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Vol. 5 No. 1 - January 1999

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

This article has been reproduced from the archives of EnviroNews - Newsletter of ISEB India.

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