Environment Problems Penal Action Required
by Nirmal Chopra
Cite as : (2004) PL WebJour 3
Environment protection and its preservation is today a matter of concern for all nations around the world. The environment as it exists today is of the example that human activities are correlated with nature and human beings cannot remain aloof after causing damage to the environment. No doubt, environmental degradation and pollution in various forms is affecting human life in the present times.
To deal with the problems of industrialization and overexploitation of natural resources, nations all over the world came together at the United Nations Conference on Human Environment held at Stockholm in the year 1972 and to deal with problems of environmental protection, the concept of sustainable development was evolved.
The term sustainable development was used at the time of the Tokyo Declaration on Environment and Development in the early 1970s and it received impetus in the Stockholm Declaration of 1972 which is called the Magna Carta of environment protection and its development. The concept of sustainable development was also discussed by the World Commission on Environment and Development in its report of 1982 and the Brundtland Report of 1987. Sustainable development as defined in the Brundtland Report of 1987 means development and meeting the needs of the present without compromising the ability of the future generation to meet their own needs.
In Vellore Citizens Welfare Forum v. Union of India1 ..it was observed that some of the salient principles of sustainable development as well as from the Brundtland Report and other international documents are intergenerational equity, use and conservation of natural resources, environment protection, precautionary principle, polluter-pays principle, obligation to assist and cooperate in eradication of poverty and financial assistance to developing countries. We are, however, of the view that the precautionary principles and polluter-pays principle are essential features of sustainable development.
Certain environmental laws were in force in India well before the Stockholm Declaration of 1972, such as the Indian Forest Act etc. Besides this action could also be taken under Sections 268 and 290 IPC against public nuisance relating to environment. However, with Indias participation in the United Nations Conference on Human Environment held in Stockholm in the year 1972 the need arose to enact specific laws. All these circumstances led to enactment of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980.
Not only around the world, but in India also, people have shown positive response to the need for protection of the environment and full support has been given by the judiciary. People cautious of their rights to a healthy and pollution-free environment have formed groups such as Centre for Science and Environment seeking directions from the courts to protect the environment and it has been done so by way of public interest litigation. These groups have often pressurized the executive to take decisions on certain development projects only after making proper environment-impact assessment. Chipko Movement and Appiko Movement in Karnataka for saving the trees from exploitation are examples of initiatives taken by public-spirited persons.
The primary effort of the courts while dealing with environmental issues had been to not only punish the offender but also to seek proper enforcement of such laws. In Indian Council for Enviro Legal Action v. Union of India2 it was observed that: (SCC p. 301, para 14)
Even though, it is not the function of the court to see the day-to-day enforcement of the laws, that being the function of the executive, but because of the non-functioning by the enforcement agency, the courts as of necessity have had to pass orders or direction to the enforcement agencies to implement the law for the protection of the fundamental rights of the people.
The Honble Supreme Court has time and again dealt with various environmental problems and orders have been passed for this purpose. Courts not only pass orders at the initial stage but also monitor the functioning of the Pollution Control Boards and the polluters. Some of the leading cases are mentioned hereinafter.
1. In M.C. Mehta v. Union of India3 the Apex Court directed shifting/relocation of 168 industries identified as hazardous and large industries operating in Delhi to other towns of NCR as per the master plan of 2001.
2. In M.C. Mehta v. Union of India4 the Court passed several directions for preventing air pollution in Delhi. While reaffirming the need for public transport system to run on CNG it directed for phasing out of diesel buses in a time-bound manner.
3. In M.C. Mehta v. Union of India5 the Honble Court took note of the environmental pollution due to stone-crushing activities in and around Delhi, Faridabad and Ballabhgarh complexes and directed for relocating of such units within six months.
4. In Vineet Kumar Mathur v. Union of India6 intervention of the Court was sought to prevent pollution of River Gomti in U.P. due to discharge of effluents from the distillery of Mohan Meakins Ltd. The Court directed the removal of deficiencies in the effluent treatment plant as well as imposed a fine of Rs 5 lakhs on the Company.
5. In S. Jagannath v. Union of India7 the Court held that shrimp industry is to be permitted only after passing a strict environment test.
6. In Vellore Citizens Welfare Forum v. Union of India1 the Court dealt with the problem of pollution being caused by enormous discharge of untreated effluents by tanneries in the State of Tamil Nadu and also imposed a fine of Rs 10,000 on the polluting industries.
7. In Indian Council for Enviro Legal Action v. Union of India8 the Court directed closure of industries in Bichhari village in Udaipur (Rajasthan) discharging highly toxic effluents leading to soil and water pollution and also directed for removal of the sludge etc.
8. In M.C. Mehta v. Union of India9 (Calcutta Tanners case) the Court directed for shifting/relocating the tanneries in question causing pollution.
Here the question is whether civil action against the polluters by applying the precautionary principle and polluter-pays principle is enough or penal action should also be initiated against such offenders. Environment laws besides providing for protection of the environment also provide for penal action against the polluters. For e.g. Section 15 of the Environment (Protection) Act, 1986 provides for contravention of the provisions of the Act and the rules and regulations issued under the Act to be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues.
Similar are the provisions provided by the Air (Prevention and Control of Pollution) Act, 1981 as well as the Water (Prevention and Control of Pollution) Act, 1974.
The Pollution Control Boards have powers to initiate action against the polluters. However, these Boards had till the recent past been functioning as record-keepers maintaining statistics regarding pollution and only during the last few years these Boards have taken some initiatives to protect and improve the environment after being directed by the courts. It is a matter of surprise that even where pollution was easily visible or was being felt for e.g. air pollution in Delhi, the Boards acted as silent spectators till the Court intervened.
In Enviro Legal Action v. Union of India2 it was observed:
Enactment of law but tolerating its infringement is worse than not enacting the law at all. Violation of anti-pollution laws not only adversely affects the existing quality of life but its adverse effects will have to be borne by the future generation. (SCC p. 293, para 26)
In fact, criminal prosecution of the polluters has been a low priority amongst the Pollution Boards. Though the Apex Court has time and again given directions for taking penal action, offenders will go scot-free unless the Boards start taking penal action against them. Therefore, the need of the hour is to initiate criminal prosecution against the offenders in appropriate cases.
The past experience regarding the functioning and performance of the statutory authorities including the Pollution Control Board shows that the powers conferred upon them have not been properly exercised.
There can be no doubt that there is any shortage of the environmental statutes or that there are not enough statutes to deal with various aspects of environment for example air, water, soil, and their interrelationship with human beings. The need is to effectively involve the common man in initiating appropriate penal action against the offenders.
The environmental laws provide for a certain procedure for taking cognizance of offences for e.g. Section 49 of the Water (Prevention and Control of Pollution) Act, 1974 provides that no court shall take cognizance of any offence under this Act except on a complaint made by a Board or any officer authorised in this behalf by it; or any person who has given notice of not less than sixty days, of his intention to make a complaint, to the Board or officer authorised as aforesaid.
Similar are the provisions relating to cognizance under Sections 43 and 19 of the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 respectively.
The procedure for filing complaint should be simplified. The requirement of giving notice to the Board or to the Central Government in case of offences under the Environment (Protection) Act, 1986 should be done away and instead of this, it should be provided that every person should have a right to directly file a criminal complaint against the offender in accordance with the procedure laid down in Section 200 CrPC. However, as a matter of safeguard against malicious prosecution it can be provided that the court shall call for a report from the Pollution Control Board concerned before summoning the accused. But at the same time it should also be provided that the complainant shall have the right to challenge the report of the Board by way of scientific or other evidence.