DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

Environmental Laws in India: Challenges for Enforcement

Environmental Law

Ms. Bushra Quasmi

Kahmish Khan
VIIth Semester
2013055

Table of Contents

Acknowledgment03
List of cases............04
Introduction.05
Environmental Challenges..06
Constitutional and Legislative Measures07
Administrative Structure.....10
Judicial Contribution...11
Status of Environmental Compliance.16
Environment Court.18
Status of Environmental Compliance.18
Public Participation in Environmental Compliance and Enforcement ..19
Conclusion and Recommendation..20
Bibliography...22

ACKNOWLEDGEMENT

I have endeavored to attempt this project. However, it would not have been feasible without
the valuable support and guidance of Bushra Mam. I would like to extend my sincere thanks
to him.
I am also highly indebted to Damodaram Sanjivayya National Law University Library Staff,
for their patient co-operation as well as for providing necessary information & also for their
support in completing this project.
My thanks and appreciations also go to my classmates who gave their valuable insight and
help in developing this project.

LIST OF CASES
3

Sachidanand Pandey v. State of West Bengal, AIR 1987 SCC 1109

State of Tamil Nadu v. Hind Store AIR 1981 SC 711
M.C Mehta v. UOI, AIR 1988 SC 1037
Anupama Minerals v. Union of India & Others, AIR 1986 A.P. 225
Rural Litigation and Entitlement Kendra, Dehradun vs State of U.P, AIR 1987 SC

2187
T.N Godavarman Thrirumulpad v. Union Of India AIR 2006(14) SCALE 87
M.C Mehta & Anr. V. Union of India AIR 1986 SCR (1) 312
Ratlam Municipality v. Vardhichand AIR 1980 SC 1622
A.P Pollution on Control Board v. Prof. M.V. Nayadu Retd. & Ors AIR (2000)5 SCR

249
Indian Council for Enviro-Legal Action v. Union of India, AIR 1999 SC 1502
Narmada Bachao Andolan v. UOI, AIR 2000 SCC 664
Damodar Rao v. S.O Municipal Corporation, AIR 1987 AP 171
State of Bihar v. Murad Ali Khan, AIR 1989 SC 1
M.C Mehta v. Union of India, AIR 1987 Kant 82

INTRODUCTION
There is no dearth of legislations on environmental protection in India but their enforcement
has been far from satisfactory. There is need for the effective and efficient enforcement of the
Constitutional mandate and other environmental legislations. The creative role of judiciary
has been significant and laudable. Pursuant to the Constitutional provisions contained in
4

Articles 48A and 51A(h), many Public Interest Litigations have been instituted in the
Supreme Court of India against many industries for failing to provide adequate pollution
control and also against Pollution Control Boards to direct them to take appropriate measures
to ensure pollution control. For the purpose of efficient and effective enforcement of these
lays, it is necessary to set up an Adjucatory Body which should consist of legal as well as
technical experts. Caring for regulating and protecting the environment is essentially a desire
to see that national development should proceed along the rational sustainable laws.
Today, the conservation, protection and improvement of human environment are major issues
all over the world. Human environment consists of both physical environment and biological
environment. Physical environment covers land, water and air. Biological environment
includes plants, animals and other organisms. Both physical and biological environment are
inter-dependent. Industrialisation, urbanisation, explosion of population, over-exploitation of
resources, disruption of natural ecological balances, destruction of a multitude of animal and
plant species for economic reasons are the factors which have contributed to environmental
deterioration.1 One country's degradation of environment degrades the global environment for
all the countries.2The problem of environmental pollution has acquired international
dimension and India is no exception to it.
In the present project, an attempt has been made to briefly outline the Indian laws which are
primarily and more relevant to protect and improve the environment. The enforcement of
these laws has also been examined and evaluated

Environmental Challenges
Indias economic development propelled by rapid industrial growth and urbanization is
causing severe environmental problems that have local, regional and global significance.
Deforestation, soil erosion, water pollution and land degradation continue to worsen and are
hindering economic development in rural India, while the rapid industrialization and
urbanization in Indias booming metropolises are straining the limits of municipal services
and causing serious environmental problems.
1 Sachidanand Pandey v. State of West Bengal AIR 1987 SCC 1109
2See Armin Rosencranz, Shyam Divan and Martha L.Noble, Environmental Law and Policy
in India (1991), p. 25

More than 20 cities in India have populations of over one million, and some of them,
including New Delhi, Mumbai, Chennai, and Kolkata, are among the worlds most polluted.
Assuming continued economic liberalization and increased urbanization, the damage to
environment and health could be enormous if precautionary measures are not taken. The
challenge, therefore, is to maintain the quality of air, water and land and protect the
environment by reconciling environmental, social and economic imperatives.
Air quality data in Indias major cities indicate that ambient levels of air pollutants exceed
both the World Health Organization and Indian standards, particularly for particulate matter.
Of the total air pollution load nationwide, vehicular sources contribute 64 percent, thermal
power plants 16 percent, industries 13 percent, and the domestic sector 7 percent.
Environmental effects from growing fossil fuel use can only worsen as India seeks to meet
the energy needs of its growing economy. It is estimated that over 96 percent of Indias total
demand for commercial energy is met by fossil fuel with coal contributing 60 percent and
petroleum products providing the remaining 36 percent.
Indias rivers and streams suffer from high levels of pollution from waste generated primarily
from industrial processes and municipal activities. Untreated sewage and non-industrial
wastes account for four times as much pollution as industrial effluents. While it is estimated
that 75 percent of the wastewater generated is from municipal sources, industrial waste from
large and medium-sized plants contributes to over 50 percent of the total pollution loads. In
major cities, less than five percent of the total waste is collected and less than 25 percent of
this treated.
To address these environmental challenges in coordination with the state governments, the
central government has identified and targeted 17 highly polluting industries and 24
environmental problem areas. The chemical and engineering industries are at the top of the
governments list, since they are the major contributors to air, water, and waste pollution.
These industries include integrated iron and steel plants, non-ferrous metallurgical units,
pharmaceutical and petrochemical complexes, fertilizers and pesticide plants, thermal power
plants, textiles, pulp and paper, tanneries and chloralkali units.
As detailed below, the Government of India has established an environmental legal and
institutional system to meet these challenges within the overall framework of Indias
development agenda and international principles and norms. Most recently, the Government
put forward the National Environment Policy of 2006 which provides a guide to action in
6

regulatory reform, environmental conservation, and enactment of legislation by government

agencies at all levels.
CONSTITUTIONAL AND LEGISLATIVE MEASURES
Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and protect
the human environment at the international level. As a consequence of this Declaration, the
States were required to adopt legislative measures to protect and improve the environment.
Accordingly, Indian Parliament inserted two Articles, i.e.,48A and 51A in the Constitution of
India in 1976,3Article 48A of the Constitution rightly directs that the State shall endeavour to
protect and improve the environment and safeguard forests and wildlife of the
country.Similarly, clause (g) of Article 51A imposes a duty on every citizen of India, to
protect and improve the natural environment including forests, lakes, river, and wildlife and
to have compassion for living creatures. The cumulative effect of Articles 48A and 51A (g)
seems to be that the 'State' as well as the 'citizens' both are now under constitutional
obligation to conserve, perceive, protect and improve the environment. Every generation
owes a duty to all succeeding generations to develop and conserve the natural resources of
the nation in the best possible way.4The phrase protect and improve appearing in both the
Articles 48A and 51A (g) seems to contemplate an affirmative government action to improve
the quality of environment and not just to preserve the environment in its degraded form.
Apart from the constitutional mandate to protect and improve the environment, there are a
plenty of legislations5on the subject but more relevant enactments for our purpose are the
Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of
Pollution) Cess Act, 1977; the Air (Prevention and Control of Pollution) Act, 1981; the
Environment (Protection) Act, 1986; Public Liability Insurance Act, 1991; the National
Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act,
1997; the Wildlife (Protection) Act, 1972; the Forest (Conservation) Act, 1980.

3Inserted by the Constitution (Forty-second Amendment) Act, 1976

4State of Tamil Nadu v. Hind Store, AIR 1981 SC 711

5E.g. Indian Forest Act, 1927; the Factories Act, 1948; the Atomic Energy Act,
1962
7

The Water Act provides for the prevention and control of water pollution and the maintaining
or resorting of the wholesomeness of water. The Act prohibits any poisonous, noxious or
polluting matter from entering into any stream or well. The Act provides for the formation of
Central Pollution Control Board and the State Pollution.
Control Board. The new industries are required to obtain prior approval of such Boards
before discharging any trade effluent, sewages into water bodies. No person, without the
previous consent of the Boards shall bring into use new or altered outlet for the discharge of
sewage or trade effluent into a stream or well or sewer or on land. The consent of the Boards
shall also be required for continuing an existing discharge of sewage or trade effluent into a
stream or well or sewer or land.
In the Ganga Water Pollution case6, the owners of some tanneries near Kanpur were
discharging their effluents from their factories in Ganga without setting up primary treatment
plants. The Supreme Court held that the financial capacity of the tanneries should be
considered as irrelevant while requiring them to establish primary treatment plants. The Court
directed to stop the running of these tanneries and also not to let out trade effluents from the
tanneries either directly or indirectly into the river Ganga without subjecting the trade
effluents to a permanent process by setting up primary treatment plants as approved by the
State Pollution Control Board.
The Water (Prevention and Control of Pollution) Cess Act, 1977 aims to provide levy and
collection of a cess on water consumed by persons carrying certain industries and local
authorities to augment the resources of the Central Board and the State Boards constituted for
the prevention and control of water pollution. The object is to realise money from those
whose activities lead to pollution and who must bear the expenses of the maintaining and
running of such Boards. The industries may obtain a rebate as to the extent of 25% 7 if they set
up treatment plant of sewage or trade effluent.
The Air Act has been designed to prevent, control and abatement of air pollution. The major
sources of air pollution are industries, automobiles, domestic fires, etc. The air pollution
adversely affects heart and lung and reacts with hemoglobin in the blood. According to
Roggar Mustress, the American Scientist, air pollution causes mental tension which leads to
increase in crimes in the society.
6M.C Mehta v. Union of India AIR 1988 SC 1037
8

The Air Act defines an air pollutant as any 'solid, liquid or gaseous substance including noise
present in the atmosphere in such concentration as may be or tend to be injurious to human
beings or other living creatures or plants or property or environment.' The Act provides that
no person shall without the previous consent of the State Board establish or operate any
industrial plant in an air-pollution control area. The Central Pollution Control Board and the
State Pollution Control Board constituted under the Water Act shall also perform the power
and functions under the Air Act. The main function of the Boards under the Air Act is to
improve the quality of air and to prevent, control and abate air pollution in the country.
The Environment (Protection) Act, 1986 was enacted to provide for the protection and
improvement of the quality of environment and preventing, controlling and abating
environmental pollution. The Act came into existence as a direct consequence of the Bhopal
Gas Tragedy. The Act has given vast powers to the Central Government to take measures
with respect of planning and execution of a nation-wide programme for prevention, control
and abatement of environmental pollution. It empowers the Government to lay down
standards for the quality of environment, emission or discharge of environmental pollutants;
to regulate industrial locations; to prescribe procedure for managing hazardous substances, to
establish safeguards for preventing accidents; and to collect and disseminate information
regarding environmental pollution. Any contravention of the provisions of the Act, rules,
orders or directions made thereunder is punishable with imprisonment for a term which may
extend to five years or with fine upto one lakh rupees or with both.
The Parliament passed the Public Liability Insurance Act, 1991 to provide for public liability
insurance for the purpose of providing immediate relief to the persons affected by accident
occurring while handling any hazardous substance and for matters connected therewith. The
Act provides for mandatory public liability insurance for installations handling any hazardous
substance to provide minimum relief to the victims (other than workers) through the
mechanism of collector's decision. Such an insurance will be based on the principle of 'no
fault liability as it is limited to only relief on a limited scale.7
The National Environment Tribunal Act, 1995 was enacted to provide for strict liability for
damages arising out of any accident occurring while handling any hazardous substance. The
Act provides for establishment of a National Environment Tribunal for effective and
expeditious disposal of cases arising from such accident. It imposes liability on the owner of
7See Public Insurance Act,1991, Schedule
9

an enterprise to pay compensation in case of death or .injury to any person; or damage to any
property or environment resulted from an accident. The accident must have occurred while
handling any hazardous substance. A claimant may also make an application before the
Tribunal for such relief as is provided in the Public Liability Insurance Act, 1991.
The National Environment Appellate Authority Act, 1997 has been enacted to provide for the
establishment of a National Environment Appellate Authority to hear appeals with respect to
restriction of areas in which any industries, operations or processes shall not be carried out or
shall be carried out subject to certain safeguard under the Environment (Protection) Act,
1986. After the establishment of the Authority, no Civil Court or other authority shall have
jurisdiction to entertain an appeal on matters on which the Authority is so empowered under
the Act. It is evident that this Act has been made with objective to provide speedy justice on
environmental issues.
The Wild Life (Protection) Act, 1972 was enacted with a view to provide for the protection of
wild animals, birds and plants. The Act prohibits hunting of animals and birds as specified in
the schedules. The Act also prohibits picking, uprooting, damaging, destroying etc. any
specified plant from any forest. The Act provides for State Wildlife Advisory Board to advise
the State Government in formulation of the policy for protection and conservation of the
wildlife and specified plants; and in selection of areas to be declared as Sanctuaries, National
parks, etc. The Act is administered by a Director of Wildlife Preservation with Assistant
Directors; and a Chief Wildlife Warden with other Wardens and their staff.
The Forest (Conservation) Act, 1986 was passed with a view to check deforestation of
forests. The Act provides that no destruction of forests or use of forestland for non-forest
purposes can be permitted without the previous approval of the Central Government. The
conservation of forests includes not only preservation and protection of existing forests but
also re-afforestation. Reafforestation should go on to replace the vanishing forests. It is a
continuous and integrated process.8 The Act is intended to save a laudable purpose and it
must be enforced strictly for the benefit of the general public.
It is evidently clear that there is no dearth of legislations on environment protection in India.
But the enforcement of these legislations has been far from satisfactory. What is needed is the

8 Anupama Minerals v. Union of India & Others, AIR 1986 A.P. 225
10

effective and efficient enforcement of the constitutional mandate and the other environmental
legislations.

ADMINISTRATIVE STRUCTURE
The Water Act and the Air Act are administered by the Central and State Governments and
the Central Pollution Control Board and the Stale Pollution Control Board. The Boards have
been vested with wide powers to issue any direction including the direction to order closure
or stoppage of the supply of electricity, water or any other service to the polluting unit. It may
be noted that similar powers are vested to the Central Government under the Environment
(Protection) Act.
Further, under the Environment (Protection) Act, the Central Government has framed the
Environment (Protection) Rules, 1986 laying down standards for the emission or discharge of
environmental pollutants with respect to some major industries. 12 There are some other
agencies also framing the standards, namely-Central Pollution Control Board, State Pollution
Control Board, Bureau of Indian Standard and Local Authorities, i.e., Municipal Corporation.
Apparently, there is multiplicity of pollution control standards for the same type of industries.
However, under the Environment (Protection) Act, 1986, the power has been conferred upon
the Central Government to lay down the standards of quality of air, water, soil, etc. It is hoped
that this will ensure uniformity of standards through out the country. Further, many of the
standards have not yet been laid down as stipulated under the respective Pollution Control
Acts, may be due to non-availability of instrument to measure the parameters of pollution.
This will adversely affect the process of enforcement of laws.

JUDICIAL CONTRIBUTION

The judiciary has played an important role in ensuring proper enforcement of environmental
law and declared some major decisions to save the environment. The right of a person to
pollution free environment is a part of basic jurisprudence of the land. Article 21 of the
Constitution of India guarantees a fundamental right to life and personal liberty. The Supreme
Court has interpreted the right to life and personal liberty to include the right to wholesome
environment.The Court through its various judgementshas held that the mandate of right to
11

life includes right to clean environment, drinking-water and pollution-free atmosphere. The
landmark cases have been categorised and listed as such:

Mining and Quarrying

Rural Litigation and Entitlement Kendra, Dehradun vs State of U.P9

In this case Supreme Court for the first time held that the right to wholesome environment is
a part of right to life and personal liberty guaranteed under Article 21 of the constitution.
Rural Litigation and Entitlement Kendra filed a writ petition before Supreme Court regarding
the operation of lime-stone quarries in the Mussoorie Hill range. It was contended that the
quarries caused a hazard to environment and affected the perennial water springs. The Court
was of the view that lime-stone quarrying and excavation of the lime-stone deposits seemed
to affect the perennial water springs and adversely affects the healthy and safety of people
and hence the same should be stopped as being violative of Article 21.
The Supreme Court ordered the closing of limestone quarrying in the hills and observed:
This would undoubtedly cause hardship to them, but it is a price that has to be paid
for protecting and safeguarding the right of the people to live in healthy environment
with minimal disturbance of ecological balance
Conclusion: The supreme court in this case clearly held that, when it comes to the issue of
public health and safety minimal disturbance to ecological balance is enough to make the
companies to halt the mining activities as such in this case or any other activity which is
effecting the environment as whole i.e. right to live in healthy environment , right to protect
the water springs being polluted and included these rights in to right to life under Article 21
of the constitution. The Supreme court widens the scope of Article 21 and included the right
of wholesome right of environment, which is the major development in environmental
jurisprudence in our country.

T.N Godavarman Thirumulpad v Union of India,10

9AIR 1987 SC 2187

10 2006(14) SCALE 87
12

The case began as a petition to stop illegal felling of timber in the Nilgiri hills but expanded
into an overhaul of the Indian forest policy. The Supreme Court said that:
Forests would be defined by their dictionary meaning, without elaborating what
this meaning was.
Public liability

M.C Mehta & Anr. v. Union of India & Ors,11

The case of M.C. Mehta v. Union of India originated in the aftermath of oleum gas leak from
Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the
infamous Bhopal gas leak and created a lot of panic in Delhi. The Supreme Court of India felt
that they were required to evolve new principles and lay down new norms which could
adequately deal with the new problems which arise in highly industrialized economy.
Supreme Court evolved a new principle of absolute liability and observed that :
Where an enterpreise is engaged in a hazardous or inherently dangerous activity
resulting for example, in escape of toxic gas, the enterprise is strictly and absolutely
liable to compensate all those who are affected by the accident and such liability is not
subject to any of the exception which operate vis-a vis the tortious principle of strict
liability.
Conclusion: This judgement is considered to be a landmark judgement in environmental
jurisprudence and the crux of the case is the greater the danger of harm through hazardous
and harmful activities the more the responsibility on the enterprise towards the society to take
necessary precautionary measures with due care to prevent any harm that can arise out of the
activity. The concept of absolute liability was evolved in this case which makes companies
absolutely responsible for the irregularities caused by them.
Public Nuisance

Ratlam Municipality v. Vardhichand,12

111986 SCR (1) 312

12 AIR 1980 S.C. 1622

13

The residents of the municipality used to suffer from stench and stink caused by open drains,
effluents from alcohol plant flowing unto streets and poor sanitation including open public
excretion by slum dwellers. Supreme Court directed the municipality to provide for drainage
system within one year, stop effluents from alcohol plant into the streets and improve other
sanitary conditions. Supreme Court observed that:
It is a grievous failure of local authorities to provide the basic amenity of public
convenience. A responsible Municipal Council constituted for the purpose of
preserving public health cannot run away from its duty by pleading financial
inability.
Conclusion: This is an important case related to public health. The Supreme court in this case
recognised the need to provide healthy environment. Court gave the direction that the
municipality has been entrusted to provide healthy environment to the residents and they
cannot avoid their duty. Thus, the ambit of Article 21 was again expanded in this case and it
was said that right to life include right to healthy environment.
Water Pollution

A.P Pollution Control Board v Prof. M.V Nayudu (Retd.) and Ors,13

The matter involved the question of permission for establishment of industry within 10 km.
of the two big water reservoirs, the Himayat Sagar and the Osmam Sagar, serving the twin
cities of Hyderabad and Secunderabad.
Supreme Court once again reiterated that there is building up, in various countries, a
concept that right to healthy environment and to sustainable development are
fundamental human rights implicit in the right to life under Article 21 of the Indian
Constitution.

Indian Council for Enviro-legal Action v Union of India,14(H-Acid Case)

A public interest litigation was filed by an environmentalist organization against the Union of
India, State Government and State Pollution Board concerned to compel them perform their
13(2000) Supp 5 SCR 249

14AIR 1999 SC 1502

14

statutory duties on the ground that their failure to carry on such duties violated rights
guaranteed under Article 21 of the residents of the affected area. The court pointed out that:
Even though, it is not the function of the court to see the day to day enforcement of
law, that being the function of the executive but because of the non-functioning of the
enforcement agencies, the courts as of necessary have had to pass orders directing the
enforcement agencies to implement the law for the protection of the fundamental
rights of the people.
Conclusion: In this case the importance of right to life under Article 21 was observed. The
court made clear that if the State Government or the State Pollution Board is not performing
its duty to ensure right to life under Article 21 than the court will step into their shoes to
implement the laws.
Sustainable Development

Narmada Bachao Andolan v. Union of India,15

In this case the Water Dispute Tribunal had in its award come to the conclusion that the
height of the dam should be 455 feet. The court held that once the party like the petitioners to
challenge the correctness thereof. The displacement of tribals on account of construction of
Sardar Sarovar Dam up to the height of 455 feet was held valid and not violative of Article 21
of the constitution in view of the relief and rehabilitation measures provided in the Water
Dispute Tribunal award. Supreme Court of India upheld that
Water is the basic need for the survival of human beings and is part of the right to
life and human rights as enshrined in Article 21 of the Constitution of India and the
right to healthy environment and to sustainable development are fundamental human
rights implicit in the right to life
Conclusion: This case is one of the landmark judgment. In this case importance of water has
been observed. Although the construction of Sardar Sarovar Dam would displace many tribal
people living in that are, the court did not failed to point out that water is the basic need for
survival and every human being has the right to water and this right will be included under
Article 21 of the constitution.
152000 (10) SCC 664.
15

Constitutional interpretation of Environment

Sachidanand Pandey v State of West Bengal,16

It said whenever a problem of ecology is brought before the Court, the Court is bound to
bear in mind Art. 48A of the Constitution and Art. 51A(g).When the Court is called upon
to give effect to the Directive Principles and the fundamental duty, the Court is not to
shrug its shoulders and say that priorities are a matter of policy and so it is a matter for
the policy-making authority. The least that the Court may do is to examine whether
appropriate considerations are borne in mind and irrelevancies excluded. In appropriate
cases, the Court may go further but how much further must depend on the circumstances
of the case. The Court may always give necessary directions. This limited nature of
scrutiny is no longer followed today by the Courts. Today the Courts appoint independent
experts and test the claims of parties on the basis of the expert advice that is given to the
Court.
Conclusion: In this case the court pointed that whenever the problem of ecology arises Article
48A and Article. 51A(g) of the constitution has to be kept in mind. This case is important
because it observed that fundamental duties and directive principals are not just policies but it
should be strictly followed by the judges to interpret the cases involving environment issues.

Damodar Rao v. S.O Municipal Corporation,17

The court pointed out that in view of Article 48-A and 51-A (g), it is clear that protection of
environment is not only the duty of every citizen but it is also the obligation of the State
and all other State organs including Courts.
Conclusion: This case also reiterated the importance of Article 48-A and 51-g of the
constitution. However, the court observed that the State has the obligation to comply with the
duty enshrined under Article 48-A and 51-g
Wildlife protection

16AIR 1987 SC 1109

17AIR 1987 AP 171

16

 State of Bihar v Murad Ali Khan,18

Supreme Court was dealing with an appeal concerning protection to wild life in Kundurugutu
Range forest in Bihar. The Supreme Court observed:
Environmentalists conception of the ecological balance in nature is based on the
fundamental concept of nature as the series of complex biotic communities of which a
man is an inter-dependent part and that it should not be given to a part to trespass and
diminish the whole. The largest single factor in the depletion of the wealth of animal
life in nature has been the civilized man operating directly through excessive
commercial hunting or, more disastrously, indirectly through invading or destroying
natural habitats.
Conclusion: In this case Supreme Court explained the object of wildlife laws and observed
that policy and object of wildlife laws has long history and are result of increasing awareness
of compelling need to restore serious ecological imbalance.
Air Pollution

MC Mehta v. Union of India (Taj Trapezium Case) 19

In Taj Mahal's case, the Supreme Court issued directions that coal and coke based industries
in Taj Trapezium (TTZ) which were damaging Taj should either change over to natural gas or
to be relocated outside TTZ. Again the Supreme Court directed to protect the plants planted
around Taj by the Forest Department:
The Divisional Forest Officer, Agra is directed to take immediate steps for seeing that
water is supplied to the plants... The Union Government is directed to release the
funds immediately without waiting for receipt of the proposal from the U.P.
Government on the basis of the copy of the report. Funding may be subsequently
settled with the U.P. Government, but in any set of circumstances for want of funds
the officer is directed to see that plants do not wither away.
18AIR 1989 SC 1

19AIR 1987 Kant 82

17

Conclusion: In this case court observed that the industrial activity in TTZ is adversely
affecting the Taj. The court observed that the coke and coal industry should be relocated to
stop the further damage to the monument. However, this case is also important as in this case
Precautionary principle was taken to.

Status of Environmental Compliance

Table 1. Sector-wise Compliance Status of 17 Categories of Highly Polluting Industries
(June 2006)
NO.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.

Industrial Category
Aluminium
Cement
Chlor-Alkai
Copper
Distillery
Dyes & DI
Fertilizers
Iron & Steel
Oil refineries
Pesticides
Petrochemicals
Pharmaceuticals
Pulp & Paper
Sugar
Tannery
Thermal Power
Zinc
Total

Complying
6
198
24
3
191
87
104
28
17
95
73
351
118
438
97
129
4
1963

Defaulting
1
16
10
1
35
9
10
9
3
9
7
124
32
49
13
51
1
380

Closed
0
20
0
0
36
25
21
1
1
11
1
59
37
91
17
8
1
329

Total
7
234
34
4
262
121
135
38
21
115
81
534
187
578
127
188
6
2672

According to the CPCB, as of June 2006, 73 percent of the 2672 units under 17 categories of
highly polluting industries were in compliance, which is a decrease from 2004, when the rate
was 84 percent. Table 2.1 provides a summary of the compliance status by industrial sector.
The major non-complying sectors are chloralkali (29%), thermal power (27%), copper (25%),
iron and steel (24%), and pharmaceuticals (23%). The data in Table 1 should be considered
with caution as the table lists under complying those industries that have installed pollution
controls after having been initially found in violation of the environmental requirements.
18

According to the U.S. EPA (2005), there were 1551 initially non-complying facilities within
the same 17 categories, of which 1351 facilities complied with subsequent SPCB orders and
178 were shut down, with 22 units defaulting. This actually shows a negative compliance
trend in large industry in India in recent years. In addition, the real compliance rates are likely
to be lower, since inspections usually do not evaluate compliance with all environmental
requirements (e.g., stack tests are rarely conducted to check air emissions for
compliance).The situation with small and medium-sized enterprises (SMEs) is much worse.
According to the MOEF, SMEs account for 40 percent of industrial production employ
limited pollution control technologies and are responsible for an estimated 70 percent of the
total industrial pollution load nationwide.
ENVIRONMENT COURT
We have noticed that in the past few years there is an increasing trend to the number of cases
based on environmental pollution, ecological destruction and conflicts over natural resources
coming up before the Courts. In most of these cases there is need for natural scientific
expertise as an essential input to inform judicial decision-making. These cases require
expertise at a high level of scientific and technical sophistication. The experience shows that
the prosecution launched in ordinary Criminal Courts under the provisions of the Water Act,
Air Act and the Environment (Protection) Act never reach their conclusion either because of
the work load in these Courts or because there is no proper appreciation of the significance of
the environment matters on the part of those in charge of conducting of those cases.
Moreover, any orders passed by the Authorities under Water Act, Air Act and Environment
(Protection) Act are immediately questioned by the industries in Courts. Those proceedings
take years and years to reach conclusion. Very often interim orders are granted meanwhile
which effectively disable the authorities from ensuring the implementation of their orders. It
is, therefore, absolutely essential to set up a separate machinery to cut down the delays which
are hindering the implementation of environmental laws. Further, the judicial officers alone
may not be able to appreciate scientific and technical aspects. It is, therefore, submitted that
the provisions be made for the establishment of the Environment Courts with one judge and
two experts from the ecological and other sciences. To begin with, we may have a two-tier
system one at the State level and the other at the National level which may later be extended
even at the District level. Such Courts may be vested with the jurisdiction to decide both
criminal prosecution cases under the various environmental laws and civil cases for
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compensation to victims of any activity leading to environmental damage or pollution. These

Courts should be allowed to adopt summary proceedings for speedy disposal of the cases.
The appeal from decision of the State Environment Courts may be preferred to the National
Environment Court and appeal from the decision of the National Environment Court to the
Supreme Court. The provisions should be confined to single appeal.

Public Participation in Environmental Compliance and Enforcement

The NEP emphasizes the importance of public participation for strengthening environmental
institutions and improved implementation and enforcement. Indeed, the public is playing an
increasingly important role in supporting environmental compliance and enforcement in
India.
Public Interest Litigation. Indian citizens benefit from a unique approach for
enforcingenvironmental law by exercising a constitutional right to a healthy environment
before the Supreme Court and the High Courts. As detailed in Section 3.1, although PIL has
advanced Indias environmental agenda and resulted in some environmental improvements, it
has resulted in more work for PCBs because of court-ordered directives and ultimately
contributed to the confusion of their compliance and enforcement efforts.
Citizen Complaints. Citizen complaints to the PCBs are an important mechanism for
triggeringcompliance monitoring and enforcement response. In Maharashtra, for example,
between April 2004 and March 2005, citizens filed 761 complaints with respect to air (306),
water (292), solid waste (31) and noise pollution (132).
SPCBs adopt different approaches to respond effectively to citizen complaints. For example,
the Andhra Pradesh PCB created in 1995 a Task Force cell to respond to public complaints,
conduct surprise inspections and require corrective action. In West Bengal, the public can
lodge a compliant by directly approaching the Board office or by submitting a complaint on
the Boards website along with the necessary accompanying information. The complaints are
acknowledged, investigated and subsequently redressed during a hearing at the PCB in the
presence of both parties.
Public Participation in EIA. As part of the Environmental Impact Assessment (EIA)
processstipulated in the MOEF notification of 14 September 2006, public consultation
(including a procedure for written comments and a public hearing) is mandatory for certain
categories of projects that have significant environmental impacts. This mechanism provides
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an opportunity to the affected people to raise their concerns about the project and get them
addressed accordingly. Involving the public during project preparation facilitates decisionmaking on project development, raises public awareness of the project and its potential
impacts, and helps effective monitoring in the operational phase.
Stakeholder Consultative Bodies. Some state boards are now involving stakeholders in
thecompliance monitoring process. For example, in Maharashtra, the Board appointed Local
Area Environment Committees (LAEC) in the Tarapur and Dombivali industrial areas to
monitor compliance with court and PCB directives and bring the defaulters to the notice of
the Board. Comprised of Board officials and representatives from the Maharashtra Industrial
Development Corporation (MIDC), industries, and technical experts. The Andhra Pradesh
PCB involves NGOs and community-based organizations in environmental audits, waste
minimization projects, etc.
Access to Information. The Right to Information Act of 2005 is a major milestone for
enhancedpublic involvement through information disclosure. Under this Act, PCBs must
make information available to the public regarding the effects of pollution, the need to
prevent and control pollution and to protect the environment. Indias commitment to
improving access to information is also reinforced in the NEP, which recognizes that access
to environmental information is the principal means by which stakeholders may evaluate
compliance by the regulated community with environmental requirements.
Key Challenges

SPCBs face serious resource limitations to deal effectively with citizen complaints as

their number has gone over a thousand per year in some states.
Access to environmental information guaranteed by the Right to Information Act is
not easy for citizens, as PCBs either do not have the information is a usable form (and
have no resources tosystematize it) or are reluctant to provide it to the general public.
Examples of the latter are consent applications, consents and authorizations
themselves, and inspection reports.

CONCLUSION &RECOMMENDATIONS

We have more than 200 Central and State legislations which deal with environmental issues.
More legislation means more difficulties in enforcement. There is a need to have a
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comprehensive and an integrated law on environmental protection for meaningful

enforcement.
Following are few recommendations :

Advocate for more resources, and streamline current practices to maximize currently

available resources.
Develop policies and implementing guidance to assist the zonal offices and SPCBs in
implementing compliance and enforcement programs. As these policies and guidance
are developed, effective organization will necessitate that a system for cataloguing

and distributing the guidance in a timely manner also be developed.

Establish the authority to use self-monitoring, self-recordkeeping, and self-reporting
as direct evidence of a violation in the courts (and administratively should such a
process be established); develop and distribute the necessary policies and

implementing guidance; and provide training to SPCBs.

Establish opacity standards and test methods for emissions from stacks; develop
implementing policies and guidance; and establish the necessary training

infrastructure.
Develop national guidance on minimum inspector training requirements; develop and
fund a compliance and enforcement training program to implement the requirements;

and ensure that all SPCBs are aware of the program and the schedule of courses.
Develop a policy and provide implementing guidance that requires regulated
industries to provide bank guarantees for negotiated compliance schedules

incorporated in directives issued by the Boards.

Utilize current statutory provisions to establish civil administrative authority;
establish the infrastructure for managing administrative cases; develop the necessary

enforcement response and penalty policies; and provide training for the states.
Develop educational materials and compliance assistance tools for the regulated
community, especially small businesses, and distribute the materials to all regulated

sources.
Develop measures of success for the compliance and enforcement program utilizing a
variety of parameters, and communicate these measures and the rationale for why

they are needed to SPCBs, the regulated community, and the public.
Develop a uniform computerized system for collecting, maintaining and utilizing
compliance and enforcement data at the national as well as the state level; develop the
necessary implementing policies and guidance; and ensure that the SPCBs are aware
of them.
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Establish a support organization to facilitate communication among SPCBs on

important environmental compliance and enforcement issues, and between CPCB and
the Boards

BIBLIOGRAPHY
BOOKS

Divan, Shyam and Rosencranz, Armin, Environmental Law and Policy in India Cases, Materials and Statutes, Second Edition, Oxford University Press, New Delhi.

Jaiswal, P.S., The Environment (Protection) Act, 1986, Environmental Law, Pioneer
Publications, Delhi.

WEBSITES

www.manupatra.com

www.westlaw.com

www.indiankanoon.com

http://heinonline.org/
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http://cdem.somaiya.edu/media/pdf/

http://www.environmentallawsofindia.com/

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