Environmental Legislation in India
Environmental Legislation in
India
Historical Perspective
* Early Environmental Legislations.
* Environmental Legislations in the 70s.
* Environmental Legislations in the mid 80s.
* Environmental Policies in the 90s.
Early Environmental Legislation
India employs a range of regulatory
instruments to preserve and protect its
natural resources. It was the first country
to insert an amendment into its Constitution
allowing the State to protect and improve
the environment for safeguarding public
health, forests and wild life. A Survey of
the early environmental legislations
indicate the nature and levels of
Governmental awareness towards environmental
issues. The Shore Nuisance (Bombay and
Kolaba) Act of 1853, was one of the earliest
laws concerning water pollution, authorized
the collector of land revenue in Bombay to
order removal of any nuisance below the high
- water mark in Bombay harbors. In 1857, an
attempt was made to regulate the pollution
produced by the oriental Gas Company by
imposing fines on the Company and giving a
right of compensation to anyone whose water
was ‘fouled’ by the company’s discharges.
The country has had a long history of
environmentalism with the passage and
codification of Acts such as the Indian
Penal Code of 1860, The Indian Easements Act
of 1882, The Fisheries Act of 1897, The
Bengal Smoke Nuisance Act of 1905, The
Indian Motor Vehicle Act, The Factories Act,
The Indian Forest Act, The Mines and
Minerals (Regulation and Development) Act,
The Industries (Development and Regulation)
Act, The Forest (Conservation) Act, The
Merchant Shipping Act.
The Indian Penal Code, passed in 1860,
penalizes person(s) responsible for causing
defilement of water of a public spring or
reservoir with imprisonment or fines. In
addition, the code also penalized negligent
Acts with poisonous substances that
endangered life or caused injury .
The Indian Easements Act of 1882 protected
riparian owners against ‘unreasonable’
pollution by upstream users. The Indian
Fisheries Act of 1897 penalized the killing
of fish by poisoning water and by using
explosives. The Indian Forest Act was a
product of British rule in 1927. The
legislation granted the Government
uncontested rights over natural resources,
with State Governments authorized to grant
licenses to lumber contrActors and oversee
protection of the forests.
Legislative provisions regulating the
discharge of oil into port waters and
prohibiting the poisoning of water in
forests were also enacted prior to
independence. Two early post-independence
laws touched on water pollution. Section 12
of the Factories Act of 1948 required all
factories to make effective arrangements for
waste disposal and empowered State
Governments to frame rules implementing this
directive. As a result, a number of States
passed versions of the Factory Act,
including Uttar Pradesh in 1950, Tamil Nadu
in 1950, West Bengal in 1958, Maharashtra in
1963 and Mysore in 1969. Each tailored the
Act to suit its particular situation. In
Uttar Pradesh, disposal of effluents had to
have the approval of the State’s Effluents
Board. In Tamil Nadu, the ruling entity with
similar responsibilities was the Director of
Fisheries. In Maharashtra, local authorities
were granted with jurisdiction in such
matters. Second, river Boards, established
under the River Boards Act of 1956 for the
regulation and development of inter-State
rivers and river valleys, were empowered to
prevent water pollution. In both these laws,
prevention of water pollution was only
incidental to the principal objective of the
enactment.
During the 1950s and early 1960s marked the
Constitution permitting the State to control
water-related issues, several States had
taken steps on water protection. Laws passed
included The Orissa River Pollution Act of
1953, The Punjab State Tube well Act of
1954, West Bengal Notification No. 7
Regulation - Control of Water Pollution Act
of 1957, Jammu and Kashmir State Canal and
Drainage Act of 1963 and The Maharashtra
Water Pollution Prevention Act of 1969.
Environmental Legislations in the 70s
The watershed event in the environmental
movement was the Stockholm Conference on
Human Environment in June 1972. The
conference made it apparent to all attendees
that each nation needed to adopt
comprehensive legislation addressing health
and safety issues for people, flora and
fauna. The United Nations, organizers of the
conference, requested each participant to
provide a country report. The findings by
the Indian conferees shocked even the most
pro-development advocates in India.
Stockholm served as the genesis for the
series of environmental measures that India
passed in the years to come. It has also
been suggested that international events
such as Stockholm provided the cover Indian
officials needed to implement national
environment policy without the vitriolic
backlash normally expected from industry.
The year 1972 was a landmark in the history
of environmental management in India. Prior
to 1972, environmental issues such as sewage
disposal, sanitation and public health were
dealt with independently by the different
Ministries without any co-ordination or
realization of the interdependence of the
issues. In February 1972, a National
Committee on Environmental Planning and
Coordination (NCEPC) was set up in the
Department of Science and technology, which
was established as National Committee on
Environmental Planning (NCEP) in April 1981,
based on the recommendations of the Tiwari
Committee.
The NCEPC functioned as an apex advisory
body in all matters relating to
environmental protection and improvement.
However due to bureaucratic problems, that
NCEPC faced in coordination with the
Department of Science and Technology, it was
replaced by a National Committee on
Environmental Planning (NCEP) with almost
the same functions.
Environmental Legislations in the mid 80s
The Tiwari Committee in the 80s which was
set up for recommending legislative measures
and administrative machinery to strengthen
the existing arrangements towards
environmental protection, recommended
establishing the Department of Environment
(DOE) for dealing with various aspects of
environment and ecology. The Department of
Environment, created in 1980, performed an
oversight role for the Central Government.
DOE did environmental appraisals of
development projects, monitored air and
water quality, established an environmental
information system, promoted research, and
coordinated Activities between federal,
State and local Governments. However DOE was
criticized, by environmental groups who
recognized that with its small political and
financial base the agency was weak and
symbolic in nature. Environmentalists also
recognized that DOE would essentially serve
as an advisory body with few enforcement
powers.
The Government of Prime Minister Rajiv
Gandhi recognized these deficiencies as
well, and shortly after his administration
began in 1985 created the Ministry of
Environment and Forests (MoEF). MoEF was
more comprehensive and institutionalized,
and had a Union Minister and Minister of
State, two political positions answering
directly to the Prime Minister. The agency
was comprised of 18 divisions, and two
independent units, the Ganga Project
Directorate and the National Mission on
Wastelands Development. It continued the
same functions that DOE originally had, such
as monitoring and enforcement, conducting
environmental assessments and surveys, but
also did promotional work about the
environment.
The MoEF’s implementation of a monitoring
system was also aggressive. In 1977, India
had 18 monitoring stations for water. By
1992, there were 480 water stations,
including 51 from the Global Environmental
Monitoring System (GEMS). In 1984, the
country had 28 air monitoring stations in
seven cities and by 1994, the National
Ambient Air Quality Monitoring Program had
290 stations in 99 cities.
The 80s witnessed the continuing decline in
the quality of the environment, together
with the Bhopal gas tragedy that had killed
more than 2500 people. This spurred the
Central Government to adopt stronger
environmental policies, to enact fresh
legislation and to create, reorganize and
expand administrative agencies. In 1981, the
Air (Prevention and Control of Pollution)
Act was passed, and in 1986 as fallout of
the Bhopal gas tragedy, the Parliament
passed the Environment Protection Act
(1986), this was an “umbrella” legislation
designed to provide a framework for Central
Government coordination of the Activities of
various Central and State authorities
established under previous laws, such as the
Water Act and Air Act. It was also an
“enabling” law, which articulated the
essential legislative policy on bureaucrats
, to frame necessary rules and regulations.
The Act served to back a vast body of
subordinate environmental legislation in
India. During the intervening years, address
specific issues Act such as, The Atomic
Energy Act and The Wild Life Protection Act,
were passed. The Atomic Energy Act governs
the regulation of nuclear energy and
radioactive substances. Under this Act the
Central Government is required to prevent
radiation hazards, guarantee public safety,
safety of workers handling radioactive
substances, and ensure the disposal of
radioactive wastes. The Wild Life Protection
Act Provided a statutory framework for
protecting wild animals, plants and their
habitats. The Act adopts a two -pronged
conservation strategy: protecting specific
endangered species regardless of location,
and protecting all species in designated
areas called sanctuaries and national parks.
In December 1988 the Union Ministry of
Environment and Forest constituted a
Committee to recommend a framework and an
Action plan for the conservation of
resources. Based on the recommendations of
the Committee, the Government of India
adopted a National Conservation Strategy and
Policy Statement on Environment and
Development (NCS). The preamble to the NCS
adopts the policy of ‘Sustainable
development’ and declares the Government’s
commitment to re-orient policies and Action
‘in unison with the environmental
perspective’.
Environmental Policies in the 90s
The 90s heralded trade liberalization and
Globalization. Since 1991 India has adopted
new economic policies to spur development.
In an effort to integrate the Indian economy
with global trade, the Government has
reduced industrial regulation, lowered
international trade and investment barriers
and encouraged export-oriented enterprise.
In December 1993, the MoEF completed its
Environmental Action Plan to integrate
environmental considerations into
developmental strategies, which, among other
priorities, included industrial pollution
reduction.
The MoEF also decided to shift from
concentration to load-based standards. This
would add to a polluter’s costs and remove
incentives to dilute effluents by adding
water, and strengthen incentives for
adoption of cleaner technologies. It also
issued water consumption standards, which
were an additional charge for excessive
water use. Targeting small-scale industries
has been an important task since these
facilities greatly added to the pollution
load. The Ministry provides technical
assistance and limited grants to promote the
setting up of Central effluent treatment
plants. It has also created industrial zones
to encourage clusters of similar industries
in order to help reduce the cost of
providing utilities and environmental
services
Why Laws are required for protecting the
environment ?
An important criterion in welfare economics
is the notion of Pareto optimality.
According to Pareto an economic State is
efficient if it is not possible to improve
the welfare of atleast one individual
without making others worse off. The
fundamental theorem of welfare economics
based on the Pareto criterion States that,
under certain conditions, a deCentralised
economic system motivated by self interest
and guided by price signals would be
compatible with a coherent disposition of
economic resources that could be regarded as
superior to a large class of possible
alternative economic systems1. If Pareto
(economic) efficiency is the sole criterion
and the conditions are valid then the
appropriate pricing rule is the long-run
marginal cost pricing rule. When these
conditions are violated, different kinds of
‘market failures’ occur. Important sources
of market failures are economies of scale in
production, externalities in production and
consumption, presence of public goods,
asymmetric information among economic
agents, and uncertainty2. Also, goals other
than economic efficiency such as
intergenerational and intragenerational
equity and balanced regional development do
influence public policies even in capitalist
economies.
Externality arises when consumption or
production decisions of one economic agent
enters into the utility or production
function of another economic agent without
any compensation. Economists’ policy
prescriptions for internalising the
externalities are based either on Pigouvian
approach or Coasean approach. In a
pioneering work Pigou (1920/1952) views
externality as a divergence between marginal
social net product and marginal private net
product. He notes that under conditions of
competition, ‘self-interest will tend to
bring about equality in the value of the
marginal private net products of resources
invested in different ways ... But when
there is a divergence between these two
sorts of marginal net products,
self-interest will not, therefore, tend to
make the national dividend a maximum; and,
consequently certain specific aspects of
interference with normal economic processes
may be expected not to diminish but to
increase the dividend’. He notes that
divergences between private and social net
products that come about through the
existence of uncompensated services and
undischarged services can be removed via
bounties and taxes. He adds that ‘sometimes,
when the interrelations of the various
private persons affected are highly complex,
the Government may find it necessary to
exercise some means of authoritative
control’. Coase (1960) notes that the
application of Pigouvian approach to the
problem of smoke emission by a factory leads
to the conclusion that it would be desirable
to make the owner of a factory liable for
the damage caused to those injured by the
smoke, or alternately to place a tax on the
factory owner varying with the amount of
smoke produced and equivalent in monetary
terms to the damage it would cause, or
finally to exclude the factory from the
affected area. He argues that the suggested
courses of Action are inappropriate, in that
they lead to results which are not
desirable. According to him the problem is
reciprocal in nature. He says it is
necessary to know whether the damaging
business is liable or not for the damage
caused since without the establishment of
this initial delimitation of rights there
can be no market transactions to transfer
and recombine them. But the ultimate result
(which maximises the value of production) is
independent of the legal position if the
pricing system is assumed to work without
cost. This proposition is known as the Coase
Theorem. Coase advocates a role for the
State in defining and enforcing property
rights for environmental resources and in
mitigating transaction costs but rules out
Government intervention in the form of
specifying standards or levying a tax to
correct the externality. It is difficult to
define property rights for natural resources
like air, water in lakes, rivers and oceans,
and scenic spots. The transaction costs in
reaching a negotiated settlement between
polluters and pollutees can be high when the
number involved is very large and polluters
and pollutees are widely dispersed and
measurement of the value of damages is
highly uncertain. When the transaction costs
become very high markets cease to exist.
There are many problems in designing and
implementing the Pigouvian tax. Baumol and
Oates (1987) identify problems such as
existence of non-convexity in the production
set in the presence of detrimental
externalities, the possibility of multiple
maxima and enormous information requirements
in the valuation of environmental damages.
Therefore they suggest a second-best
approach to pollution prevention and
control. The second-best approach is that,
given the environmental standards, the
society’s problem is to achieve the
standards at least cost. Here, the criterion
is cost minimization or cost effectiveness.
Even in this approach there is a choice
among policy instruments ranging from
command and control (CAC) type of
instruments to economic or market based
instruments. Until the early seventies most
countries, including developed countries,
relied heavily on CAC type of instruments.
Since the seventies many developed countries
have been using market based instruments (MBIs).
There is also a perceptible difference even
in the choice among MBIs. The United States
seems to prefer tradable emission permits
presumably because of its faith in the
allocative efficiency of markets while many
countries in Europe seem to prefer fiscal
approach to solve the pollution problem
presumably because of their commitment to
the concept of a welfare State. Two
international conferences on Environment and
development - one at Stockholm in 1972 and
another at Rio de Janerio in 1992 - have
influenced environmental policies in most
countries, including India. Many countries
and international agencies have accepted the
polluter pays principle, the precautionary
principle and the concept of
intergenerational equity as guidelines for
designing environmental policies.
India adopted the socialist pattern of
society in 1954 as a framework for social
and economic policies. This framework
articulates that public policy decisions
must enable the society to maximise social
gain and not private profit. This framework
also envisages a catalytic role for the
State in the social and economic
transformation of the country. The
Constitution of India provides a number of
Directive Principles of State Policy. Indian
Five year Plans have also stressed goals
such as rapid economic growth, employment
generation, poverty alleviation and balanced
regional development. Since June 1991 there
has been a tilt in economic policy towards
economic liberalisation and globalisation.
The importance of sustainable development is
also being stressed as an objective of
public policy.
This paper deals with the evolution of laws,
institutions and polices relating to
environmental protection in India. It
considers the following questions : (a)
whether the laws are evolved indigenously or
influenced by external fActors?, (b) how
have the mixed economy model and the stage
of development influenced the design of
policies for internalisation of the
externalities?, (c) how is liability
allocated? (d) how are the laws enforced?,
and (e) what is the scope for using
non-market non-Government institutions for
achieving environmental sustainability?.
Section 2 deals with the evolution of
environmental laws and policies. We consider
four policy periods: (i) pre-independence
period to 1947, (ii) from independence to
the Stockholm Conference, 1947 - 1972, (iii)
from the Stockholm Conference to Bhopal
disaster, 1972-1984, and (iv) Bhopal Tragedy
to 1998. In the first two periods, there
were no major legislations relating to
environmental protection. The Stockholm
Conference on Environment and Development
exerted great influence on environmental
policymaking leading to an amendment of the
Constitution, passage of important
legislations such as the Water (Prevention
and Control of Pollution) Act, 1974 and the
Air (Prevention and Control of Pollution)
Act, 1981 and creation of institutions such
as
Central and State Pollution Control Boards
for implementing the provisions of the Acts.
The Bhopal gas tragedy in 1984 triggered the
passage of comprehensive environment
legislation in 1986 and Public Liability
Insurance Act in 1991. The new economic
policy initiated in 1991 favours
decentralisation, debureaucratisation and
globalisation. Constitutional amendments
were made in 1994 to facilitate devolution
of powers and resources to local bodies. The
Policy Statement on Pollution Abatement
issued in 1992 advocates the need for
combining regulatory instruments with
market-based instruments and various
supportive measures to deal with
environmental protection. Section 3 is
devoted to implementation of the laws, rules
and policies relating to environmental
protection. Problems in the determination
and enforcement of sourcespecific standards
are considered. It describes the Active role
of the courts not only in enforcing the laws
and rules but also in giving directions to
the Central and State Governments on
creation of new authorities and policy
matters. Section 4 deals with some issues in
the transition from a State-allocative
closed economy policy regime toward a
market-oriented open economy policy regime.
Section 5 contains some concluding remarks.
Evolution of Legal Framework for
Environmental Protection
(i) Pre-independence period
The ancient Indian religious literature, for
example, Vedas, Upanishads, Smiritis and
Dharmas preached a worshipful attitude
towards earth, sky, air, water, plants,
trees, and animals and enshrined a respect
for nature and environmental harmony and
conservation. It regarded sun, air, fire,
water, earth and forest as God and
Goddesses. Many animals, birds, trees and
plants were associated with the names of God
and Goddesses.
The Indian Penal Code 1860, enacted during
the British rule, contains one chapter
(Chapter XIV) on offences affecting public
health, safety, convenience, decency and
morals. Section 268 covers public nuisance.
Sections 269 and 272 deal with adulteration
of food or drink for sale and adulteration
of drugs respectively. Section 277 lays down
that, whoever, voluntarily corrupts or fouls
the water of any public spring or reservoir,
so as to render it less fit for the purpose
for which it is ordinarily used shall be
punished with imprisonment for a term which
may extend to 3 months, or with a fine which
may extend to Rs.500, or with both. Section
278 lays down that whoever voluntarily
vitiates the atmosphere so as to make it
noxious to the health of persons in dwelling
or carrying on business in the neighbourhood
or passing along a public way shall be
punished with fine which may extent to
Rs.500. Sections 284,285 and 286 deal with
negligent conduct with respect to poisonous
substances, combustible matter and explosive
substances. Sections 428 and 429 cover
mischief to animals.
The Shore Nuisance (Bombay-Kalova) Act, 1893
was enacted to check wastes and marine water
pollution. The Oriental Gas Company Act,
1857 and the Bengal Smoke Nuisance Act, 1905
were enacted to prevent or reduce
atmospheric pollution in and around
Calcutta. The Bombay Smoke Nuisance Act,
1912 was passed to check smoke nuisance in
Bombay area. For preservation of forests,
the Cattle Tresspas Act 1871 and Indian
Forest Act 1927 were passed. The Indian
Easement Act of 1882 guaranteed property
rights of riparian owners against
“unreasonable” pollution by upstream users.
Municipal and Public Health Acts on the
pattern of Local Authorities Act of United
Kingdom conferred powers on the local bodies
for controlling water pollution caused by
industrial effluents and for necessary
Action against the erring industries. These
Acts prohibit the discharge of any pollutant
or trade effluent from factories into
municipal drains, except in accordance with
the relevant byelaws. These Acts prohibit
the discharge of sewage into any watercourse
until it had been treated so as not to
contaminate the water4. These laws are
applicable to large industrial cities and
municipal towns. Until 1947, the
environmental problem was not serious
because of the low rate of population growth
and lack of industrialisation, except in and
around a few big cities.
(ii) From Independence to the Stockholm
Conference, 1947 - 1972
The Indian Constitution
The Indian Constitution provides for a
federal structure within the framework of
Parliamentary form of Government. Part XI of
the Constitution governs the division of
legislative and administrative authority
between the centre and States. Article 246
divides the subject areas for legislation
into three lists, viz, Union List, State
List and Concurrent List. The subject areas
related to environmental protection are:
Union List
6 Atomic energy and mineral resources
necessary for its production
14 Entering agreements with foreign
countries and implementing of treaties,
agreements and conventions with foreign
countries
24 Shipping and navigation on inland
waterways
25 Maritime shipping and navigation,
including shipping and navigation on tidal
waters
29 Airways, regulation and organisations of
air traffic and of aerodromes
52 Industries, the control of which by the
Union is declared by Parliament by law to be
expedient in the public interest
53 Regulation and development of oil fields
and mineral oil resources
54 Regulation of mines and mineral
development to the extent to which such
regulation and development under the control
of the Union is declared by Parliament by
law to be expedient in the public interest
56 Regulation and development of inter-State
rivers and river valleys
57 Fishing and fisheries beyond territorial
waters
State List
6 Public health and sanitation, hospitals
and dispensaries
10 Burials and burial grounds, cremations
and cremation grounds
14 Agriculture
15 Preservation, protection and improvement
of stock and prevention of animal diseases
17 Water, that is to stay, water supplies,
irrigation and canals, drainage and
embankment, water storage and water power
subject to the provisions of
18 Land
21 Fisheries
Concurrent List
17 Prevention of cruelty to animals
18 Adulteration of food stuffs and other
goods
19 Drugs and poisons
20 Economic and social planning
20 A Population control and family planning
29 Prevention of the extension from one
State to another of infecting or contagious
diseases or pests affecting, men, animals or
plants
32 Shipping and navigation on inland
waterways as regards mechanically propelled
vessels
36 Factories
37 Boilers
38 Archaeological sites and remains other
than those declared by or under law made by
Parliament to be of national importance.
Under the Concurrent List, both Parliament
and State legislatures can enact laws.
Article 248 gives the centre the residual
power to legislate on any subject not
covered in the three lists. Articles 251 and
254 State that a Central law on any subject
in the Concurrent List generally prevails
over a State law on the same subject.
Article 249 States that the centre can
legislate in the national interest on any
subject in the State List provided it can
obtain a two-thirds majority in the Rajya
Sabha, the upper house of Parliament.
Article 252 States that the centre can also
pass laws on State subjects if two or more
State legislatures consent to such
legislation. Article 253 empowers the
Parliament ‘to make any law for the whole or
any part of the territory of India for
implementing any treaty, agreement or
convention with any other country or
countries or any decision made at any
international conference, association or
other body’. These provisions of the
Constitution of India give a dominant role
for the Central Government on matters
relating to environmental protection. Even
though many entries in the three lists deal
with location-specific subjects which
generally come under the jurisdiction of
local bodies viz, municipalities and
panchayats, until 1992, they were not given
the necessary powers to deal with these
subjects. Part IV (Directive Principles of
State Policy), Article 40 provides that ‘the
State shall take steps to organize village
panchayats and endow them with such power
and authority as may be necessary to enable
them to function as units of self
Government’. These are only guidelines for
policy formulation. Until the 73rd and 74th
amendments to the Constitution in 1992, the
Constitution did not assign powers to the
local bodies; local Government was simply
treated as a subject in the State List.
Legislations
Some important legislations relating to
environmental protection enacted by the
Parliament during this period were:
The Factories Act, 1948
The Prevention of Food Adulteration Act,
1954
The River Boards Act, 1956
The Mines and Minerals (Regulation and
Development) Act, 1957
The Ancient Monuments and Archaeological
Sites and Remains Act, 1958
The Atomic Energy Act, 1962
The Insecticides Act, 1968
The Factories Act, 1948 provides that the
liquid effluents, gases and fumes generated
during a manufActuring process should be
treated before their final disposal to
minimise the adverse effects. During this
period the focus of economic policy was on
planned economic development in a mixed
economy framework. The dominant policy
objectives were economic growth, employment
generation, balanced regional development
and equity. Environmental considerations did
not play major role in policy making.
(iii) Stockholm Conference to the Bhopal
Disaster, 1972-1984
The UN Conference on Human Environment held
at Stockholm in 1972 exerted major influence
on environmental legislations in India. A
National Committee on Environmental Planning
and Coordination (NCEPC) was set up in the
Department of Science and Technology in 1972
to make necessary preparations for the
Conference. The Government of India took a
number of steps to implement the decisions
taken at the Conference by means of
amendments to the Constitution, new
legislations relating to environmental
protection and creation of institutions for
implementing the legislations. Many Supreme
Court judgements in the late eighties and
the nineties refer to the decisions made at
the Stockholm Conference. The Bhopal gas
tragedy claiming more than 3000 lives
triggered the passage of environmental
legislations and formulation of rules
relating to the use of hazardous substances.
Constitutional Amendments
The 42nd Constitution Amendment Act, 1976,
inserted specific provisions for
environmental protection in the form of
Directive Principles of State Policy and
Fundamental Duties. Article 48A (Directive
Principles) enunciates that ‘the State shall
endeavour to protect and improve the
environment and to safeguard the forests and
wild life of the country’. Article 51A(g)
(Fundamental Duties): ‘To protect and
improve the natural environment including
forests, lakes, rivers, wildlife and to have
compassion for living creatures’. Two
entries 17A - Forests and 17B - Protection
to wild animals and birds were added in the
Concurrent List.
Legislations
The Wild Life (Protection) Act, 1972
This Act was enacted under the provisions of
Article 252 to prevent the decline of wild
animals and birds. It prohibits the poaching
of certain animals except for the purpose of
education or scientific research. In respect
of certain wild animals, license is made a
prerequisite for their hunting. It provides
that a State Government may declare any area
to be a sanctuary or as a national park if
it considers that such area is of adequate
ecological, faunal, floral, geomorphological,
natural or zoological significance for
protecting, propogating or developing wild
life or its environment.
The Water (Prevention and Control of
Pollution) Act, 1974
The first important environmental law
enacted by Parliament is the Water
(Prevention and Control of Pollution) Act,
1974. As water is a State subject and as 12
States had passed the enabling resolutions,
the Government of India, in pursuance of
clause 19 of Article 252, passed this
legislation5. It defines pollution ‘such
contamination of water or such alteration of
the physical, chemical or biological
properties of water of such discharge of any
sewage or trade effluent or of any other
liquid, gaseous or solid substance into
water (whether directly or indirectly) as
may, or it is likely to create a nuisance or
rend such water harmful or injurious to
public health or safety, or to domestic,
commercial, industrial, agricultural or
other legitimate uses, or to the life and
health of animals or of aquatic organisms’.
This Act paved the way for the creation of
Central Pollution Control Board (CPCB) and
State Pollution Control Boards (SPCBs). The
main function of the CPCB ‘shall be to
promote cleanliness of streams and wells in
different areas of the States’. The term
stream includes river, watercourse, inland
water, subterranean waters, and sea or tidal
waters to such extent or such point a State
Government may specify in this behalf.
The Board may perform functions such as
(a) lay down, modify or annul in
consultation with the State Government
concerned, the standards for a stream or
well;
(b) plan and cause to the executed a
nationwide programme for the prevention,
control and abatement of water pollution;
(c) collect, compile and publish technical
and statistical data relating to water
pollution and the measures devised for its
effective prevention and control and prepare
manuals, codes or guides relating to
treatment and disposal of sewage and trade
effluents and disseminate information
connected therewith;
(d) advise the Central Government on any
matter concerning the prevention and control
of water pollution;
(e) coordinate the Activities of the SPCBs
and provide technical assistance and
guidance to the SPCBs; and
It is worth noting that a few industrially
advanced States like Gujarat, Maharashtra
and Tamil Nadu did not pass the enabling
legislations even though the need for such a
legislation was felt as early as 1961. Tamil
Nadu passed the necessary legislation only
in 1982 and set up the Tamil Nadu Pollution
Control Board in 1984. This Act mentions
Central Board and State Boards. Later on
these names were changed to Central
Pollution Control Board and State Pollution
Control Boards.
(f) carry out and sponsor investigation and
research relating to problems of water
pollution and prevention, control or
abatement of water pollution. The SPCBs have
similar functions within their areas. The
Act gives powers to the SPCBs to take
samples of effluents from any source and
lays down the proceedure to be followed in
connection therewith. It gives power of
entry and inspection into the premises of
the polluters’ premises. It prohibits any
poisonous, noxious or polluting matter to
enter into any stream, or well or sewer or
land. Consent of the Board is required to
‘establish or take any steps to establish
any industry, operation or process or any
treatment and disposal system or any
extension or addition thereto, which is
likely to discharge sewage or trade effluent
into a stream or well or sewer or on land;
or bring into use any new or altered outlet
for the discharge of sewage; or begin to
make any new discharge of sewage’. Any
person who is not granted the consent may,
within 30 days from the date on which the
order is communicated to him, prefer an
appeal to the appellate authority
constituted by the State Government.
The SPCBs have the powers to carry out
certain works stipulated in the consent
order if the person fails to meet the
conditions and to make application to courts
for restraining apprehended pollution of
water in streams or wells. In the event of
accident or other unforeseen Act or event,
resulting in the discharge or likely
discharge of polluting matter into a stream
or well or sewer or land, the person in
charge of such a place is required to
intimate the occurrence of such an accident,
Act or event to the SPCB. Both Central
Government and State Governments are given
the powers to make rules in consultation
with their respective Boards.
Chapter VII of the Act prescribes penalties
for
(a) failures to comply with the SPCBs
directions restraining or prohibiting the
discharge of polluting matter into the
stream, well or land;
(b) failures to comply with court’s decision
to restrain discharge of effluent on
application by the SPCBs, The rules made by
the Central Government and State Governments
must be laid before the Central and State
legislatures respectively and the suggested
modifications should be incorporated in the
rules.
(c) failures to comply with SPCB’s
directions for closure, prohibition or
regulation of any industry, operation or
process or the stoppage or regulation or
supply of electricity, water or any other
service.
The penalties for non-compliance are
imprisonment from 18 months to 6 years with
a fine for the first contravention and
additional fine upto Rs.5000 per day till
the failure continues. For non-compliance
with effluent standards prescribed by SPCBs,
the penalties are imprisonment from 18
months to 6 years and fine. For making new
outlets and thus discharging effluent
without consent of the SPCBs, the penalties
are imprisonment from 2 to 6 years and fine
for the first contravention and imprisonment
from 2 to 7 years and fine after the first
conviction. Dwivedi (1977) points out that
this Act left many grey areas that were
difficult to administer. This Act does not
cover groundwater contamination.
Municipalities which are primarily
responsible for treating residential wastes
remain free from direct liability. It allows
the Government agencies too much
flexibility. For example the Act States that
the head of a polluting unit would not be
punished ‘if he proves that the offence was
committed without his knowledge or that he
exercised all due diligence to prevent it’.
This Act does not give the victims the right
to go to the courts to punish the erring
units; charges can be brought to courts only
by the Boards. The penalties for
non-compliance with the standards or
directions are independent of the extent of
violations.
The Boards are expected to depend largely on
Government grants for their operations. As
it was found that the Boards were
overburdened and underfunded, the Water Cess
(Prevention and Control of Pollution) Act,
1977 was enActed. Even after revisions in
1992, the rates of water cess varied between
1.50 paise to 5.00 paise for kilolitre for
various uses. These rates are too low
compared with the opportunity costs of
water. Many SPCBs raise large proportion of
their revenues from the consent fees. It may
be noted that in most States electricity
supply undertakings and water supply
agencies are State monopolies. Most small
and medium-sized municipalities have no
sewage systems.
Forest (Conservation) Act, 1980
This Act was passed to prevent
deforestation, which results in ecological
imbalance and environmental deterioration.
It prevents even the State Governments and
any other authority dereserve a forest which
is already reserved. It prohibits forestland
to be used for non-forest purposes, except
with the prior approval of the Central
Government.
The Air (Prevention and Control of
Pollution) Act, 1981
The preamble to the Act States that ‘whereas
decisions were taken at the United Nations
Conference on the Human Environment held in
Stockholm in June 1972, in which India
participated, to take appropriate steps for
the preservation of the natural resources of
the earth which, among other things, include
the preservation of the quality of air and
control of air pollution; And, whereas it is
considered necessary to implement the
decisions aforesaid in so far as they relate
to the preservation of the quality of air
and control of air pollution’. The Central
Government used Article 253 to enact this
law and made it applicable throughout India.
This Act defines air pollutant as ‘any
solid, liquid or gaseous substance
(including noise) present in the atmosphere
in such concentration as may be or tend to
be injurious to human beings or other living
creatures or plants or property or
environment’. The CPCB and the SPCBs created
under the Water Act 1974 are entrusted with
the implementation of the provisions of the
Act. The CPCB may
(a) advise the Central Government on any
matter concerning the improvement of the
quality of air and prevention, control or
abatement of air pollution;
(b) plan and cause to be executed a nation
wide programme for the prevention, control
or abatement of air pollution;
(c) coordinate the Activities of the SPCBs;
(d) provide technical assistance and
guidance to the SPCBs;
(e) collect, compile and publish technical
and statistical data relating to air
pollution and the measures devised for its
effective prevention, control or abatement
and prepare manuals, codes or guides
relating to prevention, control or abatement
of air pollution; and
(f) lay down standards for the quality of
air.
The functions of the SPCBs also include
inspection of any control equipment,
industrial plant or manufacturing process
and to give, by order, such directions to
such persons as it may consider necessary to
take steps for the prevention, control or
abatement of air pollution. The units
belonging to the list of polluting
industries should obtain consents before
their establishment or/and continuing their
operations. The SPCBs, in consultation with
the State Governments, wherever necessary,
can exercise the following powers:
(a) declare any area or areas within the
State as air pollution control area;
prohibit the use of certain fuels or
appliances in this control area; prohibit
the banning of any material (not being fuel)
which may cause air pollution;
(b) give instructions for ensuring standards
for emission from automobiles;
(c) restrict use of certain industrial
plants;
(d) disallow discharge of the emission of
any air pollutant in excess of the standards
laid down;
(e) make applications to court for
restraining persons from causing air
pollution;
(f) power of entry and inspection into the
premises of the polluters;
(g) obtain information from the polluting
units and take samples of air or emission;
and
(h) direct the closure, prohibition or
regulation of any industry, operation or
process; or the stoppage or regulation of
supply of electricity, water or any other
service.
For failures to comply with the restriction
on use of certain industrial plants,
discharging emission of air pollutants in
excess of the standards laid down by the
SPCBs, and non-compliance with directions
relating to closure, prohibition or
regulation of any industry, operation or
process or the stoppage of utility services,
the penalties are imprisonment for a term
between 18 months and 6 years and with fine;
and in case the failure continues, with and
additional fine which may extend to Rs.5000
for every day during which such failure
continues after conviction for the first
such failure. If the failure continues
beyond one year after the date of
conviction, the offender shall be punishable
with imprisonment for a term between 2 years
and 7 years and with fine. The penalties for
certain Acts such as obstruction of any
person Acting under the orders of SPCBs,
failure to intimate the occurrence of the
emissions in excess of the standards, giving
false information for obtaining consent to
operate, are imprisonment for a term which
may extend to 3 months with fine which may
extend to Rs.10000 or both. As in the case
of the Water (Prevention and Control of
Pollution) Act, 1974, the Central and State
Governments can make rules. As in the Water
Act, company officials may be exempted from
liability if they establish due diligence
and lack of knowledge about the emissions.
Also, the victims cannot go to the courts to
frame charges against the polluters.
The Tiwari Committee, 1980
The Government of India set up a Committee
in January 1980, under the Chairmanship of
Shri N.D. Tiwari, then Deputy Chairman of
the Planning Commission, to review the
existing environmental legislation and to
recommend legislative measures and
administrative machinery for environmental
protection. This Committee stressed the need
for the proper management of the country’s
natural resources of land, forest and water
in order to conserve the nation’s ecological
base. Its major recommendations are:
(a) creation of a comprehensive
environmental code to cover all types of
pollution and environmental degradation;
(b) constitution of environment courts in
all District Head Quarters, and the
appointment of experts to assist the Court;
(c) creation of a Department of Environment;
(d) setting up of a Central Land Commission;
(e) provision of economic incentives to
industries to encourage environment friendly
products, income tax and sales tax benefits
for adopting clean technology, investment
tax credits for purchases of purification
devices, inclusion of replacement cost of
purification equipment in annual operating
costs, and minimal tax or no tax on the
manufacture of pollution control devices;
and
(f) environmental impact assessment (EIA)
not only be a prerequisite for industry to
start, but also must be repeated
periodically.
The Government had constituted the
Department of Environment in 1980, which was
transferred to the newly created Ministry of
Environment & Forests (MoEF) in 1985. It had
also set up the Land Commission. Fiscal
incentives such as rebates on excise/customs
duties for pollution control equipments,
accelerated depreciation allowance on
selected pollution control equipments,
financial and technical assistance to small
scale units in industrial clusters to set up
common effluent treatment plants are now
available10. EIA has become mandatory for
highly polluting industries since 1994.
(iv) Bhopal Tragedy to the 1998, 1984 to
1998
Constitutional amendments, legislations and
policies relating to environmental
protection during this period were
influenced by domestic events, shift in
economic policy and international events.
The Bhopal gas tragedy and the difficulties
faced in claiming compensation from the
company and disbursing compensations to the
victims necessitated the need for a
comprehensive environmental legislation,
rules relating to storing, handling and use
of hazardous wastes and a law to provide
immediate compensations to the victims of
industrial accidents. Since June 1991, the
Government of India announced a series of
reform measures to liberalise and globalise
the Indian economy. An urgent need was felt
for deCentralisation and debureaucratisation.
The amendments to the Constitution in 1994
recognized the three-tier structure of the
Government and facilitated the transfer of
powers and resources to the local
Governments. The Supreme Court and High
Courts have been very Active in the
enforcement of legislations relating to
environmental protection.
The decisions reached at the UN Conference
on Environment and Development held at Rio
de Janerio in 1992 as well as the shift in
economic policy led the Government of India
to reexamine the command and control (CAC)
type of regulatory regime for environmental
protection and to explore the feasibility of
combining regulatory instruments along with
economic instruments for controlling
environmental pollution.
Constitutional Amendments and Public
Interest Litigation
The 73rd and 74th Constitutional amendments
of 1992 recognized the three-tier structure
of the Government by devolution of power to
the local bodies viz. panchayats in rural
areas and municipalities in urban areas.
With the passage of bills by the State
legislatures and devolving powers and
allocating revenue sources, these local
bodies can become institutions of
self-Government. The eleventh schedule
contains environmental Activities such as
soil conservation, water management, social
forestry and non-conventional energy, that
panchayats can undertake. The twelfth
schedule lists Activities such as water
supply, public health and sanitation, solid
waste management and environmental
protection which the municipalities can
undertake. These grass root level
institutions can facilitate greater
participation by the people in local
affairs, promote better planning and
implementation of developmental and
environmental programmes and be more
responsive to the needs of the people.
The Supreme Court and the High Courts have
played an Active role in the enforcement of
constitutional provisions and legislations
relating to environmental protection. The
fundamental right to life and personal
liberty enshrined in Article 21 has been
held to include the right to enjoy pollution
free air and water. The Indian Overseas Bank
case, 1991, the Madras High Court pointed
out: ‘Being aware of the limitations of
legalism, the Supreme Court in the main and
the High Courts to some extent for the last
decade and a half did their best to bring
law into the service of the poor and
downtrodden under the banner of Public
Interest Litigation. The range is wide
enough to cover from bonded labour to prison
conditions and from early trial to
environmental protection’. This is a new
remedy available to public spirited
individuals or societies to go to the court
under Article 32 for the enforcement of the
fundamental right to life (including clean
air and water) contained in Article 21.
The Environment (Protection) Act 1986
This Act was enacted in the aftermath of the
Bhopal gas tragedy in 1984 claiming more
than 3000 lives. The Statement of Objects
and Reasons of this Act refers to the
decisions taken at the Stockholm Conference
in June 1972 and expresses concern about the
decline in environmental quality, increasing
pollution, loss of vegetal cover and
biological diversity, excessive
concentrations of harmful chemicals in the
ambient atmosphere, growing risks of
environmental accidents and threats of life
system. According to this Act environment
includes ‘water, air and land and the
interrelationship which exists among and
between water, air and land, and human
beings, other living creatures, plants,
micro organism and property’. It defines
hazardous substance as ‘any substance or
preparation which, by reasons of its
chemical or physiochemical properties or
handling, is liable to cause harm to human
beings, other living creatures, plants,
micro-organism, property or the
environment’.
This Act gives the following powers to the
Central Government:
(a) coordination of Actions of the State
Governments, officers and other authorities
under the Act or any other law which is
relatable to the objects of the Act;
(b) planning and execution of a nation-wide
programme for the prevention, control and
abatement of environmental pollution;
(c) laying down standards for the quality of
environment in its various aspects;
(d) laying down standards for emission or
discharge of environmental pollutants from
various sources;
(e) restriction of areas in which any
industry, operations or processes or class
of industries, operations or processes shall
not be carried out subject to certain
safeguards;
(f) laying down proceedures and safeguards
for the prevention of accidents which may
cause environmental pollution and remedial
measures for such accidents;
(g) examination of such manufActuring
processes, materials and substances as are
likely to cause environmental pollution;
(h) carrying out and sponsoring
investigations and research relating to
problems of environmental pollution;
(i) inspection of any premises, plant,
equipment, machinery, manufActuring or other
processes, materials or substances and
giving, by order, of such directions to such
authorities, offers or persons as it may
consider to take steps for the prevention,
control and abatement of environmental
pollution;
(j) establishment or recognition of
environmental laboratories and institutions;
(k) collection and dissemination of
information in respect of matters relating
to environmental pollution; and
(l) preparation of manuals, codes or guides
relating to the prevention, control and
abatement of environmental pollution.
The Central Government may constitute an
authority or authorities for the purpose of
exercising such of the powers and functions
under this Act. The Central Government may
make rules covering the following matters:
(i) The standards of quality of air, water
or soil for various areas and purposes;
(ii) The maximum allowable limits of
concentration of various environmental
pollutants (including noise) for different
areas;
(iii) The proceedures and safeguards for the
handling of hazardous substances;
(iv) The prohibitions and restrictions on
the handling of hazardous substances in
different areas; and
(v) The prohibitions and restrictions on the
location of industries and the carrying on
the process and operation in different areas
and;
(vi) The proceedures and safeguards for the
prevention of accidents which may cause
environmental pollution and for providing
for remedial measures for such accidents.
The Environment (Protection) Act is a
comprehensive piece of legislation. Under
this Act, Environment Protection Rules were
announced in 1986. Schedule VI contains
specification of standards of different
types. Hazardous Wastes (Management and
Handling) Rules 1989; Manufacture, Storage,
and Import of Hazardous Chemicals, Rules
1989, Chemical Accident (Emergency Planning,
Preparedness and Response) Rules, 1996;
Bio-medical Waste (Management and Handling)
Rules, 1998 were framed using the powers
given in this Act. Under Rule 14 of the E.P.
Rules 1986, the Government evolved
guidelines for submission of yearly
environmental audit/Statement by units
requiring consent under the Water Act, Air
Act and authorization under Hazardous Wastes
(Management and Handling) Rules11. However,
submission of an environmental Statement by
polluting units seeking consent under the
Water Act 1974 or the Air Act, 1981 or both
and authorization under the Hazardous Wastes
Rules, 1989 to the concerned SPCBs was made
mandatory only in 1992. Khan (1998) notes
that the definition of environmental
pollutant in this Act does not include heat
energy, sound and nuclear radiation or even
pollution caused by deforestation and
unrestricted development. This Act gives
wide range of powers to the Central
Government. Padia (1996) suggests a suitable
entry in the Concurrent List in respect of
environmental pollution by specially
referring to air, water and land pollution
in all forms, prevention of hazards to human
beings, other living creatures, plants,
microorganism and property.
The Public Liability Insurance Act, 1991
The Statement of Objects and Reasons
mentions the need ‘ to provide for mandatory
public liability insurance for installations
handling hazardous substances to provide
minimum relief to the victims. Such an
insurance apart from safeguarding the
interests of the victims would also provide
cover and enable the industry to discharge
its liability to settle large claims arising
out of major accidents. If the objective of
providing immediate relief is to be achieved
the mandatory public liability insurance
should be in the principle of “no fault”
liability as it is limited to only relief on
a limited scale. However, availability of
immediate relief would not prevent the
victims to go to courts for claiming larger
compensation. Hazardous substance means any
substance or preparation which is defined as
hazardous substance under the Environment
(Protection) Act, 1986, and exceeding such
quantity as may be specified, by
notification, by the Central Government.
As per this Act the owner shall be liable to
pay relief as specified in the Schedule:
(i) Reimbursement of medical claim upto Rs.
12, 500 in each case;
(ii) Relief of Rs.25,000 per person for
fatal accident in addition to the
reimbursement of medical expenses upto
Rs.12,500;
(iii) For permanent total or permanent
partial disability or other injury or
sickness, the relief will be (a)
reimbursement of medical expenses incurred
upto a maximum of Rs.12,500 in each case and
(b) cash relief on the basis of percentage
of disablement as certified by an authorised
physician. The relief for total permanent
disability will be Rs.25,000;
(iv) Compensation for loss of wages due to
temporary disability will be Rs.1000 per
month for a maximum of 3 months; and
(v) For damage to property upto Rs.6000
depending on the damage.
The claimant shall not be required to plead
that the accident was due to any wrongful
Act. The owner is also liable to pay other
compensation, if any. This Act stipulates
that every owner shall take out before he
starts handling any hazardous substance, one
or more insurance policies and renew it or
them from time to time before the expiry of
validity. As per Rule 10 notified in May
1991, the extent of liability is Rs.50
million / one accident or Rs. 150 million
per year for a number of accidents. Rule 11
States that an owner shall contribute to
Environmental Relief Fund a sum equal to
premium. Every application for claim should
be filed to the Collector within 5 years of
the occurrence of accident. The Collector
should decide the amount and inform the
parties within 15 days. The insurer shall
pay within 30 days. The Collector shall have
the power of Civil Court and the case should
be disposed off within 3 months. This law is
comparable to the laws enacted by the Member
States under the Council of European
Community’s Directive on Civil Liability for
Damage caused by waste since 1991. Article 3
of the Directive States that the producer of
waste shall be liable under Civil law for
the damage and injury to the environment
caused by the waste, irrespective of fault
on his part.
The Public Liability Insurance (Amendment)
Act, 1992 States that the 1991 Act could not
be implemented on account of the insurance
companies not agreeing to give insurance
policies for unlimited liability of the
owners. This Amendment limits the liability
of insurance companies to the amount of
insurance policy but the owner’s liability
shall continue to be unlimited under the
Act. It provides for creation of an
Environment Relief Fund with the additional
money collected from the owners having
control over handling of hazardous
substances.
The National Environment Tribunal Act 1995
The aim of the Act is to provide for strict
liability for damages arising out of any
accident occurring while handling any
hazardous substance and for the
establishment of a National Environment
Tribunal for effective and expeditious
disposal of cases arising from such
accident, with a view to giving relief and
compensation or damages to persons, property
and the environment and for matters
connected therewith or incidental thereto.
It cites the decision reached at the U.N.
Conference on Environment and Development
held at Rio de Janerio in June 1992 which
called upon the countries to develop
national laws regarding liability and
compensation for the victims of pollution
and other environmental damages.
Rio Conference
The U.N. Conference on Environment and
Development held at Rio in 1992 specifies
the following objectives of environment
policy: (i) to incorporate environmental
costs in the decisions of producers and
consumers.....and to pass these costs on to
the other parts of society, other countries
or to future generations; (ii) to move more
fully towards the integration of social and
environmental costs into economic
Activities, so that prices will
appropriately reflect the relative scarcity
and total value of resources and contribute
towards the prevention of environmental
degradation; and (iii) to include, wherever
appropriate, the use of market principles in
the framing of economic instruments and
policies to pursue sustainable development.
Policy Statement for Abatement of Pollution,
1992
The Policy Statement for Abatement of
Pollution issued by the Ministry of
Environment and Forests (MOEF) in February
1992 identifies the environment problems and
admits that ‘the State of the environment
continues to deteriorate’. It favours a mix
of instruments in the form of legislation
and regulation, fiscal incentives, voluntary
agreements, educational programmes and
information campaigns. It recommends the
polluter pays principle, involvement of the
public in decision making and new approaches
for considering market choices ‘to give
industries and consumers clear signals about
the cost of using environmental and natural
resources’.
Implementation of Laws Relating to
Environmental Protection
The nodal agency for implementing various
legislations relating to environmental
protection at the centre is the MoEF.
Besides giving directions to the CPCB on
matters relating to prevention and control
of pollution, the MoEF is responsible for
designing and implementing a wide range of
programmes relating to environmental
protection. The Annual Report of the MoEF
for 1996-97 States that ‘the focus of
various programmes of the Ministry and its
associated organisations, aimed at
prevention and control of pollution is on
issues such as promotion of clean and low
waste technologies, waste minimization,
reuse or recycling, improvement of water
quality, environmental audit, natural
resource accounting, development of mass
based standards, institutional and human
resource development etc. The whole issue of
pollution prevention and control is dealt
with a combination of command and control
methods as well voluntary regulations,
fiscal measures, promotion of awareness,
involvement of public etc’. Based on the
environmental laws and directions given by
the Supreme Court, the Central Government
has created a number of authorities for
designing, implementing and monitoring its
environmental programmes. At the State
level, most States have set up Departments
of
Environments and the SPCBs
The CPCB and the SPCBs are responsible for
implementing legislations relating to
prevention and control of pollution.
Pollution arises both from point sources,
for example, fActories and non-point
sources, for example, automobiles.
Source-specific effluent and emission
standards have been fixed for polluting
point sources. For non-point sources, as
monitoring of pollution generation is very
difficult, indirect measures of pollution
prevention control such as catalytic
converters in automobile engine for new
cars, led-free petrol, fuel with low sulfur
content, periodic inspection of vehicles
etc. are being adopted. In addition, ambient
standards for air and water have been laid
down and are being regularly monitored by
the CPCB with the support of the SPCBs.
Mehta, Mundle and Sankar (1993/1997) find
that despite the legislative and
administrative efforts and fiscal incentives
for pollution control, ‘ambient standards of
air and water pollution continue to be
routinely exceeded and in some places
quality has distinctly deteriorated’. They
attribute this ‘among other things to a
certain hiatus between the macro goals of
our environmental policy and the micro
nature of operational provisions for
enforcement of the policy. Hence, though
standards have been laid down for ambient
air and water quality, Actual enforcement
relates mostly to source standards laid down
for individual polluters, factories,
transport vehicles and so on. Furthermore,
the ambient and source standards are laid
down independently, unrelated in terms of
the volume of pollution generating
Activities. Hence, it is quite conceivable
that the quality of the environment could
continue to deteriorate despite of high
degree of compliance among individual
polluters. It is also possible, of course,
that the degree of compliance itself is
poor, adding to the adverse effects of the
policy hiatus’. This paper focuses on issues
in the determination of and enforcement
aspects of the source-specific standards.
Determination of Standards
Under Rule 3A of Environment Protection
Rules 1986, the Government of India notified
on May 19, 1993 that emission or discharge
of environmental pollutants from industries,
operations or processes shall not exceed the
relevant parameters and standards 12
According to the Annual Report of MoEF for
1997 - 98, the water quality monitoring
network established by the CPCB in
collaboration with SPCBs consisted of 480
stations. This network covers 14 major, 12
medium and 9 minor river basins, 16 other
small rivers, 35 lakes, 24 groundwater, 3
creeks, 2 canals, 2 tanks and 1 pond. The
National Ambient Air Quality Monitoring
Programme consisted of 290 stations covering
over 92 towns / cities spread over 24 States
and 4 Union territories.
Other policy options for environmental
protection are Stated in Section 4. There
are three types of effluent standards. The
general standards for discharge of effluents
cover more than 40 parameters including
colour and odour, suspended solids,
dissolved solids, pH, BOD, COD, various
chemicals and metals. The permissible limits
vary depending on where the effluents are
charged viz. inland water surface, public
sewers, land for irrigation and marine
coastal areas. These standards are based on
concentrations of pollutants per unit of
effluent.
Wastewater generation standards are
applicable to 11 industries including iron
and steel, sugar, pulp and paper, textiles,
tanneries and fertiliser. These standards
are specified as quantities of wastes
generated per unit of output or input e.g.
16 m3 / ton of steel produced, 0.4 m3 / ton
of cane crushed.
Load based standards have been prescribed
for oil refineries and large pulp and paper,
newsprint, and rayon grade plants of
capacity about 24000 MT / annum. In the case
of oil refinery the parameters are oil and
grease, phenol, BOD, suspended solids and
sulphide and the limits are prescribed in
the form of quantum in kg. /1000 tonnes of
crude processed. For the other industries,
the parameter is total organic chloride1 and
the quantum is 2 kg/ton of product. In
enforcing the effluent standards, the SPCBs
should follow guidelines such as treatment
of the wastewater with the best available
technology, minimisation of the discharge of
wastes into the environment by recycling and
reuse of waste materials as far as
practicable, removal of colour and
unpleasant odour as for as practicable and
the assimilative capacity of the receiving
bodies.
There are three types of emission standards.
The concentration based standards relate to
12 parameters including suspended
particulate matter (SPM), fluoride, mercury,
chloride, carbon monoxide, lead and sulphur
dioxide. The concentrations are not to
exceed the permissible levels specified in
mg/NM3. Equipment based standards for
control of sulphur dioxide emissions are
achieved through dispersion. Maximum stack
height limits are prescribed which vary with
capacity. Load/mass-based standards are
prescribed for fertilizer (urea), copper,
lead and zinc smelting converter, nitric
acid, sulphuric acid, coke oven, oil
refineries, aluminum plant and glass units.
Noise standards are prescribed for
automobiles, domestic appliances and
construction equipments at the manufacturing
stage. The State Governments and the SPCBs
can prescribe tighter standards taking into
consideration the assimilative capacity of
the local environments. The Central
Government can prohibit/restrict operations
of industries in certain areas. The EPR Rule
5 mentions the following considerations
which may be taken into account on this
decision: (i) standard for quality of
environment, (ii) maximum allowable limits
for various pollutants, (iii) likely
emission or discharge of pollutants from the
industries, (iv) topographic and climatic
features of the area, (v) biological
diversity, (vi) environmentally compatible
land use, (vii) net adverse environmental
impAct likely to be caused, and (viii)
proximity to protected areas like ancient
monument, sanctuary, national park, game
reserve, closed area under Wile Life
Protection Act and proximity to human
settlement.
We have already noted that the CPCB and the
SPCBs have powers of examination of such
manufacturing processes, materials and
substances as are likely to cause
environmental pollution. The polluting
industries coming under the Water Act, Air
Act and Environmental Protection Act are
required to get consent certificates from
their respective SPCBs for starting an
industry or continuation of production. They
are also required to submit environmental
audit Statements in prescribed format to
their SPCBs annually.
Some questions have been raised about the
basis of arriving at the standards and their
relevance to the whole country. In the
determination of standards two
considerations are important: (i) the impact
of the release of pollutants into the
environment on human health, plant and
animal life and eco-system and (ii) the
technical and economic feasibility of
prevention, control and abatement of
pollution. Any regulation, including
imposition of standards on the polluting
units, involves costs to society and these
costs have to be weighed against the
benefits arising from improvement in
environmental quality. The experiences of
developed countries, indicate that many
including USA, initially prohibited the
weighing of benefits against costs in
setting of environmental standards but after
a decade or so, these countries required
that benefit cost analysis be performed for
all major regulations. See, for example,
Cropper and Oates (1992) and Opschoor and
Vos (1989). In USA, the standard setting
exercise is a transparent process and an
opportunity is given to all the parties,
including the polluters, to participate in
the standard determination process. In
India, the standards are determined mainly
on the basis of comprehensive industry
studies undertaken by technical institutions
at the initiative of the CPCB. These studies
provide estimates of pollution generation
industry-wise, assess available abatement
technologies and give tentative estimates of
costs of abatement for different levels of
abatement. The polluting units are not given
an opportunity to air their views on this
matter. During our discussions with owners
and mangers of the polluting industries, we
heard two types of complaints: (i) the
standards have been borrowed from developed
western countries without assessing their
relevance to Indian conditions. In the case
of water pollution, they stress the
self-cleansing properties of major Indian
rivers and the tropical climate with
sunshine for half day most of the days in a
year. Hence, they argue that the standards
for BOD5 at 20oC of 30 mg/litre on land for
discharge into inland surface water and 100
mg/litre on land for irrigation are too
stringent. (ii) Standards for certain
parameters have been fixed without
considering the availability of least-cost
abating technologies. This issue arose when
Tamil Nadu Pollution Control Board fixed a
totally dissolved solids (TDS) standard of
2100 mg/l for effluent discharged into land
or inland surface water. The tanneries and
textile dyeing units argued that meeting
this standard was not feasible because the
water used for tanning and dyeing in many
areas had already TDS levels in the range
5000 to 10000 mg/l. The Supreme Court had
directed the National Environmental
Engineering Research Institute to examine
the feasibility of achieving the
standards15. Another issue at the
implementation level is whether or not a
nation-wide uniform effluent or emission
standard is desirable. Critics of
nation-wide uniform standards point out that
the carrying capacities of different regions
differ and the trade-off between for TDS
removal. Our analysis of the cost of TDS
removal based on normative costing approach
indicates that TDS removal by reverse
osmosis process is cost effective only for
large CETPs. NEERI has suggested high rate
transpiration system as an alternative. See
Sankar (1998/2000) for details.
At present, the Air (Prevention and Control
of Pollution) Act, 1981 and the Environment
Protection Act, (1986) give powers to the
Central and State Governments to restrict or
prohibit certain Activities in certain areas
on the basis of considerations mentioned
earlier. But the rules do not permit any
State Government or SPCB to lower the
standards fixed by the Central Government in
any region. The pollution haven argument
favours uniform standards throughout the
country because in the absence of such
standards, State Governments may lower the
standards in order to attract new
industries. For a discussion of this
argument and its relevance to India, see
Gupta (1996). The standards prescribed for
most industries are concentration-based
standards. In case of effluents, a polluting
unit can meet the standards by dilution of
effluents by adding water. With growth of
the industry aggregate amount of pollution
can increase even when there is compliance
at the plant level.
Enforcement of Standards
When the standards are the same for many
industries or even when industryspecific
standards are applied to all firms in the
same industry, the aggregate costs of
compliance with the standards will not be
minimized. The reason is that the marginal
abatement costs even for firms within an
industry vary from firm to firm because of
variations in fActors such as vintage of the
firm, technology used, quality of input
used, product mix, size of the firm etc.
When a regulatory agency puts restrictions
on the process used or prescribes
input-output norms or imposes other physical
standards, the firms’ choices in the
minimization of abatement costs are
constrained. Effective enforcement of the
standards involves costs to the SPCBs. In
the absence of metres which can record the
quantities of and concentrations of
pollutants in the effluents, the SPCBs can
monitor the firms’ behaviour only by
inspection and sampling. The Acts provide
powers to the SPCBs to inspect the premises
of the polluters and take samples in the
manner prescribed. Recognized laboratories
must test the water quality and report the
results. When the concentrations of
pollutants exceed the permissible levels,
the SPCBs can issue show cause notice. The
polluting units are given an opportunity to
go to the Appellate Court. Meanwhile, the
State Governments can also intervene and
influence the decisions of the SPCBs. Even
though the SPCBs are autonomous bodies, the
members owe their positions to the State
Governments and the Boards depend on the
State Governments for financial support.
Many State Governments are under pressure to
delay or stop proceedings against the erring
units because of fear of loss of output
or/and employment.
Poor enforcement of the laws/rules occurs
due to the following reasons. First, the
pollution control authorities do not have
reliable information regarding the
quantities of effluents/emissions/solid
wastes and their characteristics. There is
information asymmetry: the polluters know
more about the sources, magnitudes and
concentrations of pollutants as well as the
costs of controlling pollution than the
regulators. It is very difficult and perhaps
there is no motivation on the part of the
regulated agencies to acquire and process
the information from thousands of units
dispersed in their regions. Second, the
regulators face budget constraints. Most
SPCBs do not have adequate technical
facilities and skilled manpower for
monitoring the polluting units and filing
charges against the units violating the
standards. Third, the fines are fixed in
nominal terms and are independent of the
extent of violations. Penalties such as
imprisonment of officials, stoppage of water
and electricity and closure of units can
impose hardships on the affected firms, but
in a weak enforcement regime with principal
agent problem collusion between regulators
and regulated units are possible. Dispute
settlement by going to the courts is a
cumbersome process and involves considerable
delays. This situation creates an
opportunity to indulge in rent-seeking
Activities. As on July 31, 1995 of the 6214
cases under the Water Act and Air Act,
decisions were made on 2758 cases and 3456
cases were pending. Of the 2758 decisions,
1010 were against the Boards. 821 cases were
either dismissed or withdrawn. See Gupta
(1996). Until recently, the CPCB and the
SPCBs concentrated their efforts on
enforcing compliance with the standards by
large and medium size units. They have
classified the units under three categories
- Red, Orange and Green, in terms of their
pollution intensities. They have identified
17 highly polluting industries. According to
the Annual Report of the MoEF for the year
1997-98, ‘out of the total number of 1551
industries belonging to the 17 categories of
highly polluting industries, 1261 industries
have already installed adequate pollution
control facilities to comply with the
stipulated standards. 125 units have been
closed down and the remaining 165 are in the
process of installing the requisite
pollution control facilities’ (p.66).
However, it does not mean that the 1261
industries comply with the standards. Fiscal
incentives such as rebates on customs
duties/excise duties on pollution control
equipments and accelerated depreciation
allowances on certain investments in
pollution abatement plants as well as the
belief that erection of an abatement plant
is the first necessary step in meeting the
requirements of the SPCBs have encouraged
the units to set up the abatement plants.
But the firms have an incentive to operate
their plants on their own only when the net
operating cost, that is, the gross operating
cost less the value of products recovered is
negative; otherwise continuous or at least
random monitoring with the expected penalty
for non-compliance higher than the cost of
compliance is necessary to ensure
compliance. The authorities can experiment
with alternative means such as adverse
publicity for non-compliance by units,
higher probability of inspection or/and
sampling of units with poor compliance
records, or/and seeking the assistance of
NGOs and other local residents in detecting
the violations.
In February 1991, the MoEF launched a scheme
of labelling of environment friendly
products with ECOMARK. Under this scheme,
any product which is made, used or disposed
of in a way that significantly reduces the
harm it would otherwise cause to the
environment would be considered as
environment friendly product. Many large
industrial units which are desirous of
exporting their products are obtaining ISO
9001 certificates to get market access to
the European Union, USA and other countries.
Small-Scale Industries
Pollution problems in small scale industries
such as leather tanning, textile bleaching
and dyeing, aquaculture, dairy, foundries,
coke-coal based Activities, chemicals etc.
have received public attention in recent
years. Most of the units are organised under
single proprietor or partnership form of
organisation. They are dispersed and labour
16 The survey articles by Cropper and Oates
(1992) and Opschoor and Vos (1989) indicate
higher compliance rates by large firms in
USA and some European countries even when
the expected penalties are lower than the
compliance costs because punishments for
non-compliance and the resulting adverse
publicity can affect the goodwill of the
firms.
Intensive but their pollution intensities
are generally higher than those of the
corresponding medium and large units partly
because of the use of obsolete technologies
and poor management practices and partly
because they do not come under the orbit of
regulatory authorities. Certain industries
such as leather and garment making received
boost from the Government of India since
1970 because of their significant
contributions to export earning. The State
Governments and the SPCBs did not pay much
attention to the pollution generated by
these Activities because of the difficulties
in monitoring the units, the high costs of
pollution abatement for small units compared
with large units, and the possible adverse
impact of enforcement of the standards on
outputs and employment of these industries.
Judicial Activism
The interpretation of Article 21 of the
Constitution to include the right to clean
air and water by the Supreme Court and the
High Courts, the remedy available to any
citizen to go to the court under the banner
of public interest litigation for the
enforcement of the right to clean air and
water, and the growing public awareness
evident in the formation of NGOs and welfare
organisations for the promotion of
environmental quality, radically altered the
situation in the nineties. We present a
summary of selected Supreme Court judgments
below.
In Rural Litigations and Entitlement Kendra
v. State of Uttar Pradesh, the Supreme Court
directed the closure of mining operations
though blasting in the Doon Valley. It held
that closure would cause hardship to the
affected parties, but it was a price that
had to be paid for protecting and
safeguarding the rights of the people to
live in healthy environment with minimal
disturbance of ecological balance. It
further directed the affected areas to be
reclaimed and aforestation and soil
conservation programmes to be taken up so as
to provide employment opportunities to the
affected workers.
In M.C. Mehta v. Union of India case, the
Court directed the stopping of the working
of tanneries which were discharging
effluents in River Ganga and which did not
set up primary effluent treatment plants. It
held that the financial incapacity of the
tanners to set up primary effluent treatment
plants was wholly irrelevant. The Court
observed the need for (a) imparting lessons
in natural environments in educational
institutions, (b) group of experts to aid
and advise the Court to facilitate judicial
decisions, (c) constituting permanent
independent centre with professionally
public spirited experts to provide the
necessary scientific and technological
information to the Court, and (d) setting up
environmental courts on regional basis with
a right to appeal to the Supreme Court.
In Vellore Citizens Welfare Forum v. Union
of India and Others, a writ petition was
filed in 1991 and after many hearings and
directions, the Court delivered judgment on
August 29, 1996. After citing the Stockholm
Declaration of 1972, the constitutional and
statutory provisions, and common law to
protect a person’s right to fresh air, clean
water and pollution free environment, it
endorsed the concept of sustainable
development and endorsed “the precautionary
principle” and “the polluter pays
principle”. It directed the Central
Government to constitute an authority under
Section 3(3) of the Environment (Protection)
Act, 1986 to implement the two principles.
It said: ‘the authority shall, with the help
of expert opinion and after giving
opportunity to the concerned polluters
assess the loss to the ecology/environment
in the affected areas and shall also
identify the individuals/families who have
suffered because of the pollution and shall
assess the compensation to be paid to the
said individuals/families. The authority
shall further determine the compensation to
be recovered from the polluters as cost of
reversing the damaged environment. The
authority shall lay down just and fair
procedure for completing the exercise’. It
imposed a fine of Rs.10,000 on each of the
700 tanneries in Tamil Nadu and asked them
to install individual effluent treatment
plants(IETPs) or become members of CETPs.
The Court also directed the Madras High
Court to constitute a special Bench, “Green
Bench” to deal with this case.
Some other important decisions of the
Supreme Court in 1996 resulted in orders for
closure of 69 foundries in Howrah for their
failure to install pollution control
devices; shifting of 513 industries out of
Delhi for having damaged the health of
Delhi’s citizens; closure of 39000 illegal
industrial units operating in residential
areas in Delhi; closure of aquaculture farms
within 500 metres of the coast along India’s
6000 km, coastline by March 31, 1997 and
payment of six years compensation to the
employees in lieu of loss of employment; and
shifting of 550 tanneries located in east
Calcutta by September 30, 1977 and setting
up of environmental pollution fund, with
each unit paying Rs.10000 as fine, to be
used for restoring the pollutant - riddled
Hooghly. It is clear from the above
directions, that the Court has played a very
Active role in the enforcement of
legislations and rules relating to
environmental protection. In compliance with
the various Supreme Court Orders, the MOEF
has constituted several authorities under
the Environment (Protection) Act, 1986. It
is obvious that the Court has taken
quasi-legislative and quasi-administrative
functions. While the judgments have been
helpful in pressurising the non-complying
polluting units to comply with the
legislations, in reminding the
responsibilities of the enforcing agencies
and also in awakening public awareness of
the environmental problems, they have
generated some issues for public discussion.
First, the existing information base and the
capacity of the regulatory agencies for
monitoring and enforcing the regulations are
weak. Second, the judicial process is
time-consuming. For example, the writ
petition relating to the Vellore Citizens
Welfare Forum versus Union of India and
others on the tannery pollution case was
filed in 1991 and the judgment was delivered
in 1996. The Court directed the Central
Government to constitute an Authority under
Section 3(3) of the Environment Protection
(Act), 1986 before September 30, 1996 to
assess the loss to the ecology in the
affected areas, and to identify the
individuals/families who have suffered
because of the pollution to assess the
compensation to be paid to the said
individuals/ families. This Authority was
constituted only in 1998 and the assessment
has not yet been completed. Even when the
assessment is done, many litigations would
arise at the time of disbursement of the
compensations to the said individuals /
families. Third, there is lack of sufficient
legal expertise to deal with environmental
cases particularly those involving valuation
of the damages. Hence, there is a need to
develop the expertise. It is also worth
exploring the feasibility of using
prelitigatory remedial measures such as
community participation and special forums
to resolve environmental conflicts and also
to reduce the excessive burden imposed on
the court system.
Issues in Transition to Market-Oriented
Policy Regime
We noted earlier that since June 1991 the
Government of India initiated economic
reforms to liberalise and globalise the
Indian economy in stages. Substantial
progress has been made in reforms pertaining
to the external sector, industrial sector,
fiscal sector and monetary sector. There has
been little progress in public sector
reforms, administrative reforms and
environmental policy reforms.
Agenda 21 of the Rio Conference stresses the
need for internalising the externalities and
endorses the polluter pays principle. It
also recommends that prices of scarce
natural resources should reflect their
scarcity values. The Policy Statement on
Abatement of Pollution, 1992 favours a mix
of regulatory and MBIs for environmental
protection. Environmental standards are
being brought into world trade agenda.
Indian exporters of leather goods, textile
garments, and marine products face
difficulties in gaining access to the
markets of developed countries because of
the allegation that these products are being
produced under conditions which do not meet
their environmental standards. Hence,
India’s environmental policy regime must
enable these producers to comply with the
environmental standards at least cost so
that their comparative advantage in these
exportables will not be eroded when the
environmental costs are added to the costs
of production. What are the issues in
relying on MBIs for achieving environmental
protection? Markets can be relied upon to
achieve allocative efficiency in case of
private goods. In India, the administered
prices of many private goods do not reflect
their social scarcity values. Free
electricity to farmers in some States and
subsidized tariff. Even in the case of Union
Carbide Bhopal tragedy which occurred in
1984, the victims or their agents have not
received compensations for the damages power
of pumpsets (implying zero marginal price of
electricity) in other States have not only
worsened the financial position of the State
Electricity Boards but also resulted in
indiscriminate exploitation of groundwater
and consequent lowering of ground water
levels and decline in water quality.
Irrigation charges in many States have not
been revised for two decades and the
revenues do not cover even one-third of the
operation and maintenance costs. In most
States, the irrigation charges are unrelated
to the crop sown or the season. Subsidy for
nitrogenous fertilizers has not only
affected the NPK balance in agriculture and
caused environmental problems but also
discouraged the use of organic fertilizers
and increased the subsidy burden to the
Central Government. There are political
obstacles to setting these prices right, but
a transparent public discussion on the costs
and benefits of the pricing policies and
distribution of the benefits among different
users along with estimates of the fiscal
burden and an assessment of the long-run
environmental damages resulting from the
policy is needed to undertake the price
reforms. The reform package can be worked
out in such a manner that the price
increases are spread over a period of time
and subsidies being targeted to reach the
poor. India’s pollution control regime may
be seen as a “standard and regulation”
regime. The CAC polices do not take into
account the private information available
with the polluters regarding pollution
prevention and control; they are not cost
effective. The penalties for non-compliance
with the standards are unrelated to the
costs of compliance.
Further the judicial process is time
consuming. Economic instruments provide an
opportunity to the polluters to make use of
their private information in finding least
cost means of complying with the standards.
Given the standards, a pollution charge
system wherein the pollution charge for each
pollutant is equal to the marginal abatement
cost at the prescribed standard provides an
incentive to internalise the negative
externality. Since the marginal abatement
cost is an increasing function of the level
of abatement most polluters would prefer to
undertake pollution abatement than pay the
charges. However, there are many conceptual,
information and econometic problems in
getting reliable estimates of the marginal
abatement costs. We need better data base,
more empirical studies in this field and
perhaps some experimentation before we can
implement the pollution charge system. In
fact even the pollution charge systems in
many European countries and in the United
States are not designed in such a way that
the charges reflect the marginal abatement
costs of different pollutants. However, most
charge systems take into consideration both
the volume of effluent / emission and
concentrations of pollutants in the emission
/ effluent. This charge system generates
revenues to Governmental agencies.
Compliance with the standards is being
achieved via market signaling mechanisms
such as ecolabelling of products, adverse
publicity for the erring units, and
enforcement procedures such as placing
frequent violators under the category where
the probability of inspection is higher than
for the complying units.
The case for designing pollution / user
charges for locally provided services such
as drinking water supply, sanitation and
solid wastes disposal is very strong. The
73rd and 74th constitutional amendments of
1992 assign the above subjects to the local
bodies. Most local bodies do not have the
resources to carry out the tasks. At present
these services are either provided free or
at rates independent of the volume of and
quality of the services. A user charge
system will enable the local bodies to find
resources to provide these services and also
make them financially independent of State
Governments to some extent. The user charge
system will also signal the users about the
costs of the services provided by the local
bodies. In fact there is an enormous scope
for converting the wastes into valuables
products. Municipal wastes can be converted
into manures, the wastewater can be recycled
after treatment and so on. At present most
municipal towns do not have sewage systems.
A well designed municipal sewage system with
a facility for combined treatment of
municipal wastewater and industrial
wastewater would be beneficial to society
because of economies of scale and economies
of scope in the combined wastewater
treatment.
A non-market non-Government institutional
arrangement is needed for solving
environmental problems which require
collective Action on the part of the
affected people. Examples of such Actions
are management of common property and common
pool resources such as grazing lands, forest
lands, and fisheries, and common effluent
treatment plants for polluting units in
industrial clusters. In such cases, the
Government’s role may be confined to
providing the legal framework for
establishing and operating the institutions,
provision of technical expertise and perhaps
initial lumpsum subsidies. When the
stakeholders are convinced that these
institutions can provide permanent income
streams they have an incentive to cooperate
and design rules and norms for sustainable
management of these resources. Rawlsian
principles of fairness, efficiency and
stability can be applied in the design and
management of each such institution. Social
justice has been one of the cherished goals
in India’s socio-economic policies. The
dependence of the poor on environmental
resources such as clean air, clean water and
forest products is greater than that of the
rich. Also, the poor do not have the
resources to undertake pollution averting
measures. Dasgupta (1993) illustrates how
the erosion of common property resources can
come about ‘in the wake of shifting
populations and the consequent pressure on
these resources, technological progress,
unreflective public policies, predatory
Governments and thieving aristocracies’. He
points out the need for increased
decentralization of rural decision making
but stresses the role of Governments in
providing infrastructure and credit and
insurance facilities, and also in ensuring
that ‘the seat of local decisions is not
usurped by the powerful’. Apart from the
role of creating and enforcing property
rights for environmental resources wherever
feasible, the Government has to Act as a
trustee of natural resources whose non-use
values such as option values and existence
values are high. There may be conflicts
among preservation, conservation and
preservation options with respect to a
natural resource. The choice cannot be made
purely on the basis of market signals or
even on the basis of anthropogenic valuation
of the resource. If there is great
uncertainty associated with the use and
non-use of values of an ecological resource
and if the development option can result in
irreversible damage to the ecosystem, then a
CAC type of policy of reservation or
restricted access may be in the public
interest.
Concluding Remarks
Market failures provide a justification for
Government intervention in markets. In the
area of environmental protection, markets do
not exist for some environmental resources,
such as air and water in river because these
resources possess the characteristics of
public goods. Hence when the social goal is
economic efficiency, even Coarse would
assign a role for the State in the
assignment of property rights to the
resources and in undertaking measures to
reduce the transaction costs to facilitate
bargaining between private parties. The
Coarse an approach also presupposes a court
system to deal with cases when bargaining
between two or more parties does not result
in a mutually beneficial solution. Pigou
advocates State intervention in the form of
a tax on the polluting units. The Pigouvian
prescription has now taken the form of the
polluter pays principle. Equity
considerations are also important in
environmental policy making. When the
distribution of income is highly skewed and
about one-third of the population live below
the poverty line intergenerational equity
must be of social concern. The reason is
that the poor are the victims of
environmental degradation even though their
contribution to environmental degradation is
proportionately less than that of the rich.
Further, the poor do not have the means to
undertake averting expenditures to protect
them from various environmental hazards.
Intergenerational equity has been accepted
by both international agencies and many
countries as an operational principle of
sustainable development. The Government must
function as a trustee for the unborn. The
precautionary principle suggests that when
there are great uncertainties about the
magnitudes of option and existence values of
an ecological resource, preservation or
conservation may be a better policy option
than development. Therefore Government
intervention to preserve scenic spots, wild
life sanctuary and biodiversity is justified
in the public interest. In terms of
Durkheim’s (1984) classification Indian
environmental laws are repressive. In
Weber’s (1980) sense the laws are
prohibitive. In terms of typologies adopted
in the ADB Report (1998), the existing laws
and rules come under the typologies
“State-rule based” and
“State-discretionary”. India’s experience
with environmental policy making during the
last three decades reveals that Government
failures do occur under a CAC regime.
When the economy is being liberalized and
globalised the environmental policy must
also change. As the resources are limited
and the Central, State and local Governments
face severe budget constraints, cost benefit
analysis of environmental laws and
regulations should be made mandatory.
Wherever feasible, greater reliance should
be placed on the use of economic instruments
for environmental protection because, if the
instruments are well designed, they can
signal the users of environmental resources
about the social scarcity values of these
resources and at the same time generate
revenues to the Governments. The Government
can also provide an enabling environment to
community based organizations to participate
in the management of local commons and in
the enforcement of environmental laws and
rules. The Government must make a
transparent and conscious assessment of the
trade off between efficiency and equity in
the matter of environmental policy.
The Environmental Acts and Laws in India are
analyzed according to the nature of the
problems. Accordingly they are categorized
under the following Sectoral Areas.
* WATER POLLUTION RELATED
* AIR POLLUTION RELATED
* NOISE POLLUTION RELATED
* COASTAL ZONE RELATED
* FOREST CONSERVATION RELATED
* WILDLIFE RELATED
* ENVIRONMENT PROTECTION RELATED
* HAZARDOUS SUBSTANCE MANAGEMENT RELATED
* OTHER LAWS / ACTS RELATED TO THE
ENVIRONMENT
WATER POLLUTION RELATED
The Water Pollution related Acts are
comprehensive in their coverage, applying to
streams, inland waters, subterranean waters,
and seas or tidal waters. Standards for the
discharge of effluent or the quality of the
receiving waters are not specified in the
Acts itself. Instead these Acts enable the
State Boards to prescribe these standards.
These Acts also provides for a permit system
or ‘consent’ procedure to prevent and
control water pollution. These Acts
generally prohibits disposal of polluting
matter in streams, wells and sewers or on
land in excess of the standards established
by the State Boards. A person must obtain
consent from the State Board before taking
steps to establish any industry, operation
or process, any treatment and disposal
system or any extension or addition to such
a system which might result in the discharge
of sewage or trade effluent into a stream,
well or sewer or onto land.
o The Water (Prevention and Control of
Pollution) Act, 1974, as amended up to 1988.
o The Water (Prevention and Control of
Pollution) Rules, 1975.
o The Water (Prevention and Control of
Pollution) (Procedure for Transaction of
Business) Rules, 1975.
o The Water (Prevention and Control of
Pollution) Cess Act, 1977, as amended by
Amendment Act, 1991.
o The Water (Prevention and Control of
Pollution) Cess Rules, 1978.
o The Water (Prevention and Control of
Pollution) Act, 1974, as amended up to 1988.
The legislation establishes a Central
Pollution Control Board, and State Pollution
Control Boards for Assam, Bihar, Gujarat,
Haryana, Himachal Pradesh, Jammu and
Kashmir, Karnataka, Kerala, Madhya Pradesh,
Maharshtra, Orissa, Rajasthan, Tamilnadu,
Tripura, Uttar Pradesh and West Bengal, as
well as the Union Territories. Each Board,
Central or State, consists of a chairman and
five members, with agriculture, fisheries
and Government-owned industry all having
representation.
Some of the main responsibilities of the
Central Board, pursuant to promoting
cleanliness and pollution abatement of
streams and wells, include: coordinating
Activities of State Boards and resolving
disputes among them; providing technical
assistance; conducting investigations;
opening laboratories for analysis of
samples; establishing fees for different
types of sample testing; researching issues
and problems; training personnel; conducting
media and public awareness campaigns;
collecting and disseminating data on water
pollution; and working with State Boards to
set standards by stream or well.
The State Boards have similar
responsibilities, although they also play an
important subsidiary role of doing
plant-level inspections and monitoring, and
advising the Central Board of problems and
trends at the local level. Plants can be
required to provide the State with
information on their pollution control
technologies, and the State may acquire
effluent samples, which are admissible in
court. State Board members also have
unfettered access to any plant site at any
time. In situations where a State Board
believes immediate Action is necessary, it
has the authority to prevent further
discharges, and can also apply to a Judicial
Magistrate for a restraining order. In the
case of an emergency, State Boards are
empowered to take whatever measures they
deem necessary.
The legislation also sets out specific
penalties (prison sentences and fines) for
violations of the Act. For example, anyone
destroying Board property, preventing a
Board employee from performing his or her
duties, knowingly providing false
information to the Board, tampering with
monitoring devices installed by the Board
can be imprisoned up to three months, or
fined as much as Rs. 10,000, or both. More
serious violations of the law can incur
stiffer penalties, some as high as seven
years of imprisonment or Rs. 5,000 per day
fines.
The Water (Prevention and Control of
Pollution) Cess Act, 1977, as amended by
Amendment Act, 1991.
The Water Cess Act was passed to help meet
the expenses of the Central and State Water
Board. The Act creates economic incentives
for pollution control through a differential
tax structure and requires local authorities
and certain designated industry to pay a
cess (tax) for water consumption. These
revenues are used to implement the Water
Act. The Central Government, after deducting
the expenses of collection, pays the Central
Board and the States such sums, as it deems
necessary to enforce provisions of the Water
Act. To encourage capital investment in
pollution control, the Act gives a polluter
a 25 per cent rebate f the applicable cess
upon installing effluent treatment equipment
and meeting the applicable norms.
AIR POLLUTION RELATED
These Acts aims at prevention, control and
abatement of air pollution, for the
establishment, with a view to carrying out
the purposes of Boards, for conferring on
and assigning to such Boards powers and
functions relating thereto and for matters
connected therewith.
o The Air (Prevention and Control of
Pollution) Act, 1981, as amended by
Amendment Act,1987.
o The Air (Prevention and Control of
Pollution) Rules, 1982.
o The Air (Prevention and Control of
Pollution) (Union Territories) Rules, 1983.
o The Air (Prevention and Control of
Pollution) Act, 1981, as amended by
Amendment Act, 1987.
The Air Acts framework is to enable
integrated approach to environmental
problems, the Air Act expanded the authority
of the Central and State Boards established
under the Water Act, to include air
pollution. States not having air pollution
Boards were required to set up air pollution
Boards.
Under the Air Act, all industries operating
within designated air pollution control
areas must obtain “consent” (permit) from
the State Boards. These States are required
to prescribe emission standards for industry
and automobiles after consulting the Central
Board and noting its ambient air quality
standards.
NOISE POLLUTION RELATED
Noise Pollution (Regulation and Control)
Rules, 2000
This Rule aims at controlling noise levels
in public places from various sources,
inter-alia, industrial Activity,
construction Activity, generator sets, loud
speakers, public address systems, music
systems, vehicular horns and other
mechanical devices having deleterious
effects on human health and the
psychological well being of the people. The
objective of the Rule is to regulate and
control noise producing and generating
sources with the objective of maintaining
the ambient air quality standards in respect
of noise.
COASTAL ZONE RELATED
India’s lengthy coast stretches over 6,000
kilometers, supporting numerous fishing
communities and driving the economies of
coastal villages, towns and cities. The
legislative framework for controlling marine
pollution is provided by the Territorial
Waters, Continental Shelf, Exclusive
economic Zone and Other Maritime Zones Act
of 1976. Development along coastal stretches
is severely restricted under a regime
comprising the Coastal Regulation Zone (CRZ)
Notification of 1991; the approved Coastal
Zone Management Plans (CZMPs) for each State
or region.
o Coastal Regulation Zone Notification
o Coastal Regulation Zone Notification
o Aquaculture Authority Notification
o Coastal Zone Management Authority
Notifications
FOREST CONSERVATION RELATED
The Forest Conservation Act gives the State
jurisdiction over both public and private
forests and facilitates the extraction of
timber for profit. Public forests are those
in which State Governments have a
proprietary interest, are divided into three
categories: Reserve forests, Village forests
and Protected forests. In extending to
forests land, which is not the property of
the Government, The Indian Forest Act
represents strong Governmental intrusion
into private rights. The Act also authorizes
State Governments to acquire private land
for public purposes under the Land
Acquisition Act. These Forest Conservation
Acts also provide protection and
compensation for legally recognized
individual or community rights to forest
land or forest products.
o The Indian Forest Act, 1927
o Forest (Conservation) Act, 1980
o Forest (Conservation) Rules, 1981
o National Forest Policy, 1988
o Guidelines for diversion of forest land
The Indian Forest Act, 1927
This Act deals with four categories of
forests, namely, reserved forests, village
forests, protected forests, and
non-Government (private) forests. Any
unauthorized felling of trees, quarrying,
grazing and hunting in reserved forests is
punishable with a fine or imprisonment. The
Forest Act is administered by forest
officers who are authorized to compel the
attendance of witness and the production of
documents, to issue search warrants and to
take evidence in an enquiry into forest
offences.
Forest (Conservation) Act, 1980
This Act was as a result of rapid decline in
forest cover. Until then, Deforestation
averaged 1 million hectare a year. The Act
prohibits the deletion of a reserved forest,
or the diversion of forestland for any
‘non-forest’ purpose, and prevents the
cutting of trees in a forest without the
prior approval of the Central Government.
Contravention of the Act attrActs up to 15
days in prison.
WILDLIFE RELATED
For over a century, Indian Wildlife has
received sporadic protection through
numerous, species-specific statutes. The
primary intent of most early statutes was to
preserve game animals for hunting.
o The Indian Wildlife (Protection) Act, 1972
o The Wildlife (Transaction and Taxidermy)
Rules, 1973
o The Wildlife (Stock Declaration) Central
Rules, 1973
o The Wildlife (Protection) Licensing
(Additional Matters for Consideration)
Rules, 1983
o Recognition of Zoo Rules 1992 Wildlife
(Protection) Rules, 1995
o Wildlife (Specified Plants - Conditions
for Possession by Licensee) Rules, 1995
o Wildlife (Specified Plant Stock
Declaration) Central Rules, 1995
o Guidelines for Appointment Of Honorary
Wildlife Wardens.
The Indian Wildlife (Protection) Act, 1972
The Wildlife Act provides for State Wildlife
Advisory Boards, regulations for hunting
wild animals and birds, establishment of
sanctuaries and national parks, regulations
for trade in wild animals, animal products
and trophies, and judicially imposed
penalties for violating the Act. This Act
also prohibits harming endangered species,
hunting other species like those requiring
special protection, big game, and small game
through licensing few species classified as
Vermin may be hunted without restrictions.
The amendment to the Act in 1982, introduced
provisions permitting the capture and
transportation of wild animals for the
scientific management of animal populations.
Comprehensive amendments to the parent Act
in 1991 resulted in the insertion of special
chapters dealing with the protection of
specified plants and the regulation of zoos.
ENVIRONMENT PROTECTION RELATED
The Environment (Protection) Act, 1986.
Under this measure, the Central Government
has responsibility for deciding standards,
restricting industrial sites, laying down
procedures and safeguards for accident
prevention and handling of hazardous waste,
oversight of investigations and research on
pollution issues, on-site inspections,
establishment of laboratories, and
collection and dissemination of information.
Samples collected by Central Government
officials can be admissible in Court. The
Department of Environment, Forests and
Wildlife, which is within the Ministry of
Environment and Forestry, was designated as
the lead agency for administration and
enforcement. The bill also sets standards on
specific pollutants in specific industrial
sectors. The measure provides guidelines for
location of industries and mining areas, for
permitting and restricting industries in
environmentally sensitive areas, coastal
zone regulations and environmental impact
assessments of development projects.
Committees convened to conduct EIA’s must
have disciplines in eco-system and water
resource management, air and water pollution
control, flora and fauna conservation, land
use planning, social sciences, ecology and
environmental health. Public hearings are
also pre-requisite for project clearance.
The measure also delineates a system where a
manufactured product can receive
certification as environmentally friendly or
compatible.
The law also promulgates rules on hazardous
waste management and handling. The Act
defines the responsibilities of handlers,
circumstances for granting authorization,
conditions of disposal sites, rules for
importing hazardous wastes, reporting of
accidents, packaging and labeling
requirements and an appeal process for
potential handlers who have been denied
authorization. Rules were also promulgated
on the manufacture, storage and import of
hazardous or toxic chemicals, micro
organisms, genetically engineered organisms,
or cells. For issues regarding micro
organisms and cells, biosafety and approval
Committees can be convened with experts in
pertinent fields serving as chairman,
co-chairman and members.
HAZARDOUS SUBSTANCE MANAGEMENT RELATED
Hazardous substances pervade modern
industrialized societies. Indian industry
generates, uses, and discards toxic
substances. Hazardous substances include
flammables, explosives, heavy metals such as
lead, arsenic and mercury, nuclear and
petroleum fuel by-product, dangerous
microorganism and scores of synthetic
chemical compounds like DDT and dioxins.
Exposure to Toxic substances may cause acute
or chronic health effects. Toxic substances
are extensively regulated in India. The
first comprehensive rules to deal with one
segment of the toxics problem, namely
hazardous wastes, were issued by the Central
Government in July, 1989. Radioactive
wastes, covered under the Atomic Energy Act
of 1962, and wastes discharged from ships,
covered under the Merchant Shipping Act of
1958, are explicitly excluded from the
Hazardous Wastes Rules.
o Hazardous Wastes (Management and Handling)
Rules, 1989
o Manufacture, Storage and Import of
Hazardous Chemical Rules, 1989
o Manufacture, Use, Import, Export and
Storage of Hazardous Microorganisms,
Genetically Engineered Organisms or Cells
Rules, 1989
o Bio-Medical Waste (Management and
Handling) Rules, 1998
o Re-cycled Plastics Manufacture and Usage
Rules, 1999
o Dumping and Disposal of Fly ash -
Notification
o Hazardous Wastes (Management and Handling)
Amendment Rules, 2000 - Draft Notification.
o Municipal Solid Wastes (Management &
Handling) Rules, 2000
o Batteries (Management & Handling) Rules,
2001
o Re-cycled Plastics Manufacture and Usage
Amendment Rules, 2002
o Manufacture, Storage and Import of
Hazardous Chemical (Amendment) Rules, 2000 -
Draft Notification
o Hazardous Wastes (Management and Handling)
Amendment Rules, 2002
OTHER LAWS/ACTS RELATED TO THE ENVIRONMENT
o Eco-Marks Scheme
o The Eco Sensitive Zone - Pachmarhi,
Notification, 1998
o Ozone Depleting Substances (Regulation)
Rules, 2000
o New Biodiversity Bill - 2000
o The Eco Sensitive Zone - Mahabaleswar
Panchgani Region, 2001
o Taj Trapezium Zone Pollution (Prevent and
Control) Authority - Order
ECO-MARKS SCHEME
Scheme of Labelling of Environment Friendly
Products (ECO-MARKS) .This scheme aims at
Labelling of Environment Friendly Products.
The scheme operates on a national basis and
provides accreditation and labelling for
household and other consumer products, which
meet certain environmental criteria along
with quality requirements of the Indian
Standards for that product.
Any product, which is made, used or disposed
of in a way that significantly reduces the
harm it would otherwise cause the
environment, is considered as Environment
Friendly Product.
This scheme was introduced with the
following objectives
o To provide an incentive for manufacturers
and importers to reduce adverse
environmental impact of products.
o To reward genuine initiatives by companies
to reduce adverse environmental impact of
their products.
o To assist consumers to become
environmentally responsible in their daily
lives by providing information to take
account of environmental factors in their
purchase decisions.
o To encourage citizens to purchase products
which have less harmful environmental
impacts.
o Ultimately to improve the quality of the
environment and to encourage the sustainable
management of resources. .
