Efficacy of Water Legislation in India

Water pollution is a serious problem in India and requires unfettered attention. Though, there is nothing mentioned about water pollution in the Constitution but the Court has interpreted it under Article 21[1], a right to life guaranteed by it. In Subash Kumar v State of Bihar,[2] the Court has given a broad interpretation to include ‘right to enjoyment of pollution free water environment’ and further ‘right to hygienic environment’ in Virendra Gaur & Others v State of Haryana & Others[3].

Various statutory frameworks have been formulated to overcome this problem at various levels like central, state or local and municipal bodies, in both civil and criminal sphere. Water, sanitation and health are enlisted in List II of the Seventh Schedule, thereby implying that State Government exercises powers in this respect. Various public spirited persons have raised a number of Public Interest Litigations to varying effect, however, the statutory laws have suffered from serious implementation failures.

The environmental laws in India follow command and control approach in case of water pollution, thereby, laying down the limits or standards for discharge of matter or effluents into different water bodies and punish in case of non-compliance.

The Water (Prevention and Control of Pollution) Act, 1974 (the ‘Water Act’) was enacted by the Central Government in exercise of the power vested in it by resolutions passed by two or more State Legislatures in accordance with Article 252[4] of the Constitution. The two main objectives of the Act aim to prevent and control water pollution and maintain or restore the wholesomeness of water.[5] However, the Act fails to define ‘wholesomeness’.

There are two sources of water pollution, namely, point and non-point or diffuse sources. The point sources include disposal of untreated or partially treated industrial waste or effluents and domestic sewerage. On the other hand, non-point sources include agricultural run-off.[6] However, non- point sources have been excluded from the ‘Water Act’.

Though Section 37[7] of the Act talks about powers and functions of boards but is silent on funding, later in 1977 Water (Prevention and Control of Pollution) Cess Act was enacted to fund them. Further, there lies a problem in implementation as it requires the pollutant to possess ‘knowledge’.[8] But other acts like Prevention of Food Adulteration Act, 1954 imposes strict liability. Hence, manipulations can be done in this respect and hence, requires strict implementation. Also, the Boards have no authority to deal directly[9] but sought to judicial remedies through Court which is time consuming. Even injunctive relief is unavailable.[10]

The Environment Protection Act, 1986 is an umbrella legislation, equally applicable in case of water pollution, and prevails over the Water Act. The Central Government though Ministry of Environment and Forests (MoEF), has been vested with the power to lay down certain standards for maintaining quality of environment by restricting pollutants from various sources. Various notifications have been issued by the Ministry in order to improve the quality of water and set limit for concentration of pollutants. The Act prohibits not only industries but also individual to discharge effluents or pollutants in excess of the standards prescribed.

However, if anything happens due to accident or an unforeseen circumstance, the person is still responsible and required to mitigate the resulting harm. Not only this, but if there is apprehension of such harm, then only he is responsible to inform the authorities and take necessary steps. However, this Act is subjected to various implementation failures due to various factors such as inadequate infrastructure like monitoring stations to regulate and its frequency of monitoring.

There has been poor implementation by State Pollution Control Board (SPCB) as they have been unsuccessful to act against defaulter due to lack of financial, technical or human resources, thereby, leading to low rate of compliance. Further, multiple responsibilities on SPCB have caused problem in implementation as the Board is also entitles to look after air pollution under Air (Prevention and Control of Pollution) Act, 1981. Also, lack of will, corruption and quantum of punishment with no deterrence effect adds fuel to the fire.

Considering, the criminal aspect, Section 277 of Indian Penal Code[11], 1860 highlights nuisance under criminal laws. The provision aims to penalize voluntary corruption or fouling of the water of any public spring, reservoir or as to render it less fit or unfit for the purpose for which it is ordinarily mean to be used. But problems lie on the notion that the provision does not include rivers and private wells. Also, the punishment prescribed for the same has no deterrence effect as it includes imprisonment of maximum three months and fine of maximum 500 Rupees.

Section 133 of Code of Criminal Procedure, 1973 allows for speedy and summary remedy in case of unlawful obstruction or nuisance to be removed from public places or river or channel which may or is be used lawfully by the public.[12] But, the injunctive relief given under the provision should not interfere with the orders of SPCB, hence making it less effective.

However, the Supreme Court, various High Courts and National Green Tribunal have adjudicated a number of cases and applied principles of polluters pay and precautionary principle to impose liability on defaulters. Few cases have given a chance to Court to rectify the problems arisen due to ineffective implementation or non- implementation of the existing provisions. The Court has always focused on preservation of water[13] or underground water[14].

In M.C. Mehta v. Union of India (Kanpur Tanneries case)[15], Court restrained the tanneries in Kanpur from discharging their untreated effluents into river Ganga. The Court held the financial condition of tanneries to set up treatment plant as irrelevant and asked them to either close or relocate.

Again in petition, M.C. Mehta v. Union of India[16], the Court held that SPCB have failed miserably to take into consideration the effluents being discharged by factories into river Ganga, thereby polluting it. The municipal authorities had the duty to avoid the public nuisance but no step had been taken by them. Court further held that most of the provisions regarding water pollution in the Water Act and municipal laws have just remained on paperwork without any action being taken when it was needed.

The Court has successfully directed the authorities to reverse the environmental damage caused by tanneries in Tamil Nadu as it has polluted river Palar by discharging their effluents. This river was the major source of drinking water supply. The petition was filed by Vellore Citizens Welfare Forum[17] in order to suspend these factories from releasing their effluents into river or shut down completely.

In Indian Council for Enviro- Legal Action v Union of India and Others[18], amongst other claims, there was a great concern towards the quality of water that was affected in water bodies in Bichhri district in Udaipur wherein the factories have released the sludge and toxic materials directly into water, thereby polluting it badly. The Court held the defaulters absolutely liable and levied costs.

The Court in Andhra Pradesh Pollution Control Board v. Prof. M.V. Nayadu[19], held that it is a fundamental duty of citizen to access drinking water and state has a duty to provide clean drinking water. Also, in M.C. Mehta v. Union of India[20], SC declared that groundwater is a public asset and citizens have right to access air, water or earth freely under Article 21. The Court in Municipal Council, Ratlam v Vardhichand[21] invoked Section 133 of CrPC, to direct municipality to perform its duties.

The Court has not only accepted the principle of Sustainable Development through its judicial activism but also applied it in cases. For example, in U.P. Pollution Control Board v Mohan Meakins Ltd.[22] the company was polluting river Gomati by discharging its effluents in river and thereby increasing pollution beyond permissible limit. It was contended that the case was filed 17 years ago and hence, it was lapsed. However, Court equally took managers and directors of company into consideration and prosecuted them by considering the principle of sustainable development.

Hence, despite various challenge in the implementation of the Act, the Court through its judicial activism and taking cognizance of petitions filed by public spirited persons, has been successful in controlling and preventing the water pollution caused by factories, industries, tanneries, individuals etc. But it is still recommended that such aspects should be taken into consideration in order to rectify the loopholes and have stronger statutory frameworks to punish the defaulters and revive the environmental damage caused by them so that the present and future generations do not have to pay a cost due to their fault and selfish means.

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References

[1] Indian Const. art. 21: No person shall be deprived of his life or personal liberty except according to a procedure established by law.

[2] Subash Kumar v State of Bihar, AIR 1991 SC 420.

[3] Virendra Gaur & Others v State of Haryana & Others, (1995) 2 SCC 577.

[4] Indian Const. art. 252: If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the House of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.

[5] Water (Prevention and Control of Pollution) Act, 1974, Act No. 6 of 1974.

[6] M. Romeo Singh and Asha Gupta, Water Pollution- Sources, Effects and Control, Centre for biodiversity, Nagaland University, Available at: https://www.researchgate.net/publication/321289637_WATER_POLLUTION-SOURCESEFFECTS_AND_CONTROL, Last Accessed: 14.04.2020.

[7] Water (Prevention and Control of Pollution) Act, 1974, Act No. 6 of 1974, Section 37.

[8] Water (Prevention and Control of Pollution) Act, 1974, Act No. 6 of 1974, Section 24(1)(a).

[9] Water (Prevention and Control of Pollution) Act, 1974, Act No. 6 of 1974, Section 33.

[10] Water (Prevention and Control of Pollution) Act, 1974, Act No. 6 of 1974, Section 47.

[11] Section 277 of Indian Penal Code: Fouling water of public spring or reservoir. —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 of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

[12] Section 133(1)(a) of Code of Criminal Procedure, 1973: that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or.

[13] M.C. Mehta v. Union of India, AIR 1998 SC 1037, 1088, 2340.

[14] Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

[15] M.C. Mehta v. Union of India, AIR 1988 SC 1037.

[16] M.C. Mehta v. Union of India, AIR 1988 SC 1115.

[17] Vellore Citizen Welfare Forum v Union of India, AIR 1996 SCC 2715.

[18] Indian Council for Enviro- Legal Action v Union of India and Others, AIR 1996 SC 1446.

[19] Andhra Pradesh Pollution Control Board v. Prof. M.V. Nayadu, MANU/SC/0032/1999.

[20] M.C. Mehta v. Union of India, MANU/SC/0247/2004.

[21] Municipal Council, Ratlam v Vardhichand, AIR 1980 SC 1622.

[22] U.P. Pollution Control Board v Mohan Meakins Ltd., (2000) 3 SCC 569.

Author Details: Naina Agrawal (RGNUL)

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