Solutions to Assignments
MBA and MBA (Banking & Finance)
MMPC- 013 - Business Law
MMPC-013/TMA/JAN/2022
Question No. 5 Discuss the evolution of Environmental Protection Legislation and its framework in India.
India’s approach towards environmental protection was piecemeal and reactive
in nature. In response to Stockholm declaration 1972, Air (Prevention and Control
of Pollution) Act, 1981, and Water (Prevention and Control of Pollution) Act,
1974, were introduced. Further, Art 48 A and 51(g) were incorporated in Indian
Constitution by way of 42nd amendment in 1976.
It is unfortunate to note that beyond causing continual environmental harms
industries can also be responsible for severe and large-scale disasters resulting
in the deaths of millions of people. India was ill fated to witness one of the
world’s worst industrial disasters in the form of Bhopal gas tragedy in 1984
killing thousands of people.
This incident was a turning point for environmental jurisprudence in India. Several
prominent legislations, rules, notifications were adopted after this incidenttaking
into account issues and challenges that increasingly emerged as part of modernday developments. India experienced a virtual explosion of public interest
litigations specifically on environmental issues and courts also assumed a more
pro-active role in the form of public educator, policy maker11and administrator.
India even started contemplating on having a specialized tribunal dealing
specifically with environmental matters as the Supreme Court stressed on its
importance in numerous instances.Finally after much deliberation and failed
attempts, National Green Tribunal was established in 2010. Since its inception,
it has played an important role in shaping the environmental litigation in India.
Thus, India started adopting a more holistic and comprehensive approach towards
environmental protection and regulating the pollution emanating from industries.
Constitutional provisions for Environmental Protection:
The Indian Constitution is a living document which has evolved and grown with
time. Substantive provisions for environmental rights and duties were lacking in
our original Constitution. However, its landscape was changed by way of 42nd
amendment which introduced specific provisions for environmental protection
in the form of Directive Principles of State Policy and Fundamental Duties.
With the introduction of these two Articles, both the State and the Citizens are
now under the constitutional obligation to protect, preserve and safeguard the
environment.
Article 21 of the Indian Constitution states that, “no person shall be deprived of
his life or personal liberty except according to procedure established by law”.
Supreme Court in the case of Virender Gaur Ors. vs. State of Haryana interpreted
the word ‘life’ in a liberal manner and stated that,
‘Article 21 protects right to life as a fundamental right. Enjoyment of
life and its attainment including their right to life with human dignity
encompasses within its ambit, the protection and preservation of
environment, ecological balance free from pollution of air and water,
sanitation without which life cannot be enjoyed. Any contra acts or
actions that would cause environmental, ecological, air, water, pollution,
etc. should be regarded as amounting to violation of Article 21.”
Further, in the case of M.C Mehta v. Union of India19the Supreme Court treated
the right to live in healthy and pollution-free environment as a part of fundamental
right to “life” under Article 21 of the Constitution.
Public Interest Litigations under art. 32 and art 226 also resulted in a wave of
environmental litigations, producing a rich environmental jurisprudence in India.
Thus, India’s Constitution now guarantees a right to healthy environment, right
to clean air, right to clean water etc.
Article 19 (1) (g) of the Indian constitution confers fundamental right on every
citizen to practice any profession or to carry on any occupation, trade or
business. However, it is subject to reasonable restrictions. In the case of Burra
bazar Fireworks Dealers Association v. Commissioner of police, Calcutta it
was held that,
“Art. 19(1)(g) of the Constitution of India does not guarantee the
fundamental right to carry on trade or business which creates pollution
or which takes away that community’s safety, health and peace.”
ENVIRONMENTAL FRAMEWORK IN INDIA
AND ITS IMPACT ON BUSINESSES AND
INDUSTRIES
In the present section we will be dealing with Environment Protection Act 1986,
Water (Prevention and Control of Pollution) Act 1974, Air (Prevention and Control
of Pollution) Act 1981, Forest Conservation Act 1980 and The Wildlife
(Protection) Act, 1972, etc.
a) Water (Prevention and Control of Pollution) Act 1974
In order to deal with the issue of water pollution, the Water Act was enacted
in 1974 with the primary objective of prevention and control of water
pollution and maintaining or restoring the wholesomeness of water. The Act
specifically prohibits the disposal of any poisonous, noxious or polluting
matter directly or indirectly into any stream, well, sewer or land.24 In order
to achieve its objective, it established Central and State Pollution Control
Boards with the function of developing standards for effluents and sewage
as well as the quality of water etc. It empowers the State Boards to obtain
information from any establishment regarding its construction, installation
or operation with a view to prevent and control water pollution.25 It also
authorizes the State Boards to take water samples from any stream, well,
sewage or trade effluent passing through any plant or vessel. The act further
authorises the State Boards27 to enter and inspect any plant, record, register,
or document in order to determine whether the orders or directions of Boards have been complied with or not. With regard to the power of entry and
inspection, the State Boards shall have the powers of district magistrate under
section 94 of CRPC relating to search and seizure. It is important to point
that if an offence is committed under this Act by a company, then every
person who at the time of offence, was responsible for the affairs of the
company or in charge thereof shall be guilty of the offence and punished
accordingly. The Act provides for a wide array of penalties ranging from
imprisonment of 3 months to 6 years and daily fines as well in case of
continuous violations.
Consent to Establish and Consent to Operate-Establishment of any industry,
operation or process, which is likely to discharge sewage or trade effluent
into a stream, well, sewer, well or land requires prior consent of the Board.
b) Air (Prevention and Control of Pollution) Act 1981
The Act was enacted in 1981 to provide for the prevention, control and
abatement of air pollution in India. In the case of New Era High School v.
State of Bihar30it was stated that,
“Statute mandates board to inspect air pollution control areas at intervals,
assess quality of air therein and take steps for prevention, control and
abatement of air pollution in such areas”
The Act includes noise pollution. It specifically prohibits the industries from
emitting air pollutants in excess of the standards laid down by the State
Boards.31 Similar to the Water Act, the Air Act also authorises the State
Boards with the power to obtain information32, power of entry and
inspection33, power to take samples from air emissions34 and permits action
against company officials in case of contravention of its provisions by a
company35. The Air Act as well provides for a wide array of penalties ranging
from imprisonment of 3 months to 6 years and daily fines in case of
continuous violations.
Consent to Establish and Consent to Operate- The Act requires certain
industrial plants to apply for consent from the State Boards before establishing
or operating any industrial plant in an air pollution control area.
The Board
while granting consent may also impose certain conditions, which are
required to be followed by the concerned industry. Failure to comply with
conditions or operating without appropriate consent could result in the closure
of the industry. Supreme Court in the case of M.C Mehta v. Union of India held that,
“Carrying of mining operation of stones on the border of Rajasthan and
U.P without obtaining necessary permission from competent authority was
held to be illegal and persons were restrained from working out mining
activities”
c) Environment (Protection) Act 1986
Even though there were existing laws in India dealing directly or indirectly
with a vast array of environmental issues, India still lacked a general
legislation for environmental protection in India. Due to constantly changing
paradigms in the field of environmental law, a need was felt to have an umbrella legislation for environmental protection in India, which would
enable better coordination between regulatory authorities and provide for
speedy and adequate responses to varying environmental issues. Further,
Bhopal Gas tragedy also exacerbated the loopholes in the existing system of
environmental protection and highlighted the need for an all-encompassing
legislation for the protection of environment in India. In view of these issues
the Environment (Protection)Act was enacted in 1986. The Act gave sweeping
powers to the Central Government38, providing that it could take, “all such
measures as it deems necessary or expedient for the purpose of protecting
and improving the quality of the environment and preventing, controlling
and abating environmental pollution.” In particular, for instance, measures
could include restriction of areas in which any industries, operations or
processes shall not be carried out or shall be carried out subject to certain
safeguards; laying down procedures and safeguards for prevention of
accidents which may cause environmental pollution and remedial measures
for such accidents; laying down procedures and safeguards for handling of
hazardous substances; examination of such manufacturing processes,
materials and substances as are likely to cause environment.39
The Act also empowered the Central Government to make rules by
notification on specific issues pertaining to environmental conservation and
protection.40 However, each rule made under the Act, is required to be laid
before each House of the Parliament.41 In light of this power, Central
Government has been able to issue notifications on a plethora of
environmental issues in India such as waste management, environmental
impact assessment, Coastal Regulation Zone (CRZ) etc.
The Act also provides for a penalty of imprisonment ranging from five years
to seven years along with fines which may extend to Rs. one lakh and daily
fines of Rs.5000 in case of continuous contravention.
i) Coastal Regulation Zones Notification: The first CRZ Notification
was issued in 1991, since then there have been several changes and
amendments in these notifications.
The most recent notification was
implemented in 2019. As per the 2019 notification, CRZ’s have been
classified as follows:
CRZ I A- Ecologically Sensitive Areas, which play an important
role in maintaining the integrity of coast such as mangroves, coral
reefs, salt marshes, nesting grounds for birds and animals etc.
CRZ I B- Inter- tidal zone i.e., area between High tide line and low
tide line
CRZ II- developed areas upto or close to shoreline.
CRZ III- Land areas that are relatively undisturbed, have further
been classified as A and B based on population density.
CRZ IV- deals with water areas and sea bed areas and further
classified into A and B on the basis of distance from Low tide line.
The new notification has certain provisions which are favourable for
industries and businesses such as:
- Clearance procedures for projects or activities located in CRZ-I and CRZ-IV to be dealt with by the Ministry of Environment, Forests & Climate Change. Whereas, powers for clearance under CRZ-II and CRZIII have been delegated to State level with necessary guidance.
- There is a boost for the tourism industry as temporary tourism facilities like shacks, toilets, change rooms, drinking water facilities have been permitted in the No Development Zone of CRZ-III areas with a minimum distance of 10m from the HTL.
- The notification also lifted the prohibition on construction in the previously-protected 200-metre no-development zone in rural areas and 100-metre no-development zone along the tidal-influenced water bodies, reducing it to 50 meters for these water bodies and densely populated rural areas. This will make way for more real estate, Hotels and resorts.
- As per the 1991 Development Control Regulation, Floor Area Ratio had been frozen. As of now it stands defreezed and Floor Space Index is permitted for construction projects which imply a boost for the real estate sector.
ii) Waste Management Rules:
In a developing country like India with
high consumption pattern and huge quantities of different kinds of waste,
lack of proper management and disposal system can be a serious issue.
Several rules have been notified in India dealing with different kinds of
waste such as municipal solid waste, plastic waste, hazardous waste,
bio- medical waste, etc. These rules are based on the principle of making
stakeholders accountable for the management of waste. Most
importantly, the rules stipulate that it is the responsibility of the producers
to ensure that the waste generated from their products is disposed of in
an environmentally friendly manner. It can be defined as,”a policy
principle to promote total life cycle environmental improvements of
product systems by extending the responsibilities of the manufacturer
of the product to various parts of the entire life cycle of the product,
and especially the take-back, recycling and final disposal of the
product.42"In India, the principle of Extended Producers Responsibility
(EPR) has been an integral part of the waste management rules. The
Batteries (Management and Handling) Rules (BMHR), 2001, was the
first to be based on the concept of EPR without explicitly mentioning
it. Thereafter, the rules made for plastic waste (Plastic Waste
[Management and Handling] Rules, 2011) and e-waste (E-Waste
[Management and Handling] Rules, 2011) explicitly laid down the
provisions for EPR in managing waste.
The concept of EPR has received much-needed attention in the recent
rules formulated for effective management of solid waste. It is one of
the most important parts of the e- waste rules 2016 and Plastic Waste
Management Rules, 2016. For the first time, it has also been included
in the Solid Waste Management Rules, 2016 as well. Plastic Waste
Management Rules, 2016, illustrates that the primary responsibility for
collection of used multi-layered plastic sachet or pouches or packaging
is of Producers, Importers and Brand Owners who introduce the products
in the market. They need to establish a system for collecting back the
plastic waste generated due to their products. There are different approaches for successful implementation of EPR. Indore adopted a
ward wise approach, and in one year achieved 100% segregation of
waste at source from households and commercial establishments. The
sorted waste is easily saleable to the recyclers. The recyclers are queuing
up daily for collecting their category of waste with an assured quantity
and quality.
iii) Environment Impact Assessment (EIA) Notification:
Initiated formally
in 1994, the current EIA Notification 2006 lays out a detailed process
for obtaining Prior Environment Clearance for any new projects or
activities, or the expansion or modernisation of existing projects and
projects seeking capacity addition with change in process or technology.
Category A projects acquire their clearance from the Ministry of
Environment, Forest and Climate Change (MoEFCC) while category
B projects apply for clearances to the State Environment Impact
Assessment Authority (SEIAA). Category B projects can be further
broken down to B1 and B2, thereby determining which projects and
activities will require an EIA before approval. Since January 2016,
institutions have been created at the District level as well and they too
have been included in the EIA Notification for approving certain
instances of mining of minor minerals. These are the District
Environmental Impact Assessment Authority (DEIAA) and District
Level Expert Appraisal Committee (DEAC).
Since March 2016, Ministry of Environment, Forest and Climate
Change, has adopted a new method of classifying each type of industry.
A concept of ‘white industries’ has been introduced to denote ‘non
polluting’ industries. They do not need permit or consent and just require
to notify the relevant State Pollution Control Board. For other colour
coded industries (red, orange, green) environmental permits are needed
according to kind of activity and size of activity being conducted. A
Pollution Index (PI) score is given to each industry, depending on
utilization of resources, air emissions, hazardous waste generated, etc.
(e.g., red category – PI score of 60 and above including but not restricted
to asbestos, nuclear power plants, ship breaking, oil and gas extraction;
orange category- PI score of 41 to 59 including food processing,
pharmaceutical formulations; green category- PI score of 21 to 40
including sawmills, tyres/tubes retreading; white category- PI score upto
20 including wind power, mini hydel electric power less than 25
megawatts). No red category of industries shall normally be permitted
in ecologically fragile area/protected area.43
An integrated permit system can be submitted to relevant State Pollution
Control Board to obtain consent to establish and consent to operate,
authorisation under various Acts/Rules- submit a combined consent
application to relevant SPCB/CPCB. In August 2018, a new online
environmental portal was launched by MoEFCC named Parivesh which
stands for Pro-Active and Responsive facilitation by Interactive,
Virtuous and Environmental Single window Hub.- to facilitate online
submission and tracking of various environmental clearance
applications. It allows a single registration and single sign in for all
types of clearances (environment, forest, wildlife, CRZ) and create a
unique ID for each project.
iv) Forest (Conservation) Act, 1980:
The Forest (Conservation) Act, 1980
lays down the provisions that regulate the diversion of forestland for
non-forest purposes. This is with the stated objective of ensuring longterm conservation of the forests in India, and reducing forest degradation.
Any user agency (both government and non-government) has to seek
prior permission from the Central Government before de-reserving any
forest land, felling of trees or before diverting any forestland for nonforest use. The application for the same is moved through the Forest
Department of the State Government, which is the final point of approval
for forest diversion under this legislation. Non-forest use implies the
breaking up or clearing of any forest land for the cultivation of tea,
spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal
plants and for any purpose other than re-afforestation.
Proposals involving forest land upto 40 hectares (not including activities
related to mining and encroachments) are handled by the regional office
of the MoEFCC. Proposals involving forest land above 40 hectares and
those related to mining and encroachments are handled by the MoEFCC.
v) The Wildlife (Protection) Act, 1972:
The Wildlife (Protection) Act, 1972,
is a statute to provide for the protection of wild animals, birds and plants.
It provides for declaration of national parks and sanctuaries and prohibits
hunting and harm of wild animals and uprooting of specified plants in
general.
A permit is required in case any activity including industrial, mining or
infrastructure is likely to destroy, exploit or remove any wildlife
including forest produce from a Protected Area. A Protected Area
includes a Sanctuary, National Park, Conservation Reserve or a
Community Reserve. It is also required in case an activity could destroy,
damage or divert the habitat of any wild animal and in cases where
activities are likely to divert, stop or enhance the flow of water into or
outside the protected area. This is granted through the Chief Wildlife
Warden only after the state government in consultation with the National
Board for Wild Life (NBWL) is satisfied that such an action is necessary
for the improvement and better management of the wild life. In case of
non-compliance the permits can be cancelled and punishment can be
imposed through imprisonment and/or fine.
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