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.