THE ENVIRONMENT (PROTECTION) ACT, 1986

A Comparative Analysis by Gopesh Nath Khanna

The purpose of this paper is to give an analytical and critical review of the Environment (Protection) Act,
1986, vis-a-vis the real environmental crisis which the nation is facing nowadays. The scope of the paper is
not limited just to the above Act, but transcends it for a realistic scenario of the implementation of other
legislations, meant for the protection of one or other elements of the human environment. The methodology
adopted is analytical-behavioural and participatory in its ambit and application which calls for clarity of ideas
and approach.
Mr. Gopesh Nath Khanna (M.A., LL.B. M.Phil, LL.M.) is an advocate of the Delhi High Court as well as
a Research Scholar in International Organisations, School of International Studies, Jawaharlal Nehru
University, New Delhi.

Introduction
It is correct to state, at the outset, that the right to environment, inn so far as it relates
directly to human existence, is of the same category and potency as the right to life
and peace, being a right claimed in the name of humanity and, therefore, applicable
at all times and places to the whole human race, irrespective of caste, creed, colour
and race, whether residing in cities, towns or villages. The ingredients of human
environment, is, thus, called Res Communis huminitas, i.e., common heritage of
mankind, which cannot be claimed to be exclusively the property of any class, group
or government. In this new awakening, a number of environmental problems are
becoming critically significant for human welfare. They include rapid population
growth, air and water pollution, spread of toxic wastes, tropical deforestation, mass
extinction of wild life, problems of human settlement, flood, droughts and depletion
of the ozone layer and other life supporting systems. More important still, these
problems are all characterized by international repercussions, in so far as their
impact is not confined to their source areas alone but spills over into other commu-
nities, territories and jurisdiction. Thus, they are intrinsically international in nature
and highlight the environmental interdependence of nations within the unitary
biosphere (Strong, 1988: 411).
The influence of man upon the environment, as well as the effects of environmental
alternations upon human health and welfare, became a focus of analysis and
evaluation during the late 1960s. The International Council of Scientific Union
(ICSU) established the Scientific Committee on Problems of the Environment
(SCOPE) in 1969, to synthesize environmental information from diverse scientific
fields, identify knowledge gaps, disseminate the results and work as a source of
advice for government and inter-governmental agencies with respect to environmental
problems. The year 1970 started with the signing of NEPA (National Environmental
Policy Act) by the President of the United States, which gave rise to a national policy
encouraging productivity and enjoyable harmony between man and environment.
This became a turning point in the ecology-technology debate, man-environment

The author is thankful to Prof. (Mrs.) Sumitra Chisthi, Jawaharlal Nehru University, Dr. Walter Fernandes,
Director (Research) of Indian Social Institute, Delhi, and P. D. Mathew, Director (Legal Aid) of Indian
Social Institute, Delhi, for their experienced suggestions and inspiration.
182 Gopesh Nath Khanna

relationship and population-environment-development syndromes. Since then,

environmental awareness has continuously grown and environmental implication of
project actions have been vigorously assessed and monitored.
Meanwhile, during the late 1970s, the rising cost of energy sources, especially
petroleum; the environmental disruption and resource depletion caused by the
socalled 'advanced' technologies; the increasing socio-spatial disparities at various
levels; the rapid population growth and the massive rural urban transfer and the
deteriorating quality of life in most of the least developing countries, got the
attention of the United Nations General Assembly (UNGA) which decided to convene
the United Nations Conference on Human Environment (UNCHE) at Stockholm in
June, 1972, to plan out the strategy for the protection of our spaceship the earth'. It
necessitated a change for the existing development paradigm also. In Stockholm,
113 nation states, including India, attended the conference and its preparatory
committees. All unanimously agreed on the principles of satisfaction of basic human
needs; alleviation of absolute poverty; growth with socio-spatial equality; development
with environmental improvement; mass-participation; self-reliance; appropriate
technology; international cooperation; monitoring and surveillance of environmental
degradation and appropriate technology for development. Environmental awarenesss,
education and management, were other areas of interest where the delegates
frankly shared the views. They agreed, with some reservations, that modern technology
has failed to take care of the 'inner limits' of human society and, at the same time,
has violated the 'outer limits' of the spaceship earth. It has disturbed the ecological
equilibrium, jeopardised the eco-system stability and impoverised the environment
with regard to both physico-biotic and Socio-cultural aspects. These developments
have led to the integration of an ecological dimension to the development process.
As a consequence, there has been a growing awareness throughout the 1980s that
development objectives like maximising economic growth, ensuring a fair distribution
of available wealth and development benefits and minimising the negative effects of
human actions on the environment are interlinked. Equity and growth, as well as
environmental conservation and development, must be viewed as simultaneous and
not as sequential processes. Maintaining the quality of environment and improving
the quality of life are interconnected to each other.

Our Common Future (1987) is the third milestone in eco-development which makes
it amply clear that development and environment influence each other mutually and
dynamically. The concept of 'sustainable development', based on an integrated
view of environmental policies and development strategies, intends to maximise the
economic benefits from a given ecological milieu and minimise the risk and hazards
to the environment. It seeks to meet the needs and aspirations of the present,
without compromising the ability to meet those of the future. In the light of these
objectives the Indian Parliament framed the Environment (Protection) Act, 1986,
based on the Stockholm declaration, to prevent the further occurring of catastrophies
like the Bhopal gas tragedy of December, 1984. But first, it is necessary here to
understand the meaning of environment.

What Does Environment Mean?

Environment literally means 'what surrounds' and our surrounding consists of
both organic and inorganic elements. These constituents generally fall into two
categories:
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1. Natural or physical environment: consisting of all constituents of natural origin like

physiography, climate, vegetation, soil, water-bodies, wild animals and minerals.
2. Human environment: consisting of all elements having a human touch in their
origin. Such elements include all manifestations of human activities on earth.
The Environment (Protection) Act (EPA), 1986, defines environment under section 2(a)
to include air, water and land and dynamically the interrelationship which exists between
these and human beings, other living creatures, plants, micro-organism and property.
Thus, we can define environment "as the sum total of all conditions and influences
that affect the development and life of organisms".
A certain proportion of environmental constituents is desirable for the well-being of
life and this sort of desirable environment is termed a balanced environment. Any
excess or deficit amount of these variables threatens the existence of human beings
and living organisms and are, therefore, called environmental problems (Tables 1a
&1b).
Table 1 a

ENVIRONMENTAL PROBLEMS (PHYSICAL ENVIRONMENT)

Water Pollution Air Pollution So/7 Pollution Deforestation Wild-life

Untreated Smoke Slash and Burn Demand of Wood Deforestation

Industrial Chemicals practice of as Fuel. Pesticides
Disposals Agriculture. Raw Material for
Wastes Irrational
Sewage Over use and Furniture and Hunting and
Other
Affluents misuse of Coach Building Smuggling of
Affluents
Run off of Fertilisers Industries. Animal Skin.
Fertiliser Extractive House Meat Requirements
from Soil Crops Construction of Indigenous
Human Hybrid Seeds. Over Grazing Population
Excreta Soil Erosion Agricultural Natural
Other Dirts. a) Over Grazing Land. Calamities
b) Gravity Governmental
c) Wind Licences
d) Huvial Actions

Table 1 b

ENVIRONMENTAL PROBLEMS (HUMAN ENVIRONMENT)

Sound Class Ills of Inhuman Science &

Pollution Struggle Untouchability Urbanization Technology

Industrial Increased Factory Traditional Slums Resource Depletion

Noise System. Caste-Based Liquidation Unequal Distribution
Automobile Polarised Classes- Structural Sanitary Problems of Benefits
Noise Haves & Have Nots Concentration
Migration
Public Communal Clashes of Wealth
Poverty
Announcements Religion Mass Disasters
Congestion
Colour Discrimination Pollution
Economic Exploitation
Rapid Population Growth
Corruption
Unemployment and so on
184 Gopesh Nath Khanna

It is to be noted that the EPA only focuses on environmental pollution and hazardous
substances and processes, which are injurious to the environment. But there are
other major threats to the environment, which lie outside regulations and legislation,
like the adverse environmental impact of large irrigation projects, soil degradation
and erosion, flood and drought, deforestation and desertification. These indicate
that a wider focus is required to give a comprehensive notion of environment in the
Act. A residuary provision for damage to environment, in ways other than by
pollution or by hazardous substance, operations and processes, needs to be included
in the Act. Secondly, an inclusive definition is desired, both for the Act to have vast
rule making powers and for a more effective enforcement of the Act (Baxi, 1987:6).
This is preferable to an inclusive definition as in the EPA.

Inadequacies of Existing Environmental Laws

Environmental law is a vast, undefined, exciting and glamorous field. It is vast
because of the various subjects and projects that lie within its ambit. It is mostly
undefined in the source of its rules. It is exciting in the newness of some of its
techniques. It is glamorous in the publicity which it often receives (Khanna, 1989:
281). We have a multitude of legislation, constitutional directives and duties, rules,
regulations, boards and committees to implement the laws; but these are breached
more often than honoured by big industries, including the public sector, and by the
multinational corporations (MNCs). The close link between government, agencies
and industries has prevented any effective implementation of these laws. The law
enforcing machinery is often ineffective, and recourse to courts is possible only
under certain conditions.
The vastness of environmental laws will be realised when one takes note of its
existing coverage. Etymologically anything which surrounds us is our environment.
In that sense it is limitless, because it focuses on tangible and intangible things like
air, water, aesthetic environment, space, and so on, and environment pollution can
affect air, land or water.
There are more than 200 central and state laws today (Government of India, 1980)
that can be interpreted, one way or another, to protect the environment. There
already exist a host of legislative measures, both at the Central and State levels
(Tables 2a & 2b), as the topic falling within the vast field of enviromental law, case
laws and precedents, gives rise to a proliferation of rules and regulations.
Nevertheless, in every controversy relating to the environment, there arises a need
to draw upon their residuary reservoir of 'Justice, equity and good conscience'.
Moreover, the nature of all existing laws on environment is essentially punitive and
not preventive. The Indian penal code, code of civil procedure, law of Torts, and
criminal procedure code, are also concerned only with the punitive aspects of
environmental pollution. But, they have proved their ineffectiveness in various
aspects; hence, the necessity for the new Act to supplement their provisions.
It is a well known fact that laws and rules are instruments that put into reality the
ideas of a policy. Law, therefore, embodies a policy and one must first of all
distinguish the policies inherent in the laws from the policy separately proclaimed by
the government. Thus, for example, the National Forest Policy of 1952, had set a
national target of bringing at least one-third of India's land areas under forest cover.
But a prior law, The Indian Forest Act, 1927, was left untouched and this embodies a
policy of deforestation. The policy in actual practice, therefore, has been very
 Social Legislation 185

different from the avowed national policy. Numerous land development and tribal
development policies are in reality, similarly, at total variance from the legal policies.
186 Gopesh Nath Khanna

The Environment Protection Act (EPA) also pertains only to the regulation of
hazardous substances. It says nothing about the major environmental issues like
forests, water, land resources and human settlement. The Act which gives greater
power to the government is, perhaps, meant only to arm the government against
Union Carbides. This has resulted in an absolute centralization. Let us examine in
detail, the nature, features and functioning of the Act.

The Environment Protection Act: Salient Features

Environment has been considered in this paper as the aggregate of all external
conditions and influences affecting the life and development of an organism. In this
respect, the Act includes the interrelationship that exists between water, air, land
and human beings, other living creatures, plants, micro organisms and property.
The Act was enacted, as stated earlier, to put into effect the decisions taken at the
United Nations Conference on Human-Environment (UNCHE), held at Stockholm in
June, 1972. The Act aims to take appropriate steps for the protection and improvement
of the human environment; and the prevention of hazards to human beings, other
living creatures, plants and property. It extends to the whole of India. Thus, it is a
bold measure to fight the problems of pollution, in the first instance.
The Act enables the Central Government 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 reducing environmental pollution.
To achieve these objectives the Central Government is empowered to establish an
authority for exercising the power vested in it and to frame rules for that purpose.
The Act has adopted a new stand with regard to the so called question of
Locus-Standi. This confers, even on an ordinary citizen, the right to approach a
cout of law provided he has given notice of not less than 60 days of the alleged
offence of pollution and his intention to make a complaint to the Central Government
or the competent authority.
The Act is deterrent in its approach and it further strengthens the penal provisions. It
casts responsibility on all persons handling hazardous substance to prevent their
discharge into the environment. The maximum penalty for the contravening of the
Act has been increased to imprisonment for up to 5 years or a fine up to one lakh
rupees or both. If the failure to comply with the dictates of the Act continues beyond
a period of one year, after the date of conviction, the offender shall be punished with
imprisonment of a term which may extend to seven years and a fine which may be
Rs. 5,000/- per day for such contravention.
The Government has been given power to collect samples of air, water, soil or other
substances as evidence or the offence under this Act. The Act applies to pollution
generated by Government agencies as well, and where an offence under this Act
has been committed by any department of the Government, the Head of Department
shall be deemed guilty of the offence and will be liable to punishment unless he
proves that the offence was committed without his knowledge, or that he exercised
all due diligence to prevent the commission of the offence.
A specific procedure has been prescribed for handling hazardous substances and no
persons can handle such substances except in accordance with the procedure
prescribed for it.
 Social Legislation 187

The Central Government has been vested with powers of entering and inspecting
any place through any person or agency authorised by it. The Act gives immunity to
the officers of Government for any acts done under the powers vested or functions
entrusted by the Act. The Act also authorises the Central Government to issue
directives for the closure, prohibition or regulation of any industry, or operational
process. It also authorises the Central Government to regulate the supply of
electricity or water, or any other service directly, without obtaining a court order.
Thus, divided into four chapters, the Act altogether contains 26 sections dealing
with powers of the Central Government in various aspects. But it has to be noted that
the approach for environmental protection is piecemeal and not comprehensive.
They are still haphazard and fragmented (Chandrasekharan, 1988: 185).

Shift in Emphasis
The scope of the Environment Act is obviously wider than that of any prior
legislation. The thrust is for the protection and improvement of the environment, and
this is a major change from the narrow confines of just control of pollution. The
present legislation widens the net to cover other kinds of pollutions also [Section
2(c)], such as by solid waste, [Section 2(b)], hazardous-substance [Section 2(c)] and
even by noise [Section 6(2)b]. These provisions enable the Central Government to
make rules for prescribing the maximum allowable limits of concentration of various
environmental pollutants. But the definition of environmental pollutants is not
comprehensive enough to cover all species of pollutants. It covers only solid, liquid
or gaseous substances. Pollution caused by heat radiations and vibration is not
included in its ambit; and the pollution by vehicular emissions are also outside the
scope of the Act.
On the other hand, the power of the Central Government to issue binding directions
to any persons, officers or authorities, under section (5), can be used as effective
weapons to fight environmental pollution. This direction can:
(a) Extend not only to mere regulation, but even to a closure or prohibition of the
industry, operation or process; and
(b) Be issued for regulation or even stoppage or the supply of electricity, water or
any other services to the industry.
It is, undoubtedly, a wide discretion. There is no requirement to state the reason or
ground on which the decision to give such direction is taken. The only statutory
requirement is that the direction is to be given in writing. Thus, the drawback of prior
laws, namely, the absence of the power to issue direction to a 'person' for bringing
about effective and immediate enforcement of environmental decisions, stands
removed in the present Act. It is to be kept in mind, that if the power is exercised
whenever necessary, and the decision to exercise it is taken on environmental
considerations, this new provision to issue direction to any person, will prove to be
highly effective, and a welcome measure for the control of pollution.
Another characteristic of the Act, is that it confers on the Central Government to lay
down standards for the quality of environment under section [3(2)i(1)] and for the
emission or discharge of environmental pollutants from various sources [5.2(iv)]. It is
also provided that different emission or discharge standards may be laid down for
different sources.
188 Gopesh Nath Khanna

Fixing of varying standards of emission or discharge may be necessary, because the

quality of environment in a particular area depends on some relevant environmental
factors such as:
(a) the number of industries in a given area,
(b) the nature of discharge and emission, and
(c) the areas where industries are located.
Rule 5(1) of the Act forbids the establishment and running of industry, operation or
process in certain areas, or allows them to be carried out only subject to certain
safeguards. It is to be suggested here that industries, especially small-scale and
cottage industries, which cannot obviously bear the high investment necessary for
pollution control, and pose serious environmental hazards, shall not be allowed to
engage in operations and processes that may cause injury to the environment.

Prevention of Pollution and Remedial Measures

Section 9 of the EPA deals not only with remedial action in case of accidental
pollution, but also with preventive action against apprehended pollution. In case of
an accident resulting in discharge of environmental pollutants in excess of the
standard fixed, the person in charge of the place, or those responsible for such
discharge, have a statutory duty to mitigate the resultant environmental pollution.
Similarly, such persons have the statutory duty to take preventive measures. They
are bound, not only to intimate the fact of the apprehension or occurrence of the
accident to the prescribed authorities, but also to render them all possible assistance
These authorities include the officer in charge of emergency or disaster relief
specified by the Government, in whose jurisdiction the industry, process or operation
is located, the central or state boards, as the case may be, its regional officer and the
authority or agency specified in the Schedule II to the Environment (Protection)
Rules—12. The authorities are empowered to take measures to prevent or mitigate
the pollution and recover expenses from the concerned person (Sections 9.1, 9.2
and 9.3).

Information
The power of the Central Government to call for information concerning pollution is
a notable feature of the EPA. Under Section 20 it imposes on "any person, officer,
state government or other authorities", "the duty to furnish information when it is
called for". This provision facilitates the collection of information necessary to base
decisions on sound environmental criteria.
Moreover, the power to seizure of implements, and so on, under section 10(i)C is an
effective instrument of enforcement, and denotes a significant change from the
usual schemes of the statutory provisions for search and seizure. It is generally
provided with a view to procuring evidence to support the prosecution of environmental
polluters. However, the EPA is silent about the seizure of property and does not give
any direction as to disposing, returning and auctioning it. This leads to judicial gloss
and confusion.

Environmental Protection Authority

Section 3(3) of the EPA contemplates the idea that the Central Government may
constitute an authority or authorities, for the administration of the Act. It is to be
 Social Legislation 189

noted that the rules prescribe only general standards and are to be fixed not
generally, but individually in each case. The rules cannot take account of relevant
factors, like differences in capacity of various industries to take pollution measures,
and the environmental effects of emission or discharge from different sources at a
given time, and the cost involved in the process of control of pollution to industry
and society. The power to fix standards of emission has, therefore, to be conferred
on a competent and expert authority, which can fix them separately in each case,
taking into account every factor including the required environment quality. A
National Environmental Protection Authority (NEPA) is required here (Bakshi,
1987:8-11).

The EPA is certainly an improvement to the other environmental laws. For example,
under the Water Act, 1974, the board has no power to take preventive action against
apprehended pollution. It had to approach a court of a first class migistrate to obtain
an order restraining the potential polluter from discharging the affluents (Section 33
of Water Act). No duty is imposed upon the person responsible for the pollution to
prevent it, or to take remedial measures, as is in the EPA.

Under the Air Act, 1981, however, the board has power to take remedial actions to
mitigate the emission in case of actual or apprehended pollution [Section 23(2)].
But this Act also does not impose any positive duty on the person responsible for
pollution to take any preventive measure, except, to intimate to the authority
[Section 23(1)] about the accident which has occurred or is apprehended to occur.
The EPA, in comparison, is a definite improvement over prior legislations, in that, it
imposes on the potential polluters, a duty to take remedial or preventive action and
to assist the authorities. But the EPA is not foolproof in all its aspects. It suffers from
certain drawbacks too. Let us examine some loopholes in the EPA.

Drawbacks of the EPA

It has been generally said by lawyers, social scientists and environmentalists, that
the EPA is like a cobra that is seemingly fierce; it raises its hood and hisses
menacingly, but if you prise its jaws open, you will discover it has no venom in its
fangs. (D' Montey, 1986). The law has been rushed through Parliament with unseemly
haste without any proper deliberations and without the benefit of a national debate.

The most glaring omission is the deliberate exclusion of forests, and this, in a country
where half the energy consumed is 'non-commercial' or collected from fields and
trees. The rape of forest has been central to the present progress. "The plunder and
waste of irreparable resources, the poisoning and destruction of fragile eco-
systems is a gross oversight" (Harrison, 1987:132). It is a well known fact that forests
form the primary nutritional base of a country and that they are global genetic store
houses and controllers of the hydrological cycle. They check climatic deterioration.
Their fast depletion is causing deserts to expand at the rate of 40,000 sq. miles every
year. Consequently, 80 per cent of the productive land in arid and semi-arid areas is
believed to be getting affected by desertification. About 80 million hectares of
arable croplands, thus, deteriorate every year (Sati, 1987:58). When the scenario is
so serious at the global and national levels, it is not wise to omit 'Forest Protection' in
an Act which deals with environmental protection.

Secondly, the EPA is criticised on the ground that its radical approach regarding the
rule of Locus Standi is rendered ineffective by the requirement of 60 days' notice,
190 Gopesh Nath Khanna

which gives a long enough time for the offender to make amends or to escape
liability under the Act. Thus, it indirectly prohibits the citizens going to the court on
pollution matters. Pollutants wait for no man, hence, such a qualification on publication
is deplorable.
But, under the growing pace of social action litigations, environmentalists argue that
the role of the public, especially voluntary bodies, can be enhanced considerably
under the EPA. Members of registered bodies can be given the right to inspect
factory premises. This provision is similar to that existing in the British Control of
Pollution Act, 1974.
Another major drawback of the EPA follows from its co-existence with the earlier
Water and Air Acts. The EPA in section 24(2) says, "where any act or omission
constitutes an offence punishable under this Act and also under any other Act then
the offender found guilty of such offence shall be liable to be punished under the
other Act and not under this Act." This provides shelter for the offender found
guilty under the common provisions of the old Water and Air Acts and enables him
to get away with a less stringent sentence than the one provided in the EPA. Unless
this dichotomy is removed, the efficient implementation of the new Act will be
greatly hindered (Viegas and Menon, 1989:72-73). It is also not clear whether the
EPA supersedes or supplements the two earlier laws. The areas of jurisdiction have
not been clearly demarcated and a possibility of conflict cannot be ruled out.

Absence of Public Participation: A Glaring Mistake

Anyone who sees the environment as providing the resources with which the people
can sustain or improve their standard of living, will readily recognise that a truly
effective environment law should provide for as much public participation as possible.
But the EPA concerns only official bodies, pollution control boards and other
regulatory agencies—and does not involve people for a participatory environmental
protection.
By people's participation, here we mean associating onself individually or as a
member of a group, with a specific task, a programme, a scheme, a project or an
activity in an adoptive, emotional, expressive or instrumental involvement, so that
the undertaken task is achieved as per the desired goal. It could be ensured by
forming a forum of citizens, who are concerned about environmental protection at
the local, the regional and the national level. There could also be an environment
impact assessment cell to monitor and enforce environmental standards. The silence
of EPA on such crucial issues is distressing.
Giving people a say, in this manner, is not a rhetorical slogan. A cursory look, at the
inexorable process of environmental degradation shows that the over exploitation of
natural resources is directly affecting the poor in the cities and the countryside.
There are already some 1,000 non-governmental organizations massing against this
dangerous exploitation. By by-passing them, neither can the enforcement measures
be made effective nor can the preservation of the environment for future generations
of Indians, be secured.
Secondly, under this present legal provisions, the non-governmental organisations
are only fact finding bodies, unable to legally press their points. Hence, results of
their research generally remains outside the important arena of policy making. An
administrative mechanism, which is unable to utilise the valuable environment—
 Social Legislation 191

impact—assessment/analysis, presented by the NGOs is clearly counter-productive.

For, after all, a great deal of intellectual labour and resource go into these impact
analyses. Not utilising them, is also an economic and environmental waste of
people's resources. The problem is to evolve a legal and administrative mechanism
to make the best use of the work of these NGOs by government agencies, the
Department of Environment, the National Environmental Engineering Research
Institute and the National Institute of Occupational Health and Safety.
Another serious drawback of the EPA is its absolute centralization. It vests all
powers and authority in the hands of Central Government. These officials alone are
empowered to lay down standards, regulations and rules for the purpose of the
enforcement of the provisions of the Act. The rule making power broadly covers:
screening, testing, classification, standardization, restriction of licenceable sub-
stances, powers of entry, inspection, examination, control, direction, repair, closure
and prosecution. The centralisation can become arbitrary and gives rise to harassment
under the shadow of a corrupt bureaucracy.
The prohibitive and deterrent provisions of penal sanction is taken away by section
24(1) which lets off proven air and water pollution with simple penalties. "This is a
strange and hackneyed provision taking the life out of new enactment. It reduces the
law into a barking dog that never bites." (Hudden, 1987: 709). It has been also
observed that prescriptions of penal sanctions against environmental offences is not
wise and practicable. The penalty is fixed in an arbitrary manner and in an a priori
fashion. The tortuous remedy for compensation is not embodied here (Singh,
1987:4).
Last but not least, the provision for the National Environment Protection Agency
(NEPA) is vague and politically oriented. Its structure, functions and jurisdictions are
not made clear in the Act, thereby giving ample opportunity to politicians in power
to manipulate and appoint their own supporters. Agencies for pollution control
should be independent, compact, efficient and expert bodies with sufficient coercive
powers. Its centralisation is dangerous for an effective protection of the human
environment.
In the EPA, there are, inadequate linkages in handling matters of industrial and
environmental safety. Control mechanism to guard against the slow, invidious, build-
up of hazardous substances, especially new chemicals, is scanty. Besides the NEPA,
there is the need for an authority which can assume the lead role for studying,
planning and implementing long term requirements of environmental safety and for
giving direction to and coordinating a system of speedy and adequate response
to the emerging situation, which threatens the environment. Moreover, if the authority
contemplated by the Central Government continues to be the existing pollution
control boards, then it is feared that the entire exercise is doomed to failure,
because the boards seem to have adopted a soft line vis-a-vis the industry and
prefer to be pursuasive rather than punitive.
The Act which is only a 'watch dog', guarding society against pollution, could be
better named Pollution (Prevention) Act, rather than Environment Protection Act, as
it neither touches nor plans out any strategy for the prevention of major environmental
problems as shown in Table (1). But, here the question is, to what extent have these
laws, together with the boards, succeeded in improving the quality of human life?
The record of their ineffectiveness is far more voluminous than that of their success.
192 Gopesh Nath Khanna

Soon after the Bhopal catastrophe, a series of gas explosions and leakages occurred
in many parts of the country, but the new Act was not frequently evoked even then.
This fact very succinctly reflects the passivism of many. It can be maintained here
that:
if these laws have not worked in the past, there is little justification in believing
that the new legislation and administrative machinery based on the same old
strategies and theories will prove effective in solving the environmental
problems of the people.
(Singh, 1988(b): 111)

Conclusion
No doubt, the EPA fills up some of the operational lacunae in the pre-existing laws
relating to the control of pollution. It brings within its ambit more areas of environmental
hazards—but there is no central authority now to plan and implement the long term
requirement of environmental safety, except the Union Government. This is dangerous
since the Government may be swayed by regional and political considerations,
rather than environmental criteria, in sanctioning or locating projects, eg., hydro-
electrical projects and dams and others. Such a situation will impede a proper
environmental impact assessment (EPA). There is no statutory requirement for
such EPA, which is vital for preservation and protection of environmental sanctity.
The Act is silent on people's participation on the ground of technicality. The big
brother knows best' approach may assert itself and raise the hearing that the
public should not be unduly alarmed by the probability of future danger involved
in a project (Green, 1970:42). The attitude is nothing but a planned device to
conceal relevant and vital information from the public. It is the people who are the
immediate victims of environmental hazards. Inevitably, their freedom of information
and expression should be guaranteed and respected; and relevant information
be furnished to them in simple terms by government agencies and corporations
acting in this field. Likewise, the Central Government in the EPA has been given
the authority to call for a sample of air, water, soil or other substances, but the
aggrieved citizen or private agency will have no means of furnishing proofs that
an offence has been committed on the environment. This drawback needs to be
amended, by empowering people's organization to collect samples and send them
for analysis, as is in the case of The Prevention of Food Adulteration Act, 1955.
Public participation will be a guarantee of fairness and an effective check against
arbitrariness in environmental decision making. Thus, effective laws to stop the
pollution and to develop a workable policy for the wise use of resources in future,
will then result only from the decisions of the individual citizens and leading
institutions in India. The fight to save the environment cannot be won unless the
citizens be involved in the decision making process (Sax, 1971:132). In the absence
of this, it would be a disaster in the environmental movement, in the education and
management of our ecological-industrial and social problems which are rapidly
growing.
The adoption of Best Practicable Means (bpm), as embodied in the British control of
Pollution Law, 1974, and the National Environment Protection Agency of the USA,
can be suggested here. In deciding what particular measures are to be taken in a
particular process, or in an operation, a balance has to be struck between the cost
 Social Legislation 193

particular trade—associations, research organizations, the affected persons in the

locality and the industry. It signifies a cooperative venture in which the control
agency works closely with the concerned undertaking, right from the design stage
and helps in formulating mutually agreed methods of reducing the evils of pollution.
The bpm is adoptable in India also as it caters to the local standard and available
means, and provides a flexible formula to utilise indigenous technology.
There is an urgent need for a strong inspectorate under the Act, consisting of
experts who can understand and find solutions for the problems as and when they
arise. Such an inspectorate will be helpful in not only bringing the affected interests
to a closer participation in the decision making process, but also making the board
itself to understand the problems in a more objective manner.
Agencies for pollution control should be independent, compact, efficient and
expert bodies with sufficient coersive power. The offences under other Acts can be
brought in to the EPA for penalties rather than by-passing it.
In order to make environmental legislation effective in the existing socio-legal
framework, we should try to create mass awareness by writing, advocating, lobbying,
raising questions in Parliament and other places. By thus creating a climate of
environmental consciousness we can influence people's approach to the problem
and thereby ratify the legislation by means of mass approval. The crisis calls not
for a stoppage of technological advance but for a new order—a just, equitable and
human order, which can regulate man's relation with nature as well as man's
relation with man (Raza, 1987:6).
Let us, therefore, adopt the environmental ethics, as drafted by Robert Arvill in the
letters'IHDJ'.
Integrity : to infuse ecological precepts and a true environmental ethos into
life-style.
Humanity « : to share the earth's resources more equitably with all life on earth
today and tomorrow;
Determination : to arrest pollution and squalor and to promote quality of life in
our surroundings;
Judgement : to choose wisely between compelling and conflicting aims and
values in order to promote, with humility, the trusteeship of the
society for the environment (Gupta, 1986:2).
In conclusion, we can assert only to government and big industrialists
Respect our place of living, do not degrade our living conditions, respect this
life. We have no arms to cause pressure, the only thing we have is the right
to cry for our dignity and need to peacefully live in our lands.
(Anon.)
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Control of Pollution Act : United Kingdom, Section 72(a).
1974
194 Gopesh Nath Khanna

D'Monte, Darryl "Environmental Act a Venomless Cobra": The Indian Express,

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