November 26, 2020

Efficacy of Air Legislation in India

Republic of India is one among the most important democratic nations in the world being the first country to insert an amendment into its constitution allowing the state to guard and improve the environment for safeguarding the public health, forests and wild life. there have been some Articles (39,42, 47, 48 and 49) indirectly handling the topic of environmental pollution and protection within the former con-situational law of India. However, within the year 1976,42nd constitutional amendment was adopted in response to the Stockholm International Conference on Human Environment in 1972 and came into effect on 3rd January, 1977.The Directive principles of State Policy (Article 48-A) 38and Fundamental Duties (Article 51-Ag) 39 under the Constitution of India explicitly announced the national commitment to guard and improve environment and preserve air quality. Nowadays through judicial inter-prestation’s, the proper to wash air has been identified as element of right to life -under Article 21 of the Constitution. The language of the Directive Principles of State Policy (Article 47) requires not only a protectionist stance by the state but also compels the State to seem for the improvement of the polluted environment. Policy statement for the amendment of pollution (1992) declares the target of the government to integrate environmental considerations into decision makings in the least levels.

History of Legislation in India

Kautilya, the prime minister of Magadh, during the regime of Chandra Gupta Maurya, 300 B.C. in his ‘Arthshastra’ revealed the question of environment protection. Mauryan King Ashoka, Emperor Shivaji depicted compassion for environment[1]

Laws before the independence of India:

1. The Oriental gas service Act, 1857

2. Indian legal code, 1860

3. Indian Explosive Act, 1884

4. The Bengal Smoke Nuisance Act, 1905

5. The Bombay Smoke Nuisance Act, 1905

6. The Indian Boilers Act, 1923

7. Indian Petroleum Act, 1934

8. The automobiles Act, 1939[2]

Present Scenario

1. The Factories Act, 1948 this is often the first act of independent India indirectly that specialize in pollution. Chapter III, Sects. 13, 14 and 15 of this act focuses on proper ventilation, dust, fumes and humidity related to the health of labour.

2. The economic (Development and Regulation) Act,1957 This was the first act providing Power to central government to cause investigation to be made into scheduled industries or industrial undertakings. The extent was limited to the aim of conserving any resources of national importance which are utilized in the industry alongside the regulation of production and industrial development.

3. The Mines Act, 1952 The consideration of air pollution was again limited to the ventilation, actions to be taken in respect of dust fire and inflamable and noxious gases including precautions against spontaneous combustion, underground fire and coal dust.

4. The Inflammable Substances Act, 1952 The act was indirectly stirring pollution through safety. The solitary purpose of the act was to declare certain substances to be dangerously inflammable and reg-ruralizing such substances with Petroleum Act 1934.

5. The nuclear energy Act, 1962 The act was addressing only health impact and safety from the radioactive substances with the only purpose of control over nuclear energy and radioactive substances.

6. The Air (Prevention and Control of Pollution) Act,1981 this is often the first act formulated with the sole purpose to supply for the prevention, control and abatement of pollution. it had been established to carry out the needs, of boards, for conferring on and assigning to such boards powers and functions relating to the matters concerned. the choices were taken at the United Nations Conference on the Human Environment held in Stockholm in June,1972, during which India participated, to require appropriate steps for the preservation of natural resources of the earth which, among other things, include the preservation of the standard of air and control of air pollution[3].

7. The Environment (Protection) act, 1986 This act came into force on 23rd May, 1986 to supply for the protection and improvement of environment and formatters connected there with. This act is serving as an umbrella act for several other rules and laws. e.g. Notification on lead free petrol and catalytic convertors for vehicles in metropolitan cities, 1995 etc.

8. Motor vehicle Act, 1988 This act deals with control of automobile emissions and specifies vehicular emission standards.

9. The Ozone Depleting Substances (Regulation and Control) Rules, 2000 India is categorized as operating under Article 5 paragraph 1 of the Montreal Protocol Regulation of production and consumption of ozone depleting substances. This act deals with prohibition on new investments with ozone depleting substances, Regulation important, export and sale of products made with or containing ozone depleting substances along amid Monitoring and reporting requirements for an equivalent. The Ozone Cell established by MoEF which has been given the responsibility for completing all tasks concerning phase out of ozone depleting substances.

10. The Municipal Solid Waste (Management and Handling) Rules, 2000 Ambient air quality monitoring has been made mandatory at the landfill sites including installation of landfill gas control system.

11. The sound pollution (Regulation and Control) Rules,2000 Ambient air quality standards in respect of noise, mentioned here are classified on the idea of area (land use), time (day or night)

Judicial Responses for Environmental Issues as Public Interest Litigations (PIL)

Judgments concerning pollution issues have provided a great deal of momentum to enhance air quality.

1. Taj Trapezium Case, Agra: Taj pollution matter: M.C. Mehta Vs UOI and Ors. W.P.(C) No.13381/1984This writ Petition was filed by Mr. M.C. Mehta, regarding pollution caused to the Taj Mahal in Agra. The sources of pollution were particularly iron foundries, ferro-alloys industries, rubber processing, lime processing, engineering, chemical industries, brick kilns, refractory units and automobiles especially the Mathura Refinery and Ferozabad banglesand glass industries. acid precipitation during this area has acorroding effect on the gleaming white marble. Honourable Supreme Court after examining their ports from National Environmental Engineering Research Institute, Varadarajan committee, Central Pollution control panel (CPCB) and Utter Pradesh (U.P.) Board, on 31.12.1996 directed that the industries within the Taj Trapezium Zone (TTZ) were the active contributors of pollution. All the 292industries had to approach either to the GAIL for grant of commercial gas-connection or to the U.P. Government for allotment of other plots outside TTZ or stop functioning using coke/coal. Constitution Of Mahajan Committee The Honourable Supreme Court on 30.8.1996 directed the Mahajan Committee to examine the progress of the green belt development and therefore the Taj Trapezium Zone Pollution (Prevention and Control) Authority to watch pro-gress of the implementation of varied schemes. (Constituted on 17.5.1999) [4].

2. Delhi pollution case: Vehicular pollution in Delhi: writ petition (civil) no.13029/1985 (M.C. Mehta vs UOI and ors.) This writ petition was filed in the year of 1985 under Article 21 of the Constitution of India regarding pollution in Delhi. The Petitioner challenged the inaction on a part of the Union of India, Delhi Administration (Government of capital Territory of Delhi) and other Authorities whereby smoke, highly toxic and other corrosive gases were allowed to pass into the air due to which the people of Delhi were put to high risk. During the pendency of this Writ Petition, honourable Supreme Court passed several orders/directions to affect the situations arising from time-to-time and impressed upon the concerned authorities to require urgent steps to tackle the acute problem of vehicular pollution in Delhi on 26.7.1998which include elimination of leaded petrol, replacement of old autos, taxies and buses, construction of new Interstate Bus Terminus at entry points, along with strengthening the air quality monitoring [5].

3. Vellore Citizen Welfare Forum Vs Union of India and Others (1996) 5 SSC 64 On 5.4.2002, the HonorableSupreme Court has relied on the judgment in which precautionary principle and ‘polluter pays principle ‘was discussed. The Honourable Supreme Court issued the directions for compliance emphasizing that, the Union of India would give priority to move sector including private vehicles everywhere India with regard to the allocation of CNG[6].

4. Pollution by industries in Delhi: M.C. Mehta Vs Union of India and Ors. Writ Petition (Civil)No.4677/1985 This Writ Petition was filed by Mr. M.C. Mehta in 1985 regarding the pollution in Delhi by the Industries located in residential areas of Delhi. The Honourable Supreme Court after considering their ports submitted by the CPCB and therefore the Delhi Pollution Control Committee, finally ordered vide its various orders, dated 8.7.1996, 6.9.1996,10.10.1996, 26.11.1996 and 19.12.1996. These orders include:

168 industries falling in ‘Ha’ and ‘Hb’ categories which were hazardous/noxious/heavy and large industries, 513 industries falling under ‘H’ category43 Hot Mix Plants, 246 brick kilns falling under category ‘H’, 21 arc/induction furnaces falling under ‘H’ category industries under the plan of Delhi (MPD-2001) were directed to shut down and stop functioning and operating in Union Territory of Delhi. However, those industries could relocate to any other industrial estate within the NCR or may change their technology to cleaner one [7].

5. sound pollution by firecrackers: Writ Petition (Civil)No.72/1998 (Noise Pollution—Implementation of the laws for restricting use of loudspeakers and high-volume producing sound systems) Vs UOI & Ors Honourable Court after hearing the matter on27.9.2001 issued directions to all or any the States and the Union Territories to regulate sound pollution arising out of bursting of firecrackers, stressing on time period of the day, area (silence zones), and public awareness. the principles are framed under the Environment (Protection) Act, 1986 as noise standards for firecrackers mentioned at S. No. 89 of Notification No.GSR 682(E), dated 5.10.1999 [8].

6. pollution from Chembur, Mumbai, India Chem-bur was identified as ‘critically polluted area’ in 1990with pollution being the dominant problem. The major industries during this area are oil refineries, fertilizer, chemical and enormous power generating units; The four major industries during this area are BPCL, HPCL, RCF & Oswal Petrochemicals for which action plans were prepared for monitoring the status of pollution control measures in these industries.

7. Oleum Gas leak case: Oleum gas leak case on strict liability: Writ Petition (Civil) No.12739 of 1985,M.C.Mehta Vs Union of India and Ors In M.C.Mehta vs. Union of India & Shri Ram Fertilizer vs. Union of India also referred to as ‘Oleum Gas leak case’, the significant questions raised were associated with the scope of Article 21 and Article 32 of the Constitution of India. the idea on which damages just in case of such liability should be quantified, whether such large enterprises should be allowed to still function in thickly populated areas and if so permitted, what measures should be adopted to scale back the risks to minimum to the workers and community. The court recommended that a national policy for location of hazardous industries in areas of scarce pollution highlighting the necessity of fixing neutral scientific expertise body which could act as an information bank for the courts and therefore the government departments and recommended for establishing ‘environmental courts’ to affect cases of environmental pollution[9].

8. M/s Navin Chemical Manufacturing & TradingCo.Ltd. initially against two respondents namely Okhla Industrial Development Authority and M/sDetchem Mineral Corporation In Navin Chemical Manufacturing & Trading Co. Ltd. vs. New Okhla Industrial Development Authority the Supreme Court directed the Uttar Pradesh Pollution control panel to inspect the location of alleged pollution industries and take necessary action against the industries that were causing pollution by grinding stones.

9. Union Carbide Corporation vs. Union of India (Bhopal CASE-III) AIR 1992 SC 248 Ranganath Misra C. J., K.N. Singh, M. N. Venkatachalliah, A.M. Ahmadi and N. D. Ojha, JJ. In Union Carbide vs. Union of India, review petitions under Article 137and writ petitions under Article 32 of the Constitution of India, raised certain fundamental issues on the constitutionality, legal validity, propriety, fairness and conceivability of the settlement of the claims of the victims during a mass-tort action concerning what is known because the ‘‘Bhopal Gas Leak Disaster,’’ considered because the world’s worst industrial disaster, unprecedented to its nature and magnitude [18].10. Murli Deora vs. Union of India et al. , 2002 AIR40, 2001(4)Suppl.SCR 650, 2001(8)SCC 765,2001(8)SCALE6, 2001(9)JT 364 In Murli Deora vs. Union of India et al. , while prohibiting smoking in public places the Supreme Court stated that‘ ‘fundamental right under Article 21 of the Constitution of India provides that nobody shall be deprived of his life without due process of law of law. In any case there is no reason to compel non-smokers to be the helpless victims of pollution. Realizing the gravity of the situation the honourable Supreme Court directed and prohibited the smoking publicly places and issue directions to the Union of India, State governments as well because the union territory to require effective steps[10]

Some of the Gaps/Drawbacks

Technical

(i) Laboratory facilities are inadequate (e.g. Dioxins and furans) CPCB is addressing a number of the industries to monitor dioxins and furans (e.g. cement industries) asa compliance condition through the consent in India. The laboratory facilities for analysis of those chemicals/pollutants are very limited in India.

(ii) National air monitoring plan CPCB is executing a nation-wide program of ambient air quality monitoring referred to as National Air Quality Monitoring Program (NAMP). The network contains 342operating stations covering 127 cities/towns in 26States and 4 Union Territories of the country [24]. Due to the revised National Ambient Air Quality Standards the common platform of comparison for air quality monitoring data must be redefined. Facilities to watch PM2.5(new parameter) are again limited[11].

(iii) Unavailability of proper and efficient technology for vehicular emissions because the available technology is not that much efficient and economic it’s very difficult to stop and control the auto mobile pollution.

(iv) Economic loss thanks to pollution isn’t considered in policy formation No policy developed on the basis of economic loss thanks to pollution. Any law is considering just one objective at a time like land use pattern, health etc.

(v) No data about agricultural sensitive area a number of the agricultural species of plants (crops) are sensitive to the pollution. These aren’t considered anywhere in policy formation. The damage to those crops gives rise to the biological loss in terms of food and economic loss also.

(vi) Indoor pollution Several international studies have documented, indoor pollution leads to400,000–550,000 premature deaths in India from acute lower respiratory infections and chronic obstructive pulmonary disease [12]. It is observed that regulatory agencies have failed to focus thereon.

Non-technical

(i) Top to down approach of policy formation Some of the policies are developed with top to down approach without considering the basis level situation or they’re enforced by considering just some of a part of whole area. So, it fails to achieve objectives of the policy or generates some other environmental issues.

(ii) Public awareness and participation in legislation in some of the countries people make government to develop the policies but in India policy comes first then people get to understand about it.

(iii) Implementation of enforced policy, law, rules the history shows that the Acts, laws, rules prepared are theoretically paramount but fails in implementation. Some of the explanations for this are, lack of willingness of authorized agencies, lack of awareness in com-munity, topographic- cultural-economic variations of the country, public participation etc.

(iv) Need of composite law Environmental legislation in India isn’t a composite one. It means, it’s limited in scope and deals with just one aspect of environ-mental protection at a time, e.g. water, air etc. Despite the piecemeal approach towards environ-mental protection, the Indian policy should be reasonable to make a comprehensive policy.

(v) Time consumption in Judiciary responses Judiciary responses on Environmental issues discussed above concludes that the time required may be a key concern in such PILs. Many of the Environmental laws and regulation in India are the results of reactive approach to the general public interest litigations, international treaties and pressure groups being another explanation for time consumption. there’s an important need of proactive, participatory; time bound decisions making system to deal with environmental issues in India.

[1] The Energy and Resources Institute, Environmental justice: scope and access workshop on sustainable development for the subordinate judiciary (19th–21st Aug 2006). (The Energy and Resources Institute, New Delhi, 2006)

[2] http://lawmin.nic.in/. Accessed December 2013

[3] Central Pollution Control Board, Pollution control acts, rules and notifications issued thereunder, Pollution control law, series: PCLS/02/2010

[4] http://cpcbenvis.nic.in/newsletter/legislation/ch4dec02a.htm.Accessed January 2013

[5] http://cpcbenvis.nic.in/newsletter/legislation/ch6dec02a.htm.Accessed January 2013

[6] http://judis.nic.in/SupremeCourt/imgs1.aspx?filename=15202.Accessed December 2014

[7] http://cpcbenvis.nic.in/newsletter/legislation/ch7dec02a.htm.Accessed January 2013

[8] http://cpcbenvis.nic.in/newsletter/legislation/ch10dec02a.htm.Accessed January 2013

[9] http://cpcbenvis.nic.in/newsletter/legislation/ch18dec02a.htmAccessed January 2013

[10] K. Vinod Razdan, Air pollution, legislative controls and judicial response. Bull Natl Inst Ecol 15, 239–247 (2005)

[11] http://www.cpcb.nic.in/air.php. Accessed January 2013

[12] World Health Report, Shaping the Future (World Health Organization, Geneva, 2003)

Author Details: Rishabh Gupta

The views of the author are personal only. (if any)

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