Environment (Protection) Act, 1986

This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law, University. This article contains an overview of the Environment (Protection) Act, 1986, including its background, objectives, various provisions, drawbacks, and some important case laws.

Table of Contents

Introduction

In wake of the Stockholm Conference held in 1972 that advocated environmental protection at the international level and was one of the most devastating incidents of all time, the Bhopal Gas Tragedy of 1984 highlighted an urgent need for a comprehensive law with respect to environmental protection, domestically, the need for Environment (Protection) Act, 1986 was felt. The preamble of the Act states the objective of the Act to be the protection and improvement of the environment. It seeks to protect human beings, other living creatures, plants, and property from environmental hazards. It extends to the whole of India and aims to prevent, control, and abate environmental pollution. Even though we had the Water Act, 1974, the Air Act, 1981, and the Indian Forest Policy, 1988, there was a pressing need for general legislation with stringent penal provisions in order to safeguard the environmental rights.

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Background of the Environment Protection Act

The concern for the environment in India is nothing new. From ancient times we have believed in ‘Vasudhaiva Kutumbakam’, i.e. the entire world is one family. Indians have believed that all the creatures on the Earth are a family, including all the plants, animals, and microorganisms.

Our present-day Constitution also provides testimony to our old principles. Some of them are as follows:

By the 42nd Amendment Act, Article 48A was added as a part of the Directive Principles of State Policy which stated that it was the state’s responsibility to make efforts in order to “protect and improve the environment, and to safeguard the forests and wildlife of the country.”
Article 51A(g) declares that it is the fundamental duty of each and every citizen of the country to “protect and improve the natural environment including the forests, lakes, rivers, and wildlife and to have compassion for living creatures.”
Our judiciary has outlined in a number of judgments that Article 21, which guarantees the right to life and dignity, also encompasses the right to live in a healthy and safe environment. In the case of Subhash Kumar v. the State of Bihar, it was observed that the right to get pollution-free water and air is a fundamental right under Article 21.
Article 253 of the Indian Constitution empowers the Parliament to bring any legislation to give effect to any international treaty, agreement, convention, or decision taken at a conference. It was with the help of Article 253 that the Indian Parliament enacted the Environment (Protection) Act, 1986 to give effect to the decisions taken at the UN Conference on the Human Environment held in Stockholm in 1972.

Stockholm Conference, 1972

The United Nations Conference on Environment, in Stockholm was the first Conference held at the world level that took the environment as a serious international concern. It led to the formulation of the Stockholm Declaration and Action Plan for the Human Environment and other numerous resolutions that aimed at sound management of the environment. The Declaration basically consisted of 26 principles that mainly aimed at facilitating dialogue between industrialized and developing nations on the matters of economic growth, air and water pollution, and the overall well-being of the people across the globe. One of the most impactful results of this conference was the formulation of the United Nations Environment Programme. India also participated in the conference and vociferously raised its concern for the environment. In order to implement the decisions adopted at this conference, the Indian Parliament exercised its powers under Article 253 to enact the Environment (Protection) Act, 1986.

Objectives of the Environment Protection Act

The following are the main objectives behind bringing this legislation:

To implement the significant decisions taken, relating to environment safety and protection, at the United Nations Conference on the Human Environment held in Stockholm in June 1972.
India already had some legislation related to different aspects of the environment but there was a need for comprehensive legislation that filled the gaps in the existing laws. Thus, it was enacted to bring general legislation in environment protection and cover other major areas of environmental hazards that were previously uncovered.
To create new authorities for the purpose of protecting and improving the environment and also to coordinate the activities of already existing authorities constituted under previous laws.
To provide for stringent and deterrent punishment to the offenders of the natural environment who endanger its safety and health.
To facilitate the growth of subordinate and delegated legislation on ecologically sensitive topics and environment protection.
To promote sustainable development, i.e. balance the overall development with environmental protection.

Need for the Environment Protection Act in India

The need for stringent legislation for environment protection was felt in India because of the following reasons:

The first was the Stockholm Conference which highlighted internationally, the impact human activities were having on the environment. Development and the environment were at crossroads with each other and the conference brought into focus the urgency of their reconciliation for the benefit of humanity and the planet as a whole.
The second was the Bhopal Gas Tragedy. It was about the leak of Oleum gas from an industry that proved to be fatal for the people around and the environment. This incident underlined the importance of regulating the industries so that they do not get away easily from the punishment of causing harm to the environment.
Also, the need was felt because India had some laws for protecting the environment like the Air Act and Water Act but there was no comprehensive law that connected them and coordinated their activities and functions.

Why is Environment Protection Act called an ‘Umbrella Act’

The Environment Protection Act is called an ‘Umbrella Act’ because of the following reasons:

It establishes the basic framework for planning and executing large-scale strategies to protect and improve the overall environment, rather than focusing on specific aspects.
It provides for coordination between the Central government, state government, and authorities that are established under various other legislation related to the environment.
It fills the lacuna created by several other distinct legislation like the Water Act and Air Act. It connects them together and makes them more effective.
It is broad and comprehensive legislation that covers the definitions, powers, and responsibilities of the central government towards the environment, and penal provisions as well.

The concept of Environment Impact Assessment

Environment Impact Assessment has been defined by the International Association for Impact Assessment as, “the process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development protocols prior to major decisions being taken commitments made.”

Basically, it is a concept that attempts to reconcile anthropogenic developmental activities with environment protection by assessing the impact of such activities on the environment and addressing them at the planning and design stage of the project itself. Thus, it majorly involves identifying the future implications of a proposed activity on the environment. It has originated from the concept of the ‘precautionary principle’ which says that a consent must be obtained from a competent authority before taking up any developmental activity posing a serious or irreversible threat to the environment. Now, in order to gauge the effect of that activity, EIA plays an instrumental role.

Environment Protection Act in India

The concept of EIA reached India in 1976-77 with the Planning Commission asking the Department of Science and Technology to assess the river valley projects for their impact on the environment. Subsequently, it was expanded to include other projects as well. They were subjected to the approval of the Public Investment Board. But these were mainly administrative decisions and had no statutory backing. But it got support with the coming of the Environment Protection Act, 1986. After EPA came into force, a notification was issued under the Act which made EIA compulsory for 30 specified activities. The responsibility for giving a clearance has been given to the Ministry of Environment and Forest. The Notification was revised in 2006.

Section 2 of Environment Protection Act

Section 2 of the Act defined various terms used in its provisions. These definitions are as follows:

Environment– Environment has been defined to include air, water, and land, and the inter-relationship among and between air, water, land and human beings, other living creatures, microorganisms, plants and property.
Environment pollutant- A pollutant is any substance in a solid, liquid, or gaseous state, which when present in a certain concentration can be injurious to the environment.
Environment pollution– The presence of an environmental pollutant in the environment is called environment pollution.
Handling– Handling, in respect of any substance, is deemed to imply its “manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale or its transfer.”
Hazardous substance– It refers to any substance or preparation which can cause harm to humans, plants, other living creatures, property, or the environment due to its chemical or physico-chemical properties or handling.
Occupier- In respect of any factory or premises, it refers to the person who is in control over the affairs of the factory or premises, and in respect of any substance, it refers to the person who is in possession of that substance.

Powers and functions of the Central Government

Section 3- Powers of the Central Government to take measures to protect and improve the environment

Section 3 empowers the Central Government to take all such measures as it deems necessary or expedient to protect and improve the quality of the environment, and to prevent, control, and abate environmental pollution. Some of these measures include:

To coordinate actions among state governments, officers, and other authorities.
To plan and execute nationwide programs.
To lay down standards for the quality of different aspects of the environment.
To lay down the standards for emission or discharge of pollutants.
To restrict the operation of certain industries, processes, or operations in specific areas.
To lay down procedures and safeguards for the prevention of pollution-causing accidents and take remedial measures.
To lay down procedures and safeguards for the handling of hazardous substances.
To examine the manufacturing processes, materials, and substances that are capable of causing pollution.
To carry out and sponsor investigations and research on the issues related to pollution.
To inspect the premises, plant, equipment, machinery, manufacturing, or other processes, materials, or substances.
To establish or recognise environmental laboratories and institutes.
To collect and disseminate information on pollution matters.
To prepare codes, manuals, or guides related to the prevention, control, and abatement of environmental pollution.
Such other matters as the government deem necessary or expedient.

The Central Government is also authorised to constitute such authority/authorities for the purpose of exercising and performing such powers and functions as the government may delegate to it.

Section 4- Power to appoint officers

Section 4 authorizes the Central Government to appoint officers with such designations, powers, and functions as it thinks fit. The officers appointed shall be under the control and direction of the government or any authority empowered by it.

Section 5- Power to give directions

As per Section 5, the Central Government has got the power to issue directions in writing to any person, officer, or any authority, which shall be binding on such person, officer, or authority.

These directions could be related to matters as follows:

To close, prohibit, or regulate any industry, operation, or process; or
To stop or regulate the supply of electricity, water, or any other service.

Section 6- Power to lay down rules to regulate environmental pollution

The Central Government has also been authorised to frame rules on the matters mentioned in Section 3 of this Act. Some of these matters include:

The standards of quality of air, water, or soil.
The maximum allowable limits of environmental pollutants (including noise).
The procedures and safeguards for the handling of hazardous substances.
The prohibition and restrictions on the handling of hazardous substances.
The prohibition and restrictions on the location of industries, operations, and processes.
The procedures and safeguards for the prevention of accidents likely to cause pollution and provide for remedial measures for such accidents.

Section 10- Power of entry and inspection

Under this Section, any person authorised by the Central Government has the right to enter any place, at reasonable times with some assistance for the following purposes:

To perform any function entrusted by the Government,
To determine whether and how such functions are to be performed, or whether the provisions of this Act, rules made under any notice, order, direction, or authorisation granted has been complied with,
To examine and test any equipment, industrial plant, record, register, document, or any other material object.
To conduct a search in my building where there is reason to believe that an offence under the Act has been committed.
To seize any such equipment, industrial plant, record, register, document, or other material objects if there is reason to believe that it would serve as evidence for the offence committed or that the seizure is necessary to mitigate the pollution.

Also, any person carrying on such industry, process, or operation which involves handling of hazardous substances must render all the assistance required to the person empowered by the Central Government for inspection. Failure to provide the assistance without any reasonable cause, or wilfully delays or obstructs that person shall be guilty of an offence under this Act. Also, for such search and seizure, provisions of the Code of Criminal Procedure, 1973 or any corresponding law in force shall be applicable.

Section 11- Power to take sample and procedure to be followed

Section 11 empowers the State Government or any officer authorised by it to take the samples of air, water, soil, or other substances from the premises of any factory.

The procedure prescribed for sample taking is as follows:

The person taking the sample must serve a notice of his intention to take the sample to the person in charge of the place.
The sample must be taken in the presence of the person in charge or his agent.
The sample must be placed in a container or containers, which shall be marked and sealed. Thereafter, it shall be signed by both the person taking the sample and the person in charge or his agent.
The container then must be sent to the laboratory established under Section 12.
In case the person in charge or his agent wilfully absents himself or refuses to sign the containers, the containers must be sealed, marked, and signed by the person taking the sample and must be sent to the laboratory. The government analyst must be informed in writing about the wilful absence or refusal to sign.

Any analysis taken without following the procedure prescribed would not be admissible as valid evidence in any legal proceedings.

Section 20- Power to ask for information, reports, or returns

For the purpose of performing its functions under the Act, the Central Government has the power to ask for any reports, returns, statistics, accounts, and other information from any person, officer, state government, or any authority, which shall be bound to do so.

Section 23- Power to delegate

The Central Government is also authorised to delegate its powers under the Act, except the power to appoint authorities under Section 3(3) and to make rules under Section 25, to any officer, state government, or other authority. However, such delegation shall be subject to the requisite limitations and conditions, as may be specified in the notification in the Official Gazette.

Section 25- Power to make rules

To carry out the purposes of this Act, the central government may frame rules on the following matters:

The standards of environmental pollutants, beyond which the emission or discharge is prohibited under Section7;
The procedure and safeguards for the handling of hazardous substances under Section 8;
The authority which is to be intimated about the occurrence or apprehension of occurrence of discharge of any pollutants in excess of the prescribed standards;
The manner in which samples of air, water, soil, or any other substance are to be taken under Section 11(1);
The form in which the notice of intention to take a sample for analysis is to be served under Section 11(3) (a).
The functions, procedures, and fees payable to environmental laboratories;
The qualifications of the Government Analyst appointed under Section 13;
The manner in which the notice of offence and the intention to make a complaint is to be given under Section 19(b);
The authority or officer who is required to submit the reports, information, or returns to the Central Government under Section 20;
Any other matter of concern, as may be prescribed.

Prevention, control, and abatement of environmental pollution

Section 7- Emission or discharge of environmental pollutants in excess of the standards

According to Section 7, it is prohibited for any person to discharge or emit any environmental pollutant in excess of the prescribed standards from any industry, operation, or process.

Section 8- Handling of hazardous substances

Section 8 lays down that all the persons handling any hazardous substances shall do so by complying with all the procedures and safeguards as may be prescribed.

Sample analysis

Section 12- Environmental laboratories

The Central Government is empowered to establish one or more environmental laboratories, or recognise any laboratory as an environmental laboratory to carry out the functions assigned under this Act. Rules regarding the functions, procedures, and other matters related to the environmental laboratory are to be framed by the Central Government by Notification in the Official Gazette.

Penal provisions under the Environment Protection Act

Section 15- General offences

Section 15 prescribes the penalty for general offences committed under this Act. if any person fails to comply with or contravenes any provisions of this Act, or rules made or orders or directions issued, he would be punishable with imprisonment for a term which may extend to five years or with a fine up to Rs. 1 Lakh, or with both. If the failure or contravention continues, then an additional fine which may extend to Rs. 5000 may be laid for every day the failure or contravention continues. And if this failure or contravention extends beyond one year after the date of convection, then the imprisonment can extend upto seven years.

Section 16- Offences by companies

For an offence committed by a company, Section 16 holds responsible the person who at the time the offence was committed was in charge of and responsible for the conduct of the company as well as the company. However, if it proved that any such person was liable exercised due diligence or that the offence was committed without his knowledge. Also, if it is proved that the offence was committed with the consent, connivance, or negligence of any director, manager, secretary, or another officer, then such person shall be liable to be proceeded against.

It is also specified that ‘company’ includes any body corporate, a firm, or any other association of individuals. The word ‘director’ also means ‘partner’ in relation to a firm.

Section 17- Offences by government departments

Section 17 lays down that for an offence committed by a government department, the Head of the Department shall be held responsible unless he proves that the offence was committed without his knowledge or that due diligence was exercised. However, if it is proved that the offence has been committed with the consent, connivance, or neglect of any officer other than the Head of the Department, then that officer shall be proceeded against and punished accordingly.

Other important provisions under the Environment Protection Act

Section 5A- Appeal to National Green Tribunal

Section 5A provides for the provision to appeal against an order or decision of the Appellate Authority under Section 31, by the aggrieved person. As per the Section, the appeal can be filed to the National Green Tribunal established under Section 3 of the National Green Tribunal Act, 2010.

Section 22- Bar of jurisdiction

Section 22 takes away the jurisdiction of civil courts from entertaining any suit or proceeding related to anything done or direction issued by the central government or an officer or authority in order to discharge the functions assigned by this Act.

Benefits of the Environment Protection Act

The following are some of the benefits of having the Act:

Protection of public health– It seeks to prevent, control and abate environment pollution so as to keep the environment clean and safe. This ensures that we get a healthy environment to live in, free from all sorts of pollutants harmful to our health. Thus, the Act aims to protect public health.
Promotes sustainable development– It seeks to prevent the exploitation of natural resources and preserve them for future generations.
Positively empowers the central government to take concrete steps to protect the environment– The Central Government has been given immense powers to not only appoint authorities to carry out various functions but also to take all the possible measures to further the objectives of the Act.
Strict penal provisions– The Act contains penal provisions for the breach of its provisions. It also lays down the liability of companies and government departments for polluting the environment.
Protecting ecological integrity– By providing for penal provisions and laying down various guidelines for the Central Government to take active steps for environment protection, the Act aims at preserving the ecological integrity by maintaining it in its unpolluted and natural form.

Drawbacks of the Environment Protection Act

Despite many effective provisions that the Act contains to protect the environment, it is not free from some limitations and drawbacks that dilute its effectiveness. Some of them are the following:

Too general in nature– The Act is a comprehensive legislation that tries to cover all the aspects of the environment but it does so only superficially. It covers only the broad aspects and leaves out the details.
Conflicting jurisdiction– Section 24 talks about the overriding effect of this Act. It mentions that if an offence is punishable by both this Act and some other legislation, then the offender is to be punished under the other law and not this. This provision lessens the effectiveness of this Act as an offender can easily flout the rules and protect himself from the penalty, prescribed under this Act.
Flexible penalty– The penal provisions prescribed under the Act are not adequately stringent and deterrent. In most of the provisions, there is no minimum penalty provided. Also, the offenders have been provided with a room to escape liability by proving things like the offence was committed without knowledge or that due diligence was exercised.
Weak citizens’ suit provision- Common citizens are not allowed to file a suit against the environmental offenders unless 60 days prior notice is given. Those 60 days could be easily utilised by the offender to wipe out the evidence of his fault. Only the central government or its authorised officers or authorities can file a complaint under this Act. it is important that citizens are given the right to file complaints in cases where they see the environment is being harmed.
Lack of coverage of certain specific aspects of environmental damage– The ambit of environment pollution has widened with the march of time and technological advancements. But the definitions under the Act have not kept up with the pace. Specifically, the definition of ‘pollutant’ covers only the particulate aspects. Nowadays, pollution caused by noise and radiation would fall out of this definition. It fails to cover soil erosion, effects of flood and drought, and other important aspects related to environmental degradation.

Important case laws regarding the Environment Protection Act

Vellore Citizens’ Welfare Forum v. Union of India (1996)

Facts

River Palar is a river in the State of Tamil Nadu, which is also one of the main sources of drinking and bathing water for the surrounding people. The petition was filed against excessive pollution caused by tanneries and other industries in the State. The Tamil Nadu Agricultural University Research Centre also revealed that a significant portion of agricultural land had turned either partially or completely unsuitable for cultivation.

Issue

Should the tanneries and industries be allowed to operate at the expense of damage to the surrounding environment?

Held

The Court highlighted that the main purpose of the Environment Protection Act is to create an authority under Section 3(3) with all the necessary powers and functions to protect and improve the environment. However, it was disappointing that not enough authorities were appointed for the same. Thus, it directed the Central Government to appoint an authority within one month and confer on it all the adequate powers required to deal with the situation created by tanneries and other polluting industries in Tamil Nadu. It also directed the authority to implement the ‘precautionary principle’ and ‘polluter pays principle’. A fund called ‘Environment Protection Fund’ was also to be constituted. The compensation received was to be employed for reversing the damage done to the environment and to the victims of the damage.

Narula Dyeing and Printing Works v. Union of India (1995)

Facts

The Narula Dyeing and Printing Works were allegedly discharging untreated pollutants into an irrigation canal resulting in significant water pollution. The State Government as well as Gujarat State Pollution Control Board issued directions under Section 5 of the Environment Protection Act to close down the factory. The Petitioners challenged this order citing that no personal hearing was provided to them and no time was granted to comply with the said directions.

Issue

Were the State Government and the Board right in closing down the factory without providing an opportunity for a personal hearing to the petitioners?

Held

The Gujarat High Court held that the government was absolutely right in issuing the orders for closing down the factory under Section 5. In cases where there is a grave injury caused to the environment, the government is empowered to dispense with the opportunity of hearing. It is intended to protect the environment from serious damage done by discharging untreated effluents.

M.C. Mehta v. Union of India (The Ganga Pollution Case) (1988)

Facts

Kanpur has been the hub of tannery business in India for a long time. Most of these industries are located on the southern banks of the river Ganga. These industries have been known to have contaminated the river. In 1985, a matchstick tossed into the river resulted in a massive fire in the river because of the presence of a toxic layer of chemicals formed on its surface. Thus, M.C. Mehta, a famous environment advocate, and an activist filed a petition in the Supreme Court against the tanneries and also the Municipal Corporation of Kanpur to stop them from discharging untreated effluents into the river, polluting it.

Issues involved

Whether the authorities had been negligent in protecting the river Ganga from pollution?
Should the smaller industries be aided financially for the installation of treatment plants and what standards should determine ‘smaller industries’?

Held

The Court held that there were several laws in force in India that sought to prevent environment pollution including the Environment Protection Act, 1986, and the Water (Prevention and Control of Pollution) Act, 1974. However, the authorities had been negligent in discharging their duties prescribed under these laws. It also observed that the financial capabilities of industries are irrelevant when considering the issue of installing primary treatment plants. Thus, each tannery was directed to at least install primary treatment plants, if not secondary plants.

The Court also laid down the following guidelines:

It was the duty of the Central Government to direct all the educational institutions across India to teach lessons on environment protection and improvement, at least for an hour every week.
Also, the Central Government must publish environment textbooks and distribute them among the students.

M.C. Mehta v. Union of India (The Vehicular Pollution Case) (1991)

Facts

Delhi is the National Capital of India and yet is included as one of the most polluted cities of the world. Over the years, the population of Delhi has become multifold and as one of the results of that, the pollution levels have been sky high. The main source of pollution has been the two-wheelers. Thus, M.C. Mehta filed the petition in the Apex Court to highlight the plight of the capital due to vehicular pollution and suggest practical solutions to the problem.

Issue involved

What steps should be taken to prevent and reduce vehicular pollution in the National Capital?

Held

With reference to technological and other solutions suggested by the petitioner and the literature presented, the Court passed the following interim orders:

It is the duty of the state under the DPSPs and also as mentioned in Section 51A as a fundamental duty, to protect the environment, life, flora, and fauna.
Awareness is the key to reducing environmental pollution. People must be made aware of the harmful effects of vehicular pollution on environmental health.
A committee was formed to look into vehicular pollution in the capital and suggest practical solutions to prevent it.

Conclusion

Post the Stockholm Conference and the Oleum gas leak case, the concern for the environment has magnified. The provisions of the Environment (Protection) Act, 1986 mark a positive step towards environment protection and improvement. It has stipulated some stringent regulations for the prevention, control, and abatement of environment pollution. The central government has been given a wide scope of powers to frame rules and appoint authorities to further the purposes of this Act. Additionally, the Act has facilitated the coming of several notifications for environment protection which have introduced new protective principles like the Environment Impact Assessment. It has also empowered the citizens to play a proactive role in environment protection by calling out the pollution-causing industries under EPA which has led to a string of environmentally sound judicial decisions. However, there are still some lacunas present in the Act that need to be filled with subsequent amendments to update the Act with changing times.

References

DR. PARAMJIT JASWAL, DR. NISHTHA JASWAL AND VIBHUTI JASWAL, ENVIRONMENTAL LAW (4th ed. 2015).
DR. S.C. TRIPATHI, ENVIRONMENTAL LAW (7th ed. 2019)
https://eco-intelligent.com/2017/12/04/indias-environment-protection-act-1986/

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