Environment Protection Act:

A Critical Overview
K. JAYAKUMAR*

Man has always tried to take from nature as much as he

could until he realised that he was borrowing from himself. The
first warnings were in ancient civilisations where lush land suc-
cumbed to the "desert creep". The late 20th Century has changed
the hitherto unperturbed conception of nature as the Horn of
Plenty. Man's perseverent endeavour to conquer nature has
almost succeeded. The impact of his nature — transforming
activities has attained unprecedented dimensions. Estimates show
that over 4000 billion cu.m. of earth are moved annually in
ploughing and construction work. tens of billions of tons of ores
and fuels are extracted, nearly 500 million tons of mineral ferti-
lisers and four million tons of pesticides are spread over farm-
lands. Virgin landscapes have been altered on almost 60 percent
of the earth's land surface. And this onslaught is gaining mo-
mentum like a downrushing avalanche.
What is the price the planet has paid for man's economic
advance? Nearly one billion tons of air-borne pollutants, eroded
soils, a deteriorated climate, extinct animal and plant species,
and over 5 million people with permanent hearing defects due
to noise, the technological ill that leaves no. residue. These are
but a few items on the bill nature has presented to man.
Man realised that he can no longer rely on providence to
maintain the delicate interconnected communities of animals and
plants.' The United Nations Conference on Human Environment
was therefore convened at Stockholm in 1972. The nations of

* Lawyer, High Court of Kerala, Cochin,

34 COCHIN UNIVERSITY LAW REVIEW 991
the World decided to take appropriate steps to protect and im-
prove human environment. The sequel to this in India was an
amendment to our Constitution introducing Articles 48A and 51A,
(Fundamental Duties) Article 48A brings in the Directive Principle
exhorting the State to take legislative action for environmental pro-
tection. Article 51A(g) postulates a fundamental duty in all
citizens to preserve and protect the environment and have com-
passion to all living creatures. There in black and white, was
the mandate to the Indian State to endeavour to protect and im-
prove the environment and to safeguard the forests and wildlife
of the country.
Though there is a host of legislation in India aimed at pro-
tecting the environment from pollution and maintaining the eco-
logical balance, the environment has not so far been considered
in its totality. The Environment (Protection) Act, 1986 —
what with all the fanfare preceding — was expected to fill the
lacuna and provide a blue print for a progressive policy for pro-
tecting the ecosystem. This paper is an attempt at examining
whether the Environment (Protection) Act, 1986 will help us
to realise the objects for which it has been brought into being.
The Act is a seminal enactment which strengthens the
hands of the Central Government in overseeing environmental
protection. But while at certain points it pretends to be an
operative legislation, essentially it is only an enabling legislation.
From present appearance it is perhaps an inadequate beginning,
but a beginning nonetheless. It contains none of the intricacies
of the Water (Prevention and Control of Pollution) Act, 1974
or the Air (Prevention and Control of Pollution) Act, 1981.
The statement of objects promises great things. As we study
the whole Act, our expectation of a comprehensive law for pro-
tection of the environment and maintenance of ecological
balance, are belied. All that the Act has done is to arm the
Central Government for a comprehensive control of environ-
mental pollution by the industrial and related activity of man.
The Act is framed with 4 chapters. Chapter I deals with the pre-
liminary aspects including definitions.
Section 2 which deals with definitions shows a total lack of
understanding of the modern concept of environmental pollution
 K. JAYAKUMAR 35

and the factors that lead to the imbalance of the ecosystem. The
accent is on the physical condition of air and water. The major
urban environmental ills like noise, traffic, overburdened mass
transportation systems, slums and congestion are conspicuously
absent from the Act and no provisions have been made for their
control.

Section 2(b) defining "environmental pollutant" is in-

adequate. The inadequacy is realised even by the draftsman as
seen from Section 6 (2) (b) where the words "including noise"
is introduced to qualify the term "environmental pollutant." The
limitation of the definition to the three states of matter which
causes pollution is another aspect; the fourth state, viz.,
"plasma" used in advanced scientific and technological experi-
ments and which is at the threshold of industrial use is left out.
This may present problems of regulation in view of the present
definition.

then again perhaps the definition in Section 2 (e) of

"hazardous substance" could have been left out leaving the ordi-
nary english meaning to word itself. The definition leaves loop-
holes and tends to restrict control over harmful substances. Sec-
tion 2 of the Act thus leaves one in a labrynth of meaningless
jargon.

Chapter 2 delineates the general powers of the Central

Government. Section 3 is a reproduction of Article 48A of the
Constitution in different words and in great detail. Considering
the basic enabling nature of the Act, the sections and enumera-
tions herein are largely superfluous except those relating to consti-
tution of Authorities and appointment of officials. This part how-
ever holds the key to the workability of the Act. Under earlier
pollution control legislation, the authorities constituted were
essentially peopled with full time politicians, who are generally
unconcerned about the intricacies of pollution and ecological
balances except when they tend to influence their political career,
a case in point being the furore caused by the Bhopal Tragedy.
It is interesting to note that the working of most of the environ-
ment related legislation existing in this country did not reach
viable levels mainly due to inadequacies in the official imple-
36 COCHIN UNIVERSITY LAW REVIEW

mentation. The Rule making power in Section 6 is duplicated to a

certain extent in Section 25.

Both these Sections could have been put together into one
section. Chapter III of the Act lays out the substantive provi-
sions relating to prevention control and abatement of environ-
mental pollution. The provision in Section 11 relating to sampl-
ing in very much obsessed with delineating the protections for
the offender guilty of polluting the environment. This section is
very much like the one in Prevention of Food Adulteration Act.
To say the least, it is a lawyer's paradise. The tremendous
advance in laboratory and testing technology has not been taken
into consideration while drafting the provisions relating to sam-
pling and testing. One of the most effective methods of testing
samples of air and water and measuring noise-levels would have
been Mobile Laboratories, where sampling and testing could be
done without delay, which is one of the legal loopholes through
which the guilty go scot free. The present provisions have a
tendency to protect the guilty rather than the environment. Sec-
tion 15 prescribes the penalties for offences under the Act. This is
the first time that very heavy penalties like imprisonment for
periods upto 5 years and fine of upto Rs. 1 lac have been pre-
scribed for environmental violation. This provision was given
very great publicity in the press and scientific journals which
espouse the ecological cause. The Section was put in perhaps to
appease the environmental activists. But curiously enough, no
minimum punishment is prescribed. It would have been in the
fitness of things if a minimum of 2 years rigorous imprisonment
had been mandatorily provided for offences of environmental
pollution, considering that the attempt is to save mankind from
the brink of disaster and annihilation. The loopholes provided
in Sections 16 and 17 to get off the hook on proof of lack of
knowledge or due diligence also dilute the effect of the penal
provisions.
Section 24 of the Act takes the cake for completely des-
troying the Environment (Protection) Act, 1986. This section
postulates that where an offence under this Act is also an offence
under any other Act, the offender shall be punished only under
 K. I AY AKUMAR 37

the other Act. We have the Water (Prevention and Control of

Pollution) Act 1974, The Air (Prevention and Control of Pollu-
tion)Act 1981, the Factories Act, the Wildlife (Protection) Act,
the Forest Act, the Poisons Act, the Insecticides Act and a
host of other legislation covering almost every aspect of environ-
mental protection. Today the only field untouched by controlling
legislation is perhaps noise pollution. At present noise pollution
can be attached either under the Law of torts or under the Code
of Criminal Procedure as a nuisance. Therefore Section 24 will
have the effect of obliterating the Act itself for all intents and
purposes. Thus as the Act stands, it is as a toothless tiger with
even its claws pulled out.
While the Act is meticulous about ousting the jurisdiction
of Civil Courts and protecting actions taken in good faith, one
is surprised that there is no provision regarding the prosecution
of offenders and the forum for prosecution.
A silver lining is very much there. That is in relation to the
concept of locus standi. The earlier legislation provided that
only the authorities under the Act could prosecute offender for
environmental pollution. The common man had no locus standi
to initiate action under the Water and Air Pollution Control
Acts. Section 19 of the present Act, however gives "any person"
the right to move the court complaining of an offence under the
Act, provided notice of not less than sixty days, is given to the
accused of the alleged offence and intention to prosecute. There
have been misgivings in certain quarters about the requirement
of sixty days' notice. Be that as it may, statutory relaxation of
the restrictions brought in by the earlier concept of locus standi
is laudatory.
A significant omission in the Act is a provision for what
in the United States is called an "Environmental Impact State-
ment". In the U.S.A., Section 102 (2) (c) of the National En-
vironmental Policy Act requires a "detailed statement" on the
envirnmental impact of, and alternatives to various federal
actions. This provision combines the legislative objectives of full
disclosure consultation and reasoned decision — making pre-
scribed as the cutting-edge of administrative reform. The En-
vironmental Impact Statement actually gives the environmental
38 COCHIN UNIVERSITY LAW REVIEW 9in
consequences and alternatives including cost-benefit analysis,
which is comprehensive to the layman and instructive to the ex-
pert. It is prepared in consultation with Federal Agencies and
experts in various related fields and deals with the impact of the
proposed project on the environment — both longterm and short
term. In India as the Five Year Plans are being implemented
various gigantic projects take shape which change the relief map
of the country. A similar provision is therefore imperative in the
Indian context. Gigantic hydroelectric projects, chemical com-
plexes and Nuclear facilities are being commissioned. In the
absence of an Environmental Impact statement before these
projects are commissioned all that can be done is an apologetic
attempt at mitigating ecological damage after the projects go on
stream. Due to the absence of EIS, environmental ills are per-
ceived only after astronomical sums are expended. In the circum-
stances the State as well as the investor industrialists are both
to take a serious view of the disastrous environmental conse-
quences — brought on by industrial projects. The provision for
EIS might also enable public participation in environmental
protection.
Similarly a provision for Judicial Review of State decision
making in the field of Environmental Protection is conspicuous
by its absence.
The Environment (Protection) Act, 1986 is at best a paper
tiger meant to assuage the feelings of the environmentalists.
All that it has done is to add a little more weight to the
burgeoning statute book of the country.
A thought in closing — We have to recognise that the old
vision of a world in which human beings played a relatively
minor part is done and finished. Man is now imposing such
swift changes that organisms seldom have time to adapt to them.
We are so skilled in engineering, so inventive with chemicals,
that we can, in a few months transform not merely a stretch of
a stream or a small corner of a wood, but a whole river system,
an entire forest.
 K. .TAYAKUMAR 39

If we are to succeed in the house-keeping of planet Earth,

we must remember three things.
We must not exploit natural stocks of animals and plants
so intensively that they are unable to renew themselves and
ultimately made to disappear.
We must not change the face of the earth so grossly, that
we interfere with the basic processes that sustain life.
We must do our utmost to maintain the diversity of the
earth's animals and plants.
A comprehensive legislation with the above three principles
in mind is what we need; not piece-meal exercises at legislation.
Our planet is the only place in all Universe where life exists to
the present day information. We are alone in space. And the
continued existence of life now rests in our hands.