In the Common Law jurisprudence, a trust is “the legal relationship between one person having

an equitable ownership in property and another person owning the legal title to such property”1.
In the context of the public trust doctrine, the legal title is vested in the state and the equitable
title in the public. Thus the state is responsible as trustee to manage the property in the interest of
the public2. Ancient roman emperor develops the doctrine. It is based on the principle that
certain resources like water, air and forests are so much inimitable in the sense that it cannot be
owned by any private being. It would be in the greater public interest to devoid private
individual’s right over these resources as these resources are considered as gift of God which is
given by god to the whole of the inhabitants of earth. It is required that someone should manage
these resources otherwise everyone will claim over these resources and hence, emerged the
Public trust doctrine. State is entitled to prevent the private ownership or commercial use over
these resources and to use it for general public.

The evolution of the public trust doctrine has been remarkable3but it has been haphazard. Some
countries have rich histories of public trust doctrine while some do not. Some have entrenched
the public trust constitutionally while some have invoked the doctrine in their statutes. But there
has not been an enormous amount of learning from one jurisdiction to another4. The doctrine
was first enunciated in its modern form by US Supreme Court in Illinois Central Railroad
Company v. People of State of Illinois5. At that period in time, the public trust was used to
protect, and prohibit interference with, three uses of the trust property, namely for the purposes
of commerce, navigation, and fishing6. However, contemporary societal concerns with
environmental protection and resource conservation extend beyond navigable waters to include
far ranging elements of ecosystem7.

We can also relate public trust doctrine with the principle of intergenerational equity and
sustainable development. As the Stockholm Declaration of United Nations on Human
Environment evidences that “The natural resources of the earth, including the air, water, land,
flora and fauna and especially representative samples of natural system, must be safeguarded for
the benefit of present and future generations through careful planning or management, as
appropriate….”. Hence, public trust doctrine is widely accepted doctrine in international
scenario.

Public trust doctrine and India

Over a period of time, this doctrine became the fundamental tool used by courts to justify the
action of state authorities in many legal systems. In India, this doctrine is recognised by judiciary
in many cases and it is a well established phenomenon in Indian jurisprudence. Under the
Constitution of India, Right to life is considered as fundamental right under article 21. It is
interpreted by Supreme Court in Olga Tellis8Case that right to life include right to livelihood and
an extended interpretation also included right to healthy environment.

For the first time, the doctrine was mentioned in the case of M.C.Mehta v. Kamalnath and
others9. It was pronounced that “Our legal system which is based on English Common Law
includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and enjoyment. The State as a trustee is under
a legal duty to protect the natural resources. These resources meant for public use cannot be
converted into private ownership.” Court went on to clear that even if any specific or separate
law is present on the issue, public trust doctrine won’t lose its application. If there is no suitable
legislation to preserve the natural resources, the public authorities should take advantage of this
doctrine in addition to the fact that there was a branch of municipal law10.

After M.C.Mehta case, in Majra singh case11, it was established that public trust doctrine is the
part and parcel of Indian legal system. Later on in M.I. Builders v Radhey Shyam Sahu case12it
was asserted that the public authorities should act as trustees of natural resources. These three
cases form the backbone of development of public trust doctrine in India. Hence, the sum total of
these cases evidenced that the state is not the owner of the natural resources in the country but a
trustee who holds fiduciary relationship with the people.

In the recent case, court while reaffirming the doctrine observed that the action on the part of the
State Government is valid as per doctrine of public trust and it is a precautionary principle under
which the State should always anticipate environmental harm and take measures to avoid and
prevent illegal mining, storage and transportation of sand in the State13. The State being a
welfare state is under a constitutional obligation to regulate such things14. In the case of
Rajendra Kumar Razdan v. Mr. T. Srinivasan & Ors15, it was also observed that courts in other
jurisdiction are expanding the ambit of public trust. The landmark case (Mono Lake case) of
Supreme Court of California clearly show the judicial concern in protecting all ecologically
important lands, for example fresh water, wetlands or riparian forests. In Phillips Petroleum co.
v. Mississippi16, the United States Supreme Court upheld Mississippi’s extension of public trust
doctrine to lands underlying no navigable tidal areas. The majority judgment adopted ecological
concepts to determine which land can be considered tide lands. Madras HC directed to take
appropriate action against the officers of the Government who permitted the illegal removal of
the sand and causing damage to the river17.

Recently, Kerala State Government has framed legislation for protecting the fragile forest land
following the said principle of public trust doctrine. Kerala Forest (Vesting and Management of
Ecologically Fragile Lands) Act, 2002 was framed following the above principles18. Again,
most freshly, on 23rd April, 2013, it was observed that illegal commercial activities in the
football ground made by the respondent are wholly impermissible and unauthorised and against
the concept of the Public Trust Doctrine and once again court affirmed the principle of public
trust doctrine19. Hence, it can be concluded that court is considering the doctrine on a very
serious count.
Conclusion/Suggestion

It is beyond doubt that Public trust doctrine has gained its legal status in different jurisprudence.
However, It is important to add here that the general stand of the court is that it did not confer
any property right on the public under the trust. While applying the public trust doctrine, the
Court in almost all the cases, took account of either the polluter pays principle or the
precautionary principle or both. Hence, the application of public trust doctrine is in tandom with
the application of other major environmental law principles.

As, it is a doctrine which is developed by judicial-legislation, active role of legislature is also

required so that Public Trust Doctrine find its place in the statute. This will further the cause for
which this doctrine is developed. Recent chain of cases makes it crystal clear that court is not
reluctant to use this doctrine for the protection of state authorities.

Basically, the ancient Roman Empire developed this legal theory i.e. Doctrine of the Public
Trust. The Public Trust Doctrine primarily rests on the principle that certain resources like air,
sea, waters and the forests have such a great importance to the people as a whole that it would be
wholly unjustified to make them a subject of private ownership. The said resources being a gift
of nature, they should be made freely available to everyone irrespective of the status in life. The
doctrine enjoins upon the Government to protect the resources for the enjoyment of the general
public rather than to permit their use for private ownership or commercial purposes.

Public trust doctrine serves two purposes: it mandates affirmative state action for effective
management of resources and empowers citizens to question ineffective management of natural
resources. It is a common law concept, defined and addressed by academics in the United States
and the United Kingdom. Various common properties; including rivers, the seashore, and the air,
are held by the government in trusteeship for the uninterrupted use of the public. The sovereign
could not, therefore, transfer public trust properties to a private party if the grant would interfere
with the public interest. The public trust has been widely used and scrutinized in the United
States, but its scope is still uncertain. Various have been made to apply this doctrine to protect
navigable and non-navigable waters, public land sand parks, and to apply it to both public and
private lands and ecological resources. The Supreme Court of California has broadened the
definition of public trust by including ecological and aesthetic considerations. Although the
public trusts doctrine is not without its fair share of criticism it is being increasingly related to
sustainable development, the precautionary principle and bio-diversity protection. The doctrine
combines the guarantee of public access to public trust resources with a requirement of public
accountability in respect of decision-making regarding such resources. Moreover, not only can it
be used to protect the public from poor application of planning law or environmental impact
assessment, it also has an intergenerational dimension.

The Stockholm Declaration of United Nations on Human Environment evidences this seminal
proposition:

" The natural resources of the earth, including the air, water, land, flora and fauna and especially
representative samples of natural system, must be safeguarded for the benefit of present and
future generations through careful planning or management, as appropriate... "

The Public Trust Doctrine can also be used as leverage during policy deliberations and public
scoping sessions and hearings. This forces agencies to prove that their actions are not
environmentally harmful to the extent that they will destroy a public resource. If the agencies fail
to provide a more environmentally benign alternative, then you can bring up a Public Trust
lawsuit. Although the court process may be long and arduous, many important precedents have
been established.
The Doctrine of Public Trust In India
The Public Trust Doctrine has its origins in Roman Law. It has been extended in recent years,
placing a duty on the state to hold environmental resources in trust for the benefit of the public.
At its widest, it could be used by the courts as a tool to protect the environment from many kinds
of degradation. In some countries, the doctrine has formed the basis of environmental policy
legislation, allowing private rights of action by citizens for violations by the state (directly or
indirectly) of the public trust.

The Rule of Law runs close to the rule of life and the Indian Constitution, in its humanist vision,
has made environmental-ecological preservation a fundamental value. The higher jurisprudence
of Article 21 of the Constitution (right to life) embraces the protection and preservation of
nature's gift without which life ceases to be viable and human rights become a simulacrum. In
other words, this right to life under article 21 has been extended to include the right to a healthy
environment and the right to livelihood. The third aspect of the right to life is the application of
public trust doctrine to protect and preserve the public land. When the Indian courts have applied
the public trust doctrine, they have considered it not only as an international law concept, but
one, which is well established in their national legal system.

Accepting public trust doctrine as a part of common law, the Indian courts have applied this
explicitly in three recent cases, the first one in 1997 and two cases in 1999 , including the case
under consideration. Articles 48A and 51A of the Constitution also furnish the principles of
jurisprudence, which are fundamental to our governance under the Rule of Law.

The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others where the Indian
Supreme Court applied public trust with regard to the protection and preservation of natural
resources. In this case, the State Government granted lease of riparian forestland to a private
company for commercial purpose. The purpose of the lease was to build a motel at the bank of
the River Beas. A report published in a national newspaper alleged that the motel management
interfered with the natural flow of the river in order to divert its course and to save the motel
from future floods. The Supreme Court initiated suo motu action based on the newspaper item
because the facts disclosed, if true, would be a serious act of environmental degradation.

The Supreme court in M.C. Mehta started that the Public Trust Doctrine primarily rests on the
principle that certain resources like air, sea, waters and forests have such great importance to the
people as a whole that it would be unjustified to make them a subject of private ownership . The
court observed that:

Our Indian legal system, which is based on English common law, includes the public trust
doctrine as part of its jurisprudence. The State is the trustee of all natural resources, which are by
nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore,
running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal
duty to protect the natural resources. These resources meant for public use cannot be converted
into private ownership. As rivers, forests, minerals and such other resources constitute a nation's
natural wealth. These resources are not to be frittered away and exhausted by any one generation.
Every generation owes a duty to all succeeding generations to develop and conserve the natural
resources of the nation in the best possible way. It is in the interest of mankind. It is in the
interest of the nation. Thus, the Public Trust doctrine is a part of the law of the land. The court
also ruled that there is no any justifiable reason to rule out the application of the public trust
doctrine in all ecosystems in India.

In this case, the Supreme Court was faced with the classic struggle between those members of
the public who would preserve our rivers, lakes and open lands in their pristine purity and those
charged with administrative responsibilities who find it necessary to encroach to some extent
upon open land.... It stated that the public bodies should apply public trust doctrine when there is
no legislation to protect the natural resources.
In their view, applying the polluter pays principle, the Court directed the developer to pay
compensation by way of cost for the restitution of the environment and ecology of the area. It
had no difficulty in holding that the Himachal Pradesh government committed a patent breach of
public trust by leasing out the ecologically fragile land to be developed.

Chronologically, the second case on this subject is Th. Majra Singh v Indian Oil Corporation,
where the petitioner objected to the location of a plant for filling cylinders with liquefied
petroleum gas. It was held that the High Court can only examine whether authorities have taken
all precautions with a view to see that laws dealing with environment and pollution have been
given due care and attention. Though the case was decided on the basis of the precautionary
principle, it confirmed that the public trust doctrine has become part of the Indian legal thought
processes. In the High Court's opinion, the doctrines is apart and parcel of Article 21 of the
Constitution and that there can be no dispute that the State is under an obligation to see that
forests, lakes and wildlife and environment are duly protected. According to the Court, the idea
that the public has a right to expect certain lands and natural areas to retain their natural
characteristics is finding its way into the law of the land.

In the third case, M.I. Builders v Radhey Shyam Sahu, the Supreme Court has applied the public
trust doctrine. Here, the Lucknow Nagar Mahapalika (i.e. Lucknow City Corporation) granted
permission to a private builder to construct an underground shopping complex was against the
municipal Act and Master plan of the city of Lucknow. The builder was supposed to develop the
site at its own cost and then to realize the cost with profit not exceeding more than 10% of the
investment in respect of each shop. Under the terms of the agreement, full freedom was given to
the builder to0 lease out the shops as per its own terms and conditions to persons of its choice on
behalf of the Mahapalika. The builder was also given the right to sign the agreement on behalf of
the Mahapalika and was only required to a copy to the Mahapalika after its execution. Both the
builder and the Mahapalika were to be bound by the terms of that agreement.

When the matter was challenged, the High Court set aside and quashed the agreement between
Mahapalika and the builder, and the relevant order of the Mahapalika permitting such
construction. The Court ordered Mahapalika to restore the park to its original position within a
period of three months from the date of the judgment and until that was done, to take adequate
measures and to provide necessary safeguards and protections to the users of the park. The High
Court took the accounts of the fact that Mahapalika never denied the historical importance of the
park and the preservation or maintenance of the park was necessary from environmental angle.
However, the only reason advanced by Mahapalika for the construction of the underground
commercial complex was to ease the congestion in the area. The High Court took judicial notice
of the conditions prevailing at the site and found that the construction of an underground market
would further congest the area. It added that the public purpose, which is alleged to be served by
construction of the underground commercial complex, seemed total illusory.

On appeal by the builders, the Supreme Court held that the terms of agreement showed that the
clauses of the agreement are unreasonable, unfair and atrocious. The Mahapalika, as a trustee for
the proper management of the park, has to be more cautious in dealing with its properties. The
Court added that the land of immense value had been handed over to it to construct an
underground shopping complex in violation of the public trust doctrine. The maintenance of the
park, because of its historical importance and environmental necessity, was in itself a public
purpose. Therefore, the construction of an underground market in the grab of decongesting the
area was wholly contrary and prejudicial to the public purpose. By allowing the construction,
Mahapalika has deprived its residents, and also others, of the quality of life to which they were
entitled to under the Constitution and under the Municipal Act.

The agreement was opposed to public policy and not in the public interest. Mahapalika allowed
the commercial shopping complex to be build upon a public park in clear defiance of the Uttar
Pradesh Municipal Corporation Adhiniyam 1959. In addition, the Mahapalika violated the public
trust doctrine and the Court ordered the demolition of the unauthorized shopping complex.
The Supreme Court, in M.I. Builders reconfirmed that the public trust doctrine is established in
the Indian legal system and asserted that the public authorities should act as trustees of natural
resources. However, it is clear from all these cases that the court did not confer any property
right on the public under the trust. While applying the public trust doctrine, the Court in all these
cases, took account of either the polluter pays the principle or the precautionary principle or
both.

In the Kamal Nath case, the Supreme Court and in the Th. Majra Singh case, the High court
applied the public trust doctrine along with other principles such as the precautionary principle
and polluter pays principle. Moreover, in Kamal Nath case, the Supreme Court directed, inter
alia, that the lease be quashed and the full cost of restoration of the land to its original natural
condition be paid by the Motel.

The Court also ordered the Motel to remove all the construction on the riverbed and the banks of
the River Beas. However, in Th. Majra Singh, the High court found that the Indian Oil
Corporation (IOC) had taken all the precautions and followed all the safeguards required by the
law. Giving to the go ahead to the installation of the LRG plant located in the vicinity of a
polluted village, the Court ordered the IOC to take due precautions, so that pollution is not
caused to the environment and to plant fast growing trees like poplar eucalyptus. In the M.I.
Builders case, the Supreme Court ordered Mahapalika to demolish the unauthorized shopping
complex and to restore the park to its original beauty. It is clear that in these cases, the Court
adopted a balanced development approach.

It is interesting to note that in the Kamal Nath case the Supreme Court held that even if there is a
separate and a specific law to deal with the issue before the Court, it may still apply public trust
doctrine. If there is no suitable legislation to preserve the natural resources, the public authorities
should take advantage of this doctrine in addition to the fact that there was a branch of municipal
law. Secondly the Supreme Court in M.I.builders, however, stated that public trust doctrine has
?grown? from Article 21 of the constitution. By attaching this doctrine to the fundamental right
to life, the Supreme Court appears to be willing to diversify the application of this doctrine. It
seems likely that the court would give precedence to right to life when the public trust doctrine,
as a part of right to a safe and healthy environment, is challenged by any other fundamental
rights. Thirdly by ordering the Mahapalika to restore the park to its original beauty, the Supreme
Court redefined the duties of a trustee to its beneficiaries the users of the park. In effect, it
aligned the local authorities duty as a trustee with the concept of intra-generational and inter-
generational equity. Fourthly, the case came before the court as a judicial review and not as
challenge against the decision of the government from a beneficiary. As this doctrine acts as a
check upon administrative action by providing a mechanism for judicial or resource allocation
decisions. Therefore, public trust doctrine could serve as an additional tool for environmental
protection particularly where administrative discretion has been abused.

Conclusion:

From the above discussions on the doctrine and various case laws, it is evident that the state is
not the owner of the natural resources in the country but a trustee who holds fiduciary
relationship with the people. By accepting this task the government is expected to be loyal to the
interests of its citizens and to discharge its duty with the interest of the citizens at heart and
involve them in decision-making process concerning the management of natural resources in the
country. The Public Trust Doctrine may provide the means for increasing the effectiveness of
environmental impact assessment laws. Thus, under this doctrine, the state has a duty as a trustee
under art. 48A to protect and improve the environment and safeguard the forests and wildlife of
the country. While applying art. 21 (right to life), the state is obliged to take account of art. 48A,
a Directive Principle of State Policy. The state's trusteeship duties has been expanded to include
a right to a healthy environment.

Notion of Doctrine of Public Trust in India:

Accepting public trust doctrine as a part of common law, the Indian courts have applied this
explicitly in three recent cases, the first one in 1997 and two cases in 1999. Articles 48A and
51A of the Constitution of India also furnish the principles of jurisprudence. Under this doctrine,
the state has a duty as a trustee under Art 48A to protect and improve the environment and
safeguard the forests and wildlife of the country. This Public trust doctrine has grown from
Article 21 of the Constitution of India.

Environment plays a pivotal role in human life as well as in the development of society. With
growing technological advancement and industrialization, the purity of the environment has been
threatened to an appalling extent. The need to protect and improve the environment is so
compelling for the peaceful survival of mankind and other life forms on planet Earth that right to
environment has emerged as a human right.

This paper commences with the diverse ingredients of Indian environmental jurisprudence. A
highlight of international efforts in combating environment related problems is also made.
Ultimately, the author throws light on the Indian experience of environmental law and its
resultant tool of the human right to live in a clean and healthy environment.

Over the last two decades, the Indian judiciary has fostered an extensive and innovative approach
to environmental rights in the country. Complex matters of environmental management have
been resolved and consequently a series of innovative procedural remedies have evolved to
accompany this new substantive right. The new environmental right is therefore championed as a
legal gateway to speedy and inexpensive legal remedy.

The notional expansion of right to life was recognized even in the absence of a specific reference
to direct violations of the fundamental right. Placed in a nutshell, the human right culture has
percolated down to Indian human right regime within a short period of time. An interdisciplinary
approach to environmental protection may be another reason for the operation of the right to
healthy environment. This has been undertaken through international environmental treaties &
conventions, national legislative measures and in judicial responses.
On undertaking a comprehensive study of environmental law, it can be found that the Indian
scenario is replete with examples of preserving the environment from degradation.

History of Environmental Protection in Ancient India

An appraisal of the historical background to environmental protection in India would indicate

that forests & wildlife were considered as vital ingredients of the global system. Here, the entire
scheme of environmental preservation was essentially duty-based. In this sense, the ancient
Indian society accepted the protection of the environment as its duty to do so.

Hindu Era

Opening up the Hindu mythology, the Vedas, Puranas, Upanishads and other ancient scriptures
of the Hindu religion have given a detailed description of trees, plants, wildlife and their
importance to people. Yajnavalkya Smriti prohibited the cutting of trees by prescribing
punishment for such acts. Kautalya's Arthashastra, written in the Mauryan period, realised the
necessity of forest administration and Ashoka's 5th Pillar Edict expressed his view about the
welfare of creatures in the State. Evidence from civilizations of Mohenjadaro and Harappa has
further proved that the small population lived in consonance with the ecosystem and their needs
maintained harmony with the environment. Thus, the Hindu society was conscious of the adverse
environmental effects caused by deforestation and extinction of animal species.

Mughal Era

In Islam, there is close harmony between man and nature. However, during the Medieval period,
the only contribution of Mughal emperors has been the establishment of magnificent gardens,
fruit orchards and green parks, which were used as holiday resorts, palaces of retreat or
temporary headquarters during the summer season. The common opinion of environmentalists
has been that the Mughal emperors, though were great lovers of nature and took delight in
spending their spare time in the lap of natural environment, made no attempts on forest
conservation.

British Era

The British conquest in India brought about a plunder of natural resources coupled with a
complete indifference towards environmental protection. A general survey of early
environmental legislation reveals that apart from the forest laws, nineteenth century legislation
also partially regulated two other aspects of Indian environment �C water pollution and
wildlife. These laws, however, had a narrow purpose and limited territorial reach.

Some of the early efforts include the enactment of the Shore Nuisance (Bombay and Kolaba) Act
of 1853 and the Oriental Gas Company Act of 1857. The Indian Penal Code, enacted in 1860,
imposed a fine on a person who voluntarily fouls the water of any public spring or reservoir. In
addition, the Code penalised negligent acts with poisonous substances that endangered life or
caused injury and proscribed public nuisances. Laws aimed at controlling air pollution were the
Bengal Smoke Nuisance Act of 1905 and the Bombay Smoke Nuisance Act of 1912. In the field
of wildlife protection, early legislation was limited to specific areas and particular species,
thereby aiming at the conservation of biodiversity.

It is clear that legislative measures were taken by the British Government for prevention of
pollution and for conservation of natural resources. Although critics point out that the British
enacted these legislations, not with the object of protecting the environment but with the aim of
earning revenue for themselves, it should be regarded as the first step towards the scientific
conservation of natural resources. Despite the fact that these measures were made with ulterior
motives, British-enacted legislations have contributed significantly to the growth of
environmental jurisprudence in India.

III. International Efforts

Economists see a world economy that has grown by leaps and bounds over the last half-century,
but ecologists see growth based on the burning of vast quantities of cheap fossil fuels, which is
destabilising the climate.- Lester R. Brown

Rapid economic, scientific and technological advancements have shown massive repercussions
in the form of degradation of ecological balances. Due to large scale occurrence of
environmental crises, the global community has expressed major concern over environmental
protection and environmental development. Amidst some serious endeavors, significant
developments took place in the international scenario.

United Nations Conference on Human Environment

In the backdrop of some sincere efforts of tackling pollution control, for the first time, the
attention of the world was drawn towards environment in the United Nations Conference on
Human Environment was held at Stockholm in June 1972. The Declaration on Human
Environment was passed containing twenty-six principles, with the main object of overcoming
environmental problems related to the development of States and to provide clean & healthy
living conditions.

An important aspect of the Stockholm Declaration was a strategy to draft an action plan for the
development of human environment. Moreover, the declaration stated that economic and social
development were necessary for ensuring a healthy environment for man. This, in turn, has been
called the Magna Carta on environment from which two important conclusions can be reached:
v Man has the fundamental right to freedom, equality and adequate conditions of life in an
environment of quality that permits a life of dignity and well-being; and v Man bears a solemn
responsibility to protect and improve the environment for present and future generation.

United Nations Conference on Environment and Development In the last decade, the most
revolutionary step towards the preservation of the environment was the Earth Summit convened
by the UN General Assembly at Rio de Janeiro from 3rd to 14th June, 1992. The Conference saw
the largest gathering of world leaders ever in the history - deliberating and chalking out a blue
print for the survival of the planet. It added a new dimension on the issues of environment and
development in international negotiations.

The main objective of the Summit was to find an equitable balance between the economic, social
and environmental needs of present and future generations and to lay down a foundation for
global partnership between developed & developing countries, on one hand, as well as
governmental agencies & private organisations. Amongst the tangible achievements of the Rio
Conference was the signing of two conventions, one on biological diversity and another on
climate change.

World Summit on Sustainable Development

The World Summit on Sustainable Development was held at Johannesburg, where after 10 years
of the Rio Conference, the Summit reaffirmed sustainable development as a central element of
the international agenda and gave new impetus to global action to fight poverty and protect
environment. The Summit's plan of implementation is a seventy-one page document that is
intended to set the world's environmental agenda for the next ten years and is expected to be a
model for future international agreements. The plan of implementation aims at building further
on the achievements made at UNCED and make commitment to undertake actions and measures
at all levels to implement Rio principles and Agenda 21.
Impact in India
In the early years of Indian independence, there was no precise environmental policy.
Government tried to make attempts only from time to time as per the growing needs of the
society. The period of 1970s witnessed a lot of changes in policies and attitudes of the Indian
Government when its attitude changed from environmental indifference to greater and
subsequently, manifold steps were taken to improve environmental conditions.

National Committee on Environmental Planning and Coordination The year 1972 marks a
watershed in the history of environmental management in India. This is because prior to 1972,
environmental concerns such as sewage disposal, sanitation and public health were dealt with by
different federal ministries and each pursued these objectives in the absence of a proper
coordination system at the federal or the intergovernmental level. When the twenty-fourth UN
General Assembly decided to convene a conference on the human environment in 1972, and
requested a report from each member country on the state of environment, a Committee on
human environment under the chairmanship of Pitambar Pant, member of the Planning
Commission, was set up to prepare India's report. With the help of the reports, the impact of the
population explosion on the natural environment and the existing state of environmental
problems were examined.

By early 1972, it had been realised that unless a national body was established to bring about
greater coherence and coordination in environmental policies & programmes and to integrate
environmental concerns, an important lacuna would remain in India's planning process.
Consequently, as a result of the major issues highlighted by the reports, a National Committee on
Environmental Planning and Coordination (NCEPC) was established in the Department of
Science and Technology.

The NCEPC is an apex advisory body in all matters relating to environmental protection and
improvement. At its inception, the Committee consisted of fourteen members drawn from
various disciplines concerning environmental management. Most of the non-official members
were specialists. The Committee was to plan and coordinate, but the responsibility for execution
remained with various ministries and government agencies.

Environmental Legislations
As part of its campaign on green environment, Indian Parliament has enacted nation wide
comprehensive laws. One of the major environmental enactments came just two years after the
Stockholm Conference in 1974. The Water (Prevention and Control of Pollution) Act was passed
for the purpose of prevention and control of water pollution and for maintaining and restoring the
wholesomeness of water. The Water Act represented India's first attempt to deal with an
environmental issue from a legal perspective.

From this period onwards, the Central Government has been considered as highly
environmentally active. In 1976, the Constitution of India was amended to insert a separate
fundamental duties chapter. The 1980s witnessed the creation of many eco-specific
organizations. In the year 1980, the Forest (Conservation) Act was passed for the conservation of
forests and to check on further deforestation. The Air (Prevention and Control of Pollution) Act
of 1981 was enacted by invoking the Central Government's power under Art 253. The Air Act
contained several distinguishing features. The preamble of the Air Act explicitly reveals that the
Act represents an implementation of the decisions made at the Stockholm Conference. Also, a
notification relating to Noise Pollution (Regulation & Control) Rules was made in the year 2000
with the objective of maintaining Ambient Air Quality Standards in respect of noise.

In the wake of the Bhopal gas tragedy, the Government of India enacted the Environment
(Protection) Act, 1986. The laws that existed prior to the enactment of EPA essentially focused
on specific pollution (such as air and water). The need for a single authority which could assume
the lead role for environmental protection was answered through the enactment of EPA. It is in
the form of an umbrella legislation designed to provide a framework for Central Government to
coordinate the activities of various central and state authorities established under previous laws.
It is also in the form of an enabling law, which delegates wide powers to the executive to enable
bureaucrats to frame necessary rules and regulations.

Apart from this, several notifications and rules have also been made, some of which include the
Hazardous Wastes (Management and Handling) Rules in 1989, the Biomedical Wastes
(Management and Handling) Rules in 1998, Recycled Plastics (Manufacture and Usage) Rules
1999, Environment (Silting for Industrial Projects) Rules 1999 and the Municipal Solid Wastes
(Management and Handling) Rules in 2000.In addition to these eco-specific legislations,
realising that there is no comprehensive legislation dealing with biodiversity in India, and to
fulfil its international obligation under the Convention on Bio-Diversity, the Government of
India has enacted the Biological Diversity Act, 2002.

It is a paradox that despite the presence of such diverse laws, the pollution rate has crossed the
dead line. This is probably because of the reason that the law is so complicated and vague that
even the expert may not know the intricacies of it.

Constitutional Mandate on Environmental Protection

The Constitution of India originally adopted, did not contain any direct and specific provision
regarding the protection of natural environment. Perhaps, the framers of the Indian Constitution,
at that time, considered it as a negligible problem. That is probably why it did not even contain
the expression environment. However, in fact it contained only a few Directives to the State on
some aspects relating to public health, agriculture and animal husbandry. These Directives were
and are still not judicially enforceable.

Nevertheless, on a careful analysis of various provisions prior to the 42nd Constitutional

Amendment, reveals that some of the Directive Principles of State Policy showed a slight
inclination towards environmental protection. It can be inferred from Art 39(b), Art 47, Art 48
and Art 49 . These directive principles individually and collectively impose a duty on the State to
create conditions to improve the general health level in the country and to protect and improve
the natural environment.

Regarding the expression material resources of the community present in Art 39(b) it was held in
Assam Sillimanite Ltd. v. Union of India that material resources embraces all things, which are
capable of producing wealth for the community. It has been held to include such resources in the
hands of the private persons and not only those, which have already vested in the State.

The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed that the State will
realise that Art 47 makes it a paramount principle of governance that are steps taken for the
improvement of public health as amongst its primary duties

From these Articles, one can understand that the Constitution of India was not as
environmentally blind as suggested by some eminent jurists. Though the word environment was
not expressly used in the Constitution, the object of the above Articles was to conserve the
natural resources, thereby protecting the environment. However, it must be accepted that only
with the strengthening of public interest litigations and an enhanced commitment from the
Central Government during the late 1970s, did an expansion of constitutional provisions to
include aspects relating to the environment take place.

Forty-Second Constitutional Amendment

Taking note of the Stockholm Conference and the growing awareness of the environmental
crises, the Indian Constitution was amended in the year 1976. This gave it an environmental
dimension and added to it direct provisions for the preservation of ecological and biological
diversity.
Art 48A, a directive principle, was inserted into Part IV of the Constitution, reading as follows:

The State shall endeavour to protect and improve the environment and to safeguard the forests
and wildlife of the country. Correspondingly, an obligation was imposed on the State through Art
51 A(g) in Part IVA, casts a duty on every citizen of India stating:

It shall be the duty of every citizen of India to protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have compassion for living creatures.

In M.K. Janardhanam v. District Collector, Tiruvallur, the Madras High Court has observed that
the phrase used (in Art 48A and Art 51A) is protect and improve which implies that the phrase
appears to contemplate affirmative governmental action to improve the quality of the
environment and not just to preserve the environment in its degraded form. Therefore, the
constitution makes two fold provisions - On one hand, it gives directive to the State for the
protection and improvement of environment and on the other, it casts a duty on every citizen to
help in the preservation of natural environment.

Role of Judiciary
The judiciary, to fulfill its constitutional obligations was and is always prepared to issue
appropriate orders, directions and writs against those persons who cause environmental pollution
and ecological imbalance. This is evident from a plethora of cases decided by starting from the
Ratlam Municipality Case. This case provoked the consciousness of the judiciary to a problem
which had not attracted much attention earlier. The Supreme Court responded with equal anxiety
and raised the issue to come within the mandate of the Constitution.

The Supreme Court, in Rural Litigation and Entitlement Kendra v. State of U.P. ordered the
closure of certain limestone quarries causing large scale pollution and adversely affecting the
safety and health of the people living in the area. Likewise, in M.C. Mehta v. Union of India , the
court directed an industry manufacturing hazardous and lethal chemicals and gases posing
danger to health and life of workmen and people living in its neighbourhood, to take all
necessary safety measures before reopening the plant. In an attempt to maintain the purity and
holiness of the River Ganga, tanneries polluting the sacred river were ordered to be closed down.

Holding that the Government has no power to sanction lease of the land vested in the
Municipality for being used as open space for public use, the Supreme Court in Virender Gaur v.
State of Haryana, the Court explicitly held that:

The word environment is of broad spectrum which brings within its ambit hygienic atmosphere
and ecological balance. It is therefore, not only the duty of the State but also duty of every citizen
to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its
extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance
and hygienic environment

Moreover in S. Jagannath v. Union of India, the Supreme Court has held that setting up of
shrimp culture farms within the prohibited areas and in ecologically fragile coastal areas has an
adverse effect on the environment, coastal ecology and economics and hence, they cannot be
permitted to operate. In Vijay Singh Puniya v. State of Rajasthan, the High Court of Rajasthan it
was observed that any person who disturbs the ecological balance or degrades, pollutes and
tinkers with the gifts of nature such as air, water, river, sea and other elements of the nature, he
not only violates the fundamental right guaranteed under Art 21 of the Constitution, but also
breaches the fundamental duty to protect the environment under Art 51A (g).

Judicial activism in India provides an impetus to the campaign against pollution. The path for
people's involvement in the judicial process has been shown. If this had not been done so, the
system would have collapsed and crumbled under the burden of its insensitivity.
Fundamental Right to Live in a Healthy Environment
Man's paradise is on earth; This living world is the beloved place of all; It has the blessings of
Nature's bounties: Live in a lovely spirit. - Atharva Veda (5.30.6)

The right to live in a clean and healthy environment is not a recent invention of the higher
judiciary in India. The right has been recognised by the legal system and the judiciary in
particular for over a century or so. The only difference in the enjoyment of the right to live in a
clean and healthy environment today is that it has attained the status of a fundamental right the
violation of which, the Constitution of India will not permit.

It was only from the late eighties and thereafter, various High Courts and the Supreme Court of
India have designated this right as a fundamental right. Prior to this period, as pointed out earlier,
people had enjoyed this right not as a constitutionally guaranteed fundamental right but as a right
recognised and enforced by the courts under different laws like Law of Torts, Indian Penal Code,
Civil Procedure Code, Criminal Procedure Code etc. In today's emerging jurisprudence,
environmental rights which encompass a group of collective rights are described as third
generation rights.

Right to Environment - C Derived from the Right to LifeRight to life, implies the right to live
without the deleterious invasion of pollution, environmental pollution, environmental
degradation and ecological imbalances. Everyone has the right to life and a right standard of
living adequate for health and well being of himself and of his family. States should recognise
everybody's right to an adequate standard and to continuous improvement of living conditions.
Thus, inherent right to life shall be protected by law.
Principle 1 of the declaration of UN Conference on Human Environment, 1972 proclaimed that
man has the fundamental right to freedom, equality and adequate conditions of life in an
environment of a quality that permits a life of dignity and well being. After this Stockholm
Declaration, references to a right to decent, healthy and viable environment was incorporated in
several Global and Regional Human Rights Treaties and in resolutions of International
Organisations.

Right to Environment - C As a Fundamental Right guaranteed in Indian Constitution

Environmental values or rights may be constitutionalised either explicitly by amending the

constitution or implicitly by interpreting the existing constitutional language to include
environmental protection. Immediately after the Stockholm Declaration, there was a growing
trend in national legal systems to give constitutional status to environmental protection. India
followed in the pursuit by amending the Constitution to include environment specific provisions
in 1976. The birth of right to environment was the direct result of an inclusion these additional
provisions.

The Indian Supreme Court, being one of the most active judiciaries in the world, also created a
landmark in the quest of international judicial activism by developing the concept of right to
healthy environment as a part of right to life under Art 21 of our Constitution. Art 21 reads as
follows:

No person can be deprived of his life and personal liberty except according to the procedure
established by law.

Thus, in India, the higher judiciary has interpreted Art 21 to give it an expanded meaning of
including the right to a clean, safe and healthy environment. Class actions have been entertained
by the Supreme Court under Art 32 of the Constitution as being part of public interest litigation
actions. The High Courts, also being granted this jurisdiction under Art 226 have intervened by
passing writs, orders and directions in appropriate cases, thereby giving birth to an incomparable
environmental jurisprudence in the form of the constitutional right to healthy environment. A
chronological analysis of the environmental mission of the courts has been undertaken in order to
explicate the development of the ideology of right to environment as being part of the right to
life in the Indian context.

Keeping this in regard, the first case of considerable importance is the Ratlam Municipality case.
The matter came up by way of a criminal appeal, where the Supreme Court gave directions for
the removal of open drains and for prevention of public excretion by the slum dwellers. In giving
the judgement, the Court relied upon Art 47 in Part IV of the Constitution. The decision given by
the Supreme Court in Sachidanand Pandey v. State of West Bengal, seemed to be narrowing the
level of scrutiny as opposed to enlarging it to include the all pervasive environmental dimension.
In this case, the proposal for the construction lodging by the Taj Group of Hotels, amidst the
zoological gardens of Allipore, for improving tourism in West Bengal was accepted by the
Government and subsequently, when the case appeared before the Supreme Court, the decision
of the Tourism Ministry was upheld. The Court justified its stand that appropriate considerations
had been borne in mind and irrelevancies were excluded.

However, one must not be misled in thinking that the decision of the court in Sachidanand
Pandey v. State of West Bengal suppressed its activist nature. This decision is no longer an
authority as the limited nature of scrutiny is not followed by the Courts of the present years.
Independent specialists and expert committees are appointed in order to determine whether the
claims of the aggrieved parties are actually genuine to be addressable in court. On the basis of
the report of the Bandopadhyay Committee, in Rural Litigation Entitlement Kendra v. State of
U.P., a case relating to the exploitation of limestone from the Dehradun area and its adverse
effect on the ecology and environment, the Supreme Court stated that environment assets are
permanent assets of mankind and are not intended to be exhausted in one
generation....Preservation of the environment and keeping the ecological balance unaffected is a
task which not only Governments but also every citizen must undertake.

Absolute liability for the harm caused by an industry engaged in hazardous and inherently
dangerous activities became a newly formulated doctrine, free from the exceptions to the strict
liability rule. As a result, the exceptions to the strict liability rule are no longer applicable in
India in those cases determining the liability of hazardous and inherently dangerous industries.
Thus, in a passive way, the right of citizens to live in a wholesome and healthy environment was
recognized and steps were taken to protect them from the hazards of polluting industries.

For the first time in the case of Subash Kumar v. State of Bihar, the court declared that the right
to life under Art 21 includes the right to clean water and air. In the same case, the rule of locus
standi was enlarged so that the court could take cognizance of environmental degradation and
regulate the prevention of the same in an effective manner. In Virender Gaur v. State of Haryana,
the Apex Court conformed that for every citizen, there exists a constitutional right to healthy
environment and further conferred a mandatory duty on the state to protect and preserve this
human right. Another landmark and revolutionary judgement is Indian Council for Enviro-Legal
Action vs. Union of India, a case concerned serious damage by certain industries producing toxic
chemicals to the environment of Bichhri District in Rajasthan. Directions for the closure of the
industry were given and the decision in the Oleum Gas Leak case regarding absolute liability for
pollution by hazardous industries was reaffirmed. Moreover, the polluter pays principle was
explicitly applied for the first time in the Bichhri case.

A foundation for the application of the Precautionary Principle, the Polluter Pays Principle and
Sustainable Development, having been laid down, the three principles were applied together for
the first time in by the Supreme Court in Vellore Citizens Welfare Forum v. Union of India, a
case concerning pollution being cause due to the discharge of untreated effluents from tanneries
in the state of Tamil Nadu. The Court, referring to the precautionary principle, polluter pays
principle and the new concept of onus of proof, supported with the constitutional provisions of
Art. 21, 47, 48A and 51A (g) and declared that these doctrines have become part of the
environmental law of the country.

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that certain common
properties such as rivers, forests, seashores and the air were held by Government in Trusteeship
for the free and unimpeded use of the general public. Granting lease to a motel located at the
bank of the River Beas would interfere with the natural flow of the water and that the State
Government had breached the public trust doctrine.

A matter regarding the vehicular pollution in Delhi city, in the context of Art 47 and 48 of the
Constitution came up for consideration in M.C. Mehta vs. Union of India (Vehicular Pollution
Case). It was held to be the duty of the Government to see that the air did not become
contaminated due to vehicular pollution. The Apex court again confirming the right to healthy
environment as a basic human right, stated that the right to clean air also stemmed from Art 21
which referred to right to life. This case has served to be a major landmark because of which
lead-free petrol supply was introduced in Delhi. There was a complete phasing out old
commercial vehicles more than 5 years old as directed by the courts. Delhi owes its present
climatic conditions to the attempt made to maintain clean air.

In the very recent case of T.N. Godavarman Thirumulpad (87) v. Union of India, a case
concerning conservation of forests, Justice Y.K. Sabharwal, held: ...Considering the compulsions
of the States and the depletion of forest, legislative measures have shifted the responsibility from
States to the Centre. Moreover any threat to the ecology can lead to violation of the right of
enjoyment of healthy life guaranteed under Art 21, which is required to be protected. The
Constitution enjoins upon this Court a duty to protect the environment.

Following a long course of active interpretation of constitutional and legislative clauses by the
judiciary and vigorous efforts of some green citizens, the Indian environmental scenario has
undergone a positive change. The Indian environmental jurisprudence was in a deep slumber.
But today, the environmental consciousness imported by the courts, mingled with subsequent
legislative efforts in the later years, introduced the right to environment as a fundamental right.

VI. Conclusion

There has been a paradigm shift over the concept of right to environment since the last three
decades, primarily after a series of global cooperative initiatives. Among these, the Stockholm
Conference played a significant role in throwing light on environmental degradation that has
been caused worldwide. As a result, the international stature of environmental & ecological
balance has been enhanced to such a level which the countries of the world had never imagined
in history.

The Courts in India have played a distinguishing role in gradually enlarging the scope of a
qualitative living by applying various issues of environmental protection. Consequently,
activities posing a major threat to the environment were curtailed so as to protect the individual's
inherent right to wholesome environment. Art 21 has been relied in the plethora of cases,
although certain cases have incorporated a wider perspective of the Constitution.

Hence, the Supreme Court of India, apart from being environmental friendly, has given birth to a
wide range of doctrines and principles have inturn been adopted and implemented throughout the
country. It would be apt to conclude with the words of Luc Ferry who said that:

The world we have treated as an object, has become a subject again.

1. Discuss the constitution and Function of central pollution control Board under the water
(Precaution and control of Pollution) Act, 1974.

2. Discuss the constitutional provisions relating to Environment Protection.

3. Analyze concept of environmental Impact assessment as legislatively incorporated and
judicially applied to control Hazardous waters.

4. Define the types of forest? After the declarative of resorted what are the rules laid down by
state government to regulate matter of reserved forest.

5. Discuss the punishment provisions and duties and liabilities of the person carrying on Industry
operation or handling hazardous substance under the environment protection Act, 1986.

6. Discuss Public Interest litigation relating to environment with the help of decided cases.

7. What are the power of state government to declare any area under “area as sanctuary” under
wildlife (Protection Act, 1972? What are the restrictions on entry in sanctuary?

8. Discuss in Detail the provision of prevention and control of Air Pollution under the Air
(Prevention & control of Pollution) Act, 1981?

9. Discuss the power the central pollution control Board in regulating and controlling
environmental Protections.

Write short Notes on these Topics.

1. Acid Rain.

2. Radioactive Pollution.

3. Ozone layer depletion.

4. Hazardous Wastes.

5. State air laboratory.

6. Define air Pollution and Pollutant under the Act of Air Pollution Act 1981.

7. Noise pollution.
The 'polluters pays' principle is the commonly accepted practice that those who produce
pollution should bear the costs of managing it to prevent damage to human health or the
environment.

For instance, a factory that produces a potentially poisonous substance as a byproduct of its
activities is usually held responsible for its safe disposal.

This principle involve most of the regulation of pollution affecting land, water and air.

It is a part of broader principles to guide sustainable development worldwide (formally known as

the 1992 Rio Declaration),

The polluter pays principle has also been applied more specifically to emissions of greenhouse
gases which causeclimate change.

However, it is possible to implement the 'polluter pays' principle through a so-called carbon
price. This imposes a charge on the emission of greenhouse gases equivalent to the
corresponding potential cost caused through future climate change. In this way, a financial
incentive is created for a factory, for instance, to minimise its costs by reducing emissions.

Many economists argue a carbon price should be global and uniform across countries and sectors
so that polluters do not simply move operations to so-called 'pollution havens' – countries where
a lack of environmental regulation allows them to continue to pollute without restrictions.

The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010,
passed by the Central Government.

The stated objective of the Central Government was to provide a specialized forum for effective
and speedy disposal of cases pertaining to environment protection, conservation of forests and
for seeking compensation for damages caused to people or property due to violation of
environmental laws or conditions specified while granting permissions.
Structure
the Principal Bench of the NGT has been established in the National Capital – New Delhi, with
regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai
(Southern Bench) and Kolkata (Eastern Bench).

The Chairperson of the NGT is a retired Judge of the Supreme Court, Head Quartered in Delhi.
Other Judicial members are retired Judges of High Courts. Each bench of the NGT will comprise
of at least one Judicial Member and one Expert Member. Expert members should have a
professional qualification and a minimum of 15 years experience in the field of
environment/forest conservation and related subjects.

Powers
The NGT has the power to hear all civil cases relating to environmental issues and questions that
are linked to the implementation of laws listed. These include the following:

1. The Water (Prevention and Control of Pollution) Act, 1974;

2. The Forest (Conservation) Act, 1980;

3. The Air (Prevention and Control of Pollution) Act, 1981;

4. The Environment (Protection) Act, 1986;

5. The Public Liability Insurance Act, 1991;

6. The Biological Diversity Act, 2002.

This means that any violations pertaining only to these laws, or any order / decision taken by the
Government under these laws can be challenged before the NGT.

Importantly, the NGT has not been vested with powers to hear any matter relating to the Wildlife
(Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to
forests, tree preservation etc. Therefore, specific and substantial issues related to these laws
cannot be raised before the NGT. You will have to approach the State High Court or the
Supreme Court through a Writ Petition (PIL)

Procedure for filing an Application or Appeal

The NGT follows a very simple procedure to file an application seeking compensation for
environmental damage or an appeal against an order or decision of the Government.

For every application / appeal where no claim for compensation is involved, a fee of Rs. 1000/-
is to be paid. In case where compensation is being claimed, the fee will be one percent of the
amount of compensation subject to a minimum of Rs. 1000/-.

A claim for Compensation can be made for:

1. Relief/compensation to the victims of pollution and other environmental damage including

accidents involving hazardous substances;

2. Restitution of property damaged;

3. Restitution of the environment for such areas as determined by the NGT.

Section 28 (State Air Laboratory)

(1) The State Government may, by notification in the Official Gazette,-

(a) establish one or more State Air Laboratories; or

(b) specify one or more laboratories or institutes as State Air Laboratories to carry out the
functions entrusted to the State Air Laboratory under this Act.

(2) The State Government may, after consultation with the State Board, make rules prescribing-

(a) the functions of the State Air Laboratory;

b) the procedure for the submission to the said Laboratory of samples of air or emission for
analysis or tests, the form of the Laboratory's report thereon and the fees payable in respect of
such report;

(c) such other matters as may be necessary or expedient to enable that Laboratory to carry out its
functions.
The legal and regulatory framework for environmental protection in India
Introduction

Over the years, together with a spreading of environmental consciousness, there has been a
change in the traditionally-held perception that there is a trade-off between environmental quality
and economic growth as people have come to believe that the two are necessarily
complementary. The current focus on environment is not new environmental considerations have
been an integral part of the Indian culture. The need for conservation and sustainable use of
natural resources has been expressed in Indian scriptures, more than three thousand years old and
is reflected in the constitutional, legislative and policy framework as also in the international
commitments of the country.

Even before India ‘s independence in 1947, several environmental legislation existed but the real
impetus for bringing about a well-developed framework came only after the UN Conference on
the Human Environment (Stockholm, 1972). Under the influence of this declaration, the National
Council for Environmental Policy and Planning within the Department of Science and
Technology was set up in 1972. This Council later evolved into a full-fledged Ministry of
Environment and Forests (MoEF) in 1985 which today is the apex administrative body in the
country for regulating and ensuring environmental protection. After the Stockholm Conference,
in 1976, constitutional sanction was given to environmental concerns through the 42nd
Amendment, which incorporated them into the Directive Principles of State Policy and
Fundamental Rights and Duties.

Since the 1970s an extensive network of environmental legislation has grown in the country. The
MoEF and the pollution control boards (CPCB i.e. Central Pollution Control Board and SPCBs
i.e. State Pollution Control Boards) together form the regulatory and administrative core of the
sector.

A policy framework has also been developed to complement the legislative provisions. The
Policy Statement for Abatement of Pollution and the National Conservation Strategy and Policy
Statement on Environment and Development were brought out by the MoEF in 1992, to develop
and promote initiatives for the protection and improvement of the environment. The EAP
(Environmental Action Programme) was formulated in 1993 with the objective of improving
environmental services and integrating environmental considerations in to development
programmes.

Other measures have also been taken by the government to protect and preserve the environment.
Several sector-specific policies have evolved, which are discussed at length in the concerned
chapters.

This chapter attempts to highlight only legislative initiatives towards the protection of the
environment.

Legislation for environmental protection in India

Water
Water quality standards especially those for drinking water are set by the Indian Council of
Medical Research. These bear close resemblance to WHO standards. The discharge of industrial
effluents is regulated by the Indian Standard Codes and recently, water quality standards for
coastal water marine outfalls have also been specified. In addition to the general standards,
certain specific standards have been developed for effluent discharges from industries such as,
iron and steel, aluminium, pulp and paper, oil refineries, petrochemicals and thermal power
plants. Legislation to control water pollution are listed below.

Water (Prevention and Control of Pollution) Act, 1974

This Act represented India’s first attempts to comprehensively deal with environmental issues.
The Act prohibits the discharge of pollutants into water bodies beyond a given standard, and lays
down penalties for non-compliance. The Act was amended in 1988 to conform closely to the
provisions of the EPA, 1986. It set up the CPCB (Central Pollution Control Board) which lays
down standards for the prevention and control of water pollution. At the State level, the SPCBs
(State Pollution Control Board) function under the direction of the CPCB and the state
government.
Water (Prevention and Control of Pollution) Cess Act, 1977
This Act provides for a levy and collection of a cess on water consumed by industries and local
authorities. It aims at augmenting the resources of the central and state boards for prevention and
control of water pollution. Following this Act, The Water (Prevention and Control of Pollution)
Cess Rules were formulated in 1978 for defining standards and indications for the kind of and
location of meters that every consumer of water is required to install.

Environment (Protection) Act, 1986 (EPA)

This Act is an umbrella legislation designed to provide a framework for the co-ordination of
central and state authorities established under the Water (Prevention and Control) Act, 1974 and
Air (Prevention and Control) Act, 1981. Under this Act, the central government is empowered to
take measures necessary to protect and improve the quality of the environment by setting
standards for emissions and discharges; regulating the location of industries; management of
hazardous wastes, and protection of public health and welfare.

From time to time the central government issues notifications under the EPA for the protection
of ecologically-sensitive areas or issues guidelines for matters under the EPA.

Some notifications issued under this Act are:

• Doon Valley Notification (1989), which prohibits the setting up of an industry in which the
daily consumption of coal/fuel is more than 24 MT (million tonnes) per day in the Doon Valley.

• Coastal Regulation Zone Notification (1991), which regulates activities along coastal stretches.
As per this notification, dumping ash or any other waste in the CRZ is prohibited. The thermal
power plants (only foreshore facilities for transport of raw materials, facilities for intake of
cooling water and outfall for discharge of treated waste water/cooling water) require clearance
from the MoEF.
• Dhanu Taluka Notification (1991), under which the district of Dhanu Taluka has been declared
an ecologically fragile region and setting up power plants in its vicinity is prohibited.

• Revdanda Creek Notification (1989), which prohibits setting up industries in the belt around
the Revdanda Creek as per the rules laid down in the notification.

• The Environmental Impact Assessment of Development Projects Notification, (1994 and as

amended in 1997). As per this notification:

• All projects listed under Schedule I require environmental clearance from the MoEF.

• Projects under the delicenced category of the New Industrial Policy also require clearance from
the MoEF.

• All developmental projects whether or not under the Schedule I, if located in fragile regions
must obtain MoEF clearance.

• Industrial projects with investments above Rs 500 million must obtain MoEF clearance and are
further required to obtain a LOI (Letter Of Intent) from the Ministry of Industry, and an NOC
(No Objection Certificate) from the SPCB and the State Forest Department if the location
involves forestland. Once the NOC is obtained, the LOI is converted into an industrial licence by
the state authority.

• The notification also stipulated procedural requirements for the establishment and operation of
new power plants. As per this notification, two-stage clearance for site-specific projects such as
pithead thermal power plants and valley projects is required. Site clearance is given in the first
stage and final environmental clearance in the second. A public hearing has been made
mandatory for projects covered by this notification. This is an important step in providing
transparency and a greater role to local communities.

• Ash Content Notification (1997), required the use of beneficiated coal with ash content not
exceeding 34% with effect from June 2001, (the date later was extended to June 2002). This
applies to all thermal plants located beyond one thousand kilometres from the pithead and any
thermal plant located in an urban area or, sensitive area irrespective of the distance from the
pithead except any pithead power plant.
• Taj Trapezium Notification (1998), provided that no power plant could be set up within the
geographical limit of the Taj Trapezium assigned by the Taj Trapezium Zone Pollution
(Prevention and Control) Authority.

• Disposal of Fly Ash Notification (1999) the main objective of which is to conserve the topsoil,
protect the environment and prevent the dumping and disposal of fly ash discharged from lignite-
based power plants. The salient feature of this notification is that no person within a radius of 50
km from a coal-or lignite-based power plant shall manufacture clay bricks or tiles without
mixing at least 25% of ash with soil on a weight-to-weight basis. For the thermal power plants
the utilisation of the flyash would be as follows:

• Every coal-or lignite-based power plant shall make available ash for at least ten years from the
date of publication of the above notification without any payment or any other consideration, for
the purpose of manufacturing ash-based products such as cement, concrete blocks, bricks, panels
or any other material or for construction of roads, embankments, dams, dykes or for any other
construction activity.

• Every coal or lignite based thermal power plant commissioned subject to environmental
clearance conditions stipulating the submission of an action plan for full utilisation of fly ash
shall, within a period of nine years from the publication of this notification, phase out the
dumping and disposal of fly ash on land in accordance with the plan.[1]

Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-
organisms/Genetically Engineered Organisms or Cell were introduced in 1989 with the view to
protect the environment, nature and health in connection with gene technology and micro-
organisms, under the Environmental Protection Act, 1986. The government in 1991, further
decided to institute a national label scheme for environmentally-friendly products called the
�ECOMARK�. The scheme attempts to provide incentives to manufactures and importers to
reduce adverse environmental impacts, reward genuine initiatives by companies, and improve
the quality of the environment and sustainability of available resources. Besides the above
attempts, notifications pertaining to Recycled Plastics Manufacture and Usage Rules, 1999 were
also incorporated under the Environment (Protection) Act of 1986.
The Environment (Protection) Rules, 1986
These rules lay down the procedures for setting standards of emission or discharge of
environmental pollutants. The Rules prescribe the parameters for the Central Government, under
which it can issue orders of prohibition and restrictions on the location and operation of
industries in different areas. The Rules lay down the procedure for taking samples, serving
notice, submitting samples for analysis and laboratory reports. The functions of the laboratories
are also described under the Rules along with the qualifications of the concerned analysts.

The National Environment Appellate Authority Act, 1997

This Act provided for the establishment of a National Environment Appellate Authority to hear
appeals with respect to restriction of areas in which any industry operation or process or class of
industries, operations or processes could not carry out or would be allowed to carry out subject to
certain safeguards under the Environment (Protection) Act, 1986.

In addition to these, various Acts specific to the coal sector have been enacted. The first attempts
in this direction can be traced back to the Mines Act, 1952, which promoted health and safety
standards in coal mines. Later the Coal Mines (Conservation and Development) Act (1974) came
up for conservation of coal during mining operations. For conservation and development of oil
and natural gas resources a similar legislation was enacted in 1959.

Hazardous wastes

There are several legislation that directly or indirectly deal with hazardous waste. The relevant
legislation are the Factories Act, 1948, the Public Liability Insurance Act, 1991, the National
Environment Tribunal Act, 1995 and some notifications under the Environmental Protection Act
of 1986. A brief description of each of these is given below.

Under the EPA 1986, the MoEF has issued several notifications to tackle the problem of
hazardous waste management. These include:
• Hazardous Wastes (Management and Handling) Rules, 1989, which brought out a guide for
manufacture, storage and import of hazardous chemicals and for management of hazardous
wastes.

• Biomedical Waste (Management and Handling) Rules, 1998, were formulated along parallel
lines, for proper disposal, segregation, transport etc. of infectious wastes.

• Municipal Wastes (Management and Handling) Rules, 2000, whose aim was to enable
municipalities to dispose municipal solid waste in a scientific manner.

• Hazardous Wastes (Management and Handling) Amendment Rules, 2000, a recent notification
issued with the view to providing guidelines for the import and export of hazardous waste in the
country.

International agreements on environmental issues

India is signatory to a number of multilateral environment agreements (MEA) and conventions.

An overview of some of the major MEAs and India�s obligations under these is presented
below. These are discussed at length in the respective chapters.

Convention on International Trade in Endangered Species of wild fauna and flora

(CITES), 1973
The aim of CITES is to control or prevent international commercial trade in endangered species
or products derived from them. CITES does not seek to directly protect endangered species or
curtail development practices that destroy their habitats. Rather, it seeks to reduce the economic
incentive to poach endangered species and destroy their habitat by closing off the international
market. India became a party to the CITES in 1976. International trade in all wild flora and fauna
in general and species covered under CITES is regulated jointly through the provisions of The
Wildlife (Protection) Act 1972, the Import/Export policy of Government of India and the
Customs Act 1962 (Bajaj, 1996).
Montreal Protocol on Substances that deplete the Ozone Layer (to the Vienna Convention for the
Protection of the Ozone Layer), 1987

The Montreal Protocol to the Vienna Convention on Substances that deplete the Ozone Layer,
came into force in 1989. The protocol set targets for reducing the consumption and production of
a range of ozone depleting substances (ODS). In a major innovation the Protocol recognized that
all nations should not be treated equally. The agreement acknowledges that certain countries
have contributed to ozone depletion more than others. It also recognizes that a nation�s
obligation to reduce current emissions should reflect its technological and financial ability to do
so. Because of this, the agreement sets more stringent standards and accelerated phase-out
timetables to countries that have contributed most to ozone depletion (Divan and Rosencranz,
2001).

India acceded to the Montreal Protocol along with its London Amendment in September 1992.
The MoEF has established an Ozone Cell and a steering committee on the Montreal Protocol to
facilitate implementation of the India Country Program, for phasing out ODS production by
2010.

To meet India�s commitments under the Montreal Protocol, the Government of India has also
taken certain policy decisions.

• Goods required to implement ODS phase-out projects funded by the Multilateral Fund are fully
exempt from duties. This benefit has been also extended to new investments with non-ODS
technologies.

• Commercial banks are prohibited from financing or refinancing investments with ODS
technologies.

The Gazette of India on 19 July 2000 notified rules for regulation of ODS phase-out called the
Ozone Depleting Substances (Regulation and Control) Rules, 2000. They were notified under the
Environment (Protection) Act, 1986. These rules were drafted by the MoEF following
consultations with industries and related government departments.

Basel Convention on Transboundary Movement of Hazardous Wastes, 1989

Basel Convention, which entered into force in 1992, has three key objectives:

• To reduce transboundary movements of hazardous wastes;

• To minimize the creation of such wastes; and

• To prohibit their shipment to countries lacking the capacity to dispose hazardous wastes in an
environmentally sound manner.

India ratified the Basel Convention in 1992, shortly after it came into force. The Indian
Hazardous Wastes Management Rules Act 1989, encompasses some of the Basel provisions
related to the notification of import and export of hazardous waste, illegal traffic, and liability.

UN Framework Convention on Climate Change (UNFCCC), 1992

The primary goals of the UNFCCC were to stabilize greenhouse gas emissions at levels that
would prevent dangerous anthropogenic interference with the global climate. The convention
embraced the principle of common but differentiated responsibilities which has guided the
adoption of a regulatory structure.

India signed the agreement in June 1992, which was ratified in November 1993. As per the
convention the reduction/limitation requirements apply only to developed countries. The only
reporting obligation for developing countries relates to the construction of a GHG inventory.
India has initiated the preparation of its First National Communication (base year 1994) that
includes an inventory of GHG sources and sinks, potential vulnerability to climate change,
adaptation measures and other steps being taken in the country to address climate change. The
further details on UNFCC and the Kyoto Protocol are provided in Atmosphere and climate
chapter.

Convention on Biological Diversity, 1992

The Convention on Biological Diversity (CBD) is a legally binding, framework treaty that has
been ratified until now by 180 countries. The CBD has three main thrust areas: conservation of
biodiversity, sustainable use of biological resources and equitable sharing of benefits arising
from their sustainable use.

The Convention on Biological Diversity came into force in 1993. Many biodiversity issues are
addressed in the convention, including habitat preservation, intellectual property rights,
biosafety, and indigenous peoples� rights.

India�s initiatives under the Convention are detailed in the chapter on Biodiversity. These
include the promulgation of the Wildlife (Protection) Act of 1972, amended in 1991; and
participation in several international conventions such as CITES.

UN Convention on Desertification, 1994

Delegates to the 1992 UN Conference on Environment and Development (UNCED)
recommended establishment of an intergovernmental negotiating committee for the elaboration
of an international convention to combat desertification in countries experiencing serious
drought and/or desertification. The UN General Assembly established such a committee in 1992
that later helped formulation of Convention on Desertification in 1994.

The convention is distinctive as it endorses and employs a bottom-up approach to international

environmental cooperation. Under the terms of the convention, activities related to the control
and alleviation of desertification and its effects are to be closely linked to the needs and
participation of local land-users and non-governmental organizations. Seven countries in the
South Asian region are signatories to the Convention, which aims at tackling desertification
through national, regional and sub-regional action programmes. The Regional Action
Programme has six Thematic Programme Networks (TPN's) for the Asian region, each headed
by a country task manager. India hosts the network on agroforestry and soil conservation. For
details refer to the land resource chapter.

An assessment of the legal and regulatory framework for environmental protection in India

The extent of the environmental legislation network is evident from the above discussion but the
enforcement of the laws has been a matter of concern. One commonly cited reason is the
prevailing command and control nature of the environmental regime. Coupled with this is the
prevalence of the all-or nothing approach of the law; they do not consider the extent of violation.
Fines are levied on a flat basis and in addition, there are no incentives to lower the discharges
below prescribed levels.

Some initiatives have addressed these issues in the recent past. The Government of India came
out with a Policy Statement for Abatement of Pollution in 1992, before the Rio conference,
which declared that market-based approaches would be considered in controlling pollution. It
stated that economic instruments will be investigated to encourage the shift from curative to
preventive measures, internalise the costs of pollution and conserve resources, particularly water.
In 1995, the Ministry of Environment and Forest (MoEF) constituted a task force to evaluate
market-based instruments, which strongly advocated their use for the abatement of industrial
pollution. Various economic incentives have been used to supplement the command-and-control
policies. Depreciation allowances, exemptions from excise or customs duty payment, and
arrangement of soft loans for the adoption of clean technologies are instances of such incentives.
Another aspect that is evident is the shift in the focus from end-of-pipe treatment of pollution to
treatment at source. The role of remote sensing and geographical information systems in natural
resource management and environmental protection has also gained importance over time (Box
2.1).

An important recent development is the rise of judicial activism in the enforcement of

environmental legislation. This is reflected in the growth of environment-related public litigation
cases that have led the courts to take major steps such as ordering the shut-down of polluting
factories.

Agenda 21 highlights the need for integration of environmental concerns at all stages of policy,
planning and decision-making processes including the use of an effective legal and regulatory
framework, economic instruments and other incentives. These very principles were fundamental
to guiding environmental protection in the country well before Rio and will be reinforced,
drawing on India’s own experiences and those of other countries.
Define the types of forests
All the plants that grow on Earth are a gift of nature and are called natural vegetation. The
natural vegetation of a region is closely linked to its climate. In some areas trees, bushes and
creepers grow very close to one another. Such areas are called forests.

Forests are very important and useful to us. They give us timber, fuel, pulp, resin, gum, cane,
herbs and many other useful things. Timber is one of the most important products of the forest
and is used for building houses, furniture, agricultural implement and tools.

Wood pulp is used in making paper. Forest protects the soil from being eroded. Forests keep the
air clean. They keep the climate cool and pleasant. Forest provides shelter to the wild animals.
Forest is also the home of many valuable and rare plants. India has a large variety of forest in
India.

The type of forest depends upon the amount of rainfall. Forests can be classified into the
following five types:

1. Evergreen Forests:
These forests, found in the hot and wet regions of our country, are very dense. The trees have
hard wood, grow very close to each other and never shed their leaves fully, and so are always
green. Evergreen Forests are found mostly in the Western Ghats and the north-eastern states of
India. The main trees, which grow in the evergreen forests, are ebony, mahogany and rosewood.

2. Deciduous Forests:

These forests occur mostly in the Deccan Plateau and the foothills of the Himalayas. The trees in
these forests shed their leaves at the beginning of the summer season. The main trees in these
forests are teak, sal, and shisham. The wood of these trees is hard and expensive and is used for
making furniture and as building material.

3. Coniferous Forests:

These are mostly found on the slopes of the Himalayas. Tall trees with needle-shaped leaves are
found along the higher slopes of the mountains. Their wood is soft. The common coniferous
trees are pine, deodar, spruce and fir.
4. Thorny Forests:

These are mostly found in the dry areas of the Indian desert and parts of the Deccan Plateau. The
trees growing here have long roots and thorns and can live without water for a long time. The
tree, which grows in these areas, is babul, kikar and wild palms.

5. Tidal Forests:

These are found in those areas where the land is flooded by sea-water. The main areas are the
deltas of the Ganga and Brahmaputra in West Bengal. These Forests are called the Sunderbans.

Most of these forests are being cut down as the population of our country is increasing day by
day. Because of this large-scale deforestation, only one-fourth of the country’s total land area is
now under forests. This is not enough. We must have at least one-third of the land area under
forests.

The governments in many states of India has passed laws for protection of trees, and has
meanwhile taken steps to increase the forest areas. The common people have also become aware
of the importance of saving the forests. In 1974, people of Garhwal, under the leadership of
Sunderlal Bahuguna, started a movement in which volunteers put their arms around trees marked
for felling to stop them from being cut down. This came to be known as the Chipko Movement.

All states celebrate Vanamahotsav and have active social forestry programmes, which encourage
the planting of trees in villages, towns and also along roads, railway lines and canals.
Vanamahotsav is celebrated in schools at the beginning of rainy season every year.

There is another programme is called For Every Child a Tree. This programme encourages
children and their parents to plant trees and look after them. If we want to live happily on this
planet, we must plant more trees and work together to save the forests.

Nature has provided us with a large variety of wildlife in the forest areas. In the forests of the
north-east, there are elephant, rhinos, tigers and deer. The famous Royal Bengal tiger is found in
the Sunderbans. Leopard, tiger, bear and wild boar and wild buffalo live in the deciduous forests.
A large variety of fish, water-birds and reptiles abound in our rivers, lakes and marshes. The Gir
forest in Gujarat is well-known as the last refuge of the Asiatic lion.
A few people hunt wild animals for pleasure and for commercial purposes. As a result, several
species of wild animals have become extinct or are endangered. The endangered animals are
those animals, the numbers of which have been reduced to such a low level that they are in
danger of extinction. In order to preserve the wildlife, our government has developed a numbers
of zoos, national parks and wildlife sanctuaries. In the sanctuaries and national parks, nobody is
allowed to cut down any tree or kill any animal.

Tourists from all over the world visit our country to see these animals and take photographs.
Some of the well-known national parks and wildlife sanctuaries are the Corbett National Park in
Uttaranchal, the Kaziranga National Park in Assam, Gir Sanctuary in Gujarat and Periyar
wildlife Sanctuary in Kerala. Chilika in Orissa and Sariska in Rajasthan. Find the names of other
national parks and sanctuaries in India. We must all help to save our forests and our wildlife.
They are our most precious natural resource.

Environmental Impact Assessment (EIA)

The purpose of Environmental Impact Assessment (EIA) is to identify and evaluate the potential
impacts(beneficial and adverse)of development and projects on the environmental system.It is an
useful aid for decision making based on understanding of the environment implications including
social, cultural and aesthetic concerns which could be integrated with the analysis of the project
costs and benefits.This exercise should be undertaken early enough in the planning stage of
projects for selection of environmentally compatible sites,process technologies and such other
environmental safeguards.

While all industrial projects may have some environmental impacts all of them may not be
significant enough to warrant elaborate assessment procedures. The need for such exercises will
have to be decided after initial evaluation of the possible implications of a particular project and
its location.The projects which could be the candidates for detailed Environment Impact
Assessment include the following:-

Those which can significantly alter the landscape,land use pattern and lead to concentration of
working and service population;
Those which need upstream development activity like assured mineral and forest products supply
or downstream industrial process development;

Those involving manufacture,handling and use of hazardous materials;

Those which are sited near ecologically sensitive areas,urban centers, hill resorts,places of
scientific and religious importance.

Industrial Estates with constituent units of various types which could cumulatively cause
significant environmental damage.

The Environmental Impact Assessment (EIA) should be prepared on the basis of the existing
background pollution levels vis-a-vis contributions of pollutants from the proposed plant.The
EIA should address some of the basic factors listed below:

Meteorology and air quality

Ambient levels of pollutants such as Sulphur Dioxide,oxides of nitrogen,

carbonmonoxide,suspended particulate matters,should be determined at the center and at 3 other
locations on a radius of 10 km with 120 degrees angle between stations.Additional contribution
of pollutants at the locations are required to be predicted after taking into account the emission
rates of the pollutants from the stacks of the proposed plant,under different meteorological
conditions prevailing in the area.

Hydrology and water quality

Site and its surroundings

Occupational safety and health

Details of the treatment and disposal of effluents(liquid,air and solid) and the methods of
alternative uses

Transportation of raw material and details of material handling

Control equipment and measures proposed to be adopted

Preparation of Environmental Management Plan is required for formulation, implementation and
monitoring of environmental protection measures during and after commissioning of projects.

Environmental regulatory framework

1. What are the key pieces of environmental legislation and the regulatory authorities?

The main environmental laws in India include the:

Water (Prevention and Control of Pollution) Act 1974 (Water Act), which also initially identified
the powers, functions and hierarchy of the environmental agencies, the Central Pollution Control
Board and the State Pollution Control Boards.

Air (Prevention and Control of Pollution) Act 1981 (Air Act).

Environment (Protection) Act 1986 (EP Act). This umbrella law enables the central government
to take measures it deems necessary to protect and improve the environment, and to prevent,
control and abate environmental pollution. A wide range of rules and notifications have been
adopted under it, such as the:

E-Waste (Management) Rules 2016;

Bio-Medical Waste Management Rules 2016;

Construction and Demolition Waste Management Rules 2016;

Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016;

Manufacture, Storage and Import of Hazardous Chemicals Rules 1989;

Coastal Regulation Zone Notification 2011; and

Environment Impact Assessment Notification 2006.

Plastic Waste Management Rules 2016);

Wild Life (Protection) Act 1972.

Forest (Conservation) Act 1980.

Public Liability Insurance Act 1991.

Biological Diversity Act 2002.

National Green Tribunal Act 2010.

Regulatory authorities

The key regulatory authorities are the:

Ministry of Environment, Forest and Climate Change.

Central Pollution Control Board.

State Pollution Control Boards.

Regulatory enforcement

2. To what extent are environmental requirements enforced by regulators?

There has been an upward trend in terms of regulatory enforcement, which can be explained by
various factors. For instance, various states have started to insist on the installation of continuous
online emissions/effluent monitoring systems, which gives the State Pollution Control Boards
necessary and objective information to monitor the compliance of companies in their
jurisdiction. Moreover, the state high courts, the Central Supreme Court, and the various benches
throughout India of the National Green Tribunal closely monitor the implementation and
enforcement of environmental laws.

Environmental NGOs

3. To what extent are environmental non-governmental organisations (NGOs) and other pressure
groups active?

NGOs, think-tanks, and local citizen groups are active stakeholders in India and readily use the
media, the courts and the National Green Tribunals to raise their environmental grievances. This
is often effective, since the judiciary is generally sympathetic to environmental concerns raised
in the public interest. Moreover, the Indian media is also very active and focuses on
environmental issues. Interestingly, judges from the High Court and the Supreme Court even
take up environmental cases suo moto based on newspaper articles.

There are also increasing collaborations between NGOs and industry in the context of Corporate
Social Responsibility (CSR) obligations mandated under the Companies Act 2013.

Environmental permits

4. Is there an integrated permitting regime or are there separate environmental regimes for
different types of emissions? Can companies apply for a single environmental permit for all
activities on a site or do they have to apply for separate permits?

Integrated/separate permitting regime

An integrated permit system is in place to a large extent. For instance, a consent to establish and
subsequent consent to operate and their renewals under the Water Act, Air Act and Hazardous
and Other Waste Rules 2016 can typically be obtained by submitting a combined consent
application to the relevant State Pollution Control Board.

The newly adopted E-Waste (Management) Rules 2016 (see Question 12) introduces the
Extended Producer Responsibility – Authorisation for Producers, which only requires one
centralised and India-wide application with the Central Pollution Control Board instead of with
each State Pollution Control Board.

Single/separate permits

Depending on the type of activities undertaken by a company, multiple permits may need to be
obtained.

On 5 March 2016, the Ministry of Environment, Forests and Climate Change adopted a new
method of classifying the industries it regulates, and introduced a new category of "white
industries". These are practically non-polluting industries that no longer need a consent to
operate or an environment consent under the Environmental Impact Assessment Notification.
Instead, they merely need to notify the relevant State Pollution Control Board.
Whereas the earlier industry categories (red, orange and green) were essentially determined
based on the size of industries, this new method is based on a Pollution Index (PI) for emissions
(air pollutants), effluents (water pollutants) and hazardous waste generated apart from the
consumption of resources. A PI score is allocated to each industrial sector as follows:

Red category: PI score of 60 and above. Table 1 annexed to the notification covers 60 sectors
(for example: asbestos, nuclear power plants, shipbreaking, oil and gas extraction, and so on).

Orange category: PI score of 41 to 59. Table 2 lists 83 types of industries (for example: food and
food processing, printing ink manufacturing, paint blending and mixing, and pharmaceutical
formulations).

Green category: PI score of 21 to 40. Table 3 identifies 63 sectors (for example: saw mills,
tyres/rube retreating, polythene and plastic products).

White category: PI score up to 20. Table 4 lists 36 types of industries (for example: solar power
generation through solar photovoltaic cells, wind power, and mini hydro-electric power less than
25 megawatts).

5. What is the framework for the integrated permitting regime?

Permits and regulator

The key environmental permits, or consents/authorisations as they are referred to in India, must
be obtained from the local State Pollution Control Board.

Only in certain cases is a permit or environmental clearance needed at central level, from either:

The Central Pollution Control Board (for example authorisation as a producer under the new E-
Waste Rules 2016).

The Ministry of Environment, Forest and Climate Change (for example, import/export of
hazardous waste under the Hazardous and Other Waste Rules 2016).

Length of permit
The State Pollution Control Boards have some discretion in determining the duration of consents,
but there are efforts to streamline these periods for the various industry categories in each state.
Typically:

An initial consent to establish is valid for one year (for example, during the construction of a site,
but depending on the scale of the project this could be longer).

Consents to operate under the Water and Air Act vary between three to five years.

Industries are categorised in red, orange, green or white categories, depending on the pollution
index score (see Question 1):

White category industries (practically non-polluting industries) do not need to obtain a consent to
operate.

Green category industries can generally submit a simplified consent to operate application. Their
initial consents to operate in many states are valid for 15 years.

Initial consents to operate for orange categories are typically ten years, and for red categories one
or five years.

Renewal applications are typically granted across industries before 60 to 120 days of expiry of
the consent to operate, assuming there have been no severe non-compliance issues. If there is a
non-compliance issue, State Pollution Control Boards can revoke the consent to operate and
reissue it only after the non-compliance has been rectified. In such situations, companies often
only obtain a one-year consent to operate, to ensure close monitoring by the State Pollution
Control Boards and ongoing compliance.

Some states have also adopted an auto-renewal of consents for all categories based on self-
certification if certain criteria are met, such as:

When there is no increase in the overall production capacity and pollution load.

If there is only a marginal increase (up to 10%) in capital investment.

Some key waste-management laws, such as the E-Waste Rules 2016, and the Hazardous and
Other Waste Rules 2016, explicitly refer to authorisations being valid for five years.

Restrictions on transfer

Consent orders and environmental clearances (obtained under environmental impact assessment
(EIA) notification) are readily transferable, and a straightforward procedure applies:

The transferor must provide a written no objection to the relevant regulatory authority.

The transferee must submit an application, with an undertaking that it will comply with all the
conditions in the consent order.

Supporting documents must be provided (explaining the underlying reason of the transfer,
change of name, change of management, and so on).

Penalties

Failure to obtain the required consent order will incur penalties. For instance, under the Water
Act, any person who breaches the consent application process is punishable with imprisonment
for at least 18 months, which can be extended to six years, and a fine. Any company operating
without a consent to establish or operate will immediately receive a closure notice from the
relevant State Pollution Control Board.

Moreover, the Supreme Court and the state high courts can and do impose exemplary damages
for damage to the environment. For instance, in the Sterlites Industries case (2013), one of the
largest copper smelter plants in India was found to be operating without a valid renewal of its
environmental consent to operate. When assessing the company's liability to pay damages (that
is, for damage caused to the environment during the 15 years it operated without a valid
environmental permit), it reviewed the company's annual report, and determined that 10% of the
profit before depreciation, interest and taxes (PBDIT) had to be paid as compensation, which
amounted to INR1 billion.

The Water Act, Air Act and Environmental Protection Act all contain specific provisions for
offences committed by companies. Under these Acts, every person who is in charge when an
offence is committed, and is responsible to the company for the conduct of its business, is guilty
of the offence and liable to be prosecuted and punished accordingly. However, a person is not
liable if he proves that the offence was committed without his knowledge, or that he exercised all
due diligence to prevent the offence.

Further, if the offence was committed with the consent or connivance, or is attributable to any
neglect by a director, manager, secretary or other officer of the company, the other person is also
guilty of the offence, and liable to be prosecuted.

Importantly, the more recent National Green Tribunal Act 2010 contains penalty provisions
which are considerably higher compared to previously adopted environmental laws. Most likely
all existing environmental laws will be amended (at some point) to be aligned with the National
Green Tribunal Act penalty provisions.

More specifically, section 26(1) of the National Green Tribunal Act states that a person who fails
to comply with an order or award or decision of the Tribunal is punishable with imprisonment
for a term up to three years, or with a fine up to INR10 crore, or both (one crore is equal to ten
million).

If the failure or contravention continues, an additional fine applies up to INR25,000 for every
day the failure/contravention continues, after conviction for the first failure or contravention.

Section 26(2) of the National Green Tribunal Act states that if a company fails to comply with
any order or award or decision of the Tribunal, the company is punishable with a fine up to 25
crore rupees. If the failure or contravention continues, an additional fine applies up to
INR100,000 for every day the failure/contravention continues, after conviction for the first
failure or contravention.

The National Green Tribunal has jurisdiction over all civil cases where a substantial question
relating to the environment is involved, arising out any of the exhaustively enumerated
environmental laws specified in Schedule I to the National Green Tribunal Act (including the
Environmental Protection Act (and the rules adopted under it), the Water Act, the Air Act, the
Forest Act, the Environmental Impact Assessment Notification Act, and so on) (section 14(1),
National Green Tribunal Act).
Under section 15(1) of the National Green Tribunal Act, the National Green Tribunal can order
relief, compensation and restitution in the following cases:

Relief and compensation to the victims of pollution and other environmental damage.

Restitution for property damaged.

Restitution of the environment.

Further, the National Green Tribunal can divide the compensation or relief payable under
separate heads specified in Schedule II of the NGT Act, which includes claims:

Due to harm, damage or destruction to flora, including aquatic flora, crops, vegetables, trees and
orchards.

Including cost or restoration of account of harm or damage to the environment including

pollution of soil, air, water, land and eco-systems.

Water pollution

6. What is the regulatory regime for water pollution (whether part of an integrated regime or
separate)?

Permits and regulator

A company must (see Question 4 and Question 5):

Obtain a consent to establish first at planning stage but before any construction, followed by a
consent to operate before commencement of any activities/operations.

Submit a combined consent application under the Water Act/Air Act/Hazardous and Other Waste
Rules, if all these laws/rules apply to the proposed activity.

Prohibited activities

No person must knowingly cause or permit any poisonous, noxious or polluting matter
(determined under standards laid down by the Central Pollution Control Board, or complemented
by the standards of the State Pollution Control Boards) to enter, directly or indirectly, into any
stream, well or sewer, or on land (see the Water Act).

Similarly, a person must not cause or permit any other matter to enter into a stream, which may
(directly or with similar matter) impede the proper flow of the water of the stream, in a manner
leading or likely to lead to a substantial aggravation of pollution due to other causes or its
consequences. These broadly drafted provisions of the Water Act tend to cover a wide range of
activities which may cause or aggravate water pollution.

The Water Act and Air Act also impose a strict information accident reporting and preventing
obligation on industries. If due to an accident or other unforeseen event any poisonous, noxious
or polluting matter is discharged, or is likely to be discharged into a stream, well, sewer, or on
land, which causes or is likely to cause water pollution, the person in charge must immediately
notify this to the relevant State Pollution Control Board (see sections 31 and 32, Water Act).

Clean-up/compensation

Companies who cause water pollution can be ordered to clean up the pollution caused and pay
compensation to remedy the polluted environment, or to possible victims.

There are various possible approaches. For instance, if a State Pollution Control Board believes
that water or soil pollution is about to be caused, it can apply to a court for a restraining order.
The court can then order the entity that is about to or that has caused the water pollution to
refrain from doing so or to remove it. If the party fails to act, the court can also authorise the
State Pollution Control Board to remove the water pollution. Any expenses incurred by the State
Pollution Control Board are then recoverable from the party that has caused the pollution.

Similarly, in an emergency situation the State Pollution Control Board can act immediately to
prevent, remove or mitigate the water pollution, and all expenses are recoverable from the person
causing or failing to effectively prevent the water pollution.

Most significantly, the State Pollution Control Boards have power to issue far-reaching
directions, which include:
Closure of the company, or at least the part or process of the company that is causing the
pollution (which can extend to the stoppage of an entire manufacturing process, until the
pollution has been addressed).

Stopping the electricity or water supply to the company.

These powers are often relied on by the regulatory authorities, particularly when companies fail
to reply or adequately respond to written show cause notices that precede these actions.

Companies can approach courts to obtain a stay order against these closure notices, or can appeal
against directions to the National Green Tribunal (it has four zonal benches throughout India).

Penalties

Apart from penalties for not having a valid environmental permit/consent (see Penalties), the
Water Act has the following penalty provisions.

Non-compliance with closure direction. The Water Act and Air Act provide that whoever fails to
comply with a closure direction or stoppage (of electricity and water) direction is liable to
imprisonment for a term of at least one and a half years up to six years and a fine. If the breach
continues, an additional fine up to INR5,000 for every day of non-compliance can be imposed.

Other offences. The Water Act and the Air Act set out various other offences, such as:

Failure to provide information to the Pollution Control Boards.

Failure to notify an accident.

Knowingly or wilfully making a false statement.

Wilfully tampering with monitoring equipment.

They are all punishable with imprisonment for a term up to three months, or a fine up to
INR10,000, or both.

Residuary penalty. A person who breaches the Water Act or the Air Act, or fails to comply with
any order or direction with no specific penalty, is punishable with imprisonment up to three
months, or a fine up to INR10,000, or both. If the failure continues, an additional fine can be
imposed up to INR5,000 per day.

Environment Protection Act and National Green Tribunal Act. Unlike the Water Act and the Air
Act, the Environmental Protection Act, which is the umbrella act for the numerous rules adopted
under it, such as the Hazardous and Other Waste rules (see Question 12), provides only one type
of punishment. Any breach of the rules under the Environment Protection Act is punishable with
imprisonment up to five years, or a fine up to INR100,000, or both.

However, amounts imposed by courts are now significantly higher already. Under the National
Green Tribunal Act 2010, National Green Tribunals have the power to order:

Relief and compensation to the victims of pollution.

Restitution of damaged property.

Restitution of the environment.

These amounts are in addition to amounts payable under the Public Liability Insurance Act 1991.
Moreover, National Green Tribunals can divide the compensation payable under the following
separate heads as specified in Schedule II of the National Green Tribunal Act:

Death.

Permanent/temporary disability or other injury or sickness.

Medical expenses incurred for treatment of injuries or sickness.

Damages to private property.

Loss and destruction of any property other than private property.

Expenses incurred by the government or a local authority in providing relief, air and
rehabilitation to the affected persons, or compensation for environmental degradation and
restoration of the quality of the environment.

Claims including cost of restoration on account of any harm or damage to the environment,
including pollution of soil, air, water, land and ecosystems.
Claims on account of any harm, damage or destruction to fauna and aquatic fauna and flora,
crops, vegetables, trees and orchards.

Loss of business or employment, or both.

Any other claim arising out of or connected with any activity of handling hazardous substances.

Most significantly, the National Green Tribunal Act provides that anyone who fails to comply
with any order or award of the National Green Tribunal Act is punishable with imprisonment for
a term up to three years, or a fine up to INR100 million, or both. If the failure or breach
continues, an additional fine can be imposed up to INR25,000 per day.

The penalty under the National Green Tribunal Act is even stricter for companies. If a company
fails to comply with an order or award of the National Green Tribunal, it is liable to a fine up to
INR250 million, and an additional fine up to INR100,000 for each day the breach continues.

Air pollution

7. What is the regulatory regime for air pollution (whether part of an integrated regime or
separate)?

Permits and regulator

Companies must apply to the relevant State Pollution Control Board for either a consent to
operate under the Water Act, Air Act or a common consent order, or an integrated environmental
permit under the Air Act, Water Act and Hazardous and Other Waste Rules (if the Hazardous
and Other Waste Rules also apply to its activities, otherwise it will obtain a separate consent
order under the Water Act/Air Act).

Prohibited activities

The Air Act is similar to the Water Act, in terms of consent application management, air
pollution standards set by the Central Pollution Control Board, and the type of infringements and
penalties (see Question 6). State governments in consultation with State Pollution Control
Boards identify air pollution control areas, which determine how they approach consent
applications.
Clean-up/compensation

State Pollution Control Boards can order companies to clean-up air pollution and issue directions
to companies for closure or stoppage of electricity or water supply, until the cause is adequately
addressed. Courts and the National Green Tribunals can order compensation to be paid by
companies for harm caused to the environment or people (see Question 6).

Penalties

The structure and penalties under the Air Act are similar to those under the Water Act (see
Question 6).

Climate change, renewable energy and energy efficiency

8. Are there any national targets or legal requirements for reducing greenhouse gas emissions,
increasing the use of renewable energy (such as wind power) and/or increasing energy efficiency
(for example in buildings and appliances)? Is there a national strategy on climate change,
renewable energy and/or energy efficiency?

India launched a National Action Plan on Climate Change in 2008, which focuses on the
following areas or missions, under the National Mission on Enhanced Energy Efficiency
(NMEEE):

Solar.

Enhanced energy efficiency.

Sustainable habitat.

Water.

Sustaining the Himalayan ecosystem.

A "green" India.

Sustainable agriculture.

Strategic knowledge for climate change.

Under the Jawaharlal Nehru National Solar Mission (JNNSM), India decided in June 2015 to
increase its solar energy five-fold to reach 100,000MW, by 2022. The target mainly consists of
40GW rooftop and 60GW through large and medium scale grid connected solar power projects.

As part of the NMEEE, the Perform, Achieve and Trade (PAT) Mechanism was launched, a new
market-based mechanism to promote energy efficiency among energy intensive large industries,
by allowing trade in energy saving certificates (ESCerts). The Energy Conservation Act 2001
imposes specific energy consumption reduction targets for 478 designated consumers in the
following industrial sectors which can take part in the PAT mechanism:

Thermal power stations.

Fertiliser.

Cement.

Iron and steel.

Chloralkali.

Aluminium.

Textiles.

Pulp and paper.

ESCerts can be traded among companies to meet their compliance requirements, or can be
banked for the next cycle of energy savings requirements.

The Energy Conservation Building Code (ECBC) was adopted in June 2017 (replacing the
earlier 2007 code, in line with India's Nationally Determined Contributions to reducing
emissions intensity of its GDP to 35% below 2005 levels by 2030). States can alter the ECBC to
their local conditions. The ECBC is voluntary at this stage but is expected to become mandatory
and serve as a baseline reference for government agencies.
9. Is your jurisdiction party to the United Nations Framework Convention on Climate Change
(UNFCCC) and/or the Kyoto Protocol and/or the Paris Agreement? How are the requirements
under those international agreements implemented or being implemented?

India ratified the UN Framework Convention on Climate Change in 1993 and the Kyoto Protocol
in 2002. As a non-Annex-I country, India did not take part in the flexibility mechanisms for
developed countries (emission trading and joint implementation). India has been a leading host
country of clean development mechanism (CDM) investments, enabling Annex-I countries to
invest in emission-reducing projects in developing countries (thereby earning certified emission
reductions).

As part of the COP21 negotiations and in the run-up to the Paris Agreement on Climate Change
(December 2015), India submitted its Intended Nationally Determined Contribution (INDC) in
October 2015, outlining its post-2020 climate actions. India's INDC includes:

A reduction in emissions intensity of its GDP by 33% to 35% by 2030, from 2005 levels.

Creating an additional carbon sink of 2.5 to 3 billion tons of carbon dioxide equivalent, through
additional forest and tree cover by 2030.

10. What, if any, emissions/carbon trading schemes operate?

See Question 8.

Environmental impact assessments

11. Are there any requirements to carry out environmental impact assessments (EIAs) for certain
types of projects?

Scope

Many activities require a prior environmental clearance, and some also require a detailed EIA
study (many also involve a public consultation component), including:

Mining of minerals.

Offshore and onshore oil and gas exploration, development and production.
Oil and gas transportation pipelines.

Thermal power plants.

Nuclear power projects and processing of nuclear fuel.

Metallurgical industries (ferrous and non-ferrous).

Asbestos milling and asbestos-based products.

Chlor-alkali industry.

Chemical fertilisers.

Pulp and paper industry.

Sugar industry.

Building and construction projects.

Townships and area development projects (exempted from the public consultation phase).

Permits and regulator

The Environment Impact Assessment Notification 2006 identifies various activities where prior
environmental clearance must be obtained by the project proponent. The activities are classified
into two categories, A and B, based on the spatial extent of potential impacts and potential
impacts on human health and natural and man-made resources.

New projects and the expansion and modernisation of existing projects falling under the relevant
activities require prior environmental clearance:

Category A activities require clearance from the Central Ministry of Environment, Forests and
Climate Change (which bases its decision on the recommendation of the Expert Appraisal
Committee).

Category B activities require clearance from a state-level EIA Authority which bases its final
decision on the recommendation of the state-level Expert Appraisal Committee). Category B is
further sub-divided into Category B1 projects, which require an EIA, and Category B2 projects
which do not require an EIA study/report (neither require public consultation).

There are four stages to obtain an environmental clearance:

Stage 1 screening (only for Category B projects and activities).

Stage 2 scoping.

Stage 3 public consultation.

Stage 4 appraisal.

Public hearings are not required for some projects, such as:

Modernisation of irrigation projects.

Projects in industrial estates or parks.

Expansion of roads and highways not needing further land acquisition.

Building, construction, area development and townships.

An Expert Appraisal Committee (EAC) or State Level Expert Appraisal Committee (SEAC)
must complete its assessment and make a recommendation within 60 days from receipt of all
required documents and completion of the public hearing. The regulatory authority will consider
the recommendations of the EAC or SEAC and notify its decision to the applicant within 45 days
of receipt of the recommendations of the EAC or SEAC (that is, within 105 days of receipt of the
final environment impact assessment report).

For projects which do not require an environment impact assessment (B-2 projects, identified by
the SEAC in stage 2 scoping stage), the final decision must be notified within 105 days of receipt
of the complete application with the required documents.

The prior environmental clearance granted for a project or activity is valid for:

Ten years for river valley projects.

The project life estimated by the EAC or SEAC, subject to a maximum of 30 years for mining
projects.

Five years for all other projects and activities.

It is mandatory for the project management to submit half-yearly compliance reports on the
terms and conditions in the environmental clearance.

A prior environmental clearance granted for a specific project or activity to an applicant can be
transferred during its validity to another legal person entitled to undertake the project or activity.
Transfer is made on application by the transferor, or by the transferee with a written no objection
by the transferor, to the relevant regulatory authority, on the same terms and conditions and for
the same validity period. No reference to the EAC or state-level EAC is necessary in such cases.

Penalties

Because the EIA Notification 2006 was issued under the Environmental Protection Act 1986, the
penalties in the EPA Act apply in the case of an infringement of the EIA Notification 2006 (see
Question 6).

Waste

12. What is the regulatory regime for waste?

Permits and regulator

Specific permits, consents or authorisations must be obtained by various parties generating or

handling waste, under the following key waste-management laws:

Solid Waste Management Rules 2016.

Plastic Waste Management Rules 2016.

E-Waste (Management) Rules 2016.

Bio-Medical Waste Management Rules 2016.

Construction and Demolition Waste Management Rules 2016.

Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016.

Prohibited activities

The waste rules make it mandatory to obtain a prior consent or authorisation from the State
Pollution Control Board (in most cases) or Central Pollution Control Board (for example for the
producer under the E-Waste Rules).

Operator criteria

Most environmental laws, including the Hazardous and Other Waste Rules, refer to the term
occupier, defined as the person who in relation to any factory or premises has control over the
affairs of the factory or the premises, and includes in relation to a hazardous substance the person
in possession of the substance or waste.

Special rules for certain waste

Hazardous and Other Waste Rules. This is in many ways the most comprehensive of the waste
management rules, as it covers the generation, handling, storage, transport, recycling, disposal,
and import/export of hazardous waste.

The Hazardous and Other Waste Rules impose detailed obligations on the occupier for the
management, storage, packaging, labelling and transport of such waste. All parties involved must
sign a movement document (or manifest system), and copies of it must be submitted to the State
Pollution Control Board.

The Hazardous and Other Waste Rules contain a separate chapter on the import and export of
hazardous waste, for which prior approval must be obtained from the Central Ministry of
Environment, Forests and Climate Change (MoEFCC). MoEFCC in its review of applications is
assisted by a technical review committee, which meets at regular intervals and reviews each
import/export application.

The definition of hazardous waste is detailed, with a strong focus on whether the material
exhibits or triggers certain hazardous characteristics.
Plastic Waste Management Rules 2016. The Plastic Waste Management Rules 2016, replacing
the 2011 Rules, is wider in scope, and:

More clearly imposes obligations on "brand owners", "producers" and "importers".

Introduces the notion of extended producer responsibility, in the context of plastic waste
management.

Covers for the first time "waste generators", which includes every person generating waste.

Explicitly refer to "waste pickers", an important element since the waste management sector or
the segregation of it is largely not formally regulated. The failure of earlier waste management
rules to acknowledge this segment has often undermined effective implementation of waste
rules. This is also true for the management of e-waste.

E-Waste (Management) Rules 2016 (notified 23 March 2016) (E-Waste Rules). The recently
adopted E-Waste (Management) Rules 2016 entered into force on 1 October 2016.

The new E-Waste Rules apply to every:

Manufacturer, producer, bulk consumer, other consumer, collection centre, refurbisher,

dismantler and recycler.

Dealer and e-retailer involved in the manufacture, sale, transfer, purchase, collection, storage and
processing of e-waste or electrical and electronic equipment (EEE), as detailed in Schedule I to
the E-Waste Rules.

An important improvement is that a producer can now obtain one centralised extended producer
responsibility authorisation from the Central Pollution Control Board, instead of one from each
State Pollution Control Board where it has a market presence.

Another key change is that the operator can fulfil its extended producer responsibility obligation
by becoming a member of the newly created Producer Responsibility Organisation, or of an e-
waste exchange, or both. These were introduced to facilitate implementation of the E-Waste
Rules, given the failure by industry to create effective mechanisms to implement the earlier rules
(adopted in 2011).
Penalties

The Environmental Protection Act, the umbrella act for numerous rules adopted under it such as
the waste rules, provides for only one type of punishment. Any breach of these rules is
punishable with imprisonment for a term up to five years, or a fine up to INR100,000, or both
(see Question 6).

Importantly, the National Green Tribunals can impose significantly higher penalty amounts on
companies for non-compliance with their directions. If a company fails to comply with any order
or award of the National Green Tribunal, the company is liable to a fine up to INR25 million,
and an additional fine up to INR100,000 for each day the breach continues. It is expected that the
Environmental Protection Act and all other environmental laws will at some point incorporate
the penalty amounts identified under the NGT Act.

Asbestos

13. What is the regulatory regime for asbestos?

Prohibited activities

India is a major importer of chrysotile (white) asbestos, and has only recently banned blue and
brown asbestos. In 2009 and 2014 a draft Bill, the White Asbestos (Ban on Use and Import) Bill
2014 was tabled in parliament, seeking a total ban on the use and import of white asbestos in
India. However, it has not yet been adopted.

Main obligations

Owners/occupiers of premises have no specific duties to discharge for asbestos on site, other
than the general occupational health and safety regulations applicable to all industries under,
among other things, the Factories Act 1948 (and asbestosis has been notified as an occupational
hazard under the Factories Act).

Permits and regulator

Asbestos-related activities fall into the red category, that is, the most polluting industries, and
environmental permit/consent applications are reviewed accordingly by the State Pollution
Control Boards. A prior environmental clearance must be obtained and a related environmental
impact assessment report must be prepared for industries proposing to engage in activities
relating to asbestos milling and asbestos-based products.

Contaminated land

14. What is the regulatory regime for contaminated land?

Regulator and legislation

India does not have specific legislation on contaminated land yet, although there are clear policy
signals that it might adopt a tailored soil pollution/remediation legislation. As of now, the
Environmental Protection Act, the Water Act, the Hazardous and Other Waste Rules, and
extensive case law based on the polluter pays principle, form the legal basis on which regulatory
authorities (State Pollution Control Boards) and courts address land contamination.

A Report on the Development of a National Program for the Rehabilitation of Polluted Sites
(Report) has recently been submitted to the Ministry of Environment, Forest and Climate
Change. As a first milestone of this exercise, the detailed mapping of the most polluted sites
throughout India has already been undertaken. The Report also contains the draft Contaminated
Sites (Identification and Management) Rules, which will provide standards for soil and water
pollution, carrying out mandatory site assessment and reporting, determination of contaminated
sites and related matters. The expectation (as indicated in the Report) is that the Rules could be
notified in about 24 months from now. This would be a significant development, and if the Rules
are adopted along the same lines as currently proposed, a soil analysis and possible soil
remediation would need to be undertaken in the following situations:

As part of obtaining/renewal of a consent under the Water Act.

As part of obtaining an Environmental Certificate.

As part of obtaining an authorisation under the Hazardous and Other Waste Rules.

Before filing an application for a land use change.

Before signing an agreement for the sale or lease of land.

Before the removal of soil from a site.

Before applying for a permit to construct on such a site.

Before establishing new or expansion of industrial projects on any site.

Before the commencement of demolishing any property.

Within 60 days of signing an agreement for any change in ownership of a company, that owns or
leases such a site.

Investigation and clean-up

Under the current regulatory framework there is no legal provision for declaring a site as
(already) contaminated. However, where there is a discharge of an environmental pollutant
exceeding the prescribed standards or this is believed to occur, due to an accident or other
unforeseen event, the Environmental Protection Act and the Water Act impose a notification
obligation on the person in charge of the place where the discharge has occurred or is believed to
occur.

These persons must prevent or mitigate the environmental pollution caused by the discharge.
Similarly, State Pollution Control Boards can, based on their own information or complaints
filed by affected parties, order an investigation and clean-up of the soil contamination by the
occupier, that is, the person currently in charge of the site.

In emergencies, the State Pollution Control Boards can undertake remedial measures necessary
to prevent or mitigate environmental pollution. The costs of these will be recovered from the
liable persons.

National Green Tribunals have the power to order:

Relief and compensation to the victims of pollution.

Restitution of damaged property.

Restitution of the environment.

Penalties
Non-compliance with directions of the State Pollution Control Boards can lead to a closure
notice and trigger the penalty specified under the Environmental Protection Act. Non-compliance
with court orders leads to even more significant penalties (see Question 6). If the proposed
amendments under the Report are passed, the penalties will be aligned with the National Green
Tribunal Act, that is, penalties could be increased to:

Imprisonment up to five years or a fine up to INR10 million, or both.

In case of a continued failure or breach, an additional fine up to INR25,000 for every day during
which the failure or breach continues after conviction for the failure or breach.

This would enable creation of a fund for soil remediation of sites under the proposed draft Act.

15. Who is liable for the clean-up of contaminated land? Can this be excluded?

Liable party

Because there is no specific legislation which addresses historical pollution as such, current
occupiers are liable for environmental pollution, including soil pollution, affected groundwater,
and so on. In relation to the regulatory authorities this liability cannot be excluded. Contractual
representations and warranties can address liability between previous and current owners of a
site.

Section 9 of the Environmental Protection Act states that expenses incurred by the State
Pollution Control Boards towards the remedial measures can be recovered from the person
responsible for the pollution. Further, Rule 23 of the Hazardous and Other Waste Rules identifies
the occupier, importer, transporter and operator of the facility as liable for all damage caused to
the environment or a third party due to improper handling of hazardous waste or disposal of
hazardous waste. The Public Liability Insurance Act 1991 imposes a statutory duty on the
owners to take out an insurance policy before handling any hazardous substance, to provide
immediate relief to victims in case of any accident that occurs while handling hazardous
substances. Section 4 of the Batteries (Management and Handling) Rules 2001 introduced
extended liabilities to include the producers, dealers, recyclers, auctioneers, importers and
consumers of batteries as responsible parties to prevent any untoward environmental
degradation.
Owner/occupier liability

Since the division of liability based on historical pollution is not reflected in the environmental
laws in India, the regulatory authorities and courts will hold current occupiers liable, whether
they have caused the pollution or not.

The Central Pollution Control Board recently published Guidelines on Implementing Liability
for Environmental Damage due to Handling and Disposal of Hazardous Waste and Penalties.
This contains an overview of indicative liability costs for site assessment and remediation, with
costs of:

US$30,000 to US$225,000 for site assessments caused by landfill breaches and release of
hazardous waste into the environment.

US$525,000 for dumping hazardous waste on open ground.

Remediation costs between US$150,000 and US$3,765,500.

However, under the proposed draft Contaminated Sites Rules, the owner or occupier may be
excluded from liability if he proves that he did not cause or permit or handle any contaminant
which caused pollution, or that he owned or occupied the site before the time of discharge of the
contaminant and a different person or persons are solely responsible. The burden of proof would
lie on the alleged responsible person, and that person would have to conclusively prove that he is
not the liable person.

Previous owner/occupier liability

A previous occupier being liable is less common. It is more likely if, for instance, a site has been
identified as causing pollution, has no current occupier, and the previous occupier can still be
identified. Otherwise, the current occupier is typically liable to the regulatory authorities and
courts, and claims between current and earlier occupiers have to be settled contractually, unless it
can be clearly established that only the previous owner caused the pollution.

However, under the proposed draft Contaminated Sites Rules, the SPCB would have to
determine the person responsible for contamination, and this could lead to more active
investigations about past owners and their activities to ascertain their liability.
Limitation of liability

Parties can make contractual arrangements between themselves, but cannot limit their liability
otherwise. The Supreme Court has evolved two far-reaching environmental liability concepts, by
holding that:

Enterprises engaged in hazardous or inherently dangerous activities are absolutely liable to

compensate those affected by an accident (such as the accidental leakage of toxic gas). Such
liability is not subject to any of the exceptions under the tort principle of strict liability in
Rylands v Fletcher (that is, act of God, act of third party, consent of victim and statutory
authority).

The measure of compensation must be correlated to the magnitude and capacity of the enterprise.
The larger and more prosperous the enterprise, the greater the amount of compensation payable
by it for harm caused by an accident, in the carrying on of hazardous or inherently dangerous
activities.

16. Can a lender incur liability for contaminated land and is it common for a lender to incur
liability? What steps do lenders commonly take to minimise liability?

Lender liability

In India, lenders do not directly incur liability for environmental wrongdoing and/or remediation
costs for contaminated land, unless they are directly responsible or liable for the management of
the company, with a board position or substantial shareholding and involvement in the day to day
running of the company. However, lenders increasingly undertake an environmental risk
assessment of the projects of their customers and include contractual clauses relating to
environmental compliance in their loan documents.

Minimising liability

Lenders normally undertake prior due diligence and insist on appropriate conditions before
granting a loan, and require the management of the company to take timely effective measures to
minimise their environmental liability.

17. Can an individual bring legal action against a polluter, owner or occupier?
Though protection of the environment is not cemented in the Constitution as a fundamental right,
the Supreme Court has interpreted the fundamental right to life and personal liberty to include
the right to a wholesome environment.

As a result, public interest litigation, filed by concerned citizens or non-governmental

organisations based on the fundamental right to a wholesome environment, is routinely filed in
the courts, and has to a large extent influenced environmental law in India.

The courts are very proactive, and even take up environmental issues on their own initiative
merely based on news articles covering environmental issues. They often tend to influence if not
determine environmental policies, particularly when the executive has failed to fulfil its
obligations.

Many citizens also obtain information regarding the status of environmental projects and their
environmental permits through the Right to Information Act 2005. This requires all government
departments/agencies to promptly give a substantive and reasoned reply to any questions asked
by any citizen (with a few exceptions, such as trade secrets).

Hydraulic fracturing

18. Is fracking being pursued or considered in your jurisdiction? If so, what is the regulatory
framework which applies to manage environmental risks?

There are no firm estimates of shale oil/gas in India, although the presence of shale rocks is
largely known in seven producing basis. That said, hydraulic fracturing is still in the preliminary
study phase in India, and there are no specific policies or laws covering it. Particular concerns
raised in government reports relate to the need for vast tracks of open land and significant
quantities of water as part of the fracking process, something which in India will be reviewed
more sceptically given its population/land density. Further, the latest government reports suggest
that it would be essential to develop baseline water data at a local level, which would require
capacity building first.

Environmental liability and asset/share transfers

19. In what circumstances can a buyer inherit pre-acquisition environmental liability in an asset
sale/the sale of a company (share sale)?

Asset sale

A buyer inherits, in the normal course as the owner, any pre-acquisition environmental liability
of the company relating to the asset, for example, contaminated water or land, or pre-existing
environmental concerns involving payment of damages or compensation or remedial measures.

Share sale

An action for breach of environmental laws is against the target company, so impacts on the
buyer would affect the profitability of the company and its dividend paying capacity.

20. In what circumstances can a seller retain environmental liability after an asset sale/a share
sale?

The seller retains environmental liability even after an asset sale if he was convicted of a
criminal offence under the environmental laws before the sale (see Question 15). The seller can
also contractually retain environmental liability and, for example, commit to pay compensation
or other remedial measures.

21. Does a seller have to disclose environmental information to the buyer in an asset sale/a share
sale?

Asset sale

Usually there is no legal obligation on the seller to disclose environmental information to the
buyer, particularly if the sale is on an "as is where is" basis. The seller is only bound to make
disclosure where sale documents contain specific representations and warranties from the seller
about environmental violations/compliance, past, existing or potential, backed with indemnities,
failing which the seller can be liable for a breach or incomplete disclosure.

Share sale

The position is similar to that for an asset sale, if there is a share purchase agreement providing
for representations and warranties (see above, Asset sale).
22. Is environmental due diligence common in an asset sale/a share sale?

Scope

It has now become common for buyers in India to undertake environmental due diligence in an
asset sale with environmental law implications. In particular due to the active functioning and
faster case management of the National Green Tribunals, public interest litigation and heavy
penalties for environmental infringements and non-compliance with National Green Tribunal
Orders (see Question 6).

Environmental due diligence covers investigations of all issues under environmental laws,
particularly:

Air, water pollution and land/water contamination (including any risk of off-site groundwater
contamination).

Practical and financial implications.

Identification of the potential risk or threat.

Estimation of the amount of penalties and remediation costs involved.

Types of assessment

Environmental Impact Assessments (EIA) are an important management tool for ensuring
optimal use of natural resources for sustainable development, and a prerequisite for many new
and expansion projects in India. The Ministry of Environment, Forest and Climate Change has
prepared numerous sectoral EIA Guidelines in this respect.

Environmental consultants

EIAs can only be undertaken by consultants duly accredited by the Quality Council of
India/National Accreditation Board of Education and Training (QUI/NABET).

Registration of QCI accredited consultants is valid for the period of accreditation, up to three
years. Accredited consultants are allowed to appear before the:

Expert Appraisal Committee (at Central level), for Category A Projects.

State Level Expert Appraisal Committee or State Environment Impact Assessment Authority, for
Category B projects.

Approved EIA consultants and co-ordinators only engage in the approved sectors, as authorised
by the QCI.

Accredited environmental consultants must be used for conducting EIAs in various sectors. The
terms of reference or letters of engagement containing the scope of work vary, due to the purpose
of the engagement and level of activity involved. Besides standard clauses, all relevant issues
should be clearly covered in the engagement letter or contract, which can include:

Performing the services with the degree of care, skill and diligence generally accepted in the
performance of such services.

Obtaining insurance for himself and his workers, for a specified amount.

Maintaining confidentiality.

Ownership of records and reports to remain with the client.

Disposing of sample material and sample residuals after a specified period.

Mutual indemnity.

Limitation of liability of the consultant to the client, for all claims arising out of or in any way
relating to services limited to direct damages and/or to specific liability.

Representation of the consultant that he and his workers have the capability, experience, means
and appropriate licences and permits required to perform the services contemplated by the
agreement.

No unauthorised release of information to any third party.

Capability and competence to make proper representations before the concerned authorities, and
to obtain consents, permits and approvals.

Not carrying out illegal practices, payment of bribes, and so on.

23. Are environmental warranties and indemnities usually given and what issues do they usually
cover in an asset sale/a share sale?

Asset sale

Environmental warranties and indemnities are normally given in asset sales involving
environmental issues, such as air, water pollution, land and water contamination, when agreed by
the parties. They cover all appropriate issues relating to compliance and violations of
environmental laws, including:

Status of show cause notices received from the SPCBs or other environmental authorities and
actions taken to address the issues raised in these show cause notices.

Whether any investigations have taken place in the past or are being conducted or expected in
future.

Any past violations or penalties imposed.

Whether any cases are pending before the authorities and courts, and their status.

Extent of liability and potential liability in terms of violation of environmental laws and
punishments, both criminal and civil.

The amount of indemnities, which may be based on expert reports of potential liability, and
subject to negotiation between the parties and the insurance company.

The size of the green belt area and available land for further expansion.

Share sale

Provision can be made for indemnities in the share purchase agreement. Indemnities can be
reflected in a discounting of the purchase price of the shares, or buy back of the shares.

24. Are there usually limits on environmental warranties and indemnities?

Legally, there are no limits on environmental warranties and indemnities. Sellers typically want a
cap on the amount and period of environmental warranties and indemnities. Insurance companies
also want this capped, to enable them to decide the amount of the insurance policy premium.
Buyers understandably want very high limits and unlimited time periods for warranty claims, due
to:

The time taken in court cases.

The increasingly high penalties for violation of environmental laws and active functioning of the
environmental courts, particularly the National Green Tribunals.

Reporting and auditing

25. Do regulators keep public registers of environmental information? What is the procedure for
a third party to search those registers?

Public registers

The concept of public registers for tracking environmental pollution is not yet entrenched in
India. EIA draft reports would need to be available to the public living in the vicinity of the
proposed project/activity. However, there are increasing efforts by the Central Pollution Control
Board and State Pollution Control Boards to publish such information on their websites, for
example:

A list of closure notices issued.

A list of non-complying or non-responsive companies.

Status of pending and rejected consent and authorisation applications.

The same is true for authorities in charge of environmental clearance applications that require
EIAs to be submitted.

Third party procedures

Citizens typically rely on the Right to Information Act 2005 to obtain information from a public
authority, and do not need to justify this request. This is a very effective route, and is often used
by citizens to obtain information on the status of environmental permits, show cause notices,
status of remediation, and so on.
26. Do companies have to carry out environmental auditing? Do companies have to report
information to the regulators and the public about environmental performance?

Environmental auditing

Companies must submit an annual environmental statement to the State Pollution Control Board
from which they obtained the relevant consent or authorisation. This is an effective control
mechanism for the authorities to assess whether processes and pollution levels comply with
conditions specified in the consent orders. The environmental statement must include
information on the:

Industry's operation or process.

Water and raw material consumption.

Pollution discharged into the environment (name of pollutants, quantity discharged,

concentration, and the percentage of variation from the prescribed standards and the reasons for
deviation).

Details of hazardous waste and solid waste generated (along with the characteristics of the
waste).

Impact of pollution control measures taken on conservation of natural resources, as well as on

production costs.

Any additional measures/investment proposals for environmental protection, including

abatement of pollution.

Reporting requirements

For the information and accident information requirements relating to pollution or believed
pollution, see Question 6. They are imposed by almost all environmental laws.

27. Do companies have to report information to the regulators and the public about
environmental incidents (such as water pollution and soil contamination)?
The Environmental Protection Act, the Water Act, and the Hazardous Waste Rules all impose
accident reporting obligations. Additionally, annual environmental statements must be submitted
by consent holders to the State Pollution Control Boards (see Question 6).

28. What powers do environmental regulators have to access a company?

State Pollution Control Board officers have the power to enter and inspect any place, to:

Examine any plant, record, register, document or other material object.

Search any place in which he has reason to believe that an offence has or is about to be
committed.

The Code of Criminal Procedure 1973 applies, since it applies to searches and seizures under the
authority of a warrant.

Environmental insurance

29. What types of insurance cover are available for environmental damage or liability and what
risks are usually covered? How easy is it to obtain environmental insurance and is it common in
practice?

Types of insurance and risk

The Public Liability Insurance Act 1991 requires an insurance policy to be taken out by owners,
users or transporters of hazardous substances, as defined under the Environment Protection Act,
which exceed the minimum quantity specified in the Public Liability Insurance Act. The public
liability policy can be extended to cover pollution risk subject to a no objection certificate from
the State Pollution Control Board.

Under the Public Liability Insurance Act, the any one accident (AOA) must represent the paid up
capital of the company, subject to a maximum of INR50 million. The AOA limit is fixed at
maximum INR150 million. Under the Public Liability Insurance Act, the excess of any award
that exceeds the AOA limit is paid by the government through the Environment Relief Fund. The
insured must contribute an amount to this fund which is equivalent to the premium paid under
the Public Liability Insurance Act Policy.
There is no standard insurance policy issued by all insurance companies but there are various
types of insurance cover for environment damage or liability, as negotiated between the
insurance company and the client.

Obtaining insurance

While insurance under the Public Liability Insurance Act is mandatory, others are subject to
negotiation and finalisation between the insurance company and those seeking to obtain
appropriate insurance.

Environmental tax

30. What are the main environmental taxes?

At present, there are no direct green taxes or environmental taxes imposed on environmental
pollutants, or on goods whose repeated use contributes to pollution.

Until recently, a carbon cess was levied on every tonne of coal mined or imported (at INR400
per tonne). A portion of the collected carbon cess was then further disbursed to the National
Clean Energy Fund. However, with the newly introduced Goods and Services Tax (GST) regime
(rolled out on 1 July 2017) the cess will be used instead for the GST Compensation Fund, meant
to compensate state governments for any loss in revenue arising out of the new GST regime.

Reform

31. Are there any proposals for significant reform of environmental law?

The most awaited environmental reform would be a law addressing soil pollution directly (see
Question 14). This would need to be factored in by all companies in their environmental risk
analysis as part of any new project, internal environmental management system and
environmental due diligence.

The regulatory authorities

Ministry of Environment, Forests and Climate Change

W www.moef.nic.in/
Main activities. The Ministry is the agency in the central government for the planning,
promotion, co-ordination and overseeing of India's environmental and forestry policies and
programmes. It is also the agency for the United Nations Environment Programme (UNEP), and
supervises implementation of multilateral environmental agreements, including for cross-border
and import/export issues.

Central Pollution Control Board (CPCB)

W http://cpcb.nic.in

Main activities. The CPCB adopts national environmental standards under various environmental
laws, advises the central government on pollution matters, offers technical assistance to SPCBs,
and compiles national data on pollution.

State Pollution Control Boards (SPCBs)

W The SPCBs are listed here:

http://delhi.gov.in/wps/wcm/connect/DOIT_Pollution/pollution/home/other+important+links/all
+state+pollution+control+boards+or+committees

Main activities. The SPCBs are the main interface with companies that need to obtain consents to
establish, consents to operate, renewals and authorisations under the various environmental laws.

National Green Tribunal

W www.greentribunal.gov.in

Main activities. The National Green Tribunal (NGT) website offers a clear overview of all cases
handled by the various NGT benches throughout India.

In India, environment was hailed highly in the ancient and medieval eras but till 1976 there were
no major legislations relating to environmental protection. It was the Stockholm Conference on
Environment and Development which exerted great influence on environmental policymaking
leading to an amendment of the Constitution, passage of important legislations such as the Water
(Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of
Pollution) Act, 1981 and creation of institutions such as Central and State Pollution Control
Boards for implementing the provisions of the Acts1.

The Bhopal gas tragedy in 1984 further triggered the passage of comprehensive environment
legislation in 1986 and Public Liability Insurance Act in 1991. Besides this the principle of social
justice runs through and through the Constitution and the Courts apply this principle while
deciding environmental matters. By way of judicial activism Part III of the Constitution was
interpreted widely by Hon’ble Judges like P.N. Bhagwati, Kuldip Singh, V.R. Krishna Iyer, and
H.R. Khanna who recognized the ‘third generation rights’ (environmental rights) as a
constitutional mandate and applied them remarkably. Indian constitution, in this sense, is truly
unique in having such provisions in its fold.

Stockholm Conference: The Driver of Change

The year 1972 has been a landmark in the history of Environmental Management in India. It was
the year in which the United Nations Conference on Human Environment (UNCHE) was held at
Stockholm. The views expressed at the Stockholm Conference formed a core part of the basic
environmental philosophy of India that found expression in various governmental policy
pronouncements in subsequent years. India shared the view with other developing states that
environmental problems are mainly due to lack of development rather than excessive
development. The Stockholm Declaration had a colossal impact on the Indian Judiciary. It is
pertinent to note how relentlessly the country stove for implementing the recommendations of
Stockholm Declaration.
Constitutional Provisions

Four years after the Stockholm Conference, the forty-second amendment2to the Constitution of
India introduced certain significant provisions relating to environment and in this way became
the first country in the world to have provisions on environment in the Constitution. Indian
Parliament inserted two Articles, i.e. 48A and 51A in the Constitution of India in 1976, Article
48A of the Constitution rightly directs that the State shall endeavor 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, rivers, and wildlife and to have compassion for living creatures.

The need to amend the Constitution by placing ‘environment protection’ as a specific entry in the
Concurrent List was canvassed by an expert Committee3, appointed by the Central government,
while the rationale for such a step had been emphasized in the past4.

The Constitution makes two-fold provisions. On one hand, it gives directive to the State for the
protection and improvement of environment and on the other, it casts duty on every citizen to
help in the preservation of natural environment5. 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 environment6. Every generation owes a
duty to all succeeding generations to develop and conserve the natural resources of the nation in
the best possible way7. The 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 form8.

Furthermore the interpretation given by the Supreme Court in Maneka Gandhi’s case9has added
new dimensions to the concept of personal liberty of an individual. In other words,
environmental pollution which spoils the atmosphere and thereby affects the life and health of
the person has been regarded as amounting to violation of Article 21 of the constitution10. The
judicial grammar of interpretation has further broadened the scope and ambit of Article 21 and
now “right to life” includes the “right to livelihood”11. In M.C. Mehta v. Union of India,12the
apex court invariably spelt out the citizens’ ‘right to clean environment’ which was in turn
derived from the protection of life and liberty enumerated in Article 21. Justice Singh in the
Ganga Pollution Case13declared in unequivocal terms that closure of industries may bring
unemployment and loss of revenue to the State, ‘but life, health and ecology have greater
importance for the people’14.

Article 14 can be used as a potent weapon against governmental decisions threatening the
environment15. The Courts in Indi, on various occasions, have struck down the arbitrary official
sanction in environmental matters on the basis that it was violative of Article 14 (Right to
Equality)16. It is pertinent to note that the Stockholm Declaration, 1972 also recognized this
principle of equality in environmental management and it called up all the world’s nations to
abide by this principle17.

Conserving the Rural Core

Rural areas are the real repository of ambient environment. It thus seems pertinent to focus to
conserve the rustic regions in the country. In this sense as well the Constitution does not make
any direct provision but it does establish schemes which would enable the interpreter to utilize it
for the conservation of environment. The Fifth Schedule gives nominal head of the states the
power to prohibit the transfer of land in scheduled areas which could be utilized to prevent any
developmental project from being set up in the area which may destroy the area18. Further the
73rd Constitutional Amendment is most significant to this subsection as it declared Panchayats
to be institutions of self government. Panchayats were mandated to prepare plan(s) for economic
development and social justice and implement them19. It is established that social justice
includes right to wholesome environment and by means of this insertion Panchayats had the
power to regulate developmental schemes in rural areas and ensure that right to the peasantry
population of India. Complementing and supporting these two constitutional weapons are
Articles 38 and Article 39 which declare certain principles of policy to be followed by the State
which would enable the social justice system to function better.

Environmental Legislations: An Insight

The main objective of the Water (Prevention and Control of Pollution) Act of 197420is ‘to
maintain or restore the wholesomeness of water and to prevent, control and abate water
pollution’. The Supreme Court in Susetha v. State of T.N.,21made it clear that the state is under a
constitutional obligation under Article 48 to protect the natural water bodies.

To preserve the quality of air and to control air pollution the Parliament enacted the Air
(Prevention and Control of Pollution) Act of 198122. According to the Act even noise is an air
pollutant as it contaminates the environment, causes nuisance and affects the health of a
person23.

The Environment (Protection) Act, 198624was 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. It 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 pollution25. The Act is an ‘umbrella’ legislation designed to provide a frame
work for Central Government coordination of the activities of various Central and State
authorities established under previous laws, such as the Water Act and the Air Act26.
The Parliament passed the Public Liability Insurance Act, 199127to 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 therewith28. The
Act ensures immediate relief by incorporating the principle of ‘no fault liability’.

The National Green Tribunal Act, 2010 which replaced the Environment Tribunal Act, 1995
seeks to establish specialized Green Tribunals on the regional basis for an effective and
expedious disposal of cases and protection & conservation of natural resources, forests, etc.

Conclusion

The Constitutional scheme to protect and preserve the environment has been provided under
Articles 21, 48-A and 51-A(g) which includes fundamental right to have healthy and pollution
free environment, constitutional obligation of the State and fundamental duty of all the citizens
of India to protect and improve the natural environment. But the first question we have to ask
ourselves is why despite provisions in Indian Constitution providing for environmental
protection and many statutory provisions, the environment degradation continues. The main
cause for environment degradation is lack of effective enforcement of various laws. There is also
lack of proper, effective and timely enforcement of even orders passed by courts29. The task of
environmental protection is difficult and complex in a country like India, which is still to travel
long to usher in the industrial regime and is yet to tackle population problem, problems of food,
health and water. But every effort to deal with environmental problem has to be pin pointed and
local and at the same time cooperative and total30.

L- Interpretation of Polluter Pays Principle (PPP) In India

law in India

Interpretation of Polluter Pays Principle (PPP) In India

Written by: Mr. Himanshu Choudhary 4th year student of Gujarat National Law University,
Gandhinagar click here for LIVE help-desk

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"If anyone intentionally spoils the water of another ... let him not only pay damages, but purify
the stream or cistern which contains the water..." [1] - Plato

Polluter Pays Principle has become a popular catchphrase in recent times. 'If you make a mess,
it's your duty to clean it up'- this is the main basis of this slogan. It should be mentioned that in
environmental law, the 'polluter pays principle' does not refer to "fault." Instead, it favors a
curative approach which is concerned with repairing ecological damage. It's a principle in
international environmental law where the polluting party pays for the damage done to the
natural environment. It is regarded as a regional custom because of the strong support it has
received in most Organization for Economic Co-operation and Development (OECD) and
European Community (EC) countries. International environmental law itself mentions little
about the principle.

In recent days, the polluter pays principle is seen as a way of internalizing pollution-related costs
within the context of the economic rationality of the enterprise. There is a close relationship
between a country's environmental policy and its overall socioeconomic policy .[2] Furthermore,
under this principle it is not the responsibility of government to meet the costs involved in either
prevention of environmental damage, or in carrying out remedial action, because the effect of
this would be to shift the financial burden of the pollution incident to the taxpayer. But State
practice does not support the view that all depollution costs should be borne by the polluter,
particularly where transnational dispute is involved. [3]

Author is going to deal with the history of the principle and its implementation at domestic level,
as also the major flaws prevailing in the implementation of this principle in India. The author
concludes by presenting the major problem our country is facing in its implementation.

II. Historical Evolution of the PPP:

The first major reference to the PPP appeared 1972 in the OECD Guiding Principles Concerning
International Economic Aspects of Environmental Policies (henceforth called OECD Guiding
Principles). The PPP as a guiding principle across countries became necessary because some
countries faced complaints by national firms about rising costs and a loss of international
competitiveness following a national implementation of the PPP within their borders.The OECD
Guiding Principles define the PPP as an instrument for "... allocating costs of pollution
prevention and control measures".[4]

The polluter should bear these costs in order to achieve and maintain an "... acceptable state of
environment" which is determined by the public authorities. The OECD Guiding Principles also
state that the PPP should "... not be accompanied by subsidies that would create significant
distortions in international trade and investment ." This weak or standard definition of the PPP
neither requires polluters to bear the costs of accidental damages, nor do they have to pay for
residual pollution. [5]

The range of costs to be borne by the polluter has expanded over time. In 1989, the OECD
suggested extending the PPP in order to cover the costs of accident prevention and to internalise
the environmental costs caused by accidents. In 2001, the OECD Joint Working Party on
Agriculture and Environment stated that according to the PPP

"... the polluter should be held responsible for environmental damage caused and bear the
expenses of carrying out pollution prevention measures or paying for damaging the state of the
environment where the consumptive or productive activities causing the environmental damage
are not covered by property rights." This version of the PPP is referred to as the extended or
strong PPP in the literature. [6]

Only one year later, the European Community followed the example of the OECD Principles
from 1972 by adopting the first Environment Action Programme (EAP). Since 1987, the PPP has
been part of European Law. It is included in Article 174 of the EU Treaty (1997). Since 1990,
when the International Convention on Oil Pollution Preparedness, Response and Co-operation
was agreed upon by the International Maritime Organization (IMO), the PPP has been
acknowledged as a " ...general principle of international environmental law." In 1992, the Rio
Declaration (UNCED) included the PPP in Principle 16: "National authorities should endeavour
to promote the internalisation of environmental costs and the use of economic instruments,
taking into account the approach that the polluter should, in principle, bear the cost of pollution
with due regard to public interest and without distorting international trade and investment." [7]

III. Flaws in the PPP:

It is true that polluter pays principle has a positive effect to reduce pollution. The principle seems
quite relevant for pollution that occurs during industrial activity, although it remains inefficient
in the case of historical pollution. Most developing countries, however, have not yet subscribed
to the PPP as a main environmental policy guideline. As Rege (1994) points out, this is due to
adverse economic conditions. Legal theorists discovered few loopholes of this rule.

The flaws are as follows:

Ø Firstly, ambiguity still exists in determining 'who is a polluter'. In legal terminology, a
'polluter' is someone who directly or indirectly damages the environment or who creates
conditions relating to such damage. Clearly, this definition is so broad as to be unsupportive in
many situations. [8]

Ø Second, a large number of poor households, informal sector firms, and subsistence farmers
cannot bear any additional charges for energy or for waste disposal.

Ø Third, small and medium-size firms from the formal sector, which mainly serve the home
market, find it difficult to pass on higher costs to the domestic end-users of their products.

Ø Fourth, exporters in developing countries usually cannot shift the burden of cost internalisation
to foreign customers due to elastic demand.

Ø Lastly, many environmental problems in developing countries are caused by an

overexploitation of common pool resources. Access to these common pool resources (in line
with the PPP) could be limited in some cases through assigning private property rights, however,
this solution could lead to severe distributional conflicts.

All of these problems make it difficult to implement the PPP as a guideline for environmental
policy in developing countries. Despite the fact that Polluter Pay Principle was publicized by
early conservationists as a means to reduce ecological pollution, still many consider it as a 'vague
idea'. [9] Some put forward their argument that under this principle a polluter fulfils his
obligations when he pays at least some of administrative expenses of the agencies who regulate
pollution activities .'Exxon Valdez' case is the best example of this criterion of Polluter Pays
Principle. [10] Others argue that it can only be satisfied by polluters when they will pay the total
depollution cost. And the rest support the view that tax (like 'Carbon Taxes') should be
legitimised on the users of the natural resources that cause atmospheric hazards. [11]

IV. Indian Judiciary and PPP:

"we are interested not only in the development but also in the enforcement of law" [12] - Justice
Christopher G. Weeramantry [Vice President of the ICJ]

The judiciary in India recognizes the Polluter Pays Principle as is seen from the judgment
delivered by the Supreme Court of India in writ petition no 657 of 1995. [13] In its order dated
Feb.4, 2005, The Supreme Court held that " The Polluter Pays Principle means that absolute
liability of harm to the environment extends not only to compensate the victims of pollution, but
also to the cost of restoring environmental degradation. Remediation of damaged environment is
part of the process of sustainable development ."

In order to link law and sustainable development we split sustainable development into two
components:-

Environmental Justice

Social Justice

The two principles of justice are

Polluter Pays Principle (PPP)

Precautionary Principle (PP)

During the two decades from Stockholm to Rio "Sustainable Development" has come to be
accepted as a viable concept to eradicate poverty and improve the quality of human life while
living within the carrying capacity of the supporting eco-systems. "Sustainable Development" as
defined by the Brundtland Report means "development that meets the needs of the present
without compromising the ability of the future generations to meet their won needs". We have no
hesitation in holding that "Sustainable Development' as a balancing concept between ecology
and development has been accepted as a part of the Customary International Law though its
salient features have yet to be finalised by the International Law jurists.

Some of the salient principles of "Sustainable Development", as culled-out from Brundtland

Report and other international documents, are Inter-Generational Equity, Use and Conservation
of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays
principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to
the developing countries. We are, however, of the view that "The Precautionary Principle" and
"The Polluter Pays" principle are essential features of "Sustainable Development".

"The Polluter Pays" principle has been held to be a sound principle by this Court in Indian
Council for Enviro - Legal Action v. Union of India, [14] . The Court observed, "We are of the
opinion that any principle evolved in this behalf should be simple, practical and suited to the
conditions obtaining in this country" . In this case the number of private companies operated as
chemical companies were creating hazardous wastes in the soil, henceforth, polluting the village
area situated nearby, and they were also running without licenses, so an environmental NGO,
filed writ petition under article 32 of the COI, which sought from the court to compel SPCB and
CPCB to recover costs of the remedial measures from the companies.

The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss caused to any other person by his
activity irrespective of the fact whether he took reasonable care while carrying on his activity.
The rule is premised upon the very nature of the activity carried on".
Consequently the polluting industries are "absolutely liable to compensate for the harm caused
by them to villagers in the affected area, to the soil and to the underground water and hence, they
are bound to take all necessary measures to remove sludge and other pollutants lying in the
affected areas".

The "Polluter Pays" principle as interpreted by the Court means that the absolute liability for
harm to the environment extends not only to compensate the victims of pollution but also the
cost of restoring the environmental degradation. Remediation of the damaged environment is
part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to
the individual sufferers as well as the cost of reversing the damaged ecology.

The court further stated that:

"according to this principle, the responsibility for repairing the damage is that of the offending
industry. Sections 3 and 5 empower the Central Government to give directions and take
measures for giving effect to this principle. In all the circumstances of the case, we think it
appropriate that the task of determining the amount required for carrying out the remedial
measures, its recovery/realisation and the task of undertaking the remedial measures is placed
upon the Central Government in the light of the provisions of the Environment [Protection] Act,
1986. It is of course, open to the Central Government to take the help and assistance of State
Government, R.P.C.B. or such other agency or authority, as they think fit."

In M.C.Mehta V. UOI, [15] SC reffered the case of Enviro-Legal Action and Vellore Citizens
case and ordered the Calcutta tanneries to relocate and pay compensation for the loss of
ecology/environment of the affected areas and the suffering of the residents.

In Vellore Citizen's case [16] , court held that:

The precautionary principle and the polluter pays principle have been accepted as part of the law
of the land. Article 21 of the Constitution of India guarantees protection of life and personal
liberty. Article 47, 48A and 51A(g) of the Constitutional are as under:

# Article 47. Duty of the State to raise the level of nutrition and the standard of living and to
improve public health. - The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its primary duties
and in particular, the State shall endeavour to bring about prohibition of the consumption except
from medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

# Article 48A. Protection and improvement of environment and safeguarding of forests and wild
life. - The State shall endeavour to protect and improve the environment and to safeguard the
forests and wild life of the country.

# Article 51A(g). To protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures.

Apart from the constitutional mandate to protect and improve the environment there are plenty of
post independence legislations on the subject but more relevant enactments for our purpose are :
The Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), The Air (Prevention
and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act 1986 (the
Environment Act). The Water Act provides for the Constitution of the Central Pollution Control
Board by the Central Government and the Constitution of the State Pollution Control Boards by
various State Governments in the country. The Boards function under the control of the
Governments concerned. The Water Act prohibits the use of streams and wells for disposal of
polluting matters. Also provides for restrictions on outlets and discharge of effluents without
obtaining consent from the Board. Prosecution and penalties have been provided which include
sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the
State Pollution Control Boards constituted under the Water Act shall also perform the powers
and functions under the Air Act. The main function of the Boards, under the Air Act, is to
improve the quality of the air and to prevent, control and abate air pollution in the country. We
shall deal with the Environment Act in the later part of this judgment.

In view of the above mentioned constitutional and statutory provisions we have no hesitation in
holding that the precautionary principle and the polluter pays principle are part of the
environmental law of the country.

Even otherwise once these principles are accepted as part of the Customary International Law
there would be no difficulty in accepting them as part of the domestic law. It is almost accepted
proposition of law that the rule of Customary International Law which are not contrary to the
municipal law shall be deemed to have been incorporated in the domestic law and shall be
followed by the Courts of Law. To support we may refer to Justice H.R. Khanna's opinion in
Addl. Distt. Magistrate Jabalpur v. Shivakant Shukla [17], Jolly George Varghese's case [18] and
Gramophone Company's case. [19]

In the Kamalnath's case [20], court by considering the PPP as the law of the land, ordered that:

"It is thus settled by this Court that one who pollutes the environment must pay to reverse the
damage caused by his acts." Court disposed this matter by giving a show cause notice to the span
motels, that, why Pollution-fine and damages be not imposed as directed by us.

This case subsequently came up in front of the court in the year 2000 [21] and court directed to
the span motels that: "The powers of this Court under Article 32 are not restricted and it can
award damages in a PIL or a Writ Petition as has been held in a series of decisions".

Henceforth, court directed a fresh notice to be issued to M/s. Span Motel to show cause why in
addition to damages, exemplary damage be not awarded for having committed the acts set out
and detailed in the main judgment. Finally in 2002 [22] , while granting exemplary damages
court held that:

"Liability to pay damages on the principle of 'polluter pays' in addition to damages, exemplary
damages for having committed the acts set out and detailed in the main judgment. Considering
the object underlying the award of exemplary damages to be to serve a deterrent for others not to
cause pollution in any manner. So the quantum at Rs. 10 lakhs is fixed for the span motels."

V. Conclusion:

Its good that India that imbibed the Polluter Pays Principle (PPP) in their Law of land. And, it
also had actually helped in imposing damages on the polluter but still the problem with this
principle is that it hasn't been implemented peoperly. If we look at the exemplary damages
granted to span motels doesn't serve the purpose of the exemplary damages. Ten lakhs rupees is
nothing for the big corporations like span motels. For them at least 10 crores Rs. exemplary
damges should be given. And again if we look at the penalty imposed in the Vellore Citizens
case, then it just shocks me that how 10,000 rupees can justify the pollution spreaded by the
tanneries in the nearby areas. The Author personally feels that this is not an effective way of fund
raising. We should reconsider the criteria's laid to decide the compensation amount. Atleast it
should deter the polluters from spreading pollution. This principle needs a strict interpretation
from our judiciary with immediate effect and we just can't afford any sort of delay in its proper
implementation in developing country, like India.