Comparative Study Of Noise Pollution

Ranjit Singh

noise pollutionCHAPTER 5

COMPARATIVE STUDY OF NOISE POLLUTION

 

5.1    INTRODUCTION

Due to the advancement of science and technology, the problem of noise in recent years has emerged as one of the important pollutants of environment in many countries. Noise pollution is a growing problem throughout the world. In many countries the problem due to noise pollution has been increasing day by day in urban and industrial areas. Noise pollution in many countries has increased to such an extent that it affected the people to a great extent. The WHO estimates that noise is responsible for more than 200,000 deaths each year in Europe alone. The threat from noise in industrial countries raises problems similar in some respects to that of climate change. Complaints about noise nuisance to local authorities in England and Wales have arisen dramatically over recent years, from just over 55,370 in 1980 to 232,247 in 1995/96.[1] Under this chapter we will discuss the problem of noise pollution in developing and developed countries and legal measures for control of noise pollution in those countries.

 

5.2    PROBLEM OF NOISE POLLUTION IN OTHER COUNTRIES

Globally, some 120 million people are estimated to have disabling hearing problems.  More than half of the citizens of Europe live in noisy surroundings; one third experience levels of noise at night that disturbs sleep.[2] Noise pollution is increasing across Europe. Noise is a problem in all major cities in Europe. In the United Kingdom, 8.5 million people have hearing difficulties, some of which can be treated. Noise complaints in the U.K have increased by over 25 times from 1971 to 1996. Noise is now the most common reason for complaints received by environmental health officers. Neighbourhood noise has become a serious problem in Great Britain. A Royal National Institute for Deaf People (RNID) study has found that 80% of young people don’t worry about their hearing, although half of them have trouble of listening to loud music.

In Germany and other developed countries as many as 4 to 5 million that is 12-15% of all employed people, are exposed to noise levels of 85 dB or more. In Germany, an acquired noise-related hearing impairment that results in 20% or more reduction in earning ability is compensatable.  In 1993, nearly 12,500 new such cases of noise pollution were registered.[3]

In Australia, most hearing loss in young people is due to loud noise or music, the people under 30 are starting to show signs of hearing loss formerly found in those over 50.

In Hong Kong, noise from traffic, especially trucks, is increasing day by day on the roads. The experts indicate that the problem of noise will get much worse in coming years. In Thailand, where traffic jams are part of daily life, it is hard to escape noise pollution. For people living near the expressway, escape is impossible from noise pollution. Thailand has hearing problems because of their continuous exposure to noise levels above 70 decibels.

In United States of America twenty eight million Americans suffer from some type of hearing loss. Due to advancement in technology the two largest sources of noise pollution, airport and vehicle traffic, are growing at a rate of three to five percent annually and there has been a 14% increase in hearing loss since 1971. Noise pollution continues to grow in New York City. The City is trying stronger measures to lower noise levels. The U.S. Veterans’ Administration has spent $4 billion dealing because of hearing loss from 1977-1998.

 

5.3  EFFORTS AT INTERNATIONAL LEVEL FOR CONTROL OF NOISE POLLUTION

Stockholm Conference on Human Environment was convened in the Year 1972 by UNO and after this, various other conferences have been held. However the subject of noise pollution was not touch specifically. The Conference suggested “that 10% of any population is likely to become highly annoyed when exposed to noise levels in the uncomfortable range of 55db. The highly annoyed proportion, however, can grow upto 45% at the unacceptable level of 65db and at 85db of 75% become extremely annoyed.”[4]

At present there is no international law for controlling noise pollution but International and European Community Laws lay down certain norms in respect of noise pollution control. There has been much concern of international law, particularly with aircraft noise issues. The principle standards setting body is the International Civil Aviation Organization (ICAO) which was set up under the Chicago Convention of 1944.

Under the Chicago Convention there is provision for international legal basis to regulate Aircraft Noise.[5] The European Community (E.C.) formally took action on noise for the first time in its second action programme in 1977 though there had been some antecedent measures. The E.C. has relied on noise standards set up by other inter national bodies such as I.C.A.O. and historically has also tendered to follow the paths of compromising national standards. European noise standards normally harmonies ambient noise levels as well as noise standards for individual generators of noise. Now E.C  have laid down certain noise standards to be observed by the nations in various kinds of industries,  motor vehicles, motorcycles, tractors, construction plants, aircrafts and household appliances.

 

5.3.2 Response of WHO regarding Noise Pollution

The role of World Health Organization (WHO) about the control of noise pollution is also noteworthy.[6] It is to raise the standard of health of the people which can be adversely affected by noise. Although, WHO is not an authority to prescribe the limits of noise, it recommends some permissible limits of noise which are just advisory for its member states. The WHO has responded in two main ways by developing and promoting the concept of noise management, and by drawing up community noise guidelines. The WHO guideline values are organized according to specific environment. Guideline values for community noise in specific environments are shown in the following table.

Table-8[7]

Table-8[1]

Guideline Values

 

Environment Critical health effect Sound level dB(A) Time hours
Outdoor living areas Annoyance 50-55 16
Indoor dwellings Bedrooms Speech intelligibility 35 16
Bedrooms School classrooms Sleep disturbance 30 8
School classrooms Disturbance of communication 35 During Class
Industrial, commercial and traffic areas Hearing impairment 70 24
Music through earphones Hearing impairment 85 1
Ceremonies and entertainment Hearing impairment 100 4

 

[1] www.who.int (Guidelines Values)Visited on 13 april,2010 at 12:40 PM

 

5.4       METHODOLOGY ADOPTED IN OTHER COUNTRIES FOR NOISE POLLUTION CONTROL

Different countries of the World have enacted different legislations to control the noise pollution. For Example, in England there is a Noise Abatement Act, 1960. This Act[8] provides that loudspeakers should not be operated between the hours of 9:00 in the evening and 8:00 in the following morning for any purpose and at any other time for the purpose of advertisement and entertainment, trade or business. Control on Pollution Act of 1974,[9] contains provisions for controlling noise pollution and it provides noise to be actionable must amount to nuisance in the ordinary legal sense. The English Control of Pollution Act,[10] 1974, operates as perfect control for ‘Street Noise’. This provision has been defined as a highway and any other road, footway or square or court which is for the time being open to public.[11]

Some other countries also have their specific legislation on noise. For instance, in the United States of America, the Noise Control Code, 1972 (Federal), New York Noise Control Code, 1972 and Chicago Noise Control Regulation, 1971, in Japan, Noise Control Laws of 1968, are the specific laws to control the growing problem of noise pollution.[12]  In Japan, there is Anti Pollution Basic Law which helps to control the pollution including noise pollution.

 

5.5    NOISE POLLUTION CONTROL IN UNITED KINGDOM

The main statutory provisions which relate to noise pollution in United Kingdom are as follows:[13]

1. Control of Pollution Act1974;

2. Environmental Protection Act 1990;

3. Noise and Statutory Nuisance Act 1993;

4. Town and County Planning Act 1990;

5. Health and Safety at Work Act 1974;

6. Land Compensation Act 1973;

7. Civil Aviation Act 1982.

The latter three legislations deal, respectively, with the problem of noise in the workplace,   duty of public authorities to insulate buildings against noise created by public works such as roads, buildings and noise generated from civil aircrafts.

This Act makes provision about noise emitted from dwellings at night; about the forfeiture and confiscation of equipment used to make noise unlawfully; and for connected purposes. The kind of complaint referred to is one made by any individual present in a dwelling during night hours that excessive noise is being emitted from another dwelling. “Night hours” means the period beginning with 11 p.m. and ending with 7 a.m. The Act provides for the service of a notice on the offender by the prescribed officer if he thinks that the noise being emitted is more than the permissible limits.  In cases where the noise level does not come down in spite of the notice being served, the officer can seize such equipments which in his opinion are the source of such noise.

 

  5.5.1 Noise and Statutory Nuisance Act 1993

Chapter 14 of the Environmental Protection Act 1990 dealt with the main framework of control over statutory nuisances contained in sections 79-82. These sections deal specifically with noise as a statutory nuisance. The provisions in the EPA relating to noise nuisances were amended by the Noise and Statutory Nuisance Act 1993, which received Royal assent in November 1993. The majority of the new provisions came into force in January 1994. In particular the 1993 Act incorporated a new statutory nuisance into the EPA a  section 79(1) (ga).

This Act[14] makes provision for noise in a street to be a statutory nuisance; to make provision with respect to the operation of loudspeakers in a street; to make provision with respect to audible intruder alarms; to make provision for expenses incurred by local authorities in abating, or preventing the recurrence of, a statutory nuisance to be a charge on the premises to which they relate; and for connected purposes.[15]

 

5.6    NOISE POLLUTION CONTROL IN USA

The US Noise Pollution and Abatement Act, 1970 is an important legislation for regulating control and abatement of noise. Under this Law the environment protection agency, acting through the office of Noise Abatement and Control, holds public meetings in selected cities to compile information on noise pollution.

 

5.6.1 The Public Health and Welfare: –   Noise Control

The Congress[16] declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare. To that end, it is the purpose of this chapter to establish a means for effective coordination of Federal research and activities in noise control, to authorize the establishment of Federal Noise Emission  Standards for products distributed in commerce, and to provide information to the public respecting the noise emission and noise reduction characteristics of such products.

The Act further provides for –

1. Identification of major noise sources

2. Noise emission standards for products distributed in commerce

3. Labeling

4. Quiet communities, research, and public information

5. Development of low-noise-emission products

6. Motor carrier noise emission standards

 

5.6.2  Environmental Quality Standards of Noise in United States of   America:[17]

In United States absolute criteria for noise exposure to a community do not exist, instead there are guidelines (USEPA,1974) published by the US Environment Protection Agency in 1974 as follow up of the Noise Control Act of 1972. These guidelines prohibit excessive noise in general terms but do not forbid construction or operation of other facilities on the basis of the effects of anticipated noise emissions in nearby communities. However, regulations restricting new housings in certain areas imposed by the US Department of Housing and Urban Development do exist.

 

Table -9[1]

Equivalent Sound Levels identified as requisite to Public Health and Welfare by the US Environment Protection Agency

 

S. No Area Measure db(A) Indoor Outdoor
Activity Influence Hearing loss consideration Activity influence Hearing Loss consideration
Residential Ldn* 45 55
Hospital Leq(24)** 70 70
Educational Leq(24) 45 70 55 70
Commercial / Traffic Leq(24) 70 70
Industrial recreational Area Leq (24) 70 70
Farmland /General un populated land Leq(24) 70

 

[1]Ibid at p.40

 

5.7    NOISE REGULATION LAW IN JAPAN

The purpose of this Law is to preserve living environment and contribute to protection of the people’s health by regulating noise generated by the operation of factories and other types of work sites as well as construction work affecting a considerable area, and by setting maximum permissible levels of motor vehicle noise.[19]

The Prefect Ural Governor shall designate concentrated residential areas, school and hospital zones, and other such areas in which it is deemed necessary to protect the living environment of the residents from noise, as areas subject to the regulation of noise produced by specified  factories and specified construction works.

The Prefect Ural Governor, while designating the areas pursuant to Paragraph 1 of the preceding Article, shall establish regulatory standards for specified hours and zones of said areas within the scope of the standards set forth by the Director General of the Environment Agency according to the necessary degree of noise control in regard to specified factories for specified hours and zones.  Persons installing specific facilities are liable to report the same to

the Prefect Ural Governor within 30 days.

The Governor has the powers to order change in the outlay of the factory when they do not confer to the noise regulations. Any party who plans to undertake construction projects which involve specified construction work in designated areas, shall file a report with the Prefect Ural Governor not later than seven days prior to the beginning of the said construction.

The Prefect Ural Governor shall be responsible for the monitoring of noise levels in designated areas. For the regulation on noise caused by announcement through the use of loudspeakers and noise emitted during the night time operation of bars and restaurants, local Government shall take measures necessary to protect the living environment, including restrictions on operating hours, in accordance with the local, physical and social conditions.  The regulations also prescribe the permissible noise levels for the various areas, as well as the time periods between which noise is emitting.

 

5.8 LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON PREVENTION AND CONTROL OF POLLUTION FROM ENVIRONMENTAL NOISE[20] 

.      This Law is enacted for the purpose of preventing and controlling environmental noise pollution, protecting and improving the living environment, ensuring human health and promoting economic and social development.

For the purposes of this Law, “environmental noise” means the sound that is emitted in the course of industrial production, construction, transportation and social activities and that impairs the living environment of the neighbourhood. The competent administrative department for environmental protection under the State Council shall, in accordance with the national standards for acoustic environmental quality and the State’s economic and technological conditions, fix national limits for environmental noise emission.

Every project under construction, renovation or expansion must conform to the regulations of the State governing environmental protection.

The industrial noise emitted to the living environment of the neighbourhood within an urban area shall be kept within the limits set by the State on emission of environmental noise within the boundary of an industrial enterprise.

The construction noise emitted to the living environment of the neighbourhood within an urban area shall be kept within the limits set by the State on the emission of environmental noise within the boundary of a construction site. It is forbidden to manufacture, sell or import automobiles that emit noise beyond the limits set on noise level. All units and individuals are forbidden to use high-pitch loudspeakers in urban areas where noise-sensitive structures are concentrated. Any unit or individual suffering from the hazards of environmental noise pollution shall have the right to demand the polluter to eliminate the hazards; if a loss has been caused, it shall be compensated according to law.

“Noise emission” means emission of noise from the source to the living environment of the neighbourhood.”Noise-sensitive structures” means structures that require a quiet environment such as hospitals, schools, government offices, research institutions and residential buildings.

“Areas where noise-sensitive structures are concentrated” means such areas as medical treatment areas, cultural, educational and research areas where government offices or residential buildings constitute the main buildings. “At night” means the period from 10:00 p.m. to 6:00 a.m.

 

5.9     NOISE POLLUTION LAWS IN AUSTRALIA

In New South Wales (NSW) no single Government authority has the responsibility or capacity to be able to minimize all forms of noise pollution. The State is excluded from control of noise in a number of areas by commonwealth legislation. These include aircraft noise, where noise limits could affect trade, and the setting standards for noise emissions from new vehicles. In areas where the State does have powers to control noise, the Environment Protection Authority (EPA) has an overall responsibility for environmental noise (as distinct from occupational noise), under the Noise Control Act 1975. The Act deals with the prevention, minimization and abatement of noise and vibration and empowers the EPA, the Waterways Authority, local Government and the police for these purposes.

The EPA controls noise from scheduled premises, those required by the Noise Control Act to have a license and noise associated with rail traffic and the construction or upgrading of freeways and toll roads. The Police and local Council are generally responsible for neighbourhood noise issues and have authority to issue noise abatement directions to control noise from premises and for noise from burglar alarms. Local Council has an essential role in minimizing the effects of excessive noise, particularly in their local residential areas, from smaller factories, non-scheduled premises and public places. The Waterways Authority has specific responsibilities in relation to noise from vessels in navigable waters.

Under the provisions of the Noise Control Act 1975 in NSW the railway system is classified as scheduled premises and as such the EPA has a regulatory role, and seeks to achieve noise targets for rail operations throughout the State to minimize the impact on local residents.

The EPA issues licenses for the management of scheduled premises. While  issuing a license the EPA sets initial noise limits that are achievable with the operation of plant and equipment currently installed, operated and maintained effectively. To achieve further improvements in noise exposure to residents, negotiations with the licensed premises are carried out and can be incorporated in the license as Pollution Reduction Programs (PRPs). The EPA is currently working with industry to reduce noise levels from major sources.

The Noise Control (Miscellaneous Articles) Regulation 1995 was introduced to cover community noise issues not covered by previous legislation. It includes limitations on burglar alarms for both residential and commercial premises. Changes have been made to the night-time control of common domestic noise sources such as power tools, air conditioners, amplified music and lawn movers. Under the new regulation, only one warning to the offender is required and the warning is valid for 28 days. If an offence is committed within this period then fine will be imposed without further warnings. The previous regulation warning was only active for 12 hours which meant it was not very effective with repetitious offences typical in suburban areas.

The Noise Control (Motor Vehicles and Motor Vehicle Accessories) Regulation 1995 controls the noise of individual motor vehicles. It includes a provision to control noise from a range of accessories including horns, alarms, refrigeration units and sound systems. It also places responsibility to ensure compliance of repairs/modifications of vehicles on the vehicle repairers.  In addition to the measures introduced to reduce the source and transmission of noise, measures can be undertaken to noise proof buildings thereby reducing the occupant exposure to noise.

 

 

5.10     MONTGOMERY COUNTY NOISE CONTROL ORDINANCE

Montgomery County of the U.S. State of Maryland is situated just north of Washington, D.C. and southwest of Baltimore. Most of the county’s approximately 950,680 residents  live in unincorporated locales, the most populous of which are Silver Spring, Germantown, and Bethesda, though the incorporated cities of Rockville and Gaithersburg are also large population centers. It is a part of both the Washington Metropolitan Area and the Baltimore-Washington Metropolitan Area.[21]

The Montgomery County Noise Control Ordinance allows for normal activities during regular hours, however, it does attempt to eliminate interference from noise when most of  people want to rest and relax. It also seeks to control disturbing and unhealthy levels of noise in general.

Key provisions of the Noise Control Ordinance:

(i) Provide day/night sound level limits.

(ii) Establish “quiet hours.”

(iii) Define sounds that constitute noise disturbances.

(iv) Establish a “nuisance provision” that prohibits certain noises at any time.

A ‘noise disturbance’ as defined by the Ordinance, is any sound that is unpleasant, annoying, or loud; abnormal for the time or location; and prejudicial to health, comfort, property, or the conduct of business. Under the Ordinance, it is unlawful to create a noise disturbance anywhere during “quiet hours,” including multi- family buildings and townhouses. The “nuisance provision” prohibits some noise disturbances anywhere at any time. The Montgomery County Noise Control Ordinance promotes peace and quiet for everyone by covering a wide area.

 

5.11  CONCLUSION

In this chapter we have discussed the various legislations of different countries for controlling noise pollution. But these legislations are not adequate to curb the problem of noise pollution. By comparatively analyzing the noise pollution control laws in England, United States of America, China, Australia and Japan we have come to know that there are specific legislations in all the above mentioned countries to control noise pollution. But in India there is no specific legislation to control the noise pollution. The Rules[22] framed by the Indian Government under the Environment (Protection) Act, 1986 are inadequate to control the whole problem of noise pollution. Due to advancement in science and technology the problem of noise pollution has been increased to large extent. So the need of the hour is to curb the menace of noise pollution at international level by implementing the strict laws and by making people aware about the problem of noise pollution.

 

[1] Stuart bell, the Law and Policy Relating To the Protection of the Environment, 446
[2] http://www.who.int/mediacentre  visited  on  April 13, 2010 at 12:10 PM
[3] Ibid
[4] Nomita Aggarwal, Noise Pollution in Environment Administration Law and Judicial Attitude cited in Paras Diwan(ed), pp.415
[5] Article 9 of the Chicago Convention
[6] N.S Kamboj 1999,Control of Noise Pollution p.50
[7] www.who.int (Guidelines Values)Visited on 13 april,2010 at 12:40 PM
[8] Section 2 of the noise Abatement Act,1960
[9]
[10] Section 62 of English Control of Pollution Act,1974
[11] P.S Jaswal 2003, Environmental Law p.334
[12] S.K Aggarwal 2002, Pollution Management,Noise PollutionVol.5 p.37
[13]Susan  Wolf & Anna White 1995, Environmental Law p.391
[14] Section 79(1)(ga)
[15] Susan  Wolf & Anna White 1995, Environmental Law p.394
[16] Capter 65 of Noise Control Act,1972
[17] S.K Aggarwal 2002, Pollution Management,Noise PollutionVol.5 p.38
[18]Ibid at p.40
[19] N.S Kamboj 1999,Control of Noise Pollution p.50
[20] adopted on October 29, 1996
[21] http://en.wikipedia.org/wiki/Montgomery_County,_Maryland
[22] The Noise Pollution (Regulation and Control) Rules, 20000

Only Fire No Safety

Rishabh Shrivastava and Abhimanyu Shrivastava

dOn the night of 26 January, 2001 at 8:46 P.M. state of Gujarat was quaked down by the earthquake of 7.6 and 7.7 magnitudes with its epicenter as Chobni village in Gujarat near Bhuj, as a result this earthquake came to be known as Bhuj Earthquake. This earthquake was one of the major natural disasters that India experienced. Earlier, Bengal Famine and Tsunami of 2004 left Indians shattered. The Bhuj Earthquake left 20,000 people died, 167,000 people injured and around 400,000 homes destroyed. India’s economy also struk down as the Gujarat is a major hub for trade and all. People could not believe that half of the Gujarat was destroyed in that Earthquake. Before that also the Indian leaders or the bureaucrats or the people never felt the need for an agency which might take care of the disasters which we call as ‘Disaster Management’. After such a huge natural loss, it took almost 4 years for our mighty Indian Parliament (and the Indian Government) to frame the ‘Disaster Management Act’, through which, for the first time in India a central disaster management agency was created known as National Disaster Management Authority (NDMA) on 23 December, 2005.

It is unbelievable, for the people like us, that India challenges to be the top most countries in all the fields, but the time since Britishers left India, there was no Central authority that could have mitigate the risks arising out of the natural or man-made disasters. Today if people talk about China and Russia, their development, their nuclear capability and the hazards of it, they must also be aware of the fact that how capable they are. One must remember that within the period of certain months of nuclear disaster known as Fukushima Nuclear Power Plant Disaster in Japan, the disaster management agency of Japan- Fire and Disaster Management Agency (FDMA) cleared toxic waste and built the rehabilitation camps within fortnight. The government took unbelievable steps-because they were taken in a quick period of time-which reduced the possibility of next, such big disaster. This has been the difference between these nations and India. It took almost years for India to get itself back on track after a mass chemical disaster in the Bhopal, Madhya Pradesh known as Bhopal Gas Tragedy when metric tonnes of Methyl Isocyanate spread through the local town of Bhopal. Till now the young ones born there suffer from regular disturbed physical and mental aliments and from that day to this day in India there exist no proper legislation that could have a check on these Man-made disasters. Keeping focus on this disaster issue, here are some of the observations about the NDMA, the central authority of India that claims to be technology driven, alert, well-organised, coordinated, with communication at its best, state of art facilities, training and workshops etc. to which extent it is successful. Can we really depend on NDMA? And if not, then who is going to protect against the natural and man-made disasters or as many say, that all these disasters are the results of human’s barbaric treatment on Environment and mother Earth, and we are helpless before it. Can’t we do anything, can’t we even prepare ourselves, can’t we protect ourselves, and can’t we lessen the damage, really?

Starting from the organisation arrangement of the NDMA, Chairman constitutes of the Prime Minister of India, Vice-Chairman will be a person of a rank of a Cabinet Minister and the other 8 members will be the state ministers. Now if one closely observes this organisation structure, it seems more of a political committee, right from the Prime Minister to the members present they are from political background, they are concerned with the mainland politics of the nation. Now, being little bit practical (because everyone knows how are democracy works), the PM is the head of the government and already occupied with the work like looking towards the ministries, heading the cabinet meetings, foreign relations, public grievances, and many other vital work which PM has to do. There is no single member who is well-versed with the knowledge of disaster management posted at the prime posts in the NDMA. The reason which one of the senior journalists gave was that “since the functioning and reporting of NDMA is done to MHA, therefore the PM is the Chairman of the authority”. Presence of politics can be felt in NDMA. Disaster Management Authority, which has been ignored by the Indian government since the Independence after seven years of its creation, is yet dominated by the big bureaucrats of the national political parties. Obviously, where the PM is the Chairman, Cabinet Member is the Vice Chairman and the members are also state ministers, before taking any decision they will think of the ‘hands of god’ that is upon them. The triumph over bureaucratic culture should be the objective of the NDMA. Selecting the Cabinet ministers, state ministers, Prime Minister is transformation of a prime disaster agency into a great political theatre. Obviously, the more will be the ministers the more will be the politics, and such activities will prove faulty for the nation. Therefore, the government should create an independent and parent authority for the disaster management, because this is not a small issue every individual’s life and nation’s economic growth is related to, and if it is not possible than immediately an amendment should be made, scraping out the Cabinet Ministers and State Minsters out of the organisation and persons who are well-versed in the field of disaster management should be-hold that respective positions. This will not only lessen the bureaucracy and corruption among the authority but also increase the efficiency and effectiveness.

Secondly, coming on the committees present under the scheme of National Disaster Management Act, there exist a parent committee known as ‘National Crisis Management Committee’ (MCMC), the function of this committee is to pass the directions and guidelines to the lower committees namely, Crisis Management Group, Control Room of MHA, State Satellite Stations etc. this arrangement has been provided at the National or Principal Level. But if one studies the National Disaster Management Act, it clearly states that the responsibility of disaster management lies with the respective state where the catastrophe has occurred. Now, can anyone can elucidate that what is the use of having same tiers and levels under the NDMA at both the Central and State level. If the Act itself states that the State has to take the steps for managing the disaster, than why a Central Committee, NCMC, at one hand is reporting to the other sub-level workgroups at Central Level and the same structure is drawn out in the State machinery. This is leading in complexity and cumbersomity. A clear demarcation between the duties of state and Centre is still not stable and flawless. There is presence of ambigousity in both the authority and the legislation.

Thirdly, the most important issue, all the projects that have been initiated by the NDMA namely (with their financial sanctions) – National Earthquake Mitigation Project- Rs. 90 Cr., Landslide Risk Mitigation Project- Rs. Cr., Disaster Management Communication Network- Rs. 25 Cr., Other Disaster Management Projects- Rs. 93 Cr., National Cyclone Risk Mitigation Project with assistance from World Bank- Rs. 25 cr., National Flood Disaster Management- Rs.35 Cr. If an individual visits the national website of NDMA, and analyse the financial sheet of these projects available one can mark that technology column is marked NIL. This is the prime reason, the NDMA is under the scrutiny, and 85% of the NDMA is being worked with the help foot soldiers which are using their own equipments. The technology driven environment is lacking in NDMA. The stories of corruption in every individual project are also evident. Ministry is spending large amount of financial sanctions yet the basic confirmation of improvement is still missing from the framework. “The NDMA has lacked to make the best use of the financial aid provided by the Union” says CAG.

Last but not the least, the lack of accountability and coordination has proved to be the most prejudicial aspects for NDMA. Neither the authority nor the government is taking efforts to realise this problem. Due to Centre-State model, the ‘blame-game’ has been the flashing point for this authority. There have been continuous reports from state that Centre is not supporting State, Centre blames State that after providing the financial aid also the states have failed to implement the actions. This war in terms of rigidity between the center and state has paralysed the whole working of the NDMA. The officials of NDMA has also no clue that how to create a strong and active charter for the India’s supreme disaster management authority. The absence of strong leadership, red-tapism, bureaucracy, political environment, lack of coordination seems to be the demerits for this organisation.

A Central Nervous system has to be created, that could keep the NDMA supreme. The balance between the powers of Centre and State has to be achieved. More technological improvements should be taken by the NDMA. Political environment should be curbed down. A proper layout regarding the functioning of the disaster management authority must be prepared. The delegation by the committees of NDMA at both the center and state level must be restricted. A separate ministry for disaster management must be created. Different departments within the NDMA must be created. A strong focal point from where the decisions can be dispersed in a uniform way must be constituted. Necessary amendments must be made in the act. Technological collaborations must be emphasised.

An immediate attention is required in the field of disaster management because a calamity won’t be coming at our doors first before claiming the lives of many. We must be in a network where we can protect ourselves and our livelihood. In this way not only our standard of living but the country’s economic culture will also flourish. We don’t want once again to see the incidents like Bhopal Gas tragedy, although recent GAIL pipeline explosion in Nagram (Andhra Pradesh), building collapse in Delhi, Bombay and Bengal, rehabilitation process of Uttarakhand Flood Tragedy has been continuously pointing the failure of NDMA. All this can be summed up as “Only Fire no Safety”. We depend on almighty only for his mercy upon us.                                         

An Era of Mafiaism

Rishabh Shrivastava

“There is enormous and large scale multi-state illegal mining of iron ore and manganese ore running into thousands of crores every year, having several pernicious and evil effects on the national economy, good governance, public functionaries, bureaucracy, public order, law and order. It has encouraged huge corruption at all different levels in public life, mafia in society and money power…This has to be stopped immediately and effectively”

 

These were the findings of the Commission constituted by the Parliament of India in 2010 headed by the retired Supreme Court Justice M.B. Shah. Due to rising economy and increased energy patterns in India, the Mining sector has boomed like a rocket in last 5 years. Due to weak and irregular framework present to regulate this sector, the problem ofillegal miningis today’s one of the prime problem that till now Indian Government has failed to address. This data is way too old but still for the understanding of our readers, till 2010 alone, 82,000 cases of illegal mining were recorded by the Indian Government. United Nations has expressed a deep concern for this type of filthy and corrupted practice being persuaded by the Indian Government in trade and economic growth. The recent order of SC to ban the illegal mining activities in the Aravalli hills lying in Haryana and Rajasthan have once again raised the concerns of the Indian Government in context to the Mining sector of India.

 

What do you mean by illegal mining? Illegal mining means mining, raising, transporting and exporting the minerals from the ore illegally or without the consent or permission of any lawful authority. Therefore by studying various case studies, I can summary up the illegal mining in the following points,

  1. Mining without a license
  2. Mining outside the lease area
  3. Undertaking mining in lease area without the prior approval of the state government (List II, entry no. 23)
  4. Raising of minerals without lawful authority
  5. Raising minerals without giving royalties subscribed by the proper grades and quantities.
  6. Mining and Transportation in contravention to the rules and acts provided by the Centre and State.
  7. Carrying out multiple trade transactions to make unclear the origin and source of minerals in order to facilitate their disposal.
  8. Manipulating the land records
  9. Deleting the interstate boundaries with the view to encroach mining outside the lease area.
  10. Forging or misusing valid transportation permits and other documents to raise, transport and export minerals.

These all parameters constitute what we call as “Illegal Mining”. The major legal provisions which regulate the mining business and affairs are – Mines and Minerals (development and Regulation) Act, 1957, the Forest Conservation Act, 1980 and the Environment (Protection) Act, 1986.

These were some of the specific details about the illegal mining, but coming onto the dark and the important side of this ‘bad game’. More than 5000 rural households are employed in this illegal mining business. The theory behind this is that most of the families in rural areas of Goa, Karnataka, Madhya Pradesh, Uttarakhand, Uttar Pradesh does not even have a fuel to light their stoves, food to fulfill their empty stomachs, clean drinking water facilities, proper sanitation facilities, diesel or petrol for their vehicles, electricity in their hutments, education facilities for their children, proper support and redressal systems for their sufferings and over that the wrath of the loans and banks that they took for their agricultural bank which now they are unable to pay due to lack of rains, misguiding habits of local officers and many other elements. Than as we say “Bhook ka maara”, these people couldn’t decide what they have to take and what not to. The mining contractors have taken the advantage of all this situations and as the result, today the biggest threat from regularizing this illegal trade is to these rural households who are on the edge of their death. There is not a single proper mechanism with the government that how to protect or provide the rehabilitation to these poor families. Simply, shutting down these illegal mining centers and imposing a legal ban and financial obstacle like fines and penalties won’t solve the problem, but let me think, who am I talking to, this government does even care to think in this way? Do they even care about those rural kids who are wasting their life playing in that sand mine, which they do not even know what exactly is, or do the government care about all those 5000 rural households who haven’t slept in a room with a proper fan and light upon his head? The only option which I see that government is looking for is legalizing this illegal trade, regularizing the illegal mining game, there is no need for law, because we are not able to and cannot curb this practice down, than are we moving from Democracy towards to the Anarchy? Are we going to run the principles of our founding fathers and their constitution on the idea of anarchism?

If one analyses and observes these illegal mining instances, the mining boards that have been deployed in this filthy mining culture are big financial monsters that have been eating and destroying our natural and regular set-up governing the mining business? According to my personal observation, the file for requesting the clearance of mining is normally in the frame work of the ‘single file system’. The file is initiated at the office of the Director of Mines, than to the government secretary and then to the concerned Minister or Chief Minister. It means that ultimate right of giving clearance to the mining contractors lies with the concerned minister or the Chief Minister. Now obviously one can conclude, that any project that is ready with their money-fuelled financial weapons by a big business tycoon, can now be refused from getting a clearance to the mine. And once he is done with the clearance part, the money power is now ready to be increased by encroaching more than what is mentioned in the mining lease. The reason why I can say this by being so damn sure is because, how one can expect that minister who is approving a clearance (that too after two stages) cannot know what the contractors propose to do, what are their financial credentials and what is their ultimate objective i.e. personal financial enhancement. And being a law student transforming this logical premises into legal dimension, according to Section 24 of Mines and Minerals (Development and Regulation) Act, 1957, it empowers the Central and State Government to inspect any mine any time for any purpose. But while going through the cases pending in the various tribunals and courts, since more than 5 or 3 years no authorized person from neither the state government nor the central government, visited the mines for inspection, be it Madhya Pradesh, Goa, Karnataka or any state located in whole of the India (one can visit the official websites of National Green Tribunals and High Courts for these cases on Illegal Mining of Minerals), where this business of illegal mining is going on. Now reading this section even a child could tell, that some conspiracy between the contractors and the ministries have been going on. Otherwise, how a government having a statutory right or power cannot visit a mine, that also not for a month or a year but for more than 5 years. Another thing which I can conclude from this scenario is, there are enough legislations and acts on these malpractises going on, but there is no one to take record on them or a check on them. The Political members have failed to keep an eye on these issues because they are shut down with the weight of financial layer(s) that have been kept upon them and the executive classes have botched to implement them.

Secondly, the absence of professionalism, honesty, dedication has created a dis-harmony between the different departments of the government. The state pollution control boards never visited the fields even on the notice by the government. The licenses were never checked that whether they are to be renewed or cancelled. Going through the reports by Justices M.B. Shah and Lokayukta of Karnataka, round about 30 such instances in both the states relating to state pollution control board appeared. The shifting of responsibilities from state pollution control boards and other departments to the state government and vice-versa has been the prime source due to which, till now the Judiciary is unable to produce something substantial and have a hit at it. Thirdly, this illegal mining has been carried out with the help of heavy machineries and gunda power. The police have never initiated proceedings against any of these organizations, no FIR or any other record is present in any of the Police Stations that are in-charge of such operations. According to the analysts, many of the big police officers does not even wants to get involved in this, due to bureaucratic and political pressure from the above authorities that present above them in the scheme of state management. The machineries have a unscrupulous conditions which are contributing to the land, air and water pollution to its fullest. In many state, the great environmentalists have concerned deeply for the contamination of the drinking water due to which everyday hundreds of cattle’s and agricultural fields are being destroyed.

This game seems to be unstoppable by the Indian Authorities. The time has come that even the orders directed by the Hon’ble SC are not being observed. Step like employing more workforces at lower level has to be taken up. Flying Squads should be constituted to inspect regularly the mines and record their activities. A team or committee should be constituted which can suggest government whether to issue clearance to particular project or not within a short span of time should be initiated. The information related to mines (lease area, contractor, district, financial set-up etc.) should be published in the official website of the Coal Ministry. An Action Initiation Team (AIT) at various levels should be constituted that will keep check on the Political and Executive members that they are discharging their duties properly or not. They should be free from any influence and pressure, Judicial members would be ideal for it. Report relating to the rural people that are being employed in the project along with their details of income, house, food etc. should be prepared and should be given to the appropriate ministry so that if such illegal activities are being active than an appropriate rehab process and action can be planned out. On the part of various state departments and pollution control boards, regular evaluation should take place without any internal displacement. Judiciary should act quickly on the pending matters and take all possible steps to eradicate such unfair trade practice from our nation. More transparent and accountable process for leasing of mines and related aspects should be done by way of publishing it in Gazette, websites of official organizations. Corruption seems to be persisting problem in this sector of our economy.

Principles of democracy should be saved and nurtured. The rural households have to be taken care of, that while out rooting these trade contractors we should not infringe their rights and life. The strength of India lies in efficient and effective restoration of our mining sector and other power sectors. Energy sector and Infrastructure facilities of our nation should be developed by regulating the illegal trade practices of our nation. Every individual’s right should be protected than only the democracy of our India could be saved from getting converted into ‘Anarchy’- a state of lawlessness.

Environment Protection : A Challenge Before Legal System

By – D.B. THENGADI

INDEX 

1. ENVIRONMENT PROTECTION (Speech of D.B. Thengadi)

2. ANNEXURE 

(i) Major Treaties 

(ii) Selective Legislations, Remedies to Public & Some Important Cases 

(iii) Common Convictions in Stockholm Proclamation 

(iv) The Scope – Environmental Law 

(v) Education

3. THE WOUNDED EARTH – Story on Rio Earth Summit 

 

 

ENVIRONMENT PROTECTION 

 

The Government of India is conscious of this fact that is why they hastened to announce that from the new year no Government Vehicle, including DTC buses, that do not conform to the pollution control norms will be allowed to play on Delhi’s roads. Both the Ministry of Power and Coal have been served notices reminding them of the need to conform to the pollution control norms by the thermal plants by the new year. The Thermal plants have been asked only to use washed coal to bring down air pollution to acceptable levels. The Environment Ministry declared that it is in the process of setting up task forces to check pollution with the environment of the community and checking of Government vehicles in Delhi will be carried out from January 3. Similar action in the case of private vehicles will follow soon. The name of the pollution control board will be changed to Environment Protection Authority.

 

Why this sudden awakening on the part of the Central Government? It indicates the urgency of the topic, though for us in this country the subject has been almost equally urgent from the Vedic times.

 

The world was surprised to learn from Srimati Indira Gandhi at Stockholm Conference, 1972, that ecology-conciousness prevailed in India right from the Rig Vedic period. More than foreigners who attended the Conference as delegates, our own self alienated, anglicized intellectuals resented this approach of their Prime Minister. In the past, in keeping with the tradition of the land, legislation for protecting environment formed part and parcel of the Dharma which stood for ever-changing socio-economic order in the light of the unchanging, eternal universal laws. Every Smriti has dealt appropriately with the problem of ecology treating it as an integral part of the scheme for Dharma of the Society. It is interesting to note that advocate-authors Chaturvedis have tried to elucidate the Dharma of ecology as suited the requirements of the modern times.

 

The movement for law on environment gathered momentum after the Stockholm declaration. The Bhopal Tragedy, the (swaroopan silent) valley affair, the long-drawn struggles over Narmada and Tehri Dam, DDA’s Yamnua Plan and some other local agitations have further intensified the popular demand for perfect legislation on environment.

 

The number of environmentalists is growing. Some of them, like Sunderlal Bahuguna and Medha Patkar are known for their contribution and competence outside the country also Consequently, there is the recent growth in literature n this subject. For example, books like “Emering Right to Environment” ‘An Indian Experience by G.M. Jariwala; ‘Law of Consumer Protection, Principles and Practice” by Vandana Shiva; Journals like “ Down to Earth” and speeches made and article written by environmentalists from time to time.

 

For lawyers in this country this is not a new subject. The cognizance of this problem was taken by laweven during the British period and a few of the Acts contained provisions slightly helpful for protection of environment. During the post independence period this trend continued and the law paid greater attention to this aspect even before the Stockholm Conference of 1972. Earlier, the environmental legislations lay scattered in about 40 central and State Acts.

 

There is an excellent, comprehensive book, “International Law and The Environment” by Brinie and Boyle (1992). “Environmental Law” by Simon Ball and Sthart Bell; “Environment Protection” edicted by Paras Diwan; Lal’s “Commentaries on Water, Air Pollution of Environment (Protection) Laws”; “Law on Protection of Environment and Prevention of Pollution (Central of State)” by Chaturvedi’s (Dr. R.G. and Dr. M.M.; are same of such important books. ‘Legal Control of Environmental Pollution’ (S. Agarwal ed.); Ramakrishna. ‘The Emergence of Environmental Laws in the Developing Countries: A case study of India”; ‘In arrangement of National Parks and Sancturies in India: A Status Report – such documents are also helpful for proper understanding. Then, They have with them the table of cases on environmental law in India. (over and above these, when ever any legislation is passed, it is customary in our country to bring out expeditiously some bare commentaries on it. Such commentaries are helpful for immediate purpose).

 

Earlier the American law on noise (The Noise Control Act, 1972 of U.S.A.) had already received their attention, and now the comprehensive Environmental Response, Compensation and Liability Act of United States is also available. Not for blind imitation but as the helpful factor in evolving our own polices, European Community’s law and history, philosophy and current direction of environmental policy have become important for all third world countries. The “Mannual of European Environmental Laws” prepared by professors Alexandre Kess and Dinah Shelton furnishes us with chronological table of International and E C Documents, table of National Laws and cases, list of abbreviations and technical terms, etc.

 

For evolving a separate law on noise pollution, the American Law can be utilized, but with number of modifications. Britain was the pioneer in this field; its experience can be valuable for southern countries; but it should be simultaneously borne in mind that the British law on this topic suffers from anachronism because of the domination of conservalism in that country. Environmental laws in third World Countries, China, Japan, South America and Africa have not yet been available. Therefore, it is difficult to assess their relevance and utility under Indian conditions.

 

One general book “The Crisis of the Indian Legal System” by Upendra Baxi suggests some alternatives in development of law. The same can be helpful to some extent for removing the laeuna in our Environmental Law.

 

The interested and knowledgeable persons in the country are nowrealising that our law on environment is far from being perfect. The title for Djilas’ second book was 1 Unperfect Society’. By way of explanation Djilas said that he had deliberately avoided the use of the adjective ‘imperfect’, because that would have conveyed the impression that, according to him, society could at any time be perfect, that could never be. The implication of the term, ‘imperfect’ was that society could never be perfect, but efforts should be constantly made to minimize its imperfection as far as possible. The same holds good about every legal system also.

 

People are aware that the law is not the only instrument to achieve the desired goal. There are other useful non-legal measures also. For example, market mechanism for prevention of pollution by sending signals to consumers as to the true environmental cost of their activities, pressures from purchasers, consumers and share-holders, pollution taxes, tax incentives, recycling credits, levies on environmentally unfriendly activities; pressures through the supply chain and through investors and lenders etc. Tax levels, grants, or incentives have an indirect effect.

 

Most of all, general education of masses on the protection of environment is a must.

Nevertheless, the fact remains that law is the most important if not the only weapon useful for this purpose.

Ecology is the Natural Resources law on Environmental Balance or equilibrium.

 

In common parlance, environment means surroundings. Einstein said, “The environment is everything that is not me”. But in practical it has specific meaning, physical surroundings common to all of us, including air, space, water, land, plants and wild life.

 

It is necessary to remind the rules or the ruled that it is fundamental human right to live in an unpolluted environment and that it is fundamental duty of every individual to maintain purity of environment.

 

In India there is no independent Act to deal with the problem of noise pollution. No doubt the air (prevention and control of pollution) Act, 1981, has defined the expression “air pollution” to mean “any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment” the fact remains that there is no comprehensive separate law on the problem of noise pollution. This subject is not taken up with the seriousness it deserves because as justice Krishna Iyer had said, the environmental pollution is still regarded as “a subject to halting legilation, hypocritical implementation and helping interpretation”.

 

Probably time is not yet ripe for setting up special courts to deal with environmental laws, or to create a special mental crimes. But various other measures deserves expeditious implementation.

 

Presently, damages are payable for injury to the person or lost to one’s property. But no provision against injury to environment. Liability for environmental harm should be located and punished, notwithstanding the opposition to such provision by vested interests.

 

Now it is generally appreciated that there is need to restructure the law and practice on the protection of air, water and land against pollution, and the protection of the eco-system, together with those ancillary issues which help to explain these areas, such as, public participation, access to information, remadies and procedures.

 

There is a need for a Regulation on Eco-Management, and auditing which should require a public statement of environmental performance, external verification procedures, and commitment to continuing improvements in environmental performance. (There should be environmental auditing firms and businesses).

 

Deserving special notice is the absolute absence of a law to tackle the twin problems of pollution, namely, the emission of the gases from the Power Stations, and the concentration of vehicular exhausts.

 

Attention needs to be given to protection of the cultural heritage. It is necessary to spell out the concept of ‘sustainable development’ under Indian conditions.

 

The term “Sustainable development”, taken from the report of the World Commission on Environment and Development ‘Our Common Future’, published in 1987 has led to the creation of an International sustainable development commission.

 

The people have come to realize that the current criminal law as applied to pollution problem in quite inadequate. To cite a single example, an imprisonment for a couple of months or a fine even if running into thousands, would hardly compensate the aggrieved or the injured.

 

The law under which stringent penalties have been provided for contravention of provisions which provides for imprisonment upto five years and find upto Rs. 1 lakh and in some cases imprisonment upto 7 years and find upto Rs. 5,000 per day is often ignored by executive authorities.

 

Wid powers have been conferred on the relevant authorities under these Acts which includes the power of entry and inspection for various purposes as per procedure prescribed in the Acts and power to take sample of effluents, etc., for analysis, prescribed procedure to be followed in connection therewith. Stringent punishment and penalties viz. imprisonment and heavy fine have been provided for contravention of the various provisions of these three Acts. But it nis widely known that these powers are often misused or not used at all.

 

Environmental Law remedies should be of two types (1) Remedies that are properly charactersied as administrative uin nature, and (2) Truly Criminal remedies that are kept for blatant cases of environmental vandalism.

 

There should be a specific edntry in the concurrent list of the seventh schedule of the Constitution, under the title ‘Environment’.

 

A Central law on noise pollution should be enacted.

 

Appropriate tax deduction incentives be gien.

 

It is advisable to compare definition of ‘occupier’ in environmental law and that under the Factories (Amendment) Act, 1987.

 

 

Professor Chhatrapati Singh, in his Article in “Legal Policy for the control of Environmental Pollution” has outlined the structural framework of various environmental laws under two heads. Chhatrapati Singh has also explained the functional basis of environmental laws. He has enumerated the deeper problems, in the legal policy, which require deeper consideration. His conclusion deserves serious consideration by this conference. General flaws in policy, principles and administration of the current laws-whether criminal or civil, are to be found in the drafting and implementation of environmental laws also, particularly specific-more specific- ‘definition’ of key terms such as ‘air pollutant’, ‘water pollutant’, ‘such contamination’, ‘such concentration’, ‘nuisance’, ‘environmental pollution’, ‘hazardous substance’.

 

Restitutive justice is a new branch of interpretative jurisprudence adding a new dimension to the cause of social justice. The Supreme Court has stemmed out of Article 32 a new jurisdiction to award compensation for alleviating the human suffering by action or omission of Govt. or of Corporate Bodies resulting in violation of the basic or natural rights of individuals.

 

It is the inalienable and fundamental right of man-good environment. Article 48-A of the Constitution enjoys that the State shall endeavour to protect and improve the environment. But the right to breathe should fall within the scope of right to life guaranteed under Article 21. Purety III of environment necessary to the right to breathe also finds place in the fundamental duties, in clause (g) of Article 51-A Part IV-A of the Constitution.

 

Pollution Control is a part of social justice. Directive Principles are only expansion of Article 14.

 

Public health is a part of social justice. Relevent Articles in Part IV of the Constitution: Article 41; Art 43; Art. 47; Art 48-A; Clause (g) of Article 51-A.

 

A comprehensive study of the area of action and the powers of executive and judicial authorities and the powers of the authorities created under the Water Act, the Air Act, and the Environment Act would reveal that there are vast areas relating to pollution which may not come within the ambit of the Acts and can, therefore, be dealtwith under the general poenal or preventive provisions, and allusion, may be relevant to the width of the comprehensive concept of nuisance.

 

In the wider sence of nuisance, pollution is nothing but species of nuisance.

 

In its causalgenesis, pollution is nuisance-oriented. Pollution is atmospheric nuisance, and, in that sence, it is covered by the larger notion of nuisance. (The terms ‘nuisance’ is not capable of exact definition Pollock C.B., in ‘Banford v. Turneky’ has observed (31L 23 292).

 

“I do not think that the ‘nuisance’ for which an action will lie is capable of any legal definition, which will be applicable to all actions and useful in deciding them.

 

Speaking generally, nuisance is “the unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.

 

Nuisance may however, be distinguished from negligence or trespass. In India Pollution cases can usually be construed as admixture of nuisance and trespass.

 

Chapter XIV of the Penal Code, 1960, relates to “Offences affecting the public health, seafety, convenience, decency and morals’. Further, even obscenity whether visible or audible, wether recited or written, will amount to criminal nuisance.

 

According to experts, Section 290 of the Penal Code has been enacted to provide the punishment for ‘public nuisance ‘k jin cases not otherwise provided for. The width of the concept of ‘public nuisance’ under the Penal Code extends to number of offences, all of which must be taken as species of criminal nuisance. Out of the list of such nuisances, those having affinity with pollution proper are relatable to Section 277, 278, 284, 290 and 291. Section 268 of the Penal Code defines ‘Public Nuisance’. But there is no separate penal section prescribing punishment for the commission of ‘public nuisance’ as defined under section 268. That is why Section 290 has been enacted toprovide for punishment for ‘public nuisance’ in cases not otherwise provided for.

 

‘Nuisance’ considered as an offence is much wider in scope than pollution and extends even to cases of abstructions and a number of other annoyances. ‘Nuisance’ may be distinguished from ‘negligence’ and trespass speaking generally, ‘nuisance’ is the unlawful interference with a person’s use or enjoyment of land, or of some right overf or in connection with it.”

 

Section 133 of the Code of Criminal procedure is not repealed by the Air Act.

 

Nuisance in India is a subject common to civil and abnoxious to the community or to the individial member of it, for which some legal remedy may be found’. Any thing done which unwarrantably effect rights of others, endangers life or health, gives offence to the sense, violates the laws of decency, obstr4ucts the comfortable and reasonable use of property, may amount to nuisance. Injury must be real and not fanciful.

 

Nuisance: I) Public, ii) Private.

While takingh protection of environment into consideration, prevention of harm should be given priority. Greater emphasis should be laid on progressive adoption of laws that set standards for products or the processes by which they are made, rather than on discharges or omissions. The introduction of integrated pollution control, a process-based control, is necessary.

 

For prevention of future harm there should be progressive adoption of laws that set standard for products or the processes by which they are made, rather than for discharges or omissions. Introduction of integrated pollution control, a process – based control is necessary.

 

Strict cognizance should be taken of sulphurdioside ommisions, the dumping of sewage sludge in the sea and reductions in omissions from vehicles, acid rains.

 

The cheap option of incineation on dumping sewage sludge in the sea should be phased out.

The policy now is that waste reduction and education is to be preferred to recycling, and srecycling to disposal.

The minimization of waste should be given priority in future production methods.

 

The ‘wild beasst theory’ must be applied to (a) fire, (b) gas, (c) electricitym (d) explosives, (e) engines, (f) motorcar containing petrol (g) noxious fumes, (h) other dangerous things, such as, rusty wire or flagpole, poinsonous vegetation and chair-o-plate.

 

Apart form the devastating leakages of lethal gases, from carbide and fertilizer plants, a large quantity of the deadly substance is spewed forth by the main power stations in any town.

 

The law on town and country planning should take into consideration various means of disposing of waste, sewage disposal, incineration, landfill, discharge to rivers, m discharge to the sea and recyling.

 

Also the problems such as, abandoned water taps, dereliet land, discharges of toxle wastes and untreated sewage into estuaries and the sea, etc.

 

Protection of environment and protection of people are interlinked like regulation or radio activity.

 

Protection of environment includes not only pollution control but also other issues, such as, the retention of biological diversity and the preservation of landscape.

 

Problem of environment protection requires remedies Legal as well as scientific, technological, social and economic solutions (Environmental law is a separate discipline). Interrelatedness of problems should be recognized. For example, irrigation facilities producte salinity leading to land pollution. Industrial development causes pollution of land, m air and water. Over exploitation-increases burden on natural resources like land, forests and water. How cope with the escalated need for shelter involving housing schemes, for fuel, fodder and furniture. 100 million hectares of land, almost one third of total area, stands infected by degradation, erosion, salinity, alkalinity and wind erosion. Automobiles causing air and noise pollution. Deforestation resulting into uneven availability of water, exhibiting an alternating cycle of flood and draughts. Untreated human wastes in urban areas, create health problems

 

The decline in environmental quality is evidenced by increasing pollution, loss of vegetal cover and biological diversity, excess concentration of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threet to the support-systems. All motor vehicles including buses and trucks, three wheelers, etc. are known for smoke commission-level and carbon monoxide level, by contravening rules for test for smoke omission level and carbon monoxide levels for motor vehicles.

 

Protection of environmental pollution includes water, air, land and soil, forests, lakes, rivers, sea, wild life and other living creatures, and the inter-relationship which exists amongst and in between these elements-vis-human beings and other living creatures, plants, forests, property and micro-organism, etc.

 

Identity of the polluters-Cars, factories, powerstations, etc. Nature of the pollutant (e.g. radiation, leads, pesticides, CFCs, etc.) the targets being medium in which the threat manifests itself (e.g. air, water, land, etc.). The principle should be polluter pays’.

 

Obligations: 

 

It is difficult and inadvisable to disentangle our national policies or environment from global ones.

 

Environmental pollution is a global problem more on the premises that the atmospheric ocean is shared by the peoples of the nations. As Arthur C. Ster suggests, the aim has to be the welfare and the preservation of health not only of the nationals of a State but of man throughout the world, with the other objectives of protection of and preservation against damage to plant and animal life, prevention or damage to physical property and interference with the normal use and enjoyment thereof, provisions of visibility required for safe air and ground transportation, ensuring continued economic growth and development, and maintenance of an aesthetically acceptable enjoyable environment.

 

As L.N. Mathur said, the use of air has to be planned along substantially the same lines as the use of multinational rivers and water channels for the conservation of land water resources.

 

International issues of Environment are : (a) Global warning; (b) depletion of the Ozone layer; (c) the protection of the rain forest; (d) attempts to save the animals; (e) the control of hazardous substances and processes; (f) the minimization and management of waste; (g) the conservation of natural resources; and (h) protection of eco-systems.

 

There should be organized ‘watch-dog committees’ of citizens to keep constant watch on problems arising from time to time and region to region, for example a significant portion of the 15000 plants species and 75000 animals species activity on land and forests. India lost between 1951 and 1972-3.4 million hectares of Forest lands to dams, mining, new crop lands, roads and industries. It means an annual rate of deforestation of about 0.15 million hectares.

 

Deforestation, floods, famines and other inter-related facts should be taken into consideration in an integrated manner.

 

Even our sacred rivers like Ganga and Yamuna often appear in the news, under pollution head. It has also now been scientifically established that some kinds of polluted water can also adversely affect the fertility of the soil. Air pollution apart from being a source of various diseases is also threatening the very existence of ancient and historical monuments.

 

Various such problems should be identified alertly from time to time by such ‘watch-dog’ committee.

 

It should be a matter of pride and satisfaction for us that the problem of the protection of environment received attention of the members of the constituent Assembly, at that early stage.

 

The Indian Constitution is amongst the few in the world that contains specific provisions on environmental protection. The directive Principle of State Policy and the Fundamental Duties chapters explicitly the national comtunately, some extraneous phychological factores also played some role in the matter.

 

The authors of the ‘Environmental Law and Policy in India’ state:

 

‘The constituent Assemble that framed India’s Constitution did not specifically consider the question of whether parliament or the State Legislature should regulate environmental matters. Instead, the distribution of environmental subjects within the three lists was influences by the Govt. of wished to create a strong center and others who preferred to a decentralized versus a centralized federal structure prevaild over the issue of whether the central or state legislatives were better situated to regulate environmental matters.”

 

Number of complicated problems intensified such differences of opinion. For instance, floods which cause considerable hevoc in the plains may be the result of indiscriminate felling in the catchment areas under the control and jurisdiction of an entirely different province.”

 

When the Forty Second Amendment Act of 1976 a with its Article 48-A and Article 51-A was passed, the Lok Sabha rejected several amendments. One of them required the State to “Conserve and develop the water, soil and other natural resources”., while another proposed to ensure that the State’s efforts to protect and improve the environment would not harm tribal forest dwellers.” The rejected amendments of the Rajya Sabha proposed that the Article should also mention “mineral wealth” and require the Government to “undertake adequate and effective measures to check environmental Pollution.”

 

The 42nd Amendment also expanded the list of concurrent powers in the constitution. The amendment introduced a new entry “Pollution control and family planning”. While “forest and “Protection of wild animals and birds” were moved from the state list to the concurrent list.

 

Article 253 of the Constitution empowers parliament to make laws implementing India’s international obligations as well as any decision made at an international conference, association or other body. The Article apparently gives Parliament the pwer to enact laws on virtually any entry contained in The State List. Article 253, with its broad language, serves as an adequate handle for a court to uphold Parliaments’ powers to enact environmental laws.

 

In 1980, the Tiwari Committee recommended that a new entry on “Environmental Protection” b introduced in the concurrent list to enable the Central Govt. to legislate on environmental subjects. The committee’s recommendation was based on a note from the Indian Academy of Environmental Law which observed that there was no direct entry in the 7th schedule enabling parliament to enact comprehensive environmental laws. The note, however, did not consider parliaments’ power under Article 253.

 

Notwithstanding such difficulties, commendable progress has been made by the country in this respect.

 

There are many indications; for example, Article 39-A guarantees every citizen the right of access to the court. The right to a clean environment has been included by the Supreme Court in the definition of the right to life guaranteed to all citizens by Article 21. The right to breathe clean air and drink unpolluted water has now become as sacred as the right to life.

 

The Supreme Court has throughout the last few years expanded the horizon of Article 12 primarily to inject respect for human rights and social conscience in the corporate structure. Any new and innovative expansion of human rights is bound to disturb the status-quoist vested interests, but their arguments should not deter the court from widening the scope of human rights and expanding their ambit. Article 12 of the Constitution should not be presumed to obstruct this process of expansion. The General public also is srecently becoming aware of the valuable contribution of judiciary to the cause of environment.

 

In Agra pollution case the Supreme Court pulled up Indian Oil Corporation for not taking steps to control the environmental damages caused by the Mathura Oil Refinery especially to Taj Mahal. Many other important moves such as the Court’s directive on the relocation of Delhi’s noxious industries, the Court’s stem directive in the Delhi Ride case, have focused the attention of the people on the judiciary’s role in this respect.

 

In fact the environmental matters have been taken up in the Court since the days of Chief Justice P.N. Bhagwati in the early “80s” and other Brother Judges have made further important contributions to this cause.

 

Various cases mentioned in the Annexure show that our judiciary is alert but the magnitude of this problem. For example, P.N. Bhagwati C.J. impressed upon the Government of India to evolve a national policy for location of chemical and other hazardous industries in areas where population is scare and there is little hazard or risk to the community, and when hazardous industries are located in such area, every care must be taken to see that large human habitation does not grow around them. There should preferably be a green belt of 1 (one) to 5 KM width around such hazardous industries.

 

Population as base of huge industries conflicts eagerly with employment value of such industries, but as the High Court of Kerala has observed that where a workshop has been responsible for causing nuisance by air pollution and noise pollution, the mere fact that it proves livelihood to some persons, unmindful of consequences, is not a valid ground to justify causation of pollution (Madhavi V. Thilakam, 198).

 

P.N. Bhagwati, Chief Justice has aptly observed “where science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is certain element of hazard or risk inherent in the very use of science and technology and it is not possible to eliminate such hazard or risk altogether. We cannot possibly adopt a policy of not having any technical or other hazardous industries merely because they pose hazard or risk to the community. If such a policy were adopted it would mean the end of all progress and development. Such industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well-being of the people. We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner which would pose least risk or damage to the community and maximizing safety requirements in such industries”.

 

(M.C. Mehta V. Union of India, AIR 1987 SC 965 (981) etc. many such cases can be cited to prove the point, and their list is given in the Annexure attached herewith.

 

But of particular importance is the spirit in which this subject should be considered by our law makers, lawyers and the judiciary. It is a matter of great satisfaction that appropriate lead in this matter is given by our judiciary in the field of law and jurisprudence, which has been a marked departure from the age-old tradition of our intellectual slavery. Dealing with the problem of hazardous industries, P.N. Bhagwati (C.J.) has declared in un-equivocal term that judgments of the British Courts need not be followed by us blindly, the conditions in our country are different from those in Britain. We should, therefore, have our own law and its interpretation, keeping in view our national scene.

 

The Supreme Court of India justified itself in departing from the Rule laid down in Rylands vs. Fletcher reported in 1868 LR 3 HL 330 for two reasons. Number one is the incapacity of the rule to cope with the liabilities of an industrialized society. And secondly because of the need for a free and native thinking in order to develop an indigeneous law. This remarkable ruling is reported in M.C. Mehta vs. Union of India, AIR 1987, SC, Page 1086.

 

The following passages are in page numbers 1098-99.

 

“This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise, the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the newproblems which arise in a highly industrialized economy. “As to the second reason, the Court held (per Bhagwati, C.J.):

 

“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot coutenance an argument that merely because the new law does not recovnise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands Vs. Fletcher as is developed in England recognizes certain limitations and responsibilities. We, in India cannot hold our hands back and I venture to evolve a new principle of liabilty which English Court have not done. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous orinherenly dangerous industries which are concomitant to an industrialized economy, there is no reason way we should hisitate to evolve such principle of liability merely because it has not been so done in England”.

 

These remarks clearly indicate that though we may benefit from the experience of developed countries, their exact or blind limition will not help us in finding out solutions for our own peculiar problems. Fresh and original thinking against the back ground of Indian conditions is necessary.

 

The following observation of the authors of ‘Environmental Law and Policy in India (Cases, Materials and Statistics) is more specific on this point.

 

“Unlike the situation in the western countries, Indian environmental law and policy is not a preserve of the affluent middle class interested in resisting growth. In India those most deeply affected by environment deterioration are the poor. Displaced and dispossessed by deforesation and other natural resource depletion, they are the first victims of poor sanitation, bad air, contaminated water and scarece wood for fuel and fodder”.

 

In this context, I am reminded of a couplet from a Spanish Poet which, as rendered in English run thus :-

“Traveller, there are no paths,

Paths are made by walking”.

 

Who is competent to accomplish this task? Frankly, lawyers, not legislators. Even in Britain there was a complaint that Parliamentarians could not do justice to this issue because of the tight time-schedule of the Parliament and the incompetence of Parliamentarians to study and grasp the subject thoroughtly. Hence the propriety of the Adhivakta Parishad taking up the issue. All of you have preliminary discussion on this problem in course of this conference, and subsequently, I hope, it will be followed by a public debate on the initiative of Adhivakta Parishad activists on different levels throughout the country. Similarly this Conference will have to finalise the programme for the next year. On the eve of the next general elections, I appeal to all political parties to declare in their manifestos that they shall provide fresh water and fresh air to all citizens and living creatures. We know that this is not easy and simple as some one would have us believe. Some authority on practical politics has said that “Politics is a gentle art of getting votes from the poor and campaign funds from the rich, by promising to protect each from the other”. For this purpose, the parties will have to discard the current concept of ‘development’, and adopt a new one which requires ‘development’ to revolve round man, rather than man revolving round ‘development’.

 

 

MAJOR TREATIES AND AGREEMENTS TO WHICH INDIA IS A PARTY:

 

INDIA’S TREATY OBLIGATIONS:

1. Convention Relative to the Preservation of Fauna and Flora in their Natural State (London, 1936) (S).

2. International Convention for the Regulation of Whaling (Washington, 1946), (S)

3. International Plant Protection Convention (Rome, 1951), (S).

4. The Antartic Treaty (Washington, 1959), (S).

5. Convention Concerning the Protection of Workers Against Ionizing Radiations (Geneva, 1960), (S).

6. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water (Moscow, 1963), (S).

7. International Convention of Civil Liability for Oil Pollution Damage (Brussels, 1975), (S).

8. Convention of Wetlands of International Importance, Especially as Waterforl Habitat (Ramsar, 1971), (CP).

9. Convention on the Prohibition of the Development Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons, and on their Destruction (London, Moscow, Washington D.C. 1972), (CP).

10. Convention concerning the protection of the World cultural and Natural Heritage (Paris, 1972) (CP)

11. Convention of International Trade in Endangered Species of Wild Fauna and Flora (Washington DC, 1973), (CP).

12. Protected of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL), London, 1978), (CP).

13. Convention on the conservation of Migratory species of Wild Animals (Bonn, 1979), (CP).

14. 14. Convention on the conservation of the Antarctic Marine Living Resources (Canberra, 1980, (S).

15. U.N. Convention on the Law of the Sea (Montego Bay, 1982), (S).

16. International Tropical Timber Agreement (Geneva, 1983).

17. Convention of Early Notification of a Nuclear Accident (Vienna, 1986).

18. Convention on Assistance in the case of Nuclear Accident or Radiological Emergency (Vienna, 1986).

 

 

SIGNATORY (S); CONTRACTING PARTY (CP)

 

SELECTIVE LIST OF ENVIRONMENT RELATED LEGISLATION:

 

1. CENTRAL ENACTMENT

 

ENVIRONMENT (PROTECTION) ACT 1986.

 

1. WATER POLLUTION

The river Boards Act, 1956.

The Merchant Shipping (Amendment) Act, 1970.

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

The Water (Prevention and Control of Pollution) Cess Act, 1977.

 

2. AIR POLLUTION

The Indian Boiler’s Act, 1923.

The Mines and Minerals (Regulations and Development) Act, 1947.

The Factories Act, 1948.

The Industries (Development and Regulation) Act, 1951.

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

 

 

3. RADIATION

The Atomic Energy Act, 1962.

The Radiation Protection Rules, 1971.

 

4. PESTICIDES

The Poision Act, 1919.

The Factories Act, 1948.

The Insecticides Act, 1968.

 

5. OTHERS

The Indian Fisheries Act, 1897.

The Indian Forest Act, 1927.

The Prevention of Food Adulternation Act, 1954.

The Ancient Monuments and Archaeological Sitesand Remains Act, 1958.

The Wild Life (Protection) Act, 1972.

The Urban Land (Ceiling & Regulation) Act, 1976. Vide Dr. Tewar Report on Pollution.

First Conservation Act, 1980.

 

 

II. STATE ENACTMENTS

 

1. WATER POLLUTION

The Orissa River Pollution Prevention Act, 1953 and

The Maharashtra Prevention of Water Pollution Act, 1969.

 

2. SMOKE CONTROL

The Bengal Smoke Nuisance Act, 1905.

The Bombay Smoke Nuisance Act, 1912.

The Gujarat Smoke Nuisance Act, 1963.

 

3. PEST CONTROL

The Mysore Destructive insects and Pests Act, 1917.

The Andhra Pradesh Agricultural Pest and Disease Act, 1919.

The Assam Agricultural Pests and Disease Act, 1954.

The U.P. Agricultral Disease and Pests Act, 1954.

The Kerala Agricultural Pests and Disease Act, 1958.

 

4. LAND UTILISATION AND LAND IMPROVEMENT

The Bihar Waste Lands (Reclamation, Cultigation and Improvement) Act, 1946.

The Andhra Pradesh Improvement Scheme Act, 1949.

The Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955.

The Delhi Restriction of Uses of Land Act, 1964.

 

 

The first law on this subject was “The Shore Nuisance (Bombay and Kolaba) Act of 1853. Other Laws inherited from the British period are :

 

The Fisheries Act, The Merchant Shipping Act, Mines Act, Thr Ports Act, other penal and compensatory provisions. The Indian Boilers Act, 1923, The Floro Act, The Indian Forests Act, 1927, The Indian Easement Act, The Bengal smoke Nuisance Act of 1905; The Bombay Smoke Nuisance Act of 1912; The 1873 Madras Act for the protection of wild elephants; The (Central) Elephants Preservation Act of 1879; Wild Birds and Animals Protection Act, 1912; The hailey National Park Act of 1936.

The Workmen’s Compensation Act, 1923; the Fatal Accidents Act, 1855;

Relevant Sections of Indian Penal Code and Code of Criminal Procedure.

 

III. RELEVENT RULES

The Water (Prevention and Control of Pollution) Rules, 1975.

The Air (Prevention and Control of Pollution) cess Rules, 1978.

Air (Prevention and Control of Pollution) Rules, 1982.

The Water (Prevention and Control of Pollution) cess Rules, 1977.

The Hazardous Micro-Organism Rules.

The Hazardous Wastes Rules.

The Environment (Protection) Rules, 1986.

Hazardous Wastes (Management and Handling) Rules, 1989.

Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989.

Andhra Pradesh Water (Prevention and Control of Pollution) Rules, 1976.

Andhra Pradesh State Board for the Prevention and Control of Water Pollution (Procedure for Transaction of Business) Rules, 1976.

Andhra Pradesh Air (Prevention and Control of Pollution) Rules, 1982.

Gujrat Air (Prevention and Control of Pollution) Rules, 1983.

Kerala Water (Prevention and Control of Pollution) Rules, 1976.

Kerala Water (Prevention and Control of Pollution) Appellate Authority Rules, 1977.

Kerala Air (Prevention and Control of Pollution) Rules, 1984.

Maharashtra Water (Prevention and Controlof Pollution) Rules, 1983.

Maharashtra Air (Prevention and Control of Pollution) Rules, 1983.

Uttar Pradesh Water Consent for Discharge of Sewage and Trade Effluents) Rules, 1981.

Uttar Pradesh Air (Prevention and Control) of Pollution Rules, 1983.

West Bengal Air (Prevention and Control) of Pollution Rules, 1983.

Air (Prevention and Control of Pollution) (Union Territories) Rules, 1983.

The Uttar Pradesh Air (Prevention and Control of Pollution) (First Amendment) Rules, 1988.

 

LIABILITIES 

 

LIABILITIES : 1. Fines, 2. Imprisonment, 3. Variation, suspension of revocation of a licence, 4. Costs to clean up after a pollution incident to be recovered from the pollution or (in some cases) the occupier, 5. Civil liability – including for ‘toxic torts’, 6. Adverse Publicity.

 

PENALTIES AND PROCEDURE : 

 

Section 20 of the Water Act : Water Act Sac. 3(1) ©; Sec. 41(d) (1); Water Act – Sec. 41 (2); Sec. 43; Sec. 25; Sec. 26; Sec. 44; Sec. 45; Sec. 46; Sec. 48; Sec. 49; Sec. 49(2); Sec. 298 and Sec. 29 of the Criminal Procedure Code.

 

Air Act :- Sec. 37, Sec. 22, Sec. 38; Sec. 39; Sec. 41; Sec. 43; Sec. 49 of the Waste Act and Sec. 43 of the Air Act deal with cognigance of offences, the same provided under section 19 of the Environment Act.

 

STRAY LEGAL NOTES

 

Provision under the Factories Act, 1948 and Pollution Control Laws.

 

Definition of the term ‘Occupier’.

 

Factories Act – obligation on occupier relating to disposal of Waste and effluents.

 

Provisions relating to hazardous processes.

 

Penalities and procedure.

 

(Consult Chapter X of the Factories Act).

 

A new Part X-B and Part XI-A has been inserted by the merchant Shipping (Amendment) Act, 1983., (No. 12 of 1983) dealing with pollution.

 

Ealier Analogous Indian Statutory Provisions on Water, land air and noise pollution :-

 

a) Shore nuisance (Bombay and Colaba) Act, 1953.

 

b) Oriental gas company Act, 1887.

 

c) Section 288 and Section 278 of the Penal Code (Penalities for Pollution) (277+278+279 sec.).

 

Section 431; Section 432).

 

Section 284 (Penality for negligent conduct with respect to section (-do- -do- Poisonous substances.

 

Section 430 (Penal Code-IPC)

 

Section 268 (Penal Code-IPC)

 

Section 269 (Penal Code-IPC)

 

Section 290 (Penal Code-IPC)

 

Section 286 (Penal Code-IPC)

 

Section 291 (Penal Code-IPC)

 

Section 336 (Penal Code-IPC)

 

Section 337 (Penal Code-IPC)

 

Section 338 (Penal Code-IPC)

 

Section 279 (Penal Code-IPC)

 

Section 3904-A (Penal Code-IPC)

 

Section 425 (Penal Code-IPC)

 

Section 426 (Penal Code-IPC)

 

Section 430 (Penal Code-IPC)

 

d) The Police Act 1861 refers to Noise Pollution and punishment thereof. Section 30; Section 30-A; Section 31; Section 31; Section 32; Section 33; Section 34;

 

e) The Sarais Act, 1867.

 

f) Section 70 of the Northern India canal and Drain age Act 1873.

 

g) Section 8 of the obstruction in Fairways Act, 1991.

 

h) The illustration (f) the Section 7 of the Easement Act 1882.

 

The illustration (h) of the same section (Repair rights).

 

On riparian rights – riparian rights.

 

Section 2 of the Easement Act.

 

i) Section 5(1) of the Indian Fisheries Act, 1897.

 

j) Section 133 to the 144 (new of the Chapter X of the Code of the Criminal Procedure 1973.

 

k) Section 6 of the Indian Ports Act, 1909.

 

l) Section 54 (b) of the Indian Steam Vessels Act, 1917.

 

m) Section 32 of the Forests Act, 1927.

 

n) The Motor Vehicles Act, 1939, repealed by the Motor Vehicles Act 1988, particularly section 110 of the new Act.

 

o) Section 12 of the Factories Act, 1948 (disposal of Waste, etc.)

 

p) Section 16 of the Damodar Valley Corporation Act, 1948.

 

q) The various Municipalities Acts, passed by the State Legislatures and rules, regulations and bye-laws made thereunder.

 

r) The Rivers Boards Act, 1956.

 

s) Section 356-C of the Part XI-A of said Act also the new part –B of the said act.

 

t) Exclusive economic zone and other maritime zones Act, 1976.

 

Indian Penal Code:

 

Sec. 266; Sec. 269; Sec. 277; Sec. 278; Sec. 279; Sec. 248; Sec. 285; Sec. 286; Sec. 290; Sec. 291; Sec. 336; Sec. 337; Sec. 338; Sec. 304-A; Sec. 425; Sec. 426; Sec. 430; Sec. 431; Sec. 432.

 

Code of Criminal Procedure, 1973.

 

Sec. 133 to 144 (new of the Chapter X of the Code of Criminal Procedure, 1973.

 

Establishment, constitution and functions of Boards – Established under the two relevant Acts for the prevention and control of water and air pollution. Two kinds of Boards envisaged by both the Acts, The Central Board and the State Boards. Power of the Boards to obtain information and to enter and to inspect. The power of a State Board or any officer empowered in that behalf to take samples. Apprehended pollution of water in stream or wells and legal action, mainly sec. 33, Chapter XXIX of the Criminal Procedure Code, particularly Sec. 372; Sec. 373; Sec. 374; Sec. 375; Sec. 376; Sec. 377; Sec. 378; Sec. 379; Sec. 380; Sec. 397; Sec. 399; Sec. 401; Sec. 386.

 

Order XXXIX Rule 1, CPC Rule of the same order, Rule 3-A of the same Order XLIII of CPC. The constitution (Forty-second Amendment) Act, 1976. Part IV of the Constitution Directive Principles Article 47, Article 48-A.

 

Amendment to the Seventh Schedule of the Constitution –

 

– Entry of “17-A Forests” and entry “17-B Protection of Wild animals and birds” in the concurrent List III.

 

 

 

REMEDIES OPEN TO PUBLIC

 

 

 

Remedies open to Public regarding Pollution and Civil and Criminal Jurisdictions Inclusive of Injunctions.

 

1. Right of riparian owner of accustomed flow of water.

 

2. Easementary right of irrigation.

 

3. Acquisition of easement over surface water.

 

4. No right of easement in respect of collected and impounded surface water.

 

5. Right to change a channel.

 

6. Easement to draw water from well.

 

7. Right to discharge water by means of watercourse.

 

8. Use of nala water for irrigation.

 

9. Injunction to restrain disturbance of easement.

 

10. Temporary mandatory injunction in relation to flow of water in the street.

 

11. Injunction to restrain interference with the use of water of tank.

 

12. Injunction to restrain interference with the use of water of tank.

 

13. Injunction to restrain interference with easement of water.

 

14. Injunction to restrain discharge of roof water.

 

15. Injunction for restoration of normal supply of water.

 

16. Injunction to restrain flow of dirty water through private land.

 

17. Distinction between easementary right and natural right.

 

18. Cause of action in case of apprehended infringement of natural right.

 

19. Grant of injunction in case of pollution of water.

 

20. Injunction directing commissioners of Muncipality to construct a suitable pucca drain.

 

21. Corporation’s liability for torte bought about at its instance.

 

22. Public nuisance create by pollution – Remedies.

 

23. Promissory estoppel in fixing responsibility to remove pollution.

 

 

 

SOME IMPORTANT CASES

 

 

 

1. State of Himachal Pradesh and Others Versus Ganesh Wood Products and Others.

 

2. Write Petition © No. of 1994. Dairy No. 1716 of 1994, Petitioners – Mr. M.C. Mehta.

 

3. Rural Litigation and Entitlement Kendra. State of Uttar Pradesh, Air 1988 S.C. 2187. And D.N. Pandey versus Union of India, AIR 1985, S.C. 652.

 

4. Shriram Foods and Fertilizer Industries case (M.C. Mehta Versus Union of India, AIR 1987, S.C. 965.

 

5. Shri Sachidanand Pandey Versus, State of West Bengal, AIR 1987, SC 1109.

 

6. Charanlal Sahu Versus State of West Bengal, AIR 1987, S.C. 1109.

 

7. Tarun Bharat Singh, Alwar, Versus Union of India, AIR 1992, SC 514.

 

8. Municipal Commissioner of Ratlam Versus Vardhichand, AIR 1980, SC 1622.

 

9. Govinda Singh Versus Shanti Swaroop, AIR 1979, SC 143.

 

10. Krishna Gopal Versus State of Madhya Pradesh, 1986, Cri. L.J. 396 (Madhya Pradesh)

 

11. The General Public of the Saproo Valey Versus State of Himachal Pradesh, AIR 1993, (M.P. 52).

 

12. M.C. Mehta Versus Union of India, AIR 1992, SC 382.

 

13. D.D.Vyas Versus Ghaziabad Development Authority, AIR 1993, AIR 57.

 

14. Attakoya Taangal Verus Union of India (1990), Kerala, L.T. 580.

 

15. Damodar Rao Versus Municipal Corporation, AIR 1987, A.P. 1971.

 

16. (Oleum gas leaks case) M.C. Mehta versus Union of India, AIR 1987, SC 965.

 

17. Subba Rao Versus State of Himachal Pradesh, AIR 1989, S.c. 171.

 

18. Public Versus State of West Bengal, AIR 1993, Cal. 215.

 

19. M.C. Mehta Versus Union of India, AIR 1987, SC 965.

 

20. R.R. Singh Versus State of Bihar, AIR 1992, Patna, 96.

 

21. The Goa Foundation Versus the Konkan Railway Corporation, AIR 1992, Bombay 471.

 

22. Calcutta Youth Front Versus State of West Bengal, AIR 1988, SC 436.

 

23. Smt. Satyavani Versus Andhra Pradesh Pollution Control Board, AIR 1993, A.P. 257.

 

24. M.C. Mehta Versus Union of India, AIR 1988, SC 1037.

 

25. AIR 1980, SC 1922.

 

26. AIR 1992, Pat. 86.

 

27. A.K. Thangudurai Versus D.F.O. Madurai, AIR 1985, Madras 104.

 

28. M.C. Mehta Versus Union of India, AIR 1992, SC 382.

 

29. M.C. Mehta Versus State of Orissa, AIR 1992, Orissa, 225.

 

30. S.K. Singh Versus State of Bihar, AIR 1991, SC 1042.

 

31. AIR 1987, SC 359.

 

32. Daham Taluka Environment Protection Group Versus Bombay Subarban Electricity Supply Co. 1991 (25 Sec., 539.

 

33. Virendra Gaur Versus State of Haryana, 1995 (2) SCC.

 

 

 

 

 

COMMON CONVICTIONS IN STOCKHOLM PROCLAMATION

 

 

 

Along with other basic items the Stockholm proclamation also contained certain common conviction of the participant nations and made certain recommendations on development and environment. The common convictions stated include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon eco-system, that states shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of development countries, that science and technology as part of their contributions to economic and social development must be applied with identification, avoidance and control of environmental riska and the solution of environmental problems and for the common good of mankind, that states have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other states or areas beyond the limit of national jurisdiction, that it will be essential in all cases to conside the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advances countries but which may be in appropriate and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. These are only some of the statements of principle proclaimed by the Stockholm Conference.

 

 

 

 

 

THE SCOPE : Extracts from – ‘Environmental Law’

 

 

 

The Scope of environmental law is continuously expanding. Therefore, to define it at any point of time is like trying to hit a moving target. Certain items we decide upon today may become out of date almost immediately.

 

 

 

The commitments at the United National Conference on Environment and Development at Rio De Janeiro.

 

 

 

Regulations on eco-managements and audit and on economic labeling, as well as on environmental information and directives on urban waste water treatment, waste and habitants, with others on intergrated pollution prevention and control and on packing (on the horizan). (The drinking water and Bathing waters directives). Important constitutional changes along the lines of the Meastrient Treaty (on European Union).

 

Laws on the lines of (British) the Water Act 1989 (the Water Resources Act 1991 and the Water Industry Act 1991), on air pollution (the Clean Air Act 1993) and on radio-active substances (the Radioactive substances Act 1993).

 

 

 

In the town-planning area, a policy that moves us from a ‘developer-led’ system towards a ‘plan-led’ one.

 

 

 

Nature conservation; waste and water pollution-including the defence available to sewerage undertakers;

 

 

 

Directions of environmental policy. Integrated pollution control, air pollution, waste management and water pollution, statutory water quality objectives.

 

 

 

There should be a debate over a carbon tax and proposals for directive on bonafied and packaging, and the scope of the subsidiary doctrine.

 

 

 

 

 

THE BRITISH SCENE

 

 

 

FROM :

 

ENVIRONMENTAL LAW

 

 

 

Britain had the first national public pollution control agency. The Alkali Inspectorate, established by the Alkali tact 1863 to control atmospheric emissions primarily from the caustic soda industry. Water pollution controls followed in the rivers pollution prevention act, 1876. Britain’s first legislation of cover town planning was the flousing, town planning, etc. Act 1909. Britain had also then the law on nuisance.

 

 

 

The deposit of poisonous wastes Act, 1872.

 

The wild life and country side Act 1981.

 

The Control of pollution Act 1974

 

The control of Pollution (Amendment) Act 1989.

 

The protection of the birds Act 1954.

 

 

 

Britain the ‘Environmental Protection Act, 1990”, contains the main bulk of provisions on air pollution from stationary sources, waste management and disposal, the integrated control of the most potentially polluting processes, litter, the environmental impact of genetically modified organisms, noise and statutory control of environmental nuisance. The ‘Water Resources Act 1991’ contains the law on water pollution and water resources, whilest the ‘Water Industry Act, 1991; covers matters relating to water supply and sewerage. The wildlife and country side Act 1981 includes much of the relevant law on nature conservation includes much of the relevant law on nature conservation in Part I and II “The Town and Country Planning Act,” 1990 includes in consolidate from most of the relevant statutory law on town and country planning and tree protection. The “Planning 9 Listed Buildings (Hazardous substances) Act” 1990 include separtated treatment of listed buildings and hazardous substances. There is also the” Planning and Compensation Act” 1991 which made some significant amendments to the 1990 Acts.

 

 

 

The white paper on environment “The Common Inheritance” 1990, underlined the commitment to a planned development of environmental policy.

 

 

 

Institutional coherence – For example The National River Authority.

 

 

 

Her Majesty’s inspectorate of pollution, etc.

 

 

 

Controls over stationary sources of pollutionh are more coherent than those over mobile or non-point sources.

 

 

 

Needed a unified Environmental Agency covering all institutions and laws. Britain’s Law on environment suffers from anachronism.

 

 

 

Needed a policy of splitting production from regulation, e.g. separation of waste regulation functions from waste disposal function or separation of the regulation of water pollution from regulation of pollution from sewage works.

 

 

 

 

 

 

 

FROM :

 

MANUAL OF EUROPEAN ENVIRONMENTAL LAW

 

– By A. Kiss and D. Shelton

 

 

 

1. Over View : Contents – Mainly – Fundamental Concepts, tech niques of environmental law, institutions and agencies–National, European, International Institutions.

 

 

 

II. Biodiversity and the Promotion of Nature :

 

Sectoral Protection.

 

Protection of the soil.

 

Fresh Water.

 

Protection of the marine environment

 

Atmospheric pollution.

 

 

 

III. Treans-sectoral issues

 

Regulating sources of environmental harm Intergranted environmental protection The role of the public and non-government organization.

 

About the legal frame work, the book states – Organization

 

1. Source of National Laws (a) Constitution; (b) Legislation; (c) Executive decrees (d) Common Law; (e) Administrative agency rules – making; (f) Regional; or Local Law.

 

2. The European Community – (a) Treaty Provisions; (b) Regulations; (c) Directives (d) Action Programmes (e) Implementation.

 

3. International Law – (a) Treaties; (b) Custom; (c) Other sources.

 

4. Relationships between the systems of law.

 

 

 

Documents

 

1. The Stockholm Declaration on the human environment

 

2. The Rio-Declaration on environment and development

 

3. The Single European Act, Amended.

 

 

 

Issues

 

1. Hazardous substances

 

2. Nuclear radiation

 

3. Hazardous Processes and activities

 

4. Waters

 

5. Noise

 

A. Urban and Rural Planning – Urban, Rural and Integrated Planning

 

B. Environment and Development.

 

1. The role of the public

 

a) The right of information

 

b) Public Participation

 

2. The role of non-Governmental organizations

 

a) Delegating management functions to NGOs.

 

b) Using NGO experience

 

c) Complaining of violations

 

d) Participation in licensing and permit procedures.

 

e) Funding environmental projects.

 

 

 

 

 

EDUCATION

 

 

 

(A) In M.C. Mehta Vs. Union of India, the Supreme Court observed that “it is the duty of the Central Government to direct all the educational institutions throughout India to teach atleast for one hour in a week lessons relatively to the protection of the improvement of the natural environment including forests, lakes, rivers, and wild life in the first ten classes”.

 

(B) All American and many European Law curricula include atleast one course in environmental law.

 

(C) Recommendations of the Seminar in 1984 organized by the Deptt. Of law, Punjab University.

 

 

 

The Education on :-

 

a) Over population and the ways to check its rapid growth;

 

b) Afforestation as a prevention to soil erosion and water pollution;

 

c) Rules as to the use of water, taking fuel from the woods, and grazing of cattles.

 

d) Methods to prevent air pollution, insisting one smokeless cooking;

 

e) Discipline in playing radio and television sets and a ban on use of loudspeakers;

 

f) Elementary knowledge of the scientific and philosophical basis of man and the environment;

 

g) Scientific interpretation of ethics – religious tenents of worshipping the constituents of nature, e.g. the fire, the water, the trees and other objects.

 

h) Rules regarding disposal of house hold waste and filth and human exer, etc.

 

i) Restraints to be observed while on roads on places of public resort and during journey; and

 

j) Other general principles of sanitation.

 

 

THE WOUNDED EARTH

 

In 1971 when Edgar Mitchell flew to the moon on board Apollo 14, his first glimpse of earth from space sent him into rhapsody. “It looks like a sparkling blue and white jewel… Laced with slowly swirling veils of white… Like a small pearl in a thick black sea of mystery.” He radioed back effusively to Houston.

 

Twenty-one year later, if Mitchell was to be sent back into space, this time with special spectacles that allowed him to see the invisible gases of the earth’s atmosphere, a vastly different sight would greet him. He would see giant puntures in the protective ozone shiels over Antarctica and North America. Instead of a sparkling blue and white jewel he would see a dull, dirty earth filled with dark, swirling clouds of dioxides of carbon and sulphur.

 

If Mitchell took out his camera and shot images of forest cover of the earth and compared it with those he took in “71, he would be stunned by the amount they have shrunk. And if he opened his special telescope to help him examine the filth in the waters of the earth, he would see ribbons of poison criss-crossing the land masses and dark balls of tar lining much of the ocean floor, “Houston”, he would have radioed back, “What on earth have we done?’

 

Actually, we don’t need to go 36,000 km into space to know what we have done. Today, we can drink, breathe, smell and see pollution. Within a 100 years, and more so in the past 30, human beings have brought the earth to the brink of disaster. By spewing an excessive amount of heart-trapping gaes intothe atmosphere we are riggering debilitating climatic changes. Gases that our refrigerators and air-conditioners use are now responsible for depleting the protective ozone layer, exposing us to skin cancer and altering the gene structures in smaller animals. Meanwhile, we have degraded vast tracks of land, destroyed forests at suicidal rates, dumped tones of poison into rivers indiscriminately and poured toxic chemicals into our seas.

 

Now more than anything else the threat to humanity comes from the destruction of the earth’s environment. And it needs a movement of planetary dimensions to arrest the holcaust. It is this realization that is bringing together heads of 150 nations for a historic summit at Rio de Janeiro from June 3 to June 14.

 

While it would send the right message across the earth, it is not enough. As the two years of preparation for the summit have shown, serious rifts between the developed and developing countries over how to tackle the problem have surfaced. So wide has the gulf been that nations have begun forming power blocks quite similar to the erstwhile military alliances. Environment has suddenly become a major foreign policy issue. And as policy makers are increasingly understanding, no longer can the earth’s ecological ills be treated as separate from issues such as debt, trade, unemployment and inequality.

 

Much of the conflict that has arisen is understandable. The solutions have fundamental implications on the economic progress, or lack of it, for every nation. The next few years may call for some radical measures. It may involve nations making major alterations in their patterns of energy consumption. With the burning of fossil fuels like coat, petrol and wood directly linked to the warming of the earth, countries may be forced to explore other options. Even going nuclear in a big way may have to be considered. It may also bring in startling measures like a tax on carbon emissions. Or carbon budgets being imposed on nations. For industry, environmentally sound technology may become a competitive necessity. Good economic management and environment movements could, in fact, go together.

 

What all this requires is an extraordinary effort by both the rich and poor nations to solve problems. Richer countries would need to reflect on their excessive consumption paterns and realize when how much is too much the poor nations, with some financial assistance, should radically improve their energy efficiency levels, make a serious attempt to limit their population growth, adopt low tech solutions to prevent soil erosion and conserve scarce water resources. The North and South should enter into a constructive partnership, in which technology and finances are used to help poor countries reach sustainable levels of development.

 

All this must be done without delay. For the threat is no more to your children’s future. It is now. And here

 

(Story on Rio Earth Summit. Source : India Today, 15 June, 1992)

 

 

 

WORTH READING BOOKS 

NATIONALISATION OF GOVERNMENTALISATION

FOCUS ON SOCIO ECONOMIC PROBLEMS

PERSPECTIVE

THE GREAT SENTNEL

HIS LEGACY OUR MISSION

COMPUTERISATION

MODERNISATION WITHOUT WESTERNISATION

WHY BHARATIYA MAZDOOR SANGH

CONSUMER : SOVEREIGN WITHOUT SOVEREIGNTY

SPECTRUM

THIRD WAY

RASHTRA