Water Pollution and the Laws in India: A Critical Water Pollution and the Laws in India: A Critical Analysis
Analysis
Today, in the twenty-first century the greatest threat to our water Today, in the twenty-first century the greatest threat to our water resources undoubtedly comes from pollution. While this is a problem resources undoubtedly comes from pollution. While this is a problem worldwide, it is particularly severe in developing countries due to worldwide, it is particularly severe in developing countries due to presence
presence of of large large population, population, lack lack of of finances finances and and inadequateinadequate scientific expertise. Undoubtedly, in a country like India, where scientific expertise. Undoubtedly, in a country like India, where achieving industrial growth is the call of the day, the problem of achieving industrial growth is the call of the day, the problem of water pollution has to be addressed urgently in order to avoid large water pollution has to be addressed urgently in order to avoid large scale
scale public public calamities. It is in this context that this research paper calamities. It is in this context that this research paper looks at the existing legal mechanisms in India that address the looks at the existing legal mechanisms in India that address the issue of water pollution and seeks to analyses how effective have been issue of water pollution and seeks to analyses how effective have been the legal mechanism in mitigating this menace. The main aim of this the legal mechanism in mitigating this menace. The main aim of this paper
paper is is to to establish establish that that legal legal regime regime in in general general and and water water Act Act inin particular dealing with water pollu
particular dealing with water pollution is faulty and pollution controltion is faulty and pollution control continues to be ineffective. This paper also suggests possible continues to be ineffective. This paper also suggests possible alternatives to overcome the lacunae so that ensure effective alternatives to overcome the lacunae so that ensure effective implementation of the law. However, this paper is not, and does not implementation of the law. However, this paper is not, and does not purport to be, an exhaustive study of the nature of water pollution in purport to be, an exhaustive study of the nature of water pollution in
its fullest import and dimensions. It is merely an urgent look at a its fullest import and dimensions. It is merely an urgent look at a critical issue of water pollution.
critical issue of water pollution. INTRODUCTION
INTRODUCTION “Everything ori
“Everything ori ginated ginated in in water water and and everything everything is is sustained sustained byby water.”
water.” Goethe Goethe11
“The unconscionable industria
“The unconscionable industria lization, the unpardonablelization, the unpardonable deforestation and inhuman extermination, of living species betray an deforestation and inhuman extermination, of living species betray an exploitative brutality and anti-social appetite for profit and pleasure exploitative brutality and anti-social appetite for profit and pleasure which is incompatible with humanism and conservationism. Today a which is incompatible with humanism and conservationism. Today a bath in the Yamuna and Ganga is a sin against bodily health, not bath in the Yamuna and Ganga is a sin against bodily health, not a salvation for the soul, so polluted and noxious are these holy a salvation for the soul, so polluted and noxious are these holy waters now.”
waters now.”
Justice V.R.Krishna Iyer Justice V.R.Krishna Iyer22
Research Hypothesis Research Hypothesis
Comprising over 70% of the Earth’s surface, water is Comprising over 70% of the Earth’s surface, water is
undoubtedly the most precious
undoubtedly the most precious33 natural resource thatnatural resource that
exists on our planet. Without the seemingly invaluable exists on our planet. Without the seemingly invaluable compound comprised of hydrogen and oxygen, life on compound comprised of hydrogen and oxygen, life on
its fullest import and dimensions. It is merely an urgent look at a its fullest import and dimensions. It is merely an urgent look at a critical issue of water pollution.
critical issue of water pollution. INTRODUCTION
INTRODUCTION “Everything ori
“Everything ori ginated ginated in in water water and and everything everything is is sustained sustained byby water.”
water.” Goethe Goethe11
“The unconscionable industria
“The unconscionable industria lization, the unpardonablelization, the unpardonable deforestation and inhuman extermination, of living species betray an deforestation and inhuman extermination, of living species betray an exploitative brutality and anti-social appetite for profit and pleasure exploitative brutality and anti-social appetite for profit and pleasure which is incompatible with humanism and conservationism. Today a which is incompatible with humanism and conservationism. Today a bath in the Yamuna and Ganga is a sin against bodily health, not bath in the Yamuna and Ganga is a sin against bodily health, not a salvation for the soul, so polluted and noxious are these holy a salvation for the soul, so polluted and noxious are these holy waters now.”
waters now.”
Justice V.R.Krishna Iyer Justice V.R.Krishna Iyer22
Research Hypothesis Research Hypothesis
Comprising over 70% of the Earth’s surface, water is Comprising over 70% of the Earth’s surface, water is
undoubtedly the most precious
undoubtedly the most precious33 natural resource thatnatural resource that
exists on our planet. Without the seemingly invaluable exists on our planet. Without the seemingly invaluable compound comprised of hydrogen and oxygen, life on compound comprised of hydrogen and oxygen, life on
Earth would be non-existent: it is essential for everything Earth would be non-existent: it is essential for everything on our planet to grow and prosper. Although we as on our planet to grow and prosper. Although we as humans recognize this fact, we disregard it by polluting humans recognize this fact, we disregard it by polluting our rivers, lakes, and oceans. Subsequently, we are slowly our rivers, lakes, and oceans. Subsequently, we are slowly but surely harming our planet to the point where but surely harming our planet to the point where organisms are dying at a very alarming rate. In addition to organisms are dying at a very alarming rate. In addition to innocent organisms dying off, our drinking water has innocent organisms dying off, our drinking water has become greatly affected
become greatly affected44 as is our ability to use water foras is our ability to use water for recreational purposes. Pollution is the biggest threat to recreational purposes. Pollution is the biggest threat to our existing water resources (both fresh water and our existing water resources (both fresh water and seawater) as well as to mankind
seawater) as well as to mankind..55 For example, globally,For example, globally,
estimates suggest that nearly 1.5 billion people lack safe estimates suggest that nearly 1.5 billion people lack safe drinking water and that at least 5 million deaths per year drinking water and that at least 5 million deaths per year can be attributed to waterborne diseases. In India a can be attributed to waterborne diseases. In India a staggering 70% of the available water is polluted. It is staggering 70% of the available water is polluted. It is estimated that 73 million work days are lost every year estimated that 73 million work days are lost every year due to water related diseases, such as typhoid, infective due to water related diseases, such as typhoid, infective hepatitis (jaundice), cholera, diarrhoes and dysentery. hepatitis (jaundice), cholera, diarrhoes and dysentery. Many of them become epidemic proportions. The cost of Many of them become epidemic proportions. The cost of treating them and loss in production amounts to Rs. 600 treating them and loss in production amounts to Rs. 600 crores a year
need to look at the matter and propose some solutions so need to look at the matter and propose some solutions so as to make the current legal regime more productive and as to make the current legal regime more productive and effective.
effective.
Chapter One Chapter One WATER
WATER POLLUTION POLLUTION AS AS A A CONCEPT: CONCEPT: ANAN ANALYSIS
ANALYSIS
1.1 Water Law and Water Pollution
1.1 Water Law and Water Pollution — — thethe Relationship: position in india and usa
Relationship: position in india and usa
Position in USA Position in USA Traditionally water
Traditionally water law is law is concerned withconcerned with resource allocation resource allocation ;; water
water law law determines determines who who can can use use water water and and for for whatwhat purposes. Therefore water law is
purposes. Therefore water law is concerned primarily withconcerned primarily with the
the quantity quantity ( ( allocation of water allocation of water ) and ) and not quality not quality . However. However water
water quality quality control control is is an an important important part part ofof environmental law, but presents only a peripheral aspect environmental law, but presents only a peripheral aspect of water law
of water law ..77 However resource allocation is not an endHowever resource allocation is not an end itself, but, the end is or should be the advancement of itself, but, the end is or should be the advancement of social values and needs. Thus a person who gets rid of a social values and needs. Thus a person who gets rid of a noxious or offensive substance by discharging it into noxious or offensive substance by discharging it into
water receives a benefit of a sort. Nevertheless, there has been little interplay between water law and pollution control.
But with the development of industry and technology, it was felt that the ambit of water law has to be widened so as to prevent mass scale pollution in an effective way, as Riparian and appropriation Law did not produce very satisfactory or predictable results in pollution cases. Therefore, Pollution of surface and groundwater was a
fertile ground for litigations.
However, finally in the case of Kennebunk, Kennebunkport & Wells Dist. V. Maine Turnpike Authority 8 it was held that
“the scope of water law is wide enough to include water pollution within its ambit.” Now the principal law governing pollution of the USA’s surface waters is the Federal Water
Pollution Control Act, 1972 or Clean Water Act.9
Position in India
In India the primary objective of any legislation is to ensure social justice and well being through enforcement of certain codes of conduct. Legislation for environmental
protection is also based on the recognition of the fact, it is necessary to abide by the requirements to prevent damage to the environment which is a common property. On this objective water law was enacted and it was never in dispute that water pollution come within the ambit of water laws in India
1.2 Water Pollution: Framing the problem
Controlling of water pollution is an extremely difficult task. Added to this are also other economic and administrative problems. These problems can be framed here. First, India is a federal country where all rivers are inter-state and water is a state subject. An upper riparian state may frustrate the attempts of a lower riparian state to control the water pollution of its river by using its river water for various purposes which may have the effect of
changing the quality and quantity of water flowing to the lower riparian state. Secondly, it is not always easy to measure water pollution and more so in the case of India where the technology and expertise are not sufficient. At
water pollution, such as inserting meters which measure the electrical conductivity of the water. The most common test is to measure for Bio-chemical Oxygen Demand level of the water. Thirdly, there is a problem of attaining purity between standards of industry and sewage effluent which goes into the stream and the standard of purity of water of the stream.
1.3 Water pollution: The Definition
There are many definitional variations of water pollution, stemming from the fact that it is a phenomenon addressed by Civil Engineers, Biologists, Ecologists, Policy makers and even laymen.
According to the American College Dictionary ,
‘pollution’ is defined as: “to make foul or unclean; dirty.”
Thus water pollution occurs when a body of water is adversely affected due to the addition of large amounts of materials to the water. When it is unfit for its intended use, water is considered polluted.
As per Water (Prevention and Control of Pollution) Act, 1974 (hereinafter water Act), “‘pollution’ means such
contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may or is likely to, create a nuisance or render such water harmful or injurious to
public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or plants or of aquatic
organism.”10
Halsbury’s Laws of England 11 defines the term ‘water pollution’ as “the doing of something which changes the
natural qualities of water, including its temperature.”
In the Helsinki Rules on the use of Waters of International Rivers 12, “water pollution” has been defined “as something referring to any detrimental change
resulting from human conduct in the natural composition, content, or quality of the waters of an international drainage basin. Changes in the physical, chemical,
biological or bacteriological characteristics can be the test
for determining pollution.”
Thus, a working definition of water pollution could be
“anything that changes the quality of our surface and
subsoil waters to such a degree that its suitability, either
for human consumption or for the support of man’s natural life processes, will decrease or cease.”13
1.4 Sources of water pollution
The sources of water pollution are many and varied. They can be divided into two distinct categories, i.e. point and
non-point sources . Point sources are those sources which are determinate and identifiable and occur when harmful substances are emitted directly into a body of water. For example, Industrial Effluents, like the Exxon Valdez oil spill best illustrates a point source water pollution.
While nonpoint sources are those sources which are indeterminate and not easily identifiable and deliver pollutants indirectly through environmental changes. An example of this type of water pollution is when fertilizer from a field is carried into a stream by rain, in the form of
run-off which in turn affects aquatic life. The technology exists for point sources of pollution to be monitored and regulated, although political factors may complicate matters. Nonpoint sources are much more difficult to control. Pollution arising from nonpoint sources accounts for a majority of the contaminants in streams and lakes.14
1.5 Types of water pollution and its causes
Generally, the types of water pollution can be divided into following heads:
Natural Pollution: Natural pollution has always with us. There has been waste material in water right from the first
appearance of men, animals and plants on the earth.
Industrial Pollution: Water pollution is also caused by industrial activities through discharging floating matter, settleable solids, colloidal matter, dissolved solids, toxic substances, sullage etc15. These industrial pollutants16 include chemical substances, heavy metals, hydrocarbons and radioactive substances from food industries.
Sewage Pollution: This pollution consists of raw or partially treated domestic waste. Urban centers are generally divided into Class I Cities (those with a population of over 1 lakh) and Class II Cities (those with a population between fifty thousand and 1 lakh). Total sewage generation from urban centers in India grew from about 5000 million liters a day in 1947 to around 30,000 billion liters a day in 1997. Besides Industrial and Municipal wastewater, there exist subsidiary causes of water pollution, including certain religious17 and social practices. For example, carcasses of humans and animals alike are disposed in the holy rovers.18 Cremations are
done on the riverbeds and very often partially burnt bodies are thrown into the rivers.19 According to a survey Kanpur alone dumped 274.3 million liters of new sewage into the Ganges everyday .20
Thermal Pollution: This occurs due to power plants and factories. The excess heat discharged by power plants into a stream, lake or river causes pollution as an increase in natural temperature of water upsets the natural balance.
Fish cannot survive in high temperature, which also kills natural foods of river life. Hot water is put into water courses by industries that use water for cooling purposes, Steel mills; oil refineries and breweries use large quantity of water for cooling .21
Radioactive Substances Pollution: This type of pollution is more difficult to handle. These materials are produced in the making of uranium and other radioactive substances or in testing of the thermonuclear devices that produce nuclides in blast devices and fallouts.
Agricultural Pollutants Pollution: Agricultural pollutants include fertilizers, herbicides and pesticides. Pollution caused by these agents is generally spread over vast areas by irrigation water or rain water; the pollutants include nitrates, phosphates and sulphates.22
Apart from these classifications of water pollution there are two more categories which can also be mentioned at this juncture:
Surface Water Pollution: This is caused mainly by point sources, which account for the bulk of pollutants released
into rivers, which fortunately can be targeted for pollution abatement measures. Out of the total pollution contributed by industrial sub-sectors, 40%-45% of the total pollutants are caused by chemical processing plants and nearly 70% of total organic pollution to the food and agro-based industries.23
Groundwater Pollution: Groundwater is a primary source which is very crucial and valuable for drinking purposes.24.
Nationally, 53% of the population relies on ground water as a source of drinking water. In rural areas this figure is even higher, but this primary source is now threatened with pollution from seepage pits, refuse dumps, septic
tanks, barnyard manure, transportation spills, and with diverse agricultural and industrial pollutants.25 Most soil types do not have excess oxygen; therefore oxidation which can normally purify or decontaminate surface water does not occur in deep aquifers26. Once the water source
is contaminated deep within the ground, there is no way to clean it up. Groundwater reserves are, therefore, progressively being depleted because more water is being
drawn than the rate of annual recharge through rainwater which has remained the same or has even decreased.27
1.6 Effects of water pollution
When our population was limited, water supplies seemed endlessly renewable. We could then afford to foul one water source, abandon it, and move on to another. This however is not the case as the exponential rates of population have already reduced the availability of water to below its per capita availability .28 Polluted waters pose serious threat to communities living nearby, and which depend on that source for most of their activities.29
The most common threat of water pollution to mankind is water borne diseases.30 It is estimated that 73 million work days are lost every year due to water related diseases, such as typhoid, infective hepatitis (jaundice), cholera, diarrhoes and dysentery. Many of them become epidemic proportions. The cost of treating them and loss in production amounts to Rs. 600 crores a year.31 Also,
and cause about 900 million cases of illness in the world annually .32
Chapter two
LEGAL APPROACHES TO WATER
POLLUTION: A CRITICAL ANALYSIS OF ENVIRONMENTAL LEGISLATIONS IN INDIA
The primary objective of any legislation is to ensure social justice and well being through enforcement of certain codes of conduct. Legislation for environmental protection is also based on the recognition of the fact, that, it is necessary to abide by the requirements to prevent damage to the environment which is a common property.
However, with the introduction of legislation, the responsibility of ensuring the social objectives was, to a great extent, taken over from the society by a new set of enforcement mechanism and the non- compliance of laws was recognized as a criminal offence. Probably, this is the reason as to why most of .the laws particularly those
relating to environment protection are classified as criminal laws.
Environmental Legislation in India: Constitutional Framework
The Constitutional provisions provide the bed-rock for framing of environmental legislation in the country. According to the VII Schedule of the Indian Constitution, the areas of responsibility between the Central and State Governments have been defined through the subject grouped in Central, concurrent and State lists. Environment does not figure in any of these lists, as yet and there is no explicit provision for environmental protection in the Constitution although the directive principles, in the amendments of the Constitution, through Articles 48(A) and 51A (g) assign specific responsibilities on the State and the citizens. Most of the environment related laws enacted by the Parliament have been based on the Articles 252 and 253 of the Constitution.
The legal approaches to control water pollution can be divided into three stages:
I. Ancient Indian Jurisprudence;
II. Common Law Remedy( or pre-independence legal approaches); and
III. Modern Legal Mechanism (post independence legal approaches).
I. Ancient Indian Jurisprudence
Preservation of nature is as old as civilization itself. There is evidence that the people in Harappa and Mohenjodaro were nature-worshippers, and that the forces of nature were treated with reverence and piety. Manu writes in,
‘The laws of Manu’, “ And from light as it transforms itself come the waters, which are traditionally known to have the quality of taste; and from the waters comes earth, with the quality of smell. This is the creation in the beginning.” 33 There are also innumerable prohibitions against the defilement of water, including a bar on urinating in water,34 throwing any other bodily fluids or excrement into the rivers.35 Years later too
wrote at length about conservation of nature in his treatise, the Arthashastra. He wrote about the duty of state in maintaining forests, preserving sources of water, and protecting wildlife. Many Ashokan edicts also spell out rules and guidelines for the use and preservation of natural resources.36
II. Common Law Remedy (or pre-independence legal approaches)
A. Common Law Remedy
The origin of water pollution control law in India can be traced to the common law remedies introduced in the courts by British in the three Presidency Towns of Calcutta, Madras and Bombay. These Common law remedies were of three categories:
Liability for Escape of Noxious Object
The Strict Liability on a person for the damage caused by the escape of a dangerous or noxious object can be traced back to the famous rule in Rylands v. Fletche r 37 wherein
“We think that true rule of law is that the person, who for his own purposes, brings on to his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it there at his own peril and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of its escape.”
Careless Use of Noxious article or Pollutant
The careless use of noxious article or pollutant could give rise to an action in law of negligence, as also in the law of nuisance.
The Infringement of Property Rights in Water
Every riparian owner enjoys a natural right to the flow of water in his stream, substantially in quality and quantity .38
In this head it is interesting to note that under the Easement Act, every owner of land has a natural right that within his own limits, the water, which naturally passes or percolates by, over or through his land shall not — before so passing or percolating — be unreasonably polluted by other persons.39 Thus it has been opined that
pollute. But the term ‘reasonable’ read with the spirit of the other provisions of the Act, nevertheless, a clear indication that pollution was to be prohibited to the greatest extent possible.
B. Pre-Independence Legal Approach
Indian Penal Code, 1860.
Long standing concern for the purity of water and environment generally is evident from sections 277 and 278
of IPC, 1960. Section 277 lays down that whoever voluntarily corrupts or fouls the water of public spring or reservoir will be punished. Section 278 lays down that voluntarily vitiating the atmosphere in any place so as to
make it noxious is punishable
III. Modern Legal Mechanism (post independence legal approaches).
A. Factories Act, 1948:
Section 12 provides for effective arrangements for disposal of water and effluents by factories.
Under Section 133 the magistrate has been given powers to remove any unlawful constructions.
D. Water (Prevention and Control of Pollution) Act, 1974 The Water (Prevention and Control of Pollution) Act,
1974 was promulgated as a Central Legislation under
Article 252 of the Constitution. Since water belongs to the State list , a Resolution from two or more State Legislatures empowering the Parliament to enact the legislation on the subject was required. Also, the Act became effective at the State level and when it was adopted by the State Legislatures. Although the Act was passed in 1974, it took several years for its adoption throughout the country and for setting up enforcement machinery.
For the first time, a big attempt at prevention and control of water pollution was made by the Water (Prevention and Control of Pollution) Act, 1974(hereinafter water Act). This Act was enacted to provide for the prevention and control of water pollution and maintaining or restoring of wholesomeness of water, and for the
aforesaid purposes to provide for the establishment of Boards for prevention and Control of Water Pollution and by conferring on such Boards adequate powers.40
Critical Analysis of the Provisions in Water Act: How Far Effective
It is often argued that our enforcement mechanism is very weak although the laws are very well drawn up. But, a careful analysis of the laws may reveal their inherent deficiencies which are closely linked to lapses in enforcement. There are many shortcomings in the provisions of the Water Act, 1974, which can be mentioned under different heads:
1. Definitional shortcomings:
I. Firstly , in the Preamble itself which only speaks of
“ prevention and control of water pollution ” and not “total prohibition of water pollution”.
II. Secondly , in the term ‘outlet’41, it is not clear whether intention to pollute water is a prerequisite
III. Thirdly , the definition of ‘pollution’42 does not include ‘pollution of water due to its radiological disintegration.
IV. Fourthly, the definition of the term ‘Stream’43 does not include ‘rain water’, thereby giving right to pollute the rain water.
V. Fifthly , some very relevant and important terms like pollutants, toxic pollutants, discharge of pollutants etc. are not defined .
2. shortcomings Regarding Fines and Punishments: I. Possible offences are not specifically defined and also the punishments prescribed are not applicable to for all probable violations.
II. Punishments mentioned on the Act are not such as to give a deterrent effect. Punishment is provided only if violation is committed “knowingly”. It is not provided for “negligent” acts44 of the polluter.
III. The Fines prescribed are also small and also, imprisonment as a punishment is not compulsory in all cases of violations.45
3. Procedural Shortcomings
I. As per the legal provision for penal action against the polluters, the State Pollution Control Board has to file a case before the lower court for action against a polluting unit and the "onus of proof" is vested with the Board In a good number of cases where decisions are taken, the polluters have been given the benefit of doubt because of technical reasons as the Boards could not adequately meet the "onus of proof".
II. Yet another legal lacunae faced by the Pollution Control Boards relates to prosecution against public servants . According" to the provisions of Sec. 197 of the Cr. P.C., permission from the Government is required for prosecution of such persons and more often than not it becomes
difficult for the Boards to take legal action against them.
III.The Central Pollution Control Board can issue directions to the State Boards, which are binding on
them. However, at the same time, the Act makes it obligatory for the Boards to comply with the directions of the concerned State Governments. There are occasions when the directions of two authorities are not mutually complementary and, at times, totally contradictory !46
IV.The key person for enforcement of this Act is the Chairman of the State Pollution Control Board who should be professionally qualified and appointed on a full time basis. However, the Act does not stipulate such requirement .47 Several State Pollution Control Boards
are headed by part-time Chairmen without requisite qualifications and experience. Also, the Member Secretaries of the Pollution Control Boards are often drawn either from administrative service or even forest service, who, do not have the requisite technical background in pollution control. As a result, it becomes difficult for them to provide proper leadership and guidance to their sub-ordinates.
4. Shortcomings with respect to Institutional framework.
I. The Pollution Control Boards are hardly equipped with the necessary wherewithal to cope up with these daunting tasks. Professional manpower and laboratory infrastructure for pollution monitoring are the basic requirements for effective functioning of the pollution control machinery.
II. The inadequacy in our enforcement mechanism is evident from a comparison with other countries. In USA, the Environment Protection Agency (EPA) has more than 10,000 employees while the Central Pollution Control Board (CPCB) in India has to make it with less than 500 personnel .
III. The Pollution Control Boards are expected to function as statutory autonomous bodies. But, in reality, the Boards cannot function in such a manner for various reasons including over-dependence on the Government for their existence. For effective functioning, the
Pollution Control Boards should have the autonomy
and over-ridding powers to enforce the laws.
IV. The Pollution Control Boards are expected to receive funds from the Government exchequer for their Plan and Non-plan expenditure. But, several State Governments have curbed and even totally stopped the "grants-in-aid" to the Boards.
5. Other Lacunas
I. There is no system of compulsory public hearing II. There is no specific provision in the Act for
Public Participation, for better implementation of the Act.
III. There are no provisions in the Act for fixing up standards of quality and targets for eradication of pollution.
IV. State government has the power48 to limit the application of this Act to a particular area in a state. But this power in most of the cases is used arbitrarily .49
E. The Environmental (Protection) Act, 1986
In response to Stockholm Conference, India enacted The Environmental (Protection) Act, 1986 and the corresponding Environmental (Protection) Rules, 1986. This Act is a general enactment empowering the Central Government to ‘prevent, control and abate environmental pollution.’50 As the ambit of the Act includes water resources, its provisions extend to the streams, lakes, rivers etc. and a citizen has recourse to the mechanism under the EP Act.51
Chapter three
JUDICIAL RESPONSE TO CONTROL OF WATER POLLUTION — A JUDICIAL ACTIVISM: A CASE BASED ANALYSIS
Despite having an impressive line-up of laws within the statute books, the Indian legal system has constantly been failing in terms of enforcement. Bureaucratic lethargy, lack of sensitivity amongst legislators towards environmental problems, and an errant industrial-manufacturing combine with state inefficiency are some
of the reasons ,which prompted the judiciary in general and Supreme Court in particular to step in and correct the wrongs.
But the question is, can the environment be protected at present times when almost all the countries in South-East Asia are still at their developing stages? Development comes through industrialization, which in turn the main factor behind the degradation of environment. To resolve the issue, the Judiciary had to make a balance between economic development and preservation of the eco-systems; therefore judiciary came with a doctrine called
'Sustainable Development' , i.e. there must be a balance between development and ecology .52
Subhash Kumar v. State of Biha r 53 was one of the first few cases wherein the Supreme Court emphasized the importance of protecting and conserving the natural environment. The scope of Article 21 — the right to life — was widened when the court read into it the “right to
wholesome environment .”54 The court went even further and
of pollution-free water and air for a fuller enjoyment of
life.”
The greatest milestone in the development of water quality control jurisprudence has been the string of Ganga Pollution Cases . In the Kanpur Tanneries case 55 , which opened new vista in the direction of protecting environment and pollution caused by hazardous activities of the industries, the court has summed up the main causes of pollution of
the Ganga precisely as “urban liquid waste” and “industrial waste surface run-off ”. Venkataramaih J;
observed that:
“Under the law of the land, responsibility for treatment of the industrial effluents is that of the industry. While the concept of “strict liability” should be adhered to in some cases, circumstances may require that plans for sewerage and treatment systems should consider industrial effluents as well” 56
The court directed the tanneries to set up Treatment Plants and held that the financial capacity of the polluter was irrelevant.57
Next case is The Kanpur Municipalities Case 58 . In this case
the court suo moto laid down a series of guidelines for the municipality on issues like removal of wastes, construction of sewer lines, construction of urinals etc.
Indian Council for Enviro-Legal Action v. Union of India 59
popularly known as Bichhiri case struck a blow to chemical industries in Rajasthan, which were releasing highly toxic effluents and untreated sludge into the environment, leading to the pollution of underground aquifers. The court took the question of liability of the respondent from
the different angle and stamped the validity of “ polluter pays Principle ”60 and “absolute liability ”61 in this case.62
Another historical case is the Vellore Tanneries Case .63 A
PIL was instituted by the plaintiffs against the tanneries in Tamilnadu, which had been releasing vast amount of
untreated sludge into river water. As a result, arable lands, wells used for agriculture and drinking water sources were
affected. The court in this case recognized ‘the Precautionary Principle ’64, reiterated ‘Polluter Pays Principle’ and fined the tanneries. In this case for the first time the doctrine of
“ public Trust ” was applied. More recently in the case of M.C.Mehta v. Kamal Nath and other s 65 , this doctrine of
“ public Trust ” has been recognized and applied. CONCLUSION AND SUGGESTIONS
From the above parts of this paper it is clear that the situation of water pollution is taking a turn in our country. The reasons for this are many. The root cause, as researcher feels, is the explosion of population whereby it becomes practically impossible to cope effectively with environmental problems, even if the desire to do so is there. Secondly, the planning is also defective. Thus the result is that the growth of resources is not keeping pace with the growth of in population and resources per capita are diminishing, as a consequence, there is an ever-increasing pressure on water resources too. This is resulting in large scale water pollution which is growing very rapidly.
To combat the growing menace of water pollution in the country, the Union government had promulgated the Water (Prevention and Control of Pollution) Act, 1974 to
preserve the wholesomeness of water. In addition, Environmental (Protection) Act, 1986 was passed and prior to that pollution Control Boards was established both at the union and state level.
However the biggest culprit in realizing the desired results of control of water pollution is the industrialists — states combine which has been frequently flouting the water pollution control laws. For example, in Delhi, Effluent Treatment Plants [ETPs] have been installed or under
installation for only 16 out of total 63 polluting units. According to the study there are 28 approved industrial areas in Delhi with a total of 21,627industrial units. Nearly two thirds of all industrial units are located in six larger industrial areas namely Anand Parbat Industrial Estate (17.23%), Mayapuri Industrial Area (15.10%), Okhla Industrial Area (11.34%), Narela Industrial Area (9.59%, Wazirpur Industrial Area (7.70%) and Kirti Nagar Industrial Estate (6.82%). Only one third of the units are located in the remaining 22 industrial areas. More than 50 percent of the industrial units are the major sources of
solid waste pollution, but, no measurement has been taken to resolve this problem of pollution.66 Thus under
these circumstances, it is imperative that the water pollution control laws be made more stringent and adequate provision for funds and trained personnel to the agencies entrusted with the task be added. A proper State-Centre coordination and the strong determination [on the part of official agencies to make the laws click and deliver] should also be ensured. The role of judiciary in controlling water pollution and conservation has been laudable which are very clear from the number of cases decided by the Apex Court in India. The judicial activism has proved to be useful in these cases in controlling pollution of water and improvement of the environment.
Suggestions:
I. There should be some amendments with respect to following definitions:
The definition of ‘ pollution’ should be amended to include ‘pollution of water due to its radiological disintegration’ within its ambit.
The definition of the term ‘Stream’ should be mended to include ‘rain water’, thereby not giving
any scope to pollute the rain water.
Some very relevant and important terms like pollutants, toxic pollutants, discharge of pollutants etc should be defined.
Section 4(2) (a) should be amended so as to provide for the qualification criteria for the chairman to be appointed under the Water Act.
Section 24 should be amended as it does not put any liability on a person if she/he unknowingly does anything which causes pollution. The concept of
‘absolute liability’ should be introduced.
II. There is should be a system of compulsory public
hearing.
III. There is a need of specific provision in the Act for
Public Participation, for better implementation of the Act.
IV. There should be provisions in the Act for fixing up standards of quality and targets for eradication of pollution.
V. Trained personnel to the agencies entrusted with the task should be added.
VI. Equally important is the establishment of a National Environment Protection Authority which should also be made a department of Ministry of Environment but have sufficient authority.
VII. Also setting up of environment court to tackle pollution cases, more media involvement and dissemination of information through documentation centres is required at both centre as well as state level
Above all, it is necessary to make the best out of the existing conditions by generating social consciousness about environment by forming social action groups and
the importance of people’s participation in fighting the increasing menace of water pollution in our country, because it is all up to us either to perish or to preserve the environment and protect the earth:
Live on, the Earth!
And you, earth folk, take this into your head: We shall have not another Earth
If this one were dead.
Of a thousand planets no loved one like it
Of a thousand planets none so green and so sweet So live on, the Earth!
Live on!
____________________________________________
1. Kumar, U. and Kakrani, B., “Water— Environment and Pollution”, Agrobios, Jodhpur, 2000, at p. 5.
2. Krishna Iyer, Environmental Pollution and the Law, 1984 at p. 95 quoted in Chaterjee, Benimadhab,
‘Implementation problems and Perspectives, 2002, at p. 9. 3. Only 2.5% of all the water on earth is fresh, and only a fraction of that is accessible. According to various estimates, each of us requires about 50 liters of water per day for drinking, cooking, bathing and other basic human
needs. See Kluger, Jeffery and Dorfman, Andera. ‘The Challenge We Face” , TIME, September 2, 2002, at p. 38.
4. According to Center for Science and Environment,
about 81% of the country’s total population has access to
drinking water, but per capita availability has been reduced from 5000 cubic meters a year at the time of independence to 2000 cubic meters as of now. See Sharma, Sudhirender, ‘Water Resources in India’ available at www.infochangeindia.org (19th august, 2005).
5. In this context, the UN Secretary General Mr. Kofi Annan has dutifully warned countries on more than one occasion that the threat of water insecurity due to water pollution looms darkly in our collective future. He says,
“Unless we take swift and decisive action, by 2025, two
-thirds of the world’s population may be living in countries
that face serious water shortages.” See Kluger, Jeffery and
Dorfman, Andera. ‘The Challenge We Face” , TIME, September 2, 2002, at p. 38.
6. The state of India’s environment 1992—Citizens’
Environment, New Delhi), p.17 in Pal, Chandra,
“Environmental Pollution and Development: Environmental law, Policy and Role of Judiciary”, Mittal
Publication, 1st edn, New Delhi, 1999, at p. 82.
7. Gould, Gearge, A. and Grant, Douglas L.; “Cases and
Materials on Water Law”, American Case Book Series,
6th edn, West Group, USA, 2000, at p. 565.
8. 71 A. 2d 520 (1950).
9. For a summary of this Federal Water Pollution Control Act, 1972 See Clean Water Act: A Summary of the Law
available on
http://usinfo.state.gov/usa/infousa/laws/majorlaw/cwa. pdf (19th August 2005).
10. See Section 2(e) of Water (Prevention and Control of Pollution) Act, 1974
11. 4th edn, Vol. 49, Para 783.
12. Pal, Chandra, “Environmental Pollution and
Judiciary”, Mittal Publication, 1st edn, New Delhi, 1999,
at p. 89.
13. Sinha, R.K, “Marine and Water Environment: Pollution Control Laws”, Ludian Publishers Distributors,
New Delhi, 1999, at p.200.
14. Chaturbedi, R.G. “Law on Protection of Environment
and Prevention of Pollution”, Deep and Deep
Publication, New Delhi, 2001, at p. 65.
15. Singh, Chhatrapati, ‘Water Rights and Principles of Water Resource Management’, ILI, 1991, at p. 18.
16. See Kumar, U. and Kakrani, B., “Water—
En vironment and Pollution”, Agrobios, Jodhpur, 2000, at
p. 70.
17. West Bengal Pollution Control Board has very recently issued guidelines with respect of immersion of idols after festive season, for detailed order and guidelines kindly See the order available at: http://www.wbpcb.gov.in/html/orderdirections/idol_or der_310804.pdf (19th August 2005).
18. Supra note 1 at p. 71
19. See Centre for Science and Environment, Citizens’
Fifth Report, 1999, at p. 59.
20. Mangla, Bhupesh, “Pollution Seizes the city”, the Hindustan Times Sunday magazine, June 5, 1988, at p. 5. Courtesy: National Library, Kolkata.
21. Dixit, D.K., “Thermal Plants and Pollution”, The Hindustan Times , February 6, 1984, p. 9. Courtesy.
National Library, kolkata.]
22. For a general but very extensive work on pollution caused by agricultural pollutants, See Lochr, Raymondc,
‘Pollution Control for Agriculture’, Academic Press Inc.,
New York, 1984.
23. TERI, Looking back To Think Ahead: Green India, available at
http://www.teri.res.in/teriin/peers/about.htm (19th August 2005). .
24. An exhaustive study of water supply in the developing countries by Dietrich and Henderson suggested that at
least 60% of the population were still dependent on underground sources of drinking water, especially in outer city areas and villages.
25. Supra note 1, at p. 99.
26. 95% of all fresh water on earth is ground water. Ground water is found in natural rock formations, called aquifers, and these are a vital natural resource with many uses.
27. Supra note 23.
28. Supra note 1, at p. 5.
29. For a detailed account on effects of water pollution
See Roy, M.Harrison (ed.), “Pollution: Causes, Effects and Causes”, University of Lancaster, London, 1983. Chapter
7.
30. The World Health Organization has reported that about 21% of all communicable diseases in India are waterborne.
31. Supra note 6 at p. 82.
33. Ch.1 Verse 78. See The Laws of Manu ( Wendy Doniger and Brian Smith Trans., 1991), at p. 11
34. Ch., Verses 46-49, at p. 78.
35. Ch. Verse56, at p. 79.
36. Rosencranz, Armin & Divan, Shyam, ‘Environmental Law and Policy in India’, Oxford University Press, 2nd
edn, New Delhi, 2001, at pp. 24-25.
37. 1868 LR 3 HL 330.
38. Wood v. Wand 1849 3 Ex. 748.
39. Illustration (f) to section 7.
40. See the Preamble of the Water (Prevention and Control of Pollution) Act, 1974.
41. See section 2(dd) of The Water (Prevention and Control of Pollution) Act, 1974
42. See section 2(e) of The Water (Prevention and Control of Pollution) Act, 1974
43. See section 2(j) of The Water (Prevention and Control of Pollution) Act, 1974
44. There is no concept of absolute liability under The Water (Prevention and Control of Pollution) Act, 1974 See
section 24 of The Water (Prevention and Control of Pollution) Act, 1974
45. See sections 24, 25 and 26 of Water Act, 1974.
46. See Section 18 of The Water (Prevention and Control of Pollution) Act, 1974.
47. See section 4(2) (a) of The Water (Prevention and Control of Pollution) Act, 1974.
48. See Section 19 of the Environmental (Protection) Act, 1986.
49. See A.P. pollution Board Case [2001] 2 SCC 62.Where despite declaring a particular area as water prone area , state govt. later allowed certain industrial set up in that area by limiting the application of Water Act, 1974. However, this was struck down by the A.P. High Court.
51. However in case of any conflict between Water Act and EP Act, the former will prevail over the later as former being specific legislation.
52. The concept of 'Sustainable Development' is not a new concept. The doctrine had come to be known as early as in 1972 in the Stockholm declaration. It had been stated in the declaration that:" Man has the
fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generation. “
But the concept was given a definite shape in a report by world commission on environment, which was known as ' our common future'. The commission, which was chaired by the then Norway Prime Minister, Ms. G.H. Brundtland defined 'Sustainable Development' as:" Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs ".
54. The first case which is historic in the environmental jurisprudence and begins with a tough judicial approach for environmental protection is, perhaps, Municipal Council ,Ratlam v. Vardhichand AIR 1980 SC 1622.See also,
M.C.Mehta v. U.O.I ( Delhi Stone Crushing Case) 1992 (3) SCC 256;Virender Gaur v. State of Haryana 1995 (2) SCC 577.
55. M.C.Mehta v. U.O.I AIR 1988 SC 1037.
56. Id; at p. 1044.
57. Id ; at p. 1045.
58. M.C.Mehta v. U.O.I. AIR 1988 SC 1115.
59. AIR 1996 SC 1446.
60. The origin of ‘Polluter P ays Principle’ is Principle 16 of the Rio declaration, which states that :
"National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment."
It is quite obvious that the object of the above principle was to make the polluter liable not only for the compensation to the victims but also for the cost of restoring of environmental degradation. Once the actor is proved to be guilty, he is liable to compensate for his act irrelevant of the fact that whether he's involved in development process or not
61. This principle was, for the first time, coined in
M.C.Mehta v. U.O.I (1987) 1 SCC 395.
62.Supra note 58.
63. Vellore Citizens Welfare Forum v. U.O.I (1996) 5 SCC 647.
64. This principle has widely been recognized as the most important principle of 'Sustainable Development'.
Principle 15 the Rio declaration states that: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation."
In other words it means: 1) Environmental measures by the state government and the local authority must anticipate, prevent and attack the causes of environmental degradation. 2) Where there are threats of serious and irreversible damage, lack of scientific certainty should not used as a reason for postponing measures to prevent environmental degradation. 3) The 'onus of proof' is on the actor or the developer to proof that his action is environmentally benign.
65. AIR 2000 SC 1997.
66.See Pollution from Small Scale Industrial Sector of
Delhi available on
http://www.ncaer.org/Upload/others/106/Pollution.pdf . (19th August, 2005).
