This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article explores a brief history of the Air (Prevention and Control of Air Pollution) Act 1981 and the reason for its introduction. It explores the provisions for the setting up of Boards for pollution control and regulation, along with looking at some case studies regarding clean air.
Many of us must be aware of the plight of Delhi residents in the winter. The winter fog and the smoke from stubble burning, vehicles, carried by the incoming northern winds, combine to make Delhi a ‘gas chamber’. In 2019, Delhi was ranked as one of the most polluted major cities in the world. In these circumstances, we must examine the law framed by India to combat air pollution and whether it is enough to combat air pollution.
What was the need for this Act?
Sweden first suggested to the United Nations that there should be a global conference to discuss and prevent pollution and degradation of natural resources. Therefore, with the passing of the General Assembly Resolution 2398, the United Nations Conference on the Human Environment was held in Stockholm in June 1972. In this conference, it was decided that the countries would undertake steps to preserve the natural resources, which also includes air. Accordingly, the Indian government enacted specific laws under Article 253 of the Constitution for the preservation of natural resources and the law enacted for air preservation was The Air (Prevention and Control of Air Pollution) Act, 1981.
The Act’s Preamble states that this Act is for the prevention, control and abatement of air pollution and the burden of fulfilling such purposes falls on the Boards established under this Act.
What is the scope of this Act?
This Act applies to the whole of India. The Act contains certain definitions which fall under the scope of this Act. Knowing these definitions is important as they will help to understand what qualifies as air pollution according to Indian law so that air polluters can be punished under this Act.
What is an ‘air pollutant’ and what is ‘air pollution’?
- Section 2(a) defines ‘air pollutant’ as any solid, liquid or gaseous substance that may be harming or injuring the environment, humans, other living creatures, plants or even property. Through a 1987 Amendment, the noise was also included in the list of substances that are deemed to be harmful to the environment. Therefore, this Act also provides for the regulation of noise pollution.
- Section 2(b) defines ‘air pollution’ as the presence of any air pollutant in the atmosphere.
What Boards are set up under this Act?
- Section 2(f) classifies the Boards to be set up under this Act under two categories: Central and State Boards.
- Section 2(g) defines ‘Central Board’ as being the same as the ‘Central Pollution Control Board’ which has been constituted under Section 3 of the Water (Prevention and Control of Pollution) Act 1974, which stipulates that this Board shall be set up by the Central Government of India, for the purposes of the Act. This Board’s powers extend to the whole of India.
- Section 6 states that in the case of Union Territories, the Central Board shall exercise the powers of a State Board under that Act, or it may even delegate these powers or functions to any person or body of persons.
- Section 2(o) defines ‘ State Board’ as a Board set up in those states where the Water (Prevention and Control of Pollution) Act, 1974 is in effect and where the State Governments have decided to set up these Boards. This Act also applies to States where the Water (Prevention and Control of Pollution) Act 1974 is not in effect. ‘State Board’ is the same as the ’State Pollution Control Board’.
- Therefore, we observe that while the Water ( Prevention and Control of Pollution) Act 1974 in the first instance, applies to only those States in which it has been given effect but the Air ( Prevention and Control of Air Pollution) Act 1981 applies to the whole of India in the first instance.
Constitution of the Boards
Section 3 and Section 4 of this Act state that the appropriate powers and functions shall be given to the Central Board and the State Boards respectively, and they shall exercise these powers and not go outside the ambit of these powers.
Constitution of Central Pollution Control Board
Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 explains the constitution of the Central Pollution Control Board-
- It shall have a full-time Chairman, having special knowledge and practical expertise in matters of environmental protection and having knowledge and experience in administering institutions dealing with such matters. This Chairman will be nominated by the Central Government.
- It shall have a full-time Secretary, who shall have the qualifications, knowledge and experience of scientific, engineering and management aspects of environmental protection. The Secretary will be appointed by the Central Government.
- It shall have not more than five officials nominated by the Central Government to represent that Government.
- It shall not have more than five members nominated by the Central Government, chosen from among the members of the State Boards.
- It shall not have more than three officials who represent the interests of the fishery, agriculture, or any other industry or trade, which the Government may think fit to be represented.
- It shall have 2 persons from the companies or corporations, owned, managed or controlled by the Central Government, nominated by that Government.
Constitution of State Pollution Control Board
Section 5(2) of the Act explains the constitution of a State Board-
- A person, nominated by the State Government, who has special knowledge and practical experience of dealing with issues related to environmental protection, shall serve as the Chairman of the State Pollution Control Board. This Chairman may be whole-time or part-time. This decision will be left to the discretion of the State Government.
- The Board shall further constitute of not more than five officials, nominated by the State Government, to serve as representatives of that Government.
- Not more than five people from the local authorities, nominated by the State Government.
- Not more than three officials nominated by the State Government, who are believed to be representing the interests of the industries of fishery, agriculture or any other industry or trade which the Central Government thinks ought to be represented.
- Two persons from companies or corporations owned, managed or controlled by the State Government, and are nominated by that State Government.
Powers and functions of the Boards
Functions of the Pollution Control Boards
Functions of the Central Board
Section 16 lays down the functions of the Central Board-
- The Board shall make efforts for the prevention, abatement and control of air pollution in the country and may advise the Central Government on the same.
- It shall plan and implement a nationwide programme for the prevention, control and abatement of air pollution.
- It shall coordinate the activities of the States and shall resolve the disputes that arise between them.
- It shall provide technical assistance to the Boards, carry out investigations and research relating to air pollution.
- It shall plan and implement training programmes for the persons to be involved in those programmes.
- It shall help combat air pollution through a mass media programme.
- It shall collect, compile and publish statistical data relating to air pollution and shall also prepare manuals, codes or guides relating to measures to combat air pollution.
- It shall lay down standards for the quality of air and shall perform other functions as prescribed.
- The Board shall also set up a laboratory or multiple laboratories to enable the Board to perform its functions effectively.
Functions of the State Pollution Control Boards
Section 17 lays down the functions to be performed by the State Boards-
- The State Board shall plan and implement comprehensive programmes for prevention, control or abatement of air pollution. It shall also advise the State Government on such matters.
- It shall collect and disseminate information regarding air pollution. It shall organise training and mass awareness programmes regarding air pollution control, prevention and abatement.
- It shall inspect, at reasonable times, any control equipment, industrial plant or manufacturing process and give orders to the people in charge to further the purposes of combating air pollution.
- It shall inspect and assess the air quality at designated air pollution control areas as it may think necessary.
- It shall lay down standards for the emission of air pollutants into the atmosphere from automobiles or industries, or any other pollutant from any source. However, a ship or aircraft cannot come into the ambit of a source.
- The State Boards shall also advise the State Government regarding the suitability of any location which is to be used for setting up any industry, keeping in mind the air quality which would be impacted if that industry is set up.
- The Boards shall also set up labs in their States, to enable the State Board to perform its functions effectively.
Powers of the Boards
- Power to give directions: Section 18 states that the Central Board shall follow the directions of the Central Government while the State Boards shall follow the directions of the respective State Governments. Where a decision of the Central Board and a State Government direction are conflicting, the matter shall go to the Central Government for resolution.
- Where the Central Government thinks that a grave emergency has arisen due to the State Board defaulting in complying with the orders of the Central Board, then it can perform the functions of the State Board.
Section 31A prescribes that the Central Government may issue directions to any person, officer or authority and such party shall be bound to follow the directions. These instructions should be within the powers and functions of the Board, and include-
- Closure, prohibition, regulation of any industry, process or operation.
- Stoppage or regulation of supply of water, electricity, or any other service.
Power to declare air pollution areas: Section 19 of the Act states that the State Government, after consulting the State Board, may declare an area within the State as an ‘air pollution area’. The State Government may also order for the extension or reduction of an air pollution area or may even merge one or more areas to make a new pollution area or any part or parts thereof.
The State Government after consulting the State Board, may also by notification in the Official Gazette, prohibit the use of any fuel or appliance that may cause or is likely to cause air pollution. The State Government may also prohibit the burning of any material (which is not a fuel) if it causes or is likely to cause air pollution. This is also done after consultations with the respective State Board.
Power to give restrictions for ensuring standards for emissions from automobiles: Section 20 states that the State Government may, after consulting the State Board, issue instructions to the authority responsible for the registration of vehicles under the Motor Vehicles Act 1939 and such authority shall be bound to follow these instructions. This is done to ensure that the standards of emission prescribed under Section 17(1)(g) are complied with.
Restrictions on use of certain industrial plants: Section 21 talks about setting up of industrial plants in compliance and with the consent of the respective State Board. It prescribes the procedure for making an application to the Board, for which a decision has to be made and intimated to the applicant regarding whether he has permission to set up the plant or not. The conditions are also given for setting up the plant. These should be complied with, otherwise, the permission for the plant can be revoked. The conditions under Section 21(5) are-
- The necessary control equipment as stipulated by the State Board has to be installed in the plant. This equipment has to be changed according to the decisions and instructions of the State Board. The equipment has to be kept in good running condition.
- Chimneys should be erected when and where the Board so directs.
Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standard laid down by State Board: Section 22 states that no person heading an industry shall emit any excess amount of emissions than the standards set out by the State Board.
Power of Board to make application to Court for restraining a person from causing air pollution: Under Section 22A, when the Board believes that there is excess emission being caused by a person running an industrial plant in any air pollution area, then the Board can make an application before the Court to restrain him from doing the same.
Furnishing of information to State Board and other agencies in certain cases: Under Section 23, where any emission over the prescribed limit occurs due to an accident or unforeseen event, the person operating the industrial plant shall report about the facts of the same to the State Board and other relevant authorities, to which they shall take remedial action as soon as possible.
Power of entry and inspection: Under Section 24, a person authorised by the State Board shall have the power to gain entry into any place for carrying out the performance of any of the functions assigned to him. He may examine and inspect any control equipment, industrial plant, record, register or any other document or object or any place which he has reason to believe was used for the commission of any offence under this Act. the person in charge of these equipment, plants, record etc shall assist the person from the State Board to perform the functions. Not doing so, will be an offence.
Power to obtain information: In Section 25, it is stated that the State Board or any person empowered under it shall have the power to call the person operating such plant or control equipment about any information regarding the type of air pollutant and the amount of emissions released by such plant or equipment. It shall also carry out inspections for verifying the same.
Power to take samples from air or emission and procedure to be followed: Section 26(1) states that samples of air or emissions may be taken from any chimney, flue, duct or any outlet as prescribed. The samples shall be admissible in legal proceedings only on the compliance of conditions laid down in Section 26(3) and 26(4). These are-
- The person taking the sample shall notify the occupier or agent of such occupier, of the place from where the sample has been taken.
- The sample shall be collected in the presence of the occupier or his agent.
- The sample shall be placed in a container, marked and sealed. The container shall be signed by both the person taking the sample and the occupier or his agent. This sample shall be sent to labs for testing and analysis.
In a condition where the occupier or agent wilfully absents himself, then the sample shall be put into the container and be signed by the person taking the sample only. In a condition where the sample is being taken in the presence of the occupier or agent, and such occupier or agent refuses to sign the container, the person taking the sample shall sign the container.
Penalties and procedures under this Act
Under Section 37, whoever fails to comply with the provisions of Section 21, 22 and the directions issued under Section 31A, can be sentenced to imprisonment for a term of one year and six months. This sentence can be extended to six years and with fine, if the requisite compliances under the aforesaid sections are still not carried out, with an additional fine of five thousand rupees every day.
Under Section 38, penalties for certain acts are laid down. These acts are-
- Destroying, defacing, removing etc any pillar, post, stake or notice fixed in the ground under the authority of the Board.
- Obstruction of any person acting under orders of the Board from exercising his powers and functions under the Act.
- Damaging any property belonging to the Board.
- Failure to furnish information to an officer or any employee of the Board, which is required by such officer or employee.
- Failure to inform about the excess release of emissions than the standard set by the State Board. Even an apprehension of the release of excess emissions should be informed to the State Board.
- Giving false statements to Board authorities when furnishing information.
- Giving false information to the Board, for getting permission under Section 21 i.e. permission for setting up industrial plants.
These are offences that shall be punishable with imprisonment which may extend to three months with fine, which may extend to ten thousand rupees or both.
- Under Section 39, any order or direction which has been flouted, and for which there is no punishment anywhere in the Act, shall be punishable with three months imprisonment or fine of three thousand rupees or both. If failure continues, there shall be a fine of an additional five thousand rupees every day.
- Section 40 of this Act talks about offences by companies. If an offence is committed by a company, every such person shall be deemed to be guilty, who is directly in charge of the company, who was responsible to the company for the conduct of its business as well as the company itself. He shall be punished according to the provisions of this Act. However, where such an offence was committed without the knowledge of such person, or where he had made full efforts and due diligence to stop these offences, this person shall not be held liable.
- Section 40(2) further states that where the offence was committed after taking the consent of the director, manager, secretary or other officer or happened due to the neglect of the aforesaid people, then they shall be deemed guilty and can be punished according to the Act.
Section 40 includes two definitions-
- Company: Any corporate body, including a firm or another association of individuals.
- Director: In relation to a firm, it means a partner in the firm.
Section 41 talks about offences committed by governmental departments. Where any government department has committed an offence under this Act, then the head of that department shall be liable to be proceeded and accordingly punished. However, if the Head of Department had no knowledge of the committing of these offences, or had practised due diligence to prevent these offences from happening, he shall not be held liable.
Furthermore, as provided under Section 41(2), if such Head of Department had consented to, or neglected to prevent, the commission of these offences, then such person shall be liable to be proceeded against and punished accordingly.
Sections 42 to 46 cover procedures. Section 42 states that no suit, prosecution or another legal proceeding shall lie against the government, any officer of the government or any member, employee or officer of the Board, where the actions are done by such body or persons are done or intended to be done in good faith in pursuance of this Act.
Section 43 states that the Court shall take cognizance of only those offences where the complaint is made by-
- A Board or any officer authorised under it
- Any person who has given notice of not less than sixty days, of the alleged offence and his intention to make a complaint to the Board or an officer authorised by it.
No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try any offence punishable under this Act.
- Section 44 states that all members, officers and other employees shall be deemed to be acting as public servants under Section 21 of the Indian Penal Code 1860.
- Section 45 states that the Central Board shall provide information in the form of data, statistics, reports or another form of information etc to the Central Government and the State Board shall also provide information in these forms, both to the Central Board and the State Government.
- Section 46 involves a bar of jurisdiction. It states that no civil court shall have jurisdiction in any matter which an Appellate Authority formed under this Act is empowered by this Act to decide, nor should an injunction be granted in respect of any action taken under the pursuance of the powers of this Act.
Judicial pronouncements and case studies regarding clean air
- In this case, a writ petition was filed by M.C. Mehta regarding air pollution caused due to vehicular emissions. He prayed for the Court to pass appropriate orders to prevent pollution.
- The Court held that environmental protection is the responsibility of the State as enshrined in the Directive Principles of State Policy and Articles 48A and 51A of the Constitution. The Supreme Court observed that the right to a healthy environment was a basic human right and this included the right to clean air, covered under the ambit of Article 21 of the Constitution. In this way, the Court expanded the scope of Article 21 to include the right to a healthy environment and clean air under the fundamental rights.
- This paved the way for the introduction of lead-free petrol supply in Delhi and paved the way for the introduction of compressed natural gas (CNG). The Court also assisted in setting up a committee that was not just aimed at litigation but also finding long term solutions to the air pollution problem in Delhi.
- Similarly, in Subhash Kumar v. State of Bihar 1991, it was held that right to life under Article 21 included the right to a healthy and safe environment, which in turn included the right to pollution-free air and water for the full enjoyment of life. It was held that municipalities and other governmental bodies had an obligation of taking positive measures to ensure a healthy environment.
The curious case of Delhi
- Air pollution in Delhi has been a major problem for many years but started coming into the limelight in the 1990s. With the advent of the 1981 Act, pollution control boards were set up and the number of legislations on the environment increased.
- In 1996, the Supreme Court issued a suo moto notice to the Delhi government, asking it to submit an action plan for clean air. The cases instituted by M.C. Mehta and the general public furore over the state of the air further aggravated the issue. The Environment Pollution (Prevention and Control) Authority (EPCA) was set up along with the National Clean Air Programme (NCAP).
- On the basis of a report of the EPCA, the Supreme Court accordingly issued orders for vehicles to run on compressed natural gas (CNG). This was a major success. However, in the coming years, the number of vehicles increased from 4.24 million in 2004 to more than 10.8 million in March 2018, in addition to an increase in stubble burning and construction activities (many of which are illegal).
- Over the years, monitoring stations have been set up across Delhi to measure the amount of particulate matter in the air. Public awareness and efforts have definitely increased, with measures like Odd-even scheme and Supreme Court orders on cracker bans, construction activities bans; being implemented.
- In 2016, after the heavy smog wreaked havoc in Delhi, the Supreme Court again asked the national government to make a plan to combat such episodes of air pollution. This programme came to be known as the Graded Response Action Plan (GRAP).
- This programme entails the identification of high-pollution areas within Delhi through monitoring and measuring air quality, and then identifying the problems and formulating local actions for those areas.
- There is no doubt that Delhi still suffers from an air crisis every year. One must understand that this occurs due to a host of factors which need mass action.
It is observed that the legislation to deal with air pollution is pretty strict and well formulated. It encompasses the scientific aspects of managing air pollution with the actions of State and Central bodies. The Pollution Control Boards are bestowed with a wide range of powers and functions to check emission limits and take appropriate action. However, enforcement still remains lax.
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