In this blog post, Sangam Sangroula, a Fifth-Year BA LLB student from Kathmandu School of Law analyses and describes laws related to clean air in India.

ABSTRACT

With development and industrialization, environmental preservation has become a serious concern. The rising power, India, has been facing the environmental pollution due to rapid development and lack of proper implementation of environmental pollution control standards. Environment is directly related with article 21 of Constitution of India which deals with right to life of individual. The two main laws that regulate air pollution in India:  The Air (Prevention and Control of Pollution) Act, 1981 (Air Act) and Environment (Protection) Act, 1986 (EPA). This article is primarily concerned with critical study of provisions under these two acts. Then the article moves towards some case laws relating to clean air. Thirdly, some recent updates about air pollution in India will be highlighted. Finally, the analysis and conclusion will be drawn.

Introduction

The term “clean air” means which is clean, unpolluted and neither harmful for humans nor harmful to surroundings where we live. To maintain this, various countries in the world have their own laws. A state cannot ignore environment and only concentrate on economic growth. India is having worst environment among 132 countries according to Environment Performance Index. It is necessary to maintain good air quality so that every citizen will have protected their fundamental right i.e. right to life.

There are several factors degrading air quality of India. Today, it has been challenging to maintain clean air to most developed countries like China, Qatar etc. Smog is seen in big cities. Hence, the cities have remained as a hell for people where large number of people stays with different objectives.

In article 48A of the Directive Principles of Constitution of India it has declared that the state endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country whereas article 51A imposes similar fundamental duty to citizens as well. Hence, it is necessary to have good laws and mechanisms.

Brief Summary of Legislation Related to Clean Air

Air (Prevention and Control of Pollution) Act, 1981

The objective of the Air Act 1981 is to preservation of the quality of air and control of air pollution.

The chapter 3 of this act deals with powers and functions of boards. There are two boards. They are Central Board and State Boards. Some of their important functions are to improve the quality of air and to prevent, control or abate air pollution in the country, to advise the Government on any matter concerning the improvement of the quality of air and the prevention, control or abatement of air pollution, to plan and cause to be executed a  program for the prevention, control or abatement of air pollution, to collect, compile and publish technical and statistical data relating to air pollution and the measures devised for its effective prevention, control or abatement and prepare manuals, codes or guides relating to prevention, control or abatement of air pollution, to lay down standards for the quality of air, to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control or abatement of air pollution, to inspect air pollution control areas at such intervals as it may think necessary, assess the quality of air therein and take steps for the prevention, control or abatement of air pollution in such areas.

The Central Board and State Board work in collaboration of each other. The Central works throughout the nation whereas State Boards work within its state.

Likewise, chapter four states about the prevention and control of air pollution. State Government after consultation with State Board can declare any area or areas within the State as air pollution control area or areas for the purposes of this Act, can alter any air pollution control area whether by way of extension or reduction, can declare a new air pollution control area in which may be merged one or more existing air pollution control areas or any part or parts thereof.

Environment Protection Act, 1986

The Environment Protection Act came in 1986. Prior to this act, there was Department of Environment which was established in 1980 in India. In 1985, it converted into Ministry of Environment and Forests. Similarly, The Air (Prevention and Control of Pollution) Act came before this act in 1981.

The objective of this act is to take appropriate steps for the protection and improvement of environment and prevention of hazards to human beings, other living creatures, plants and properties.

This act has defined “environment pollution” as the presence of any environmental pollutant in the environment and “environment pollutant” as any solid, liquid or gaseous substance present in such concentration as may be, or tend to be injurious to environment.

Similarly, chapter two deals with general power of Central government. Central Government shall have power to take all such steps it thinks necessary for the preserving and improving the quality of the environment and preventing and controlling environmental pollution, to prohibit and restrict on the handling of hazardous substance in different areas, to prohibit and restrict on the location of industries and the carrying on of the process and operations in different areas, to carry out and sponsor investigations and research relating to problems of environmental pollution, to safeguard for the prevention of accidents which may cause environmental pollution and for providing for remedial measures for such accidents etc.

Besides, third chapter posits about the ways of prevention, control and abatement environmental control. It prohibits any person to carry on any industry operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed and to handle or cause to be handled any hazardous substance expert in accordance with such procedure and after complying with such safeguards may be prescribed.  Whoever fails to comply or contravenes will be punished five years imprisonment or with fine which may extend to one lakh rupees, or with both, and in the case of failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. Finally, if it continues more than a year from the date of conviction shall be punishable with imprisonment for the term which may extend to seven years.

Again, if a company commits any offense under this act, every person such as director, manager secretary or other officer of the company who at the time offence was committed, was directly in charge of and was responsible to the company for the conduct of the business of the company, as well as company shall be deemed to guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Brief Summary of Some Landmark Cases

Bhopal Disaster Case

On December 3 1984, the worst industrial accident in history occurred. Around 40 tons of Methyl Isocyanate (MIC) gas mixed with other poisonous gasses from a chemical plant which is owned and operated by Union Carbide (India) Limited. At least 3,800 people were killed and several were injured in this incident. This incident caused victims throats and eyes to burn, induced nausea because the gases remained low to the ground. Those who were exposed to such toxic gas gave birth to physically and mentally disabled baby even after 30 years.

The Union Carbide Corporation paid a sum of U.S. Dollars 470 millions for full settlement of all claims, rights and liabilities related to and arising out of the Bhopal Gas disaster to the Union of India. The principle of absolute liability was used by the Supreme Court made the Union Carbide Corporation pay compensation.It is relatively small in comparison to the offence which has long term effect in the human existence of that place.

Even after this great disaster, there has been rapid industrialization in India. While some affirmative changes in policy of government and conducts of a few industries have taken place, there still remain major threats to the environment from rapid and poorly regulated industrial growth. Due to widespread environmental degradation, adverse effect in human health consequences continues to happen all over India.

MC Mehta ( Taj Trapezium Matter) V. Union of India

Huge numbers of industries were around Taj Mahal. The main responsible factors for polluting the ambient air around Taj Mahal are industrial/refinery emissions, brick-kilns, vehicular traffic and generator-sets. The petition states that the color of marble has converted from whitish to yellowish and blackish. On 30th of December 1996 and the bench consisted of Justice Kuldip Singh and Justice Faizan Uddin gave the final verdict in this case. Taj Mahal, which is one of the world heritage sites as declared by UNESCO, has been source of revenue to the country because it has capacity to attract tourist throughout the world. The court was of the view that The Taj Mahal is a masterpiece and has international reputation. It is also an important source of revenue to the country because of the huge tourist attraction it commanded. So, there won’t be compromise regarding its beauty. The industries were supposed to relocate far from Taj Trapezium.

Principles laid down in this case are:

Sustainable development– Development of industry is essential for economy but at the same time environment has to be protected. Hence, the object behind this litigation is to stop the pollution.

Precautionary principle– the pollution created as an outcome of development so the state must anticipate, prevent and attack the harm caused to the environment.

Polluter pays principle– the court interpreted the principle in order to mean that the absolute liability to harm the environment is not only to compensate the victims of pollution but also for restoring the cost of environmental degradation.

Government Officials Announces Delhi Air Pollution an Emergency in India

The Indian Government has announced emergency situation and temporarily shut down construction sites, schools and a coal-fired power station due to severe levels of toxic air pollutant in Delhi.

A Delhi-based NGO “The Centre for Science and Environment” has said the Indian capital had seen the worst air quality in 17 years.

Similarly, Delhi Government has told farmers not to burn agricultural wastages. Depending on the last digit of their registration numbers The Delhi government is preparing to reintroduce a temporary scheme to only allow cars to drive on odd or even days.

The patient suffering from respiratory diseases have increased in the hospitals in the city. According to World Health Organization’s report of 2012 out of 100,000, 159 died with respiratory disease which shows India has the highest rate in the world.

Analysis and Conclusion

The concept of sustainable development came up with challenging the concept of rapid development. For example if any one cuts a tree then he/she has to plant two or more trees. The notion of sustainable development rose up with the idea of preservation of environment. The development should be done in such a way that it will last for a long time and the future generation won’t get into problems. But the situation is contrary in the case of India. The pace of development is very fast. But it is failing to maintain clean air.

There are acts, case laws, regulatory bodies and so on but still the situation of air is getting worse and worse. Lots of people are dying due to respiratory diseases and lung cancer. Especially in the city, where there is large population and where people from different rural parts of India come to seek facilities, are highly polluted. The life expectancy of people in India might go below then it is today.

Even there are legislations like The Environment Protection Act 1986 and The Air Prevention and Control Act 1981 which have mentioned about preventive measures, regulatory board, punishment and compensation and the precedent established in the Bhopal Disaster Case and MC Meheta V Union of India, air pollution hasn’t been reduced but has increased which has been proved by air pollution faced by capital city Delhi recently.  

It has already been three decades of these above laws which have come into existence but there is no improvement seen in the air and environment as a whole. From this point, it is clear that either there is problem in law itself or in the part of implementation. And the problem is in both laws and implementation. Laws overwhelmingly give discretion to make plans, investigate and research to the boards. It specifically does not address issues like removal of old vehicles, plantation of trees side by the road, dust management, stoppage of burning wastages etc. Therefore, the officials are silent and passive. They do not conduct any research, make plan and investigate to the issues. If the laws were clear regarding the respective issues then they would have been compelled to take action against such activities.

Similarly, if the officials had made planned to establish industrial area far from human residence, world heritage sites and cities then there won’t be problem. Due to lack of plan, at first the industry pollutes the environment, latter the case is filed and the court deliver verdict to relocate the industries in the case like MC Meheta V Union of India. Here seems problem in the implementation part.

Hence, Right to life of citizens will be violated at large if air is not clean.