natural resources has to be on that basis. However, it must be remembered that there is inequality between the people as a result of greed and the maldistribution of power which is a major obstacle in achieving sustainability.

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ENVIRONMENTAL LAW Economic growth and development obviously involve changes in the physical ecosystem. In general, renewable resources like forests and fish stocks need not be depleted provided the rate of use is within the limits of regeneration and natural growth. As far as nonrenewable resources like fossil fuels and minerals are concerned, their use reduces the stock available for future generations. But this does not mean that such resources should not be used. According to Brundtland Report, the rate of depletion should take into account the criticality of that resource, the availability of technologies for minimizing depletion and the likelihood of substitute being available. Use and Conservation of Natural Resources In order to meet the needs on sustainable basis, it is absolutely necessary to use the Earth's natural resources carefully and the natural resource base must be conserved and enhanced. It is part of our moral obligation to other living beings and future generations. The resources must be conserved and enhanced to meet the needs of growing populations. The idea that for the benefit of future generations present generations should be modest in their exploitation of natural resources has found widespread international approval since the Maltese Proposal at the UN General Assembly of 1967 which contended that there was a common heritage of mankind and that this also required legal protection by the international community. Principle 23 of the Rio Declaration specifically says that the environment and natural resources of people under oppression, domination and occupation shall be protected. Similarly in principle 8 of the Rio Declaration it is stated that to achieve sustainable development and a high quality of life for all people. States should reduce and eliminate unsustainable pattern of production and consumption. Thus, use and conservation of natural resources is an essential principle of sustainable development. Environment Protection The protection of the environment is an essential part of sustainable development. Without adequate environment protection, development is undermined; without development resources will be inadequate for needed investments and environmental protection will fail. The strong environment policies complement and reinforce sustainable development. It is often the poorest who suffer the most from the consequences of pollution ad environmental degradation. For example, unlike the rich, the poor cannot afford to protect themselves from the contaminated water. The poor also draw a large part of their livelihood from unmarketed environmental resources such as forests. The unscrupulous exploitation of forests may be detrimental to both environment and development. In Citizen, Consumer and Civic Action Group v. Union of India the Court observed that while the courts have social accountability in the matter of protection of environment, there should be a proper balance between the same and development activities, which are PALLAVI BHOGLE 85

ENVIRONMENTAL LAW essential for progress. There can be no dispute that the society has to prosper, but it shall not be at the expense of environment. In the like vein, the environment shall have to be protected, but not at the cost of the development of the society. Both development and environment shall co-exist and go hand-in-hand. Therefore, a balance has to be struck and administrative actions ought to proceed in accordance therewith and not de-hors the same. The environmental problems can and do undermine the goals of development in many ways. Take for example pollution free water and air is itself a part of improvement in welfare that development attempts to bring. If the benefits from the rising incomes are offset by costs imposed on health and the quality of life by pollution this cannot be called development. Also environmental damage can undermine future productivity and thus it affects the sustainability. It must be remembered that environment is not a separate sector, distinct from industry, agriculture and energy. Hence, environment protection must become an integral part of the decision-making at all levels. The Precautionary Principle The main purpose of the precautionary principle is to ensure that a substance or activity posing a threat to the environment is prevented from adversely affecting the environment, even if there is no conclusive scientific proof of linking that particular substance or activity to environmental damage. The words substance and activity imply substances and activities introduced as a result of human intervention. In the context of the municipal law, the precautionary principle means: Environmental measures by the State Government and the local authorities must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.

In Vellore Citizens Welfare Forum v. Union of India, the Court expressed the view that the precautionary principle and the polluter pays principle are essential features of sustainable development and that they have been accepted as part of the law of the land. The Court had no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. The Court also observed that even otherwise the above said principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. Polluter Pays Principle The Supreme Court has also, in a recently decided case, held that this principle envisages precautionary protection against environmental hazards by avoiding or reducing

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ENVIRONMENTAL LAW environmental risk before specific harm is expected. Thus it has become a part of the principle of sustainable development. In Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law Society of India, while applying the Precautionary Principle in a given situation, the public interest must be kept in view. Moreover, we have to live with certain risks, which are counterbalanced by services and amenities provided by these entities. Many factories, plants and utilities are vulnerable to certain risk but they cannot be decommissioned or dismantled. We have to live with them if they are serving public interest and do not pose grave threat to the environment. In this case the appellant, a fertilizer company was having ammonia storage tank. The petitioners contended that in the event of earthquake, Terrorist attack, sabotage or air crash into the tank, there would be human tragedy on account of leakage of ammonia from the storage tank. While deciding if these should be relocated, the court discussed the precautionary principle and decided the risk to environment or to human health must be decided in public interest according to reasonable person test. In Indian Council for Enviro-Legal Action v. Union of India, the Polluter Pays Principle was explained: Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make the loss caused to any other person by his activity irrespective of fact whether he took reasonable care while carrying on his activity. . (c) The polluting industry is absolutely liable to compensate for harm caused to the environment. (d) He is also liable to pay the cost of restoring the environmental degradation reversing the damaged ecology. This principle means the absolute liability for harm to the environment. Thus, it became a principle of remediation of the damaged environment - a part of the process of sustainable development. Now it is well settled that this principle has become a part of environmental jurisprudence. But a study of the decision pronounced by the Supreme Court reveals that there still exist doubt with regard to its contents and scope. The Supreme Court in Deepak Nitrite Ltd. v. State of Gujarat got an occasion to explain the principle and its finer contours. The court declared that the compensation to be awarded must have some broad correlation not only with the magnitude of the risk and the capacity of the enterprise, but with harm caused by it. The Polluter Pay Principle can be applied only where it is proved that some damage has been caused to the man & material or to the environment by the industrial unit by their activity. Mere violation of the legal provisions laying down the standards does not attract this principle. In this case, a PIL was filed alleging that large scale pollution has been causing by the industries located in Gujarat Development Corporation Estate of Nandesari as the effluents discharged by the industries exceeded the parameters fixed by the Gujarat Pollution Board. The High Court passed on order directing industries to pay 1% of the maximum turnover of last three years by applying the Polluter pays principle without ascertaining whether these were degradation of environment or any of the component of environment.

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ENVIRONMENTAL LAW Obligation to Assist and Co-operate The environmental problem is not the problem of an individual or that of one country. It is a global problem and it can be tackled only with the assistance and co-operation of all. Principle 9 of the Rio Declaration provides that the States should co-operate to strengthen indigenous capacity - building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies. Principle 10 of the Rio Declaration further provides that environmental issues are best handled with the participation of all concerned citizens at the relevant level. Similarly article 12 of the Rio Declaration provides that the States should co-operate to promote a supportive and open International economic system that would lead to economic growth and sustainable development in all countries to better address the problem of environmental degradation. And finally principle 27 of the Rio Declaration expects the people and the States to co-operate in good faith and in a spirit of partnership in the further development of international law in the field of sustainable development. Thus, obligation to assist and co-operate is also one of the important principle of sustainable development. Eradication of Poverty The sustainable development has to address the problem of the large number of people who live in absolute poverty and who cannot satisfy even their basic needs. At the Stockholm Conference in 1972, our former Prime Minister Mrs. Indira Gandhi said: Of all pollutants we face, the worst is poverty. The Brundtland Report has rightly pointed out that poverty reduces peoples capacity to use resources in a sustainable manner and hence it intensifies pressure on the environment. Most of developing countries are under the stress of poverty. Therefore, it is necessary that the growth must be revived in developing countries because that is where the links between economic growth, the alleviation of poverty, and environmental conditions operate most directly. The UN Conference on Environment and Development i.e. the Earth Summit of 1992 has brought about a leap in public awareness of key environment and development issues and rightly projected that elimination of poverty is a must for sustainable development, particularly in the developing countries. The key to achieve sustainability is to break the vicious cycle of poverty. Financial Assistance to Developing Countries It has already been explained above that the developing countries face poverty as the worst pollutant. The people in the developing countries strain their natural resources and over exploit them to meet their basic needs. The developing countries also do not have the finances and modern technology to follow the path of development which is sustainable. Therefore, the financial assistance and transfer of technology from the developed nations to the developing nations is a must if we want to achieve the goal of

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ENVIRONMENTAL LAW sustainable development and environment protection. In fact, this was one of the major demands of developing countries at the Earth Summit of 1992. In Chapter 33 of the Agenda 21 it was provided that the provision to developing countries of effective means, inter alia, financial resources and technology without which it will be difficult for them to fully implement their commitment will serve the common interests of developed and developing countries and of human kind in general, including future generations. It was further provided that the implementation of the huge sustainable development programme of Agenda 21 will require the provision to developing countries of substantial new and additional financial resources. It is worth mentioning here that the World Bank, in addition to various other international institutions, has been playing a key role in response to the clarion call of sustainable development at the Earth Summit. Conclusion: It is submitted that the challenges of environment protection and sustainable development are daunting. The concept of sustainable development has grown from Stockholm Conference to Rio Summit and thereafter through various national and international fora. Some of the salient principles of the sustainable development have been identified. But the real task which lies ahead is that of implementation. For this what is needed is the political will of the North and the South to act in co-ordination to protect this planet Earth from further deterioration.

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INTERNATIONAL ENVIRONMENTAL LAW

Discuss briefly the outcome of the Stockholm (1972) and Rio (1992) conferences. [16] 09, Dec 07, Dec 06, 04, 02, 01 Critically examine the outcome of the Rio conference Declaration [16] Dec 05, 03, Discuss the outcome of Stockholm Declaration, 1972 [16] Dec 08, Dec 04, Write about the international approaches for environment protection with special reference to relevant conventions. [16] Dec 03, Earth Summit [8] Dec 05, Dec 02

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ENVIRONMENTAL LAW Cases

Bhopal Gas Tragedy / Union Carbide Corporation v. Union of India [10] 09, 08, Dec 07, 07, Dec 06, Dec 05, 04, 03, Dec 03, Dec 03, 02, Dec 02, 01 Vellore Citizens Welfare Forum v. Union of India [10] 08, 07, 06, Dec 04, Oleum gas leak case / Shriram gas leak case [10] 08, 06, Dec 05, 04, Dec 04, 03, 02, Dec 01, Chernobyl Nuclear Disaster [10] 08, Dec 06, Dec 02 M.C Mehta v. Union of India (Ganga Pollution Tanneries case) [10] 09, Dec 08, 08, 05, Dec 02, 01 Indian Council for Enviro Legal Action v. Union of India (Coastal Zone Protection Case) Dec 08,

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ENVIRONMENTAL LAW Unplaced Questions What is an environmental pollutant? Explain. [4] Dec 01, Explain the doctrine of Sic utere tuo at alienum non laades and how it deals with problems of environmental nuisance. [16] 08, 07, Dec 05, 02, Explain the role played by the Indian Mines Act, 1952 in protecting the environment. [16] Dec 04, Discuss the importance of Public Interest Litigation in environment related issues [16] Dec 08, Dec 07, 06, 04, 02, Dec 01, Explain the role played by the Judiciary in the protection of environment with reference to Public Interest Litigation. [16] Dec 04, Rule of Absolute Liability [10] 09, Dec 06, 05, Dec 02, 01 Explain various remedies available for environmental hazards. [16] 08, 05, Pollution Control Boards play an important part in regulating and controlling pollution. Discuss the powers and functions of Central and State Pollution Control Boards. [16] Dec 04, Dec 03, Discuss the hierarchical structure in the enforcement of pollution control laws. [16] 04, Dec 02, Dec 01, State Pollution Control Board [10] 05, 03, Sustainable development [10] 09, Dec 08, 06, Dec 06, Dec 05, Dec 04, Dec 03, - PSJ Green Benches [8] 05, Dec 01, 01 Citizens suit under Environment Protection Act [5] 01

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ENVIRONMENTAL LAW

Explain the provisions regarding atomic energy in relation to environment pollution. [16] Dec 07, 06, Dec 05, 03, Marine pollution [10] Dec 04, Narmada Bachao Andolan [10] 08, Dec 03, Give a brief description of the law concerning the coast. [4] Dec 01, Discuss the procedures adopted for taking and analyzing of samples under Water Act. [16] 01 Acid rain [10] Dec 08, Dec 07, 06, 04, Dec 04, Dec 02 What is a Reserve Forest? Give details of the rights and restrictions in relation to them. [16] Dec 07, 05, Dec 01, National Park [10] Dec 08, 07, Dec 02, 01 Joint forest management programme [10] 09, 02, Dec 01, Wildlife sanctuaries [10] 09, 04, Dec 03, Dec 01, Heritage conservation [10] Dec 03,

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