THE ENVIRONMENT PROTECTION ACT 1986: AN OVERVIEW

Authors:

Jahnvi Gupta, DNLU Jabalpur

Gunjan Hariramani, MNLU

EDITOR: Akansha Singh, RMLNLU Lucknow



Oceans are drying up; there is no chirping of birds in the woods and swans and dolphins are missing out so who is going to question the sudden disturbed and busy environment?

INTRODUCTION

Humans have tried to take full use of nature to a considerable extent and their endeavor to conquer nature has succeeded to great lengths because they have destroyed most of it by over-utilizing it. They started cutting trees for shelter and infrastructure, they drenched the soil by eroding it, they hunted animals for fun till the extent they went into the category of extinct or endangered animals, they have dramatically affected the climate conditions by polluting the air through industrial and factory residue and whatnot.[1] Humans have infinitely troubled environmental nature in every possible way. The concern over the environment has grown and various international talks are made because the quality of environment and climate is degrading and now the humans have started their realization. There are traces of the loss of biodiversity, increase of pollution, loss of vegetal cover, increased risks of environmental accidents, and also the release of dangerous chemicals in the climate has given an ultimatum to the environment. Due to these increasing risks and carelessness of humans, the government has passed various acts and legislations in order to protect the environment.

No sooner had we realized than these resources started depleting and finally, there was a happy realization that without these natural resources,[2] man cannot survive as there exists a symbiotic relationship between every kind of creature on the planet. Therefore, they organized a UN Conference for protection of Human Environment in Stockholm in 1972 to which India is also a signatory along with world developed and under-developing nations.[3] Similar provisions are provided in Indian Constitution under articles 51A (Fundamental Duties) and 48A (Directive Principles of State Policy) which prescribes for the government, state legislatures, and the citizens to take mandatory measures in order to protect the environment in every possible aspect.[4]

OBJECTIVES OF THE ACT[5]

  1. Various decisions of protection of the environment were made at the United Nations Conference, so to implement those decisions the act was implemented.

  2. To protect the environment from general issues and not specific types of pollution which were left uncovered by Indian policymakers. The earlier laws focussed on specific issues and categories of hazardous substances rather than on general issues that mainly caused major environmental hazards.

  3. To make sure that Article 21(Protection of Life) of the Indian Constitution is not violated.

  4. The important task is to punish the offenders who try to endanger the human environment, safety, and health and a concept of deterrence theory of punishment is followed.

  5. To allow the creation of authority for the protection of the environment.

  6. Coordination of activities of several regulatory agencies under the existing laws to ensure better outcomes.

  7. Sustainable development is the main aim of the environment and it is important to make this as one of the important goals of the environment protection act.

SCOPE OF THE ACT

The Environment Protection Act came into force on November 19, 1986, and is applicable to the whole of India, including the parts of Jammu and Kashmir.[6]

CENTRAL GOVERNMENT’S POWER

As per the provisions of the said Act, it is the power vested in the central government that they can take any reasonable and appropriate steps and measures that are necessary for protecting and improving the quality of the environment. These measures are taken for preventing and controlling environmental Pollution and make the place fit for living.[7] As per section 3 of the Act, the central government has the authority to constitute other authorities for the proper implementation of powers and duties which are mentioned in the Act. Section 3 holds importance due to a better regulatory mechanism. In the judgment of Vellore Citizens’ Welfare Forum vs. Union of India, the Hon’ble Supreme Court directed the central government to constitute the ‘authority’ for the implementation of powers under section 3(3).[8] Thus, the Court directed the authorities to implement the ‘precautionary principle’ and ‘pollution pay principle’ while keeping in mind about the degrading quality of the environment. The Central Government passed certain notifications stating that the expansion or modernization of any existing industry or new projects listed shall not be undertaken in any region of India unless it gets environmental clearance by the Central Government.[9]


BARS TO THE JURISDICTION

The Act has barred the civil courts to entertain or consider any proceedings with respect to any action taken by the central government. In India, majority of the cases concerning Environmental Laws have to come before the courts in the form of Public Interest Litigation (PIL) and then they can be filed in High Courts and Supreme Courts.[10]

LOOPHOLES IN THE ACT

When an act is drafted, there exist a lot of grey spots about which no provision is recorded in the same. This happens due to the inconsiderate nature of the committee members and data collectors. Hence, many of the grey areas could be spotted in the Environment Protection Act, 1986(EPA).

  1. Section 11 of EPA, 1986 talks about the power to analyze and collect samples of water, or any other substance contributing to nature and the environment.[11] The methods of collecting samples in the act are quite an old school even though there is a far better technological advancement in the areas. Nowadays, we have sampling laboratories to keep away the suspension and delay of the analysis process and to catch the guilty through it. But due to the old method still underused, the culprit moves around freely after damaging the environment.[12]

  2. Due to the above system going on, it seems as if these provisions were created to save the culprit and not to save the environment.[13]

  3. Another big loophole open for interpretations is under Section 16 and 17 of the Environment Protection Act, 1986. Basically sections 16 and 17 talks about the offenses committed against the environment by corporate sectors and government departments and punishments according to the offences. However, the drawback here is that no minimum provision is given for any offence. The only maximum punishment is prescribed, which is a big loophole about who to punish with what intensity of punishment.[14]

  4. The EPA has sub acts regarding Forest, poison, insecticides, air, and water pollution, but the provisions haven’t been made for majorly environmental affecting factors i.e. excessive traffic, population density, no-cleanliness behaviour of the citizens, noise pollution and soil pollution.[15]

  5. Noise pollution, nevertheless, can be considered under the law of torts and also under CrPC as a nuisance.[16]

REVIEWING COMMITTEE AND ITS RECOMMENDATIONS

To amend and improve the Environment Protection Act, 1986, some committees were constituted to suggest recommendations to bring more transparency and accountability in the law and also make the laws under it stringent for the citizens of India.

A high-level committee (HLC) was formed by the Indian Ministry of environment headed by Mr. Prakash Javdekar. This committee was set on August 29th, 2014.[17]

This committee was headed by T.S.R.Subramanian. Several recommendations were made by the committee[18], some are as follows-

  1. Substantial changes

  2. Reduction and removal of the ambiguity of laws and several interpretations to the law.

  3. Focus on Fastrack processing and disposal of disputes.[19]

  4. Bringing in new technological advancements to avoid delay in catching the real culprits.

  5. Avoid deforestations and beginning tree plantation, through large participation of people.

  6. Prescription of appeal procedures in the appellate.[20]

[1] K. Jayakumar, Environment Protection Act: A Critical Overview, Cochin University Law Review, 32-33 (July 25th,2020, 3:06 A.M.), http://dspace.cusat.ac.in/jspui/bitstream/123456789/10926/1/Environment%20Protection%20Act%20A%20Critical%20Overview.PDF. [2] Ibid. [3] Mayank Shekhar, Environment Protection Act, 1986(Overview), Legalbites, (July 25th , 2020, 9:40 P.M.), https://www.legalbites.in/environmental-protection-act1986/. [4] The legal and regulatory framework for Environment Protection in India, Chapter-2 (July 25th, 2020, 4:09 A.M.) http://moef.gov.in/wp-content/uploads/wssd/doc2/ch2.html. [5] Subodh Asthana, Overview of the Environment Protection Act, 1986, IP Leaders, (July 24th , 2020, 8:20 P.M.), https://blog.ipleaders.in/environment-protection-act-1986/. [6] The Environment (Protection) Act, 1986, Act no. 29, Acts of Parliament, 1986, (India). [7] Athira Suresh, Environment Protection Act, 1986, Lawsisto, (July 25th , 2020, 9:00 P.M.), https://lawsisto.com/artcileread/NDY0/Environmental-Protection-Act-1986. [8] Supra Note 2. [9]Supra Note 3. [10] Supra Note 6. [11] The Environment Protection Rules, 1986 (July 25th, 2020, 3:15 P.M.), http://www.lawsindia.com/Industrial%20Law/k57.htm. [12] Supra Note 1. [13] Supra Note 3. [14] (9)OFFENCES: SECTIONS 15-17, 9.4, pg. 53 (July 25th ,2020, 4:46 P.M.) http://14.139.60.114:8080/jspui/bitstream/123456789/705/12/Offences%20Section%2015-17.pdf. [15] Supra Note 4. [16] Supra Note 1. [17] Manju Menon & Kanchi Kohli, The Good & Bad of Environmental Law Reform in India, (July 25th , 2020, 5:18 P.M.) https://namati.org/news-stories/the-good-bad-of-environmental-law-reform-in-india/. [18] ET Bureau, Government sets up committee to review environment-related laws, The Economic Times News (July 25th, 2020, 5:47 P.M.) https://economictimes.indiatimes.com/news/economy/policy/government-sets-up-committee-to-review-environment-related-laws/articleshow/41561593.cms?from=mdr [19] Supra Note 17. [20] Preeta Dhar, Recommendations of High Level committee to review environmental laws in India, The Access Initiative (July 25th, 2020, 5:39 P.M.) https://accessinitiative.org/blog/recommendations-high-level-committee-review-environmental-laws-india.

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