This article is written by Mayuri Khandelwal, a student of HNLU, Raipur.

A year after Prime minister’s massive 1,500 crore budget allocation to clean Ganga project the Supreme Court of India looked unsatisfied with the slow progress on cleaning the holy river. Ganga cannot be cleaned by simply pouring money into it. There needs to be ‘Janbhagidaari’ in order to curb pollution of the water bodies in India. Here lies the root of all the problem that India is facing to clean its waterbodies. Can citizen really challenge a firm which is polluting the water bodies? Being a responsible citizen of the country have you ever thought of filling a complaint against the pollution of the water bodies in your locality? If you think that cleaning Ganga is a big issue and common citizens won’t have to deal with it, how about the water that you drink at the railway station. Is the water supplied really safe for drinking? The Delhi high court concern over this issue shows the seriousness of the judiciary towards providing clean water to the citizens of the country. If the quality of water supplied is really low it will amount to water pollution and will infringe our fundamental right under article 21 of the constitution.

This question is important because it deals with our fundamental rights. The Supreme Court has held that right to environment is a fundamental right included in right to life under article 21 of the constitution of India.[1] Everyone has a right to enjoy clean surroundings and pollution of water bodies infringes this right. The State also has a duty to protect the environment as provided in article 51-A of the constitution. Even section 277 of the IPC (Indian penal code) makes polluting the water bodies’ crime. The text of the section states whoever volun­tarily corrupts or fouls the water of any public spring or reser­voir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. Sec 278 states that whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighborhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees. So the environmental rights and human rights are interlinked and inseparable, hence the people should be aware of the remedies available to them to enforce their right.

When did it all begin?

The human conference on environment held at Stockholm in 1972. Popularly called as the Magna Carta of human environment warned that the “natural resources of the Earth including air, water, land, flora and fauna and especially the representative sample of natural ecosystem must be safeguarded for the benefit of the present and future generations through careful planning or management as appropriate.” This marked the beginning of the environmental rights in the international arena. The need for environmental rights was first recognized in India seriously after the Bhopal gas tragedy although the water rights in India came into existence after the enactment of water act of 1974.[2]

This brings us to another very important question as to the history of water pollution suits in India. The first known case in this regard is Galstaun v. Dunia Lal in Calcutta where the plaintiff contended that due to the liquid effluents discharge by the plaintiff caused him health risk. He won the case and the damages had to be paid by the defendant. This case shows that more than 100 years back the people of India were as aware of their rights as they are now. Similarly in a case in the year 1926 the court ordered to stop two sugar factories that were operating at that point of time and releasing dirty water in the river and thereby causing water pollution. Though the only remedy available that time was under law of torts and the suit was filed for causing public nuisance. With advancement of law modern Indian citizen has multiple remedies against the polluter. Still there is a scope of improvement in law and the procedure needs to be less complicated. In the present scenario the law has advanced and have specific remedy for causing water pollution instead of filling case for public nuisance under the tort law. Post Stockholm conference on environment the laws in India have also been affected largely. Until then only government had the right to sue the polluter.

Citizen suit

The legal remedies available to the citizens with regards to Water pollution in India are limited as compared to countries like US, UK, Canada and Australia and are still in a developing phase. It was in the year 1986 after the coming of Environmental protection act that a citizen got the right to file a complaint under section 19 of the EPA and prosecute the polluter. But this is subjected to restriction that a pollution control board sample is only admissible by the court and the sample given by citizen unlike in U.S. was not admissible. In India, therefore you have to first complain to the PCBs (pollution control board) and cannot directly approach the court. Moreover a 6-month prior notice has to be given before filing the suit which gives ample time to the polluter to get way with the crime. By amendments later in the water act 1974 it has been made mandatory for the PCBs to disclose all relevant information which is needed by person filing suit against any pollutant.

 Citizen suits come in three ways. Firstly, an individual citizen can bring a suit against a citizen, corporation, or government body for engaging in conduct which the statute prohibits. For example, a citizen can bring a suit against the corporation under this act for illegally polluting a waterbody. Secondly, a private citizen can sue a government body for failing to perform a non-discretionary duty. For instance, a private citizen can file a complaint against the Environmental Protection Agency for failing to promulgate regulations that the act required it to promulgate. In third situation which is a less common form, citizens may file a complaint appealing to the court to grant an injunction to abate a potential imminent and substantial endangerment involving generation, disposal or handling of waste, regardless of whether or not the defendant’s conduct violates a statutory prohibition. This third type of citizen suit is analogous to the common law tort of public nuisance.

Public hearing- stop it before it starts

Under the environment impact assessment (EIA) public hearing is mandatory for some specified categories[3] of projects to get environment clearance.[4] Under this any person who is likely to be affected by the grant of environment clearance to the project can attend the public hearing and raise their concern in front of the relevant authority. The notification is given in the newspaper of such public hearing. However the amount of harm a project can cause to the environment is difficult to predict by an ordinary man before it starts specially its impact on water bodies which it may pollute in the near future.

The EIA processes are mostly undertaken through public consultation rather than participation. Public consultation means the process by which the concerns of the local people regarding the adverse impacts of a project are ascertained and taken into account in the EIA study. This concept was introduced legally in India in the form of ‘public hearing’ in the year 1997. Since then the public hearing process has been conducted as a compulsory step of environmental clearance for most projects and activities.

The role of the public in the entire environment clearance process is quite narrow in India. The process of public consultation starts at a very later stage when the EIA report is already prepared and when the firm is ready to show it to the authority for getting environmental clearance. When the public consultation takes place at such a late stage it misses some valuable issues and also the concerns of the general public. The community members also do not have any access to the final report of EIA so they do not even know whether the changes suggested by them and the reforms suggested are implemented or not. So as of now the public hearing is having various limitations and the purpose of it was to include more and more participation from the public and make it inclusive but it has rather become procedural in its nature.

The new notification was an opportunity for the government to overcome the weaknesses prevailing in the public hearing process but it turned out to be of no use. This provision can be misused to further limit the role of the public in the entire process.[5]

Cases in the past have shown that the objectives of public hearing have not been accomplished and the mission to involve people in the environmental clearing process has failed. Several means have been devised to keep the public away such as poor circulation of notice, politics, etc.

RTI and PIL – tools in the hands of public

Majority of cases before the court are writ petitions, by individuals acting on a pro bono basis.  PIL is a result of the relaxation of the locus standi rules while departing from the “proof of injury” approach.[6] These cases are concerned with the rights of the community as a whole rather than an individual. In cases of water pollution the PIL was first used in the case of Ratlam municipal Corporation v. Vardhichand[7] where the Supreme Court had introduced the concept of PIL for the first time and had stated that a responsible Municipal Council constituted for the precise purpose of preserving public health, cannot run away from its principal duty by pleading financial inability.

Right to information which is a fundamental right flowing from article 19(1) (a) of the constitution has been recognized by the supreme court in the environmental laws.[8] The way to lodge a complaint against water pollution appears to be quite simple. A person can file a petition obtaining documents on the suspect industries under the right of information provision and then file a PIL under article 32 and 224 of the constitution in the appellate courts seeking the remedy and prosecuting the pollutants.

 But this is not as simple as it appears to be. The procedure is quite complicated and costly. Firstly the RTI gets trapped in the procedural aspects. If we file an RTI to the pollution control board for obtaining information against any pollutant firm the PCB can deny giving such information under section 123 and 124 of the Indian Evidence act if it thinks it is in national interest to do so. Also placing a PIL needs a sum of 50,000 to be deposited in the high court and 1 lakh in the Supreme Court which is forfeited if you lose.

The judicial gateway for a common man to curb water pollution is limited to filling of PILs, public hearings, and under Citizen’s suits. It appears as if the citizens have been excluded explicitly from prosecuting the polluters. The remedies which are available also have many loopholes which are exploited by the polluters to get away with the punishment for environmental crimes.[9] The law needs to be more in favor of allowing the citizens to sue the water polluters as they have a better knowledge of the water pollution in their locality.

Hope for Speedy justice in cases of water pollution after the establishment of National Green Tribunal (NGT)

In 2010 after the enactment of national green tribunal act the cases relating to the Water (Prevention and Control of Pollution) Act, 1974 and The Water (Prevention and Control of Pollution) Cess Act, 1977 were transferred to the NGT. This was to ensure that the speedy trial of the cases related to environment degradation takes place. Now if a person has to file a case regarding water pollution he should approach the NGT which has been specifically made for the purpose of dealing with issues of this kind. The civil court has now lost its right to admit complaint regarding this issue. The rules of filing the complaint remains the same and there is no amendment in the procedure and the evidence required for the cases relating to water pollution. The NGT has insured only speedy trial for cases of pollution and environmental degradation but there is a need for reformatory changes in order to encourage more and more citizens to turn up for filling complaint against the water pollution. The sample given by citizens regarding water pollution should be accepted by the NGT to prevent the polluters take advantage of the loop hole in the procedure. The provision in the NGT Act that it can

So that’s all about the procedure to become a water-rights activist and cleaning many Ganga’s nearby.

[1]  Subhas V State of Bihar

[2] http://www.legalservicesindia.com

[3] 29 categories as specified in annexure 3 of the environment(protection) act 1986

[4] http://www.environmentallawsofindia.com/

[5] Industry and environment. http://www.cseindia.org/

[6] Role of Indian judiciary in addressing air and water pollution, justice Hima kohli

[7] AIR 1980 SC 1622

[8] State of Uttar Pradesh v Raj Narain

[9] Kanwaljit Kaur; (2000); Law and Disorder; Down to Earth; Society for Science and Environmental Communications; Vol 6; No. 23.