.
Environmantal Legislation
Eastern Window | Vision 2001 | Email | Home
 Environmental Lagislation
Challenges of Enforcement
By Dilip Biswas,Chairman,Central Pollution Control Board

Introduction
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 demage to the environment which is a common property.Traditionally, codes of conduct were framed with some stipulations of Do's and Don'ts, the non-compliance of which was dealt by the society through various forms of corrective measures. These included a blend of preventive, promotional and mitigative (PPM) measures. 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 recognised 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.Enforcement of such legislation is a challenging task because of various reasons including the inherent flaws in the laws and infirmity of enforcement machinery. Some of the challenges in enforcement of environmental legislation are highlighted in this paper.

Environmental Legislation in India
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 51 A(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. For instance, 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. The Air (Prevention and Control of Pollution) Act,1981 and the Environment (Protection) Act,1986 were promulgated under Article 253 of the Constitution which authorises the Parliament to enact legislation on such matter as necessary for compliance of international argeement to which India has been a party. Incidentally, both of these laws refer to the commitments made in the U N Conference on Human Environment held at Stockholm, Sweden in 1972. Unlike the Water Act, these two laws did not have to wait for adoption by the State legislatures. Over the years, some of the major environmental laws which have been enacted by the Parliament are as follows :

  •  The Water (Prevention & Control of Pollution) Act, 1974 as amended in 1988.
  •  The Water (Prevention & Control of Pollution) Cess Act, 1977 as amended in
  •  1991.
  •  The Air (Prevention & Control of Pollution) Act, 1981 as amended in 1987.
  •  TheEnvironment(Protection)Act, 1986.
  •  The Public Liability Insurance Act, 1991.
  •  The National Environmental Tribunal Act, 1995
  •  The National Environment Appellate Authority Act, 1997
Enforcement Mechanism
In pursuance of the Water (Prevention & Control of Pollution) Act.1974, the Central Government set up a Control Board for the Prevention and Centrol of Water Pollution. Similar Boards were set up in various States at different points of time when the Act was adopted by theState Legislatures. Subsequently, the responsibility for enforcement of the Air (Prevention & Control of Pollution) Act, 1981 was also entrusted with these organisations which were renamed as the Central and State Pollution Control Boards. With the enactment of the Environment (Protection) Act, 1986, which is an umbrella legislation, the Central Government assumed the overall responsibility of "environmental protection and improvement". Although the Act empowered the government to designate Authorities for specific tasks, separate machinery for enforcement of the Act was not set up or designated except the Central Ground Water Board which was designated as the Central Ground Water Authority.It is only in recent times, empowered Authorities have been constituted for specific assignments which include the following :
  •  Environment Pollution (Prevention & Control) Authority for National Capital

  •  Region set up in January, 1998.
  •  Loss of Ecology (Prevention of Pollution and Payment of Compensation)

  •  Authority, Tamilnadu.
  •  Coastal Zone Authority.
  •  Dahanu Taluka Environment (Protection) Authority, Maharashtra.
  •  National Environment Appellate Authority.
  •  Taj Trapezium Zone Pollution (Prevention & Control) Authority.
The powers of the Environment (Protection) Act have been exercised by the Central Government through the Ministry of Environment and Forests. However, the monitoring mechanism for implementation of the Act is still undefined although for the various regulations enforcement institutions have been enlisted. Also, in several areas of environmental concern such as vehicular pollution control, the Ministry of Environment and Forests has no decisive role since it is implemented by a separate Ministry through the Motor Vehicles Act.

Legal Loopholes
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. To elucidate this issue, I will refer to the Water Act, 1974. 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. 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. Besides the Chairman and Member Secretary,as per provisions of the Act, the State Pollution Control Board is supposed to have 15 members nominated by the Government. Most of these part-time members are drawn from Government Departments and local civic authorities. Many of these members, as pre-occupied as they are with their jobs, find very little time for making any constructive contribution towards effective functioning of the State Pollution Control Boards. On the contrary, the State Pollution Control Boards are faced with un-enviable situation of having such members who represent the polluting public sector units and civic services. The enforcement action in such situation is understandably weak. Now, let us examine the legal provision for penal action against the polluters. In accordance with the Act, 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. Unlike the Public Interest Litigations (PILs) where the Supreme Court and the Green Benches of the High Courts have been paying special attention in recent years, the lower courts are too busy to devote enough time for environment related litigations. As a result,thousands of cases filed by the State Pollution Control Boards are still pending for years together. 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". Also, there are cases where the polluters even after conviction escaped deterrent penalties through legal wrangles. More often than not, the polluters hire highly paid advocates to plead their cases whereas the State Boards are unable to do so because of financial constraints. No wonder why the State Pollution Control Boards are disenchanted with the legal procedures which cause more harassment to the Boards than to the polluters. This is also the reason why the Boards prefer to take direct action (such as under Section 33A of the Water Act) rather than moving to the Court although even in such cases the polluters can delay the action by seeking "stay order" from the Court. 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. PC, 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. Perhaps,the most serious lacunae in the Act is the over-dependence on the legal system. In several countries,the pollution control authorities are empowered to impose fines depending on the nature and extent of pollution caused. However,in India, the Pollution Control Boards have to approach the judiciary for this purpose. There are various provisions of the Act, though well-intentioned, are difficult to enforce. For instance, according to Section 18 of the Act, 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! The Act also provides that in the event of failures on the part of the State Boards, the Central Board can take over such functions of the State Boards with the approval of the Central Government. But, in reality, it is impractical to enforce such provision of the Act.

Institutional infirmities
Over the years, the Pollution Control Boards have been assigned the responsibilities for enforcement of various environmental regulations in addition to the Acts relating to water and air pollution control. Also, in number of cases, the Boards are called upon to deal with the issues such as municipal waters, safety measures in factory premises, vehicular pollution and traffic management although the agencies like Municipal Corporation, Factories Inspectorate and Transport Authorities are responsible for enforcement of regulations in their respective areas of work. With the increasing expectations from general public and judiciary, as reflected through plethora of Public Interest Litigations (PILs), the Pollution Control Boards are required to play a lead role through investigations, suggestions for remedial measures and monitoring their implementation. 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. But, the Boards are dismally short of such facilities because of dwindling budgetary support and restrictions imposed on recruitment of personnel besides lack of training and career opportunities for the existing staff. 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 do with less than 500 personnel. Planning and enforcement of anti-pollution measures require sustained and cohesive team initiatives. But, the manner in which the Boards are constituted and the time given to the Boards are not in favour of such initiatives. As per provisions of the Act, the Boards are constituted for a period of 3 years and even within this limited period, the memberships of the Boards including the Chairmen and Member Secretaries are frequently changed. 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. On the contrary, the Boards are treated as "sub-ordinate"organisations which are not expected to function independently. Like various government agencies, the Pollution Control Boards also suffer from non-transparency in their functioning. As a result, in public eyes, there is always a `needle of suspicion' about the intentions and activities of the Boards. 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. As a result, the Boards have to meet their expenditure from the reimbursement of the Cess collected through the Water (Prevention and Control of Pollution). Cess Act, 1977 and the fees received for processing the applications seeking 'consent' to discharge the effluents. The primary objective of the Water Cess Act were to augment the resources of the Boards and to provide economic incentives by way of giving rebate on Cess charges for installation and satisfactory operation of effluent treatment plants. In the absence of Government funding, the Boards have clutched on to Cess collection as their major source of existence which is not obviously serving the objectives of the Act.

Epilogue
Notwithstanding legal and organisational hurdles, the Pollution Control Boards have been able to make a mark which is evident from the increasing expectations from them. Thanks to the Public Interest Litigations and the judicial response in such cases, the Pollution Control Boards have been playing a key role, although as a "second fiddle" to the judiciary. Nevertheless,according to the general perceptions, the Pollution Control Boards are either corrupt or inefficient. More often than not, such perceptions are based on inadequate insight of the inherent shortcomings and challenges in enforcement of laws. To build up an effective, accountable and transparent machinery for enforcement of environmental legislation, it is necessary to rectify the deficiencies in the laws and institutional infirmities.

Environmantal Legislation
Top
.