This article is written by Simran Kaur Bilkhu, studying in Balaji Law College,Pune University during her internship with LeDroit India.
Introduction
In Delhi, the predicament of winter, vehicles, machines, car smoke that causes smog has made an easy gas storage reservoir. The State has been framed to have the largest pollution in 2019, and it’s time that we see if the laws that are framed for this section and whether it’s enough to counter air pollution. There was a discussion panel set up by Sweden for the United Nations in the favour of the prevention of pollution and degradation of resources. In the UN conference of General Assembly Resolution 2398, on the Human Environment, steps were undertaken for countries to preserve natural resources, which also included Air. Indian Government specified laws on the same under Article 253 of the Constitution for Natural Resources and the law enacted for the Air was The Air (Prevention and Control of Air Pollution) Act, 1981.
The Air (Prevention and Control of Air Pollution) Act, 1981
The Air (Prevention and Control of Air Pollution) Act, 1981; has defined certain definitions which are basic and should be thrown some light on. In Section 2(a) ‘Air Pollutant’ is defined as any solid, liquid or gaseous substance that may be harming or injuring the environment, humans, other living creatures, plants or even property.
Through the 1987 amendment substances such as noise pollution were also included in the list of substances that are deemed to be harmful to the environment. Whereas, 2(b) defined Air Pollution as the presence of air pollution in the atmosphere. Some boards are set up in this Act that is mentioned in 2(f) under two categories: Central and State Boards.
Where Central Board is defined u/s 2(g) as same as that of section 3 of the Water (Prevention and Control of Pollution) Act 1974 explaining this board shall be set up by the Central Government of India, for the act and powers extend to the whole of India.
The State Board defined u/s 2(o) as a Board that is set up in those states where the Water (Prevention and Control of Pollution) Act, 1974 is in effect and where the State Governments have decided to set up these Boards.
The Act also applies in States where this particular Act is not in effect too. The State Board is the same as the ‘State Pollution Control Board’. It is also stated in section 6 that in the case of the UN, the Central Board shall exercise the powers of the State Board under the Act, or it may even delegate these powers or functions to any other person or body. Consequently, it is observed that while the Water (Prevention and Control of Pollution) Act 1974 in the first place, applies to only those States which it has given its effect rather the Air (Prevention and Control of Air Pollution) Act 1981, applies to the whole of India.
Functions of Central and State Board
Certain functions are described under section 16 of the Act, as the functions to be followed by the Central Board to advise all these categories to the Central Government which enlightens points as in the efforts for the prevention, abatement and control plan and implement a nationwide program for the same, coordinate and resolve the disputes, technical assistance, carry ‘out investigations and research, training programs for involvement of people, mass media program collect, compile and publish statistically, data prepare manuals, codes or guides lay down ‘standards for the quality of air.
With other functions defined u/s 17 of the Act, to the functions to be followed by the State Board as to list the same functions down to the State Government.
Powers of Central and State Board
It includes the description of the Powers of the Board that is defined u/s 18 of the Act, which says that the Central Board shall follow the directions of Central Government and the State Board shall follow the directions of State Government.
The State Government u/s 19 has the power to declare an area an “air pollution area” with the permission of the State Board and then further make changes according to the amount of pollution being carried out, then they will further’ release an Official Gazette over it.
Then there is Power to give restrictions for ensuring standards for emissions from automobiles, which defines the issues that must be given for the vehicles ‘registered u/s 20 of the Motor Vehicle Act 1939 compiled with section 17 (1)(g). Restrictions on the use of certain industrial plants section 21 speak about setting up industrial plants with the consent of the respective Board. It also describes the decisions that have to be made whether he has received the permission to set up the plant or not with the conditions u/s 21(5) to keep the necessary control equipment, which should be in a good running situation and be made changes according to the decisions made instructions made by the State Board, and chimneys are erected when and where the Board so directs.
With the next Power of Board to make an application to Court for restraining a person from causing the air pollution u/s 22A which allows the Board to make an application to the court if they believe that there is excess emission of air pollution caused by a body or an industry.
Section 23 talks about the furnishing of information to the State Board and other agencies in certain cases, where the emission is over the prescribed limit to an accident or an unforced event which should be informed to the board so that they make further actions for remedies.
Power of entry and inspection which comes u/s 24 puts forward the rights of the person who is authorized by the State Board has the power to get entry into any place and check, have a round-up, test the machines, equipment’s, industrial plant, record, register and document anything that he thinks commits any offence. Also, the person in charge of all these things is liable to take the officer around the place and show him what he wants to scan at.
The power to obtain any information on calling the place up and have verification of the same u/s 25 of the said Act. The power to take the sample of the air or emission and procedure to be followed with the sample of chimney, fuel, air, duct, outlet as prescribed and these samples shall be admissible in proceeding with conditions laid down as:
The sample taker must notify the occupier or agent of the place from where the sample has been taken, with the sample being collected in the presence of the occupier or agent, the sample taken shall be sealed with signatures of both the person taking the sample and the occupier or his agent with these samples to be sent to the labs for testing.
There are certain penalties and procedures, with section 37, 38, 39, 40 and 41 that describes the penalties that therefore say whoever fails to obey sections 21, 22 and the directions given, can be sentenced to imprisonment for a term of one year and six months. It can be extended to six years and with fine if doesn’t comply shall be an additional dine of five thousand rupees every day. Penalties lay down as destroying, defacing, removing any pillar, post, stake or notice fixed in the ground under the authority of board.
Obstruction of any person acting under orders of the Board from exercising his powers and functions under the Act, Damaging any property belonging to the Board, Failure to furnish information to an officer or any employee of the Board, which is required by such officer or employee, Failure to inform about the excess release of emissions than the standard set by the State Board, Even an apprehension of the release of excess emissions should be informed to the State Board, Giving false statements to Board authorities when furnishing information, Giving false information to the Board, for getting permission under Section 21 i.e. permission for setting up industrial plants.
Penalties
These offences shall be punishable with imprisonment which may extend to three months with a fine, which may extend to ten thousand rupees or both. With u/s any order or direction that does not have any punishment shall be punished with 3 month’s imprisonment or fine of three thousand rupees or both and if failure continues then additional five thousand to be given every day. Section 40 of the Act talks about offences by companies, where if the offence was in the knowledge of the person and the owner then they are held liable but when the person doing the deal had no idea of such a situation and had yet tried to avoid and cancel it will not be held liable. (2) if the consent was taken of the director, manager, secretary or happened due to negligence of the aforesaid people, then they will not be guilty, not be punished.
Whereas section 41 of the Act talks about the offences committed by the government department the head will be held liable, but yet if he had no idea about such diligence then he shall not be held liable.
Procedures u/s 42 to 46 where it’s said that no person shall lie to the government officials, to the members of the Board, employees, where the actions done by such a body are intended in good faith.
The court shall take the cognizance of only those offences where the complaint is made by a Board or any officer authorized under it, any person who has given notice not less than sixty days, of the alleged offences and his intention to make a complaint to the Board or an offence authorized under it. All members and officers are deemed to be acting like public servants u/s 44. U/s 45 the Central Board to give information in the form of data, stats, reports to the Central Government and State Board to the both Central Board and State Government. Section 46 involves the bar of jurisdiction.
In the case of M.C. Mehta v. UOI 1991 SCR (1) 866, it was held that everybody has the right to life under Article 21 including the right to a healthy and safe atmosphere/ environment, which in turn includes the right to pollution-free air and water for the full enjoyment of life. It was further held that municipalities and other governmental bodies had an obligation of taking positive measures to ensure a healthy environment.
In a similar case Subhash Kumar v. State of Bihar 1991 it paved the way for the introduction of lead-free petrol supply in Delhi and paved the way for the introduction of compressed natural gas (CNG). The Court also assisted in setting up a committee that was not just aimed at litigation but also finding long term solutions to the air pollution problem in Delhi.
Need for the Act
It was suggested to the United Nations by Sweden that there should be a global conference to ventilate and fend off pollution and degradation of natural resources. Consequently, with pronouncing of the General Assembly Resolution 2398, the United Nations Conference on the Human Environment was held in Stockholm in June 1972. In this conference, it was decided that the countries would endeavour to strive to preserve the natural resources, which also includes air.
Correspondingly, the Indian government enacted specific laws under Article 253 of the Constitution for the preservation of natural resources and the law enacted for air preservation was The Air (Prevention and Control of Air Pollution) Act, 1981.
The said Act’s Preamble states that this Act is for the prevention, control and abetment of air pollution and the burden of fulfilling such purposes falls on the Boards establishes under this Act.
Scope of Air Pollution
The Act applies to the whole of India, which defines the legislations to understand what qualifies as air pollution according to Indian law so that air pollution can be punished under this Act.
What is ‘air pollution’ and ‘air pollutant’?
Section 2 (a) defines “air pollutant” means any solid, liquid or gaseous substance 2 [(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;
And Section 2 (b) defines “air pollution” means the presence in the atmosphere of any air pollutant.
Conclusion
In the end, I would like to say that air pollution in Delhi has been a serious problem for many years and has recently brought changes to the legislative measures of the same increase in number. A Suo Moto notice was issued for the Delhi Government asking it to submit an action plan for the further working of clean air. Over the years, monitoring stations have been set up across the state to measure the amount of particulate matter in the air. Public awareness and efforts have definitely increased, with measures like the Odd-even scheme and Supreme Court orders on cracker bans, construction activities bans; being implemented. In 2016, after the heavy smog wreaked havoc in the said State, the Supreme Court again asked the national government to make a plan to combat such episodes of air pollution. This program came to be known as the
Graded Response Action Plan (GRAP). This entails the identification of high-pollution areas within Delhi through monitoring and measuring air quality, identifying the problems and formulating local actions for those areas. There is no doubt that Delhi still suffers from an air crisis every year. This occurs due to a host of factors that need mass action.
It is observed that the legislation to deal with air pollution is pretty strict and well formulated. It encompasses the scientific aspects of managing air pollution with the actions of State and Central bodies. The Pollution Control Boards are bestowed with a wide range of powers and functions to check emission limits and take appropriate action. However, enforcement still remains lax and needs more push for a better stance.
