Foundations Of Environmental Law In India - An Analysis Of Key Principles And Judicial Interpretations
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FOUNDATIONS OF ENVIRONMENTAL LAW IN INDIA: AN
ANALYSIS
OF KEY PRINCIPLES AND JUDICIAL INTERPRETATIONS
Vaibhav Mittal, Manav Rachna University
ABSTRACT
The core principles driving the environmental law in India hereby open the critical legal doctrines that hold people and industries liable to environmental degradation. The importance of balance between economic development and the protection of the environment in India reflects how this country's legal framework works hand in hand in favour of promoting sustainability, fairness, and justice. Accordingly, a paper has been published for more detailed analysis with an eye on views informing policy makers, the practicing bar, and the general public on the evolving role of the judiciary and regulatory bodies in giving shape to environmental governance.
This therefore calls for deep understanding on mechanisms that may spur accountability, as well as long-term sustainability of the environment, seeking a very ethical approach from all relevant stakeholders since ecological challenges continue piling up.
INTRODUCTION
Environmental law refers to the compilation of laws, rules, and regulations that are aimed at protecting the environment from human actions that cause harm. The environment in India has been defined under the Environment Protection Act of 1986 as the dynamic interdependent link between land, water, air, and human beings as well as other living things. 1International forces have resulted in granting importance to conserving environmental values for India, primarily by appeal from the Stockholm Declaration on the Human Environment of 1972 to concerned countries to seek sustainable practice: An essential landmark concerning the country's saga of governing the environment is constituted by the 42nd Amendment to the Indian Constitution since 1976, which has provided for mutual accountability on the issue of environment protection to be between the government and people themselves.
Article 48-A has instructed the State to "safeguard and improve the environment". Article 51- A (g) has also instructed the citizens to "guard and improve national forests and wild life2".
Indian Judiciary has provided a sound structure to sustainable development with its interpretation of Article 21, that guards the right to life along with the right to a clean and pollution free environment3. The paper will discuss the development of Indian environmental law, its influence from other countries, and which legal tenets the country applies for attaining sustainable development. As such, this research study focuses on the basis of legislation in ensuring that development and environmental protection are met in an equilibrium relationship. This is to be looked at from important international agreements, historical judgments from courts, and constitutional provisions. SUSTAINABLE DEVELOPMENT: A PATH TO A BALANCED FUTURE Sustainable development aims at meeting the needs of the existing generation without prejudicing the ability of future generations to meet their own needs.
It is based on four interrelated dimensions: ecological integrity, social equity, economic efficiency, and intergenerational equity. Ecological integrity is the health and resiliency of ecosystems, supported by responsible resource management, as well as the protection of biodiversity. Social equity focuses on the fair and balanced distribution of resources and opportunities; reducing
1 The Environment (Protection) Act, 1986, § 2(a), No. 29, Act of Parliament, 1986 (India)
2 INDIA CONST. art. 48A, art. 51A(g)
3 M.C. Mehta And Anr vs Union of India & Ors, 1987 (1) SCC 395
inequalities, promoting greater inclusion. Economic efficiency points to the productive, socially beneficial use of resources with waste minimized and environmental degradation avoided. Intergenerational equity is ethical responsibility towards preserving resources for future generations without causing irreparable damage. These three principles constitute the holistic approach toward sustainable development. 4 THE EVOLUTION OF SUSTAINABLE DEVELOPMENT Environmental conservation and pollution control formed the prime focus of the Doctrine of Sustainable Development, when, in 1972, it was first revealed to the world at the UN Conference on the Human Environment in Stockholm. It is here that the concept of sustainable development started. This led to recognition of the rights of individuals to a healthy environment.
In 1987, the Brundtland Report, "Our Common Future," took this idea further. The most accepted definition of sustainable development reads, according to a UN World Commission on Environment and Development study: "meeting the needs of the present without compromising the ability of future generations to meet their own needs5. " The three core principles upon which the concept by Dr. Gro Harlem Brundtland was based include social equity, environmental protection, and economic growth. There was a continued emphasis on identifying what the environment can sustain, including growth and channels for meeting the needs of the most vulnerable. The global consensus coming from the 2012 Rio Conference would push this very same issue and form the basis of support for sustainable development.
This was followed in 2015 by adopting the 17 SDGs as a 15-year program to create a more sustainable and healthier world for generations to come. The Sustainable Development Goals: A Global Framework for Progress The SDGs embrace such an international call to action, from hunger and poverty to environmental degradation and climate change. The objectives facilitate equal social 4 Dr. Edward Mungai, LinkedIn, https://www. linkedin. com/posts/edward-mungai_sustainabilityprinciplesactivity-7153379070980849664-oN8E? utm_source=share&utm_medium=member_desktop, (last visited Oct. 13, 2024)
5 United Nations, Sustainability | United Nations, (last visited Oct. 13, 2024)
development and sustainable environmental growth, but they also stand for inclusive growth. As such, they also function towards guidance on sustainable development. 6 • Sustainable Economic Growth and Industrial Innovation SDG 8 Decent work and economic growth; SDG 9 Industry, innovation and infrastructure; SDG 12 Responsible consumption and production; and SDG 17 Partnerships for the goals: It is also a benchmark of sustainable economic development with no adverse environmental effects. The goals promote enterprise, innovation, and infrastructure development to build in a way that creates minimum harm to the environment7. • Equity and Social Development That is to say, sustainable development basically refers to a reasonable share of the fruits of development between and among generations.
Some of the SDGs focus on human social development; they target developing and underdeveloped countries more than anyone else. These are no poverty (SDG 1), no hunger (SDG 2), good health and well-being (SDG 3), quality education (SDG 4), gender equality (SDG 5), reduced inequalities (SDG 10), sustainable cities and communities (SDG 11), and finally, peace, justice, and strong institutions (SDG 16). 8 The relevant goals of these programmes include poverty and hunger reduction, improvements in health care and education levels, and changes to better gender equality. Their objective is to better the access of poor populations to basic services and promote inclusive social development. For instance, SDG 4 recognizes the power of education and its service for skills acquisition and social development and strives to attain quality learning for everyone.
• Protection of Environment and Climate Action Most of the SDGs address the urgent need to protect the environment: this includes, numbers 6 Transforming our World: The 2030 Agenda for Sustainable Development, UN, https://sdgs. un. org/2030agenda (last visited Oct. 14, 2024)
7 Sustainable Development Goals, UN, https://sdgs.un.org/goals (last visited Oct. 14, 2024)
8 Sustainable Development Goals, UN, https://sdgs.un.org/goals (last visited Oct. 14, 2024)
six, clean water and sanitation; number seven, affordable and clean energy; number thirteen, climate action; number fourteen, life below water; and number fifteen, life on land which focus on ecosystems as well as natural resources as part of human life. These goals reflect the necessity of collective effort in negating impacts of climate changes and for sustainable use of energy, water, and natural ecosystems9. INTERGENERATIONAL EQUITY Intergenerational equity is one form of resource allocation, which is considered to be valid for both the generations-resource users and non-resource users, with this, in turn, being considered as the basis of environmental sustainability10. It also makes the responsibility clear thrown upon existing generations to conserve and use the available natural resources in such a way that the convenience of future generations is not put at risk.
Due to burgeoning problems with resource degradation, degradation of environmental settings, and unevenness in the utilization of resources, this concept has become increasingly important. 11 The extensiveness of environmental issues like pollution, deforestation, and global warming demand more intergenerational equity12. It brings the key idea that natural resource users and policy-makers need to consider the long-run effects of their decisions. The approach is primarily a product of sustainable development, which meets the current needs without hindering the availability of resources for future generations13. In this, the proposed framework advocates the preservation of resources by safeguarding the environment for future generations. INTRA-GENERATIONAL EQUITY Intra-generational equality, therefore refers to just distribution of resources among present generations.
14It would ensure just use and distribution of resources since it deals with inequity
9 Sustainable Development Goals, UN, https://sdgs.un.org/goals (last visited Oct. 14, 2024)
10 Edith Brown Weiss, In Fairness to Future Generations
International Law, Common Patrimony, and Intergenerational Equity 24–25 (1989)
11 Report of the World Commission on Environment and Development
Our Common Future, UN Doc.
A/42/427 (1987)
12 Id
13 Transforming Our World
The 2030 Agenda for Sustainable Development, UN, https://sdgs.un.org/2030agenda (last visited Oct. 14, 2024)
14 Edith Brown Weiss, In Fairness to Future Generations
International Law, Common Patrimony, and Intergenerational Equity 38–39 (1989) among people and communities. The concept becomes important in the Indian context as the population growth is phenomenal, while the industrialisation process is at a very fast pace, therefore enhancing the demand for non-renewable and renewable resources. Intragenerational equity entails ensuring the equally fair dispersal and utilisation of natural resources for the benefit of all within a given generation without regard to class or economic status. For instance, resources must be managed in a way that causes minimal environmental harm and does not disadvantage vulnerable people or disadvantaged groups because of a lack of resources or environmental degradation.
15 In intragenerational justice, this will be achieved only if the government strictly adapts environmental regulations that are not adapting as a pretence for the exploitation of resources and actual responsible consumption. Globalization also makes it possible through the easing of access of nations towards common resources and technology. It incrementally closes gaps in resource availabilities as well as utilization. The two most essential strategies through which welfare policies seem to work towards intragenerational equity are subsidies and reservations. These ensure that the fruits of growth actually reach the people who need it the most by supporting the weaker sections of society. Intergenerational and intragenerational equity needs to be assured in sustainable development.
They make sure that the present generation addresses pressing environmental concerns of today while protecting the interests of future generations through coordinated action. It also offers for resource use that is fair and responsible. POLLUTER PAYS PRINCIPLE This important principle was formulated in Principle 16 of the Rio Declaration on Environment and Development, 199216. The Polluter Pays Principle refers to the cost of pollution being borne by those who pollute17 in order to reflect environmental costs within the economy. National authorities should be aware of the use of economic instruments in enforcing this principle without causing distortions in international trade or investments. This principle places a financial burden on the persons who are responsible for the environmental damage; they are
15 The Future We Want, GA Res. 66/288, UN Doc. A/RES/66/288 (July 27, 2012)
16 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), 31 I.L.M. 874, 879 (1992)
17 Organization for Economic Cooperation and Development (OECD), Recommendation of the Council on
Guiding Principles Concerning International Economic Aspects of Environmental Policies (May 26, 1972) then forced to pay their way to and restore their previous environment. • Precautionary Principle and PPP in Sustainable Development These two precautionary and polluter pays principles have defined the concept of sustainable development18. It calls upon governments to take preventive measures so that there is no deterioration of the environment even though there is scarcity of available scientific data. Total avoidance is not always possible, especially in a populous country like India, where pollution is often unavoidable. The principle underlying this system makes the polluter pay for damage caused by their harmful activities and compels the polluter to pay the full cost of the pollution that the polls are going to incur.
An outstanding example of the principle in action is Bhopal Gas Tragedy19, one of the worst industrial disasters on earth. Under the Polluter Pays Principle, all emphasis is given to the cause of accountability, where those causing the pollution must pay for the costs of managing the impact of pollution so that human health and the environment can be protected. • Field of the Polluter Pays Principle The Principle of Polluter Pays: This principle provides absolute liability to the polluters whereby a polluter would compensate victims for damages as well as costs incurred in restoring the environment degradation caused, irrespective of questions as to intention or fault. The Supreme Court of India has interpreted this principle widely as restoring an environment rather than just compensation to the victims20. • The courts said the polluters must:
1. Rehabilitation to the victims of environmental damage.
2. Reverse ecological degradation through all efforts exerted toward reversing some damage
already done.
18 Report of the World Commission on Environment and Development
Our Common Future, UN Doc.
A/42/427 (1987)
19 Union Carbide Corporation vs Union of India, 1989 SCC (2) 540
20 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212 (India)
It was first coined in 1972 by Organization for Economic Cooperation and Development (OECD) and later it is included in the Rio Declaration considering the fact that polluters should bear the entire cost of their action. • Indian Judiciary approach towards PP Principle The Indian court has well imbibed the Polluter Pays Principle into its environmental law system. It has also been further buttressed through landmark judgments. In Indian Council for Enviro-Legal Action v. Union of India (1996), it was held by the Supreme Court that a polluter is liable for any injury caused by a hazardous activity, even if all care has been taken. This landmark judgment reflected that the court was concerned to hold severe liabilities over the polluters for the damage inflicted on the environment. Similarly, the judiciary applied it more expansively in Vellore Citizens' Welfare Forum v.
Union of India 21not only for restoration of environment damage but also reimbursement to sufferers. Held restoration as an integral part of sustainable development by making the polluters pay for the cost incurred in reversing ecological destruction their activities cause. PPP under Indian Law: The Implementation The principles of the Polluter Pays Principle are very well established in the Indian legal sphere; hence, provisions under Sections 3 and 5 of the Environment Protection Act, 198622, can be easily implemented by the central government to ensure that not only compensation but rehabilitation is possible, and so a polluter would have to pay for the harm they do to the environment and promote environmental sustainability in terms of international standards.
The heart of India's environmental law system is the Polluter Pays Principle: one makes a person liable for causing damage to the environment. One can thus address the short-term harmful impacts of pollution even as one champions long-term sustainable development by simply making the polluters pay for their damage and then restoring the environment. PRECAUTIONARY PRINCIPLE Under Principle 15 of the 1992 Rio Declaration on Environment and Development, the
21 Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647 (India)
22 Environment Protection Act, §§ 3, 5, No. 29, act of parliament, (1986)
Precautionary Principle takes precautionary action to avert environmental harm where there is no scientific basis. An argument here makes the case that while there is no scientific proof but probability of serious or irreversible environmental damage, the authorities must take preventive action23. The aim is to prevent environmental degradation even before it is abundantly established that damage exists. • The Precautionary Principal Implementation It is under this realization that the Precautionary Principle affirms that more often than not,24 neither are the dangers altogether known, nor is it well understood how they lead to the cause of environmental damage. It becomes hard for governments to take action often with inconclusive evidence. Yet, the idea keeps insisting that precautionary measures should not be delayed due to this uncertainty.
In short, it's better to act and prevent injury than wait for evidence of damage. It appears that it is applicable widely in the diversified national environmental legislation and commonly used in international environmental treaties. 25This principle proves that an absolutely unidentified need for precautionary action presuming that human activity may be destructive is required, and harm will cause extreme environmental effects that are replaced by cautious action.
MAJOR FEATURES OF THE WARNING THEORY
Generally, the Precautionary Principle has to satisfy three conditions in order to be applicable:
1 Imponderability with Probable Risk of Danger
This applies where there is causality between an action and damage to the environment but the damage cannot be measured even. In that case, those actions should be prevented.
2 Risk of Environmental Damage
The concept is considered only in action when a credible danger of environmental damage is present. 23 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), 31 I.L.M. 874, 879 (1992) 24 United Nations Environment Programme, Rio Declaration on Environment and Development, Principle 15, https://www.unep.org/resources/report/rio-declaration-environment-and-development (last visited Oct. 14, 2024)
25 Id.; Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818 (1992)
3 Serious or Irreversible Nature of Harm
The precautionary approach is only valid if it causes serious or irreparable harm. None of the damages that are minor or easily repairable can fall in this approach. In cases of pollution, the person responsible for the pollutant is placed in a position whereby he has to prove that his action does not harm the environment. The position assumes the burden of proof and therefore supports precautionary conservation of the ecosystem. • The Precautionary Principle's Benefits Some of the more benefits of this precautionary principle in increasing environmental sustainability are:26
1. It saves biodiversity and ensures sustainable use; it keeps the strength and soundness of the
ecosystems intact.
2. The concept helps eradicate poverty by conserving the natural resources that most
communities mainly rely on to earn their living.
3. It helps in giving health, well-being, and human dignity as it provides a clean and safe
environment for everybody. • Application Guidelines for the Precautionary Principle The following are the critical activities that provide the basis for the governments and agencies applying this principle27:
1 Perception
The environmental authorities have to foresee the threat and monitor them at the earliest stage.
2 Prevent
Environmental regulations should be formed such that pollution is stopped before it starts by highlighting risk avoidance.
26 World Commission on Environment and Development, Our Common Future, UN Doc. A/42/427 (1987)
27 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), 31 I.L.M. 874, 879 (1992)
3 Source cause of pollution
The source cause of pollution needs to be tackled aggressively enough for long-term protective purposes by the authorities.
4 The Cost of Pollution should be borne by the Polluters
Under their head, comes the cost of environmental degradation, replenishment cost for depleted resources, cleanup operations, and compensation for the victims of environmental degradation. Simply put, the Precautionary Principle does have a say in the formation of environmental policy because it subscribes to the adage "act now or never know. " The principle features a sense of foresight about matters of sustainability, as it leaves room for the avoidance of widespread environmental detriment to the current and succeeding generation. PUBLIC TRUST PRINCIPLE The Public Trust Principle answers the old question of who owns the Earth and its resources. Being born deep in the beliefs of the Byzantine Emperor Justinian I, this theory lets one know that some crucial natural resources, such as air, water, forests, oceans, rivers, lakes, and mountains, cannot be owned by an individual.
Instead of all this, these resources are considered to be the gifts of nature, which should be used by all classes, castes, ethnicities, and religions. This doctrine is based on a basic assumption; it would be unjust to allow private control over resources, especially essential ones, considering that such resources have a high value for public interests. According to the theory, the governments are custodians of public resources which heavily weigh on them. With this, once such resources are availed at a fair market price, the government should ensure that it remains accessible for public use and protected from privatisation or commercial exploitation. • Use of Public Trust Doctrine The two main roles of Public Trust Doctrine are:
1 Positive State Action Mandates
The government must act proactively in proper management and protection of public resources.
2. It Has Citizen Monitoring It allows citizens to know how the government controls natural
resources, thereby keeping it on its toes among citizens.
It could be labeled as a form of commitment to accountability required by the public and by legal standards. It ensures there are enough resources available to the public, and it is managed in a responsible and sustainable manner. • Stock-holm Decla-ra-tion and Pub-lic Trust Doct-rine This is, therefore, the landmark document in environmental governance that indeed strengthened the Public Trust Doctrine stating that all natural resources of Earth, all kinds of air, water, land, flora and fauna be protected for the benefit of the present and the generations to come. The general public must have requisites of resources such as air, water, the sea, and forests. These should never be sold to private owners, not even at fair market prices. It is the government's duty to preserve and safeguard such resources in order to enjoy them as a whole.
28 • Judicial Interpretation of the Public Trust Doctrine One of the most well-known cases for applying Public Trust Doctrine is M. I. Builders v. Radheshyam Sahu29. Here, the Lucknow City Corporation permitted M. I. Builders to construct an underground shopping complex beneath the public park. On appeal, Supreme Court declared it to be an irrational order /misdirection in violation of Public Trust Doctrine, though the High Court order restored the park. It is very pertinent that the court brought to the forefront of discussion that, due to its historical and environmental significance, the municipal corporation was statutorily liable to maintain it as a trustee of the park.
WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 The Water (Prevention and Control of Pollution) Act 30was enacted in 1974 and provides an essential framework of legislation for the purpose of preventing, controlling, and abating pollution in water or restoring to water any degree of water wholesomeness and thereby ensuring sustainable management of water resources. This Act empowers both the Central and State Governments to constitute boards, which would focus on finding measures to prevent and control water pollution besides the effective implementation of its provision. 28 National Audubon Society v. Superior Court of Alpine County, 33 Cal. 3d 419, 658 P. 2d 709 (Cal. 1983)
29 M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, A.I.R. 1999 S.C. 2468 (India).
30 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 1 (India)
Objectives of the Act The broad objectives of the 1974 Water (Prevention and Control of Pollution) Act are: • Prevention and Control of Water Pollution: Formulate policies to prevent the pollution of water bodies. • Restoration of Purity: Ensure that polluted waterways are cleaned and made pure again. • Institutionalization of Regulatory Commissions: Establish federal and state regulatory bodies that shall oversee the enforcement of standards for the quality of water31. • Organisational Structure of Central Pollution Control Board Section 3 of the Act empowers the Central Government to constitute the Central Pollution Control Board 32or CPCB. The CPCB shall consist of : • The chairman is experienced in environmental protection but appointed from the Central Government. •Up to five Central Government delegates.
•As many as five State Board nominees who are chosen by the Central Government. • Three members appointed by the government representing interests like commerce, agriculture and fisheries. • Two representatives of businesses or organizations owned or controlled by the Central Government. • A time-bound full-time Member Secretary with training in pollution control and scientific management. Being a body corporate, the Central Pollution Control Board has perpetual succession and may acquire, hold, and dispose of property and enter into contracts, institute or defend any suit or
31 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 2 (India)
32 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 3 (India)
proceeding. • State Board for Pollution Control (SPCB) Section 4 vests the discretion in the State Governments to establish State Pollution Control Boards 33(SPCBs), constituted, as with the CPCB except that the composition would differ a little for states: • An environment protection experienced chairman appointed by the State Government. • Up to five members may be included as state government's representatives. • Up to five members, representing local government. • A maximum of three delegates representing commerce, agriculture, fisheries, and other relevant sectors. • A two-member delegation of the state government owned and/or administered business or organizations. An adequate member secretary who is a full-time Secretary- cum-officer, well-trained and experienced in handling pollution matters.
Significantly, it acts as the SPCB in case of Union Territories and conveys authority on other occasions. • Functions of the Central Board (Section 16). The primary functions of the CPCB are:
1 For Cleanliness
So that streams and wells may be clean.
2 Consultant Role
Advisor to the Central Government on water pollution-related issues.
3 Coordination
Facilitating cooperation among State Boards and resolving disputes.
4 Technical Advisory
To consult with technical assistance regarding research in water
33 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 4 (India)
pollution.
5 Training and Awareness
Formulation of programmes of training and public awareness on preventing pollution.
6 Data Management
Compilation and dissemination of collected data concerning water pollution. 7.Standards: Setting and revising water quality standards with the states.
8 National Programme Implementation
Formulating and planning national level programs for prevention and control of water pollution.
9 Laboratory Identification
Setting up or identifying laboratories for efficient water quality
analysis.34 • Functions of the State Board (Section 17). The SPCB has the responsibility of:
1 Holistic planning
Developing plans to avoid and minimize pollution in the state water body.
2 Advisory Functions
Advisory on water pollution issues to the state government.
3 Data Collection and Research
Gathering information and promoting research on water pollution solutions.
4 Training Programs
Training collaborations with the CPCB.
5 Audits
Audit of treatment centres and plans' review for compliance.
6 Effluent Standards
Establishment and alteration of effluent standards for sewage and trade discharges.
7 Collection Methods
Developing methods for agricultural use of sullage and industrial effluents.
34 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 16
8 Disposal Techniques
Designing Appropriate Disposal Methods for Treated Waste.
9 Issuing Orders
Enforcing regulations to control waste discharges.
10. All such other functions which may be prescribed to the Central Board or State Government. 35 • Joint Boards and Regional Cooperation (Article 13) The Act provides, inter alia, for the establishment of Joint Boards through agreements either between contiguous states or between the Central Government and state governments for Union Territories. Its composition would be representatives from participating governments and industry stakeholders as well as individuals having relevant expertise. 36 Composition of Joint Boards • Chairman elected by the Central Government. • Representatives of each State and Union Territory. •Non-official representatives from local authorities and relevant interest groups. • A whole-time Member Secretary, appointed by the Central Government. Boards are important instruments for joint efforts in state and regional management of water pollution.
• Legal framework and ensuring enforcement mechanisms Vacancies and Legal Validity - Section 11. Vacancies or defects in composition do not affect the validity of any board's action so as to breach continuity in governance. Information Gathering (Chapter 20) The Act empowers State Boards to conduct surveys, install measuring devices, and collect information from entities that abstract water or discharge effluents. This provision is significant in effective water management and in achieving compliance with regulations. Sampling and Analysis Procedures Section 21 Boards can collect samples of water
35 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 17 (India)
36 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 13 (India)
and effluent for analysis. However, there has to be appropriate procedure in place so that the evidence is not admitted in court, rights of occupiers are safeguarded, and the process is transparent. Inspection Powers (Section 23) Authorized personnel from State Boards may also enter any premises to have them administer the Act. This authority shall check documents and seize evidence of violation. New Commissions Limitations (Section 25) The Act prohibits the creation of new industries or outlets for the discharge of sewage without prior consent from the State Board. The provision does not introduce new sources of pollution. 37 AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 The Air (Prevention and Control of Pollution) Act, 1981 38is a landmark legislation for India aimed at preventing, controlling, and abating air pollution.
A direct offshoot of decisions taken in the United Nations Conference on the Human Environment held in June 1972 in Stockholm wherein attention was drawn for the need to conserve natural resources including air quality. This sets the outlook for the much-needed effective air quality management and pollution control practices throughout the country. • Objectives of the Act The main aim of the Act is to protect the quality of the air by providing regulatory entities with adequate powers and capacities that are effective in reducing air pollution. The Act provides for a phased approach toward controlling air pollution, prevention, and remediation.
39 • Section 3: Central Pollution Control Board This Act further vested the mandate of Section 3 of the Water (Prevention and Control of Pollution) Act 1974, constituting the Central Pollution Control Board that has been given the mandate to undertake its tasks concerning the prevention and control of air pollution. The CPCB is empowered to deal with issues regarding quality of air and water through its dual mandate, thus promoting an integrated approach to environmental management. 40
37 Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 11, 21, 23, 25 (India)
38 Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 1 (India)
39 Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 2 (India)
40 Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 3 (India)
Section 4: State Pollution Control Boards Under the Water (Prevention and Control of Pollution) Act, 1974, existing SPCBs are also State Boards for the Prevention and Control of Air Pollution. This would mean that with the addition of the management of air quality to the original mandates respecting water pollution, the function of SPCBs could be expanded.41 • Main Functions of the Central Board42 The CPCB's overarching responsibility is to enhance air quality and mitigate air pollution across India. Specific functions include:
1 Advisory Function
Advise the Central Government on improvement of air quality and pollution prevention strategies.
2 National Program
Formulation and operation of integrated national programs for controlling air pollution.
3 Coordination
State Boards Coordination and settling inter-board disputes.
4 Technical Assistance
Technical guidance and sponsoring research in the areas related to air pollution.
5. Distributed Functions Delegated functions to be performed by the Central Board on behalf
of the State Boards.
6 Training Programs
Conduct training programs for personnel involved in air pollution prevention efforts.
7 Public Awareness
Mass media campaign to aware the masses about issues in the air.
8 Data Collection
Development and distribution of instructions and guidelines concerning data on air quality.
41 Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 4 (India)
42 Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 16 (India)
9 Quality Standards
Establish and issue air quality standards.
10.Other Functions: Undertaking any other functions as provided for under the Act. 11.Laboratory Establishment: Establishing or recognizing laboratories to facilitate effective air quality assessment and research. • Functions of State Boards43 The State Boards are the important agencies needed to impose controls upon air pollution. Its major functions are:
1 Planning and Implementation
Formulating and implementing broad programs of prevention and control of air pollution.
2 Advisory Role
Advice to State Governments concerning issues of air pollution.
3 Information Management
Gathering and disseminating information on air quality and sources of pollution.
4 Training and Education
Involving the Central Board for personnel training and education planning.
5 Inspection and Control
Checking industrial installations and pollution control equipment for compliance with standards.
6 Air Quality Assessment
Assessing air quality in designated pollution control areas and taking necessary corrective actions.
7 Standards
It also fixes emission standards for different pollutants in consultation with the Central Board.
8 Industrial Suitability Recommendations
Recommendations related to the suitability of industrial sites based on potential for air pollution.
43 Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 17 (India)
9 Addl. Functions
All such other functions the Central Board or State Government may entrust. 10. Laboratory Foundation: Establishing or recognizing laboratories to support their regulatory functions appropriately. STRICT AND ABSOLUTE LIABILITY Strict and Absolute Liability are significant doctrines in the field of tort law, which can guarantee society greater legal protections in holding individuals and entities accountable for the wrong, more particularly for harm brought about by dangerous activities. The public's interest in safety is strongly preserved when dangerous substances or inherently risky operations are involved because such situations really guarantee victims justice and compensation for their suffering. • Strict Liability Strict liability is a doctrine of law wherein a person or entity is liable for the consequences resulting from his actions, regardless of fault or negligence.
44This principle will be relevant in case hazardous activities or substances are involved, whereby the party liable is expected to compensate for the harm caused, even if all measures which ought to reasonably have been taken in order to avoid it were applied. • Essential Conditions of Strict Liability
1 Hazardous or dangerous goods
The respondent has to possess a dangerous or hazardous substance which is likely to cause injury or damage.
2 Exfiltration
The noxious thing must have to go out of the defendant's premises and injure other.
3 Non-natural Use
Use of land shall be nonnatural use meaning that an activity or substance's use does not represent the normal, or usual expectation end.
44 Rylands v. Fletcher, (1868) L.R. 3 H.L. 330 (U.K.)
Exceptions to Strict Liability Although the principle is very robust, there are some exceptions that limit its application.
1 Plaintiff's Fault
A claim cannot be won if the damage is a result of his or her own act or negligence.
2 Act of God
Events that lie beyond human control, such as natural disasters may exclude liability on the part of the defendant.
3 Act of a Third Party
If a third party, not under the defendant's control, causes the damage, the defendant may not be liable, provided the event was not foreseeable.
4 Implied Consent of the Plaintiff
Where the plaintiff voluntarily engages in activities that may harm him or cause him damage, then he is not entitled to compensation for damages (volent non fit injuria). Absolute Liability Absolute liability, on the other hand, applies a stricter legal precept where the party is held liable for the injuries or losses brought about by dangerous activities or substances45, denying exceptions or defenses thereto. Though strict liability may allow for a reception of various defenses, absolute liability imposes an unconditional responsibility to the defendant every time injury results from inherently dangerous activities. This principle is based on the argument that people or organizations involved in risky activities should be held entirely responsible for any resultant damage, no matter how careful they have been. Case Study: M. C. Mehta v.
Union of India 46(Oleum Gas Leak Case) A landmark case illustrating the principle of absolute liability is M. C. Mehta v. Union of India, also known as the Oleum Gas Leak Case.
45 M.C. Mehta v. Union of India, A.I.R. 1987 S.C. 1086 (India)
46 Id
Facts In December 1985, a toxic gas leak from a plant owned by Shriram Food and Fertilizers escaped into the air and spread all over Delhi causing mass havoc on human lives and their property. Matters Arising: The case raised some issues about the liability of owners of a gas plant in respect of the leakage of gas and its scope since they were operating hazardous operations. Judgement: Supreme Court of India upheld the order that absolute liability be imposed on the company. It further held, an enterprise engaged in hazardous or dangerous activity would be absolutely liable for any damage caused by such activity, however careful such activity may have been. It laid down that the principle of absolute liability is required to be applied in hazardous activities situations so that even victims might get some compensation over their sufferings and losses.
The said judgment has strengthened the concept of absolute liability in India by a great deal by expanding the scope of liability beyond the strict liabilities limitation. Conclusion The present study concludes by talking about basic concepts of environmental legislation in India with particular reference to theories of culpability, sustainable development, and functions of regulatory organizations. Analysis does reveal how important these structures of law are so that balance between environmental conservation and economic development can be met by ensuring the liability of those responsible for pollution and promotion of recovery of injured ecosystems is encouraged. To minimize the dangerous impacts of hazardous activities and ensure a healthy, sustainable environment for the new generation, this report shows clearly that environmental standards need to be strictly enforced.
While the paper is still recognizing significant progress in Indian environmental law, certain concrete limitations are identified as well-a lack of consistency in its enforcement and weak public awareness. Future efforts would be towards strengthening institutional capacity, enhancing public participation, and revising the mechanisms to meet these challenges end. In general, then, the research puts forth an increasingly more consequential role for environmental governance in India and thus calls for even more legal innovation to ensure that development in the region does not come at an environmental cost.