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Environmental Regulations and Litigation in India
By: N.
Singh1 and D. Brown2
The Bhopal
accident has led to a greater awareness and concern for safety, environmental
degradation and hazardous spills and storage, in India, where it gave a strong
impetus for implementing environmental regulations.
The essence
of environmental regulation is to make public goods (such as the environment)
take precedence over private economic interests, through creation of
bureaucracies equipped with legal sanctions to regulate economic activities.
Environmental regulations in India have undergone a number of changes since the
Bhopal accident.
Prior to
1984 the major environmental regulations in India were :
·
The Water
(Prevention and Control of Pollution) Act 1974
·
The Water
(Prevention and Control of Pollution) Cess Act, 1977
·
Air
(Prevention and Control of Pollution) Act, 1981
Some of the
major shortcomings of these were
· The
Pollution control law was based on criminal justice. The principle used was
that firms not complying with pollution control regulations would be fined.
Organisations found it economically advantageous to avoid compliance with the
law and pay the penalty.
·
The
procedure for giving consent to firms to discharge effluents into natural
streams was very ad hoc, since the decisions were not backed by a comprehensive
environmental impact assessment.
·
None of the
laws made it compulsory to have environmental impact assessment.
·
The
structure and functioning of State Pollution Control Boards was another area of
weakness. No citizen can appeal against the decisions of the Board.
Regulatory
Changes
The Policy
Statement for abatement of Pollution issued by the Ministry of Environment and
Forests in 1992, provided instruments in the form of legislation and
regulation, fiscal incentives, voluntary agreements, educational programmes and
information campaigns in order to prevent, control and reduce pollution. The
establishment and functioning of any industry is governed by the following Acts
of the Ministry of Environment and Forests (MoEF) besides the local zoning and
land use laws of the States and Union Territories :
1.
The Water (Prevention and Control of Pollution) Act, 1974 -as amended
from time to time (Water Act)
2.
The Water (Prevention and Control of Pollution) Cess Act, 1977 as
amended (Water Cess Act)
3.
The Air (Prevention and Control of Pollution) Act, 1981 as amended (Air
Act)
4.
The Environment (Protection) Act, 1986 (EPA)
5.
The Public Liability Insurance Act, 1991 as amended (PL Act)
6.
The National Environment Tribunal Act, 1995.
7.
The National Environment Appellate Authority Act, 1997.
Once an
industry has been set up, during the process of manufacture and operation, the
industry is also required to meet the standards of emissions, effluents and
noise levels prescribed under the Environment (Protection) Rules framed under
the Environment (Protection) Act of 1986 which is an umbrella legislation for
the protection of environment in the country.
Legal
Actions
Judicial
review of administrative action became possible in India only after enactment
of the 1950 Constitution. With the magnitude of powers vested with the
Judiciary and the Citizens under the fundamental rights laid in the Indian
Constitution, it is not surprising that the judicial review under the banner of
'Public Interest Litigation (PIL)' has gained prominence in India. Over the
past two decades judgements passed by the Supreme Court and High Court in the
various PIL cases, have further made procedural rights and access to
environmental justice very liberal.
Under the
Environmental Protection Act 1986, regulatory bodies as the State Pollution
Control Boards have powers to initiate criminal prosecution against
companies/persons who fail to comply with the environmental regulation. It is
triable in the First Class Magistrate Court (maximum fine of Rs 100,000 or 2
years imprisonment or both). Regulatory authorities can also initiate criminal
prosecution under the law of 'Public Nuisance' defined in the Indian Penal Code
1860.
However, the
penalty in the Indian Code is limited to Rs. 500 in the case of air and water
pollution and hence not popular at present. Private prosecution can be
initiated by individuals or group for removal of public nuisance under Section
133 of the Code of Criminal Procedure 1973.
Civil
Remedies
The Indian
PIL is restricted to seeking injunctive relief rather that cost towards
environmental damages. However, under section 91 of the Code of Civil Procedure
1908, and Criminal Sanctions under the Environment Protection Act 1985, the
court may direct the defendant to pay a penalty or compensation for damages
caused by his action.
Lessons to
be learned
The broad
changes that are needed are;
·
Regulatory
reform:
Most developing countries have introduced several environmental regulations,
but the implementation has been weak. In developed countries regulatory
approaches have yielded results since they have been used in combination with
various economic instruments.
·
Environmental Impact Assessment:
One of the major reasons for the continued degradation of the environment has
been the absence of linkages among macro policy implementation and micro
project evaluation.
·
Laws of
Compensation:
In
India
and most developing countries tort laws for compensation are not well
developed, in contrast to Britain, USA and Japan. Unless tort laws are forced
and case laws are developed, the agency or firm which degrades the environments
is not liable to pay compensation for damage caused.
· Capability
building:
Technology capability building for enforcing pollution control and
environmental protection has been very weak in developing countries. Skill
development in environment management, professionalisation of conservation
groups and strengthening environmental mediation are some of the major steps
needed in this direction.
1NBRI
Lucknow, India, 2UEA
Norwich, UK |
