INTRODUCTION
The need of Environment protection and conservation in the present times cannot be anymore, as the vegetation cover has been vanishing at a distressing pace, various species of flora and fauna have become extinct and many others have become endangered, the global temperature has been ticking up, glaciers are melting and unexpected climatic changes have been wreaking havoc here and there. As a consequence, environment conservation, should be made one of the fundamental agendas of concern for the nation, just like poverty or unemployment or anything else. Post- Industrial revolution and with a steady increase in global pollution since the previous century, has led to an indiscriminate exploitation of environmental resources, for satisfaction of essentially the material needs of human beings. These activities in consequence have put a tremendous pressure on the available environmental resources.
The seriousness of this problem can be said to have been globally recognised for the first time in the year 1972 when the United Nations Conference on Environment was organised in Stockholm, which gave the world the Stockholm Declaration, which has been an instrumental guiding force in matters pertaining to environment protection, not only for India but for various other countries of the World. Revolutionary principles, concepts or doctrines like Sustainable Development, Polluter Pays Principle and Precautionary Principle are some of the vital contributions of this event, which have been made a part of our Indian Legal framework, as stated in the landmark case of Vellore Citizens Welfare Forum v. Union of India (AIR 1996 SC 2715) and have even been invoked by the courts a couple of times to penalise the polluters or to prevent such actions which may cause serious damage to the environment.
The Stockholm Declaration, Rio Summit and the disasters like Bhopal Gas Tragedy, Oleum Gas Leak etc. have been some of those events which have been responsible for the development of an Environment Law jurisprudence in India. These events led to the enactment of various legislations in the country, like the Air Act, Water Act, Public Liability Insurance Act and others which have recognised the menace of Environment pollution and have led to directed efforts towards its prevention. However, the legislative efforts in the country have been piecemeal and there is no comprehensive legislation, in this regard (even now). The Environmental Protection Act, 1986 has been one such legislative effort, which strives in this direction and seeks to take within its realm the multifarious activities which can result in polluting and degrading the different elements of the environment.
CRITICAL ANALYSIS OF THE ENVIRONMENT PROTECTION ACT
As aforesaid, after enactment of the Water Act and Air Act, post the Bhopal Gas Tragedy and the Oleum Gas Leak incident, the Environment Protection Act, 1986 (EPA) was enacted by the Parliament as an umbrella legislation for environmental matters. Yet, even after this legislative intervention, the menace of environmental pollution could not be controlled to the required and expected levels and environmental degradation has been going on, adding up to the woes of global warming and other effects detrimental to the survival of the entire ecosystem. This, to some extent also points towards the efficacy of these legislations in controlling and regulating this ravage of the Environment, though it is not implied in any manner that the Executive have been performing their job up to the mark and have made sincere efforts towards it as the law enforcers of the country too, have equally failed in performing their jobs, though the reasons for the same may be a point of discussion on some other occasion.
The foregoing texts of this article, seek to critically analyse the EPA and find out such provisions of the Act which give loopholes to the perpetrators to commit environmentally detrimental actions and also save themselves from the clutches of law. This article seeks to come up with the limitations of this legislative piece, which reduce the efficacy of this Act and consequently thwart our committed efforts to make India, pollution free. In pursuance to this, various definitions, implementation and enforcement mechanism and the various remedial measures provided in the Act are analysed and some of the reasons which have failed the legislative efforts of our country and have left our environment to the mercy of some of the Environmental activists and the courts of the country for its protection, and who have been seen to be as the only resort, for preventing acts of degradation.
DEFINITIONS PROVIDED UNDER ACT
It is indeed comforting to note that this Act was the first attempt of the legislators to define certain technical terms like environmental pollutant, pollution etc. However, Section 2 which deals with the various definitions provided thereunder does not manifest an appreciation of the modern concept and causes of environmental pollution. In the definition of environmental pollutant, the understanding appears to be traditional and elementary in nature, it emphasises only upon the presence of any solid, liquid or gaseous substance. The definition does not include one of the major environmental ills of the present time that is noise. ( K. Jayakumar Environment Protection Act: A Critical Overview, 11 CULR 33, 35 (1984)) Though section 6(2)(b) of the Act, talks about noise, though the same is quite miniscule considering its relevance in the present times. In the case of Bijayananda Patra v. District Magistrate, Cuttack (AIR 2000 Ori 70) it was acknowledged by the High Court of Orissa that “Noise pollution has already crossed the danger point and noise like smog is threatening as a slow agent of death.” It was also stated that noise beyond 65(dB) or more than 100 dB, would be intolerable and affects the health of humans and animals adversely. Thus, in times when environmental pollution receives a lukewarm response from the authorities that be and the perpetrators are zealously watchful of the loopholes, it is expedient that inter alia, presence of noise beyond permissible limits in the environment should be expressly provided as environmental pollution. Also, in the present times of advanced scientific research and development and technological experiment, the world has become exposed to the fourth state of matter as well that is plasma, resorted to for various industrial purposes, though it is still a subject of research, the present definition would be problematic in dealing with the effects of uncontrolled use/presence of plasma. (K. Jayakumar Environment Protection Act: A Critical Overview, 11 CULR 33, 35 (1984)) Furthermore, heat, radiation and vibration, have also been great contributors of environmental degradation but they have not been adequately dealt by the Act. Hence, it is quite desirable that the legislature takes account of these latest changes/increments in the elements of environment and accordingly modifies the definitions.
EXCESSIVE POWERS TO THE CENTRAL GOVERNMENT
As previously stated, EPA confers excessive powers upon the Central Government, the legislation minces no words and states in Section 3 that it shall have the “power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” Though these wide powers give the Central Government a great opportunity to significantly turnaround the problem of environmental pollution in the country and even rejuvenate the lives of the living by doing away with this menace altogether, however, it is indeed rare to find instances, where the Central Government has lived up to the expectations. Perhaps, conferring these wide, almost unfettered powers upon the Central Government has the potential to bring arbitrariness in the system and instead of achievement of environment friendly objectives and aspirations, other vested interests may be promoted and taken care off. It is undeniable that environment law seeks to perform a very critical role in the society, that is of balancing the considerations of scientific and technological development and thereby improving the “material” quality of life of the people and also at the same time protecting environment and the ecosystem. The aforesaid nature of work, requires the concerned authorities to be quite proactive in their approach and operate with an impartial, unprejudiced and unbiased state of mind, driven with utmost sincerity and honesty towards the protection of environment and the well-being of people. It won’t be wrong to reiterate the old saying by John Dalberg Acton at this juncture, that “Power tends to corrupt, and absolute power corrupts absolutely. Thus, in order to ensure the fulfilment of the objective of this law, it is essential that there is a certain check over the excessive powers of the Central Government in taking measures, issuing directions and constituting authorities under Section 3 and in appointing officers and entrusting them with powers and functions, under Section 4 of the EPA. Specifically, the power to issue directions to the authority so created might be an impediment in its functional freedom. Any agency charged with the duty of environmental protection should have certain essential qualities of it is to function effectively they are namely: (i)environmental expertise; and (ii) ability to make independent decisions based on valid environmental criteria; and (iii)freedom from extraneous influences, the Environment Act does not take into account these considerations and thus in totality the agency created by it may be in no better position than the boards constituted under the Water Act or Air Act. (N. S. Chandrasekharan, Environmental Protection: Two Steps Forward, One Step Back, 30 JILI 184, 186 (1988)).
Notwithstanding anything stated above, before entertaining concerns with respect to functional freedom, firstly, the compliance of this provisions by the Central Government is necessary as even after a long period of 30 years since the enactment of EPA, the Government has not put in place a dedicated authority (even though under its authority) to look after the environmental issues and ensure compliance of the provisions of the Act and perform the functions of the Central Government, despite being reminded by the Supreme Court on different instances (Vellore Citizens Welfare Forum v. Union of India (AIR 1996 SC 2715).
PUNISHMENT FOR WRONGS TO THEENVIRONMENT
Environmental Crimes have been recognised in the Environmental legal framework of the country and the various legislations like the Air and Water Act have duly put in place such actions which would be held criminally liable and have prescribed various punishments, imprisonment or fine or both for the same. The EPA going a step forward has prescribed more stringent punishments for the offences and has thereby sought to make the perpetrator pay for his acts and also to ensure a better deterrent effect in the minds of other people. However, the provisions in the Act have not been so framed such that the intended objective of legislature may be achieved.
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The Act lays down in Section 24(2) that where any act or omission is a punishable offence under this Act and also under any other Act then the respective convict shall be liable to punishment under the other Act and not under the EPA. Quite possibly, a single act may be an offence under two or more other legislations and consequently in such a situation, a polluter, by virtue of this mandatory punitive provision of the Environment Act, is bound to be subjected to the comparatively less punitive provisions of the Water Act or Air Act rather than that of the Environment Act. (K.I. Vibhute, Environment, Development ¬¬and Law: Indian Perspective, 37 JILI 182, 189 (1995) Thus, this section significantly whittles down the effect of enhancement of punishments under the Act and consequently its deterrent and punitive effects.
SIXTY DAYS NOTICE CLAUSE
Another problematic element with respect to prosecution for environmental crimes is that the EPA under section 19 of the Act provides that for a court to take cognizance of any offence under this Act, it is essential that the person making the complaint should have given a notice of not less than 60 days of the alleged offence and his intention to make a complaint, therefor to the Central Government or the concerned officer or authority. In a country, where there are a handful of people, who are conscious and cognizant about environmental issues and seek to actively participate in the process of environmental conservation and reconstruction. This section, further makes it difficult for them to approach the Court and also lingers the entire process of prosecution and not only gives an opportunity to the polluter to continue polluting the environment for this period, but also gives him the chance to destroy the evidences or make such manipulations or arrangements, which could prevent him from getting convicted in the court. Thus, in effect this provision thwarts the Act from achieving its objects adequately.
Conclusion
By way of this article, one can have certain key takeaways, which can be handy in understanding as to why the laws in the country have not been able to suitably curb environmental degradation and instil fear in the minds of people from attempting anything which can have severe consequences for the environment. The first and foremost issue with the Act is with respect to its definition clause, which has not been able to provide a comprehensive definition of environment pollutant. The definition is traditional and elementary in its approach and especially to be effective in the present times it does not specifically take into consideration the new discoveries of the time which can/might have disastrous consequences to the environment. All these gaps make the law loosely worded and gives space for one to escape from its grip. Further, the Act, vests excessive and unfettered powers upon the Central Government to take any action as it may deem fit to ensure compliance of the provisions of this Act. However, these uncontrolled powers too can be counterproductive and may be a possible way for the people who vested interests or are politically connected to be able to prevent themselves from facing the brunt. Also, the provisions with respect to prosecution for environmental matters too are not appropriately word and require some necessary introspection and improvement. The Act though gives an individual citizen to complaint against environmental pollution, however, it mandates such person to send a notice of not less than 60 days about the alleged offence and of his intention to complain, to the appropriate authority, in order to enable the court, take cognizance of the same. This not only impedes prompt action but also leads to further pollution and provides the perpetrator an opportunity to escape from the clutches of law. Further, the Act also makes a provision which provides that if an act is an offence under any Act other than the EPA, the respective person shall be punishable under the former. This provision again weakens the effect of the relatively stringent provisions of EPA and significantly reduce its deterrent effect upon the people. Thus, in totality its limitations in acknowledging pollution, preventing it, discouraging the efforts of the ordinary people in preventing it and further offering an escape to the perpetrator significantly lowers the impact of this Legislative piece, boastfully known to be the umbrella legislation for environment pollution in the country.