ROLE OF POLLUTION CONTROL BOARDS IN WATER LAW

THIS ARTICLE WAS WRITTEN BY ANAHITA GAIND A STUDENT OF ARMY INSTITUTE OF LAW, MOHALI.

A.    ANALYSING STATE INTERVENTION IN REGULATING

B.     ENVIRONMENT: THE OGUS RULE

The market elements inevitably impose limitations on the societal norms, thereby persuading the human population to initiate environmental moves to control pollution, majorly induced in air and water. [1]However so, because of the scarcity of adequate resources, appalling monitoring and compliance thereafter, India has not been able to move ahead on building up its liability framework.[2] It is in this context that the Government decided to set up Pollution Control Boards (hereinafter referred to as ‘PCB’) at two levels-Centre and the state, which would be then referred as Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB) respectively.

Though, it might be safely stated, that even after thirty years, the environment continues to be denigrated at an alarmingly high pace, despite the regulatory mechanisms being firmly put in place.[3]With reference to the implementation of legal framework by the state, it would be pertinent to mention the conclusion by Ogus in this regard. As per his study,state may intervene at various marks, namely, (1) controlling flow of data, (2) benchmarks, (3) Certification and licensing, and lastly, (4) expenditure cut.[4]

In order to contain pollution, the State has been enacting each of these measures, by way of setting up regulatory bodies such as CPCB, SPCB, and other boards at the lower levels to keep a watch on the subject matter[5].

The author, through this paper, has attempted to study the various patters built up over the years, in order to analyze the functioning of PCBs in containing environmental pollution, and specifically the water pollution, also scrutinizing the effectiveness of water pollution regulatory framework in India.

B. TRACING THE STATE INSTITUTIONS REGULALTING WATER LAW: CPCB & SPCBs

The Constitution of India clearly stipulates for balance of powers between the central and state governments. As been known to us, the Parliament of India is empowered to make laws for the entire country, however so, the state legislatures can legislate only for their own respective states. In accordance with Article 246 of the Indian Constitution, the subject matters are dissected into three lists, namely List I (Union List), List II (State List), and finally List III (Concurrent List), that contains subject matters to be decided by both-Union and the States, provided that a Presidential accord has been awarded to the said laws.[6]

Pursuant to the UN Conference on Environment and Human Development at Stockholm, the Parliament had decided to alter the Constitution, and consequently, Articles 48A, 51A(g) and Article 253 were opted for, to be included in the sacred text of Constitution. Thus, it is after these developments, the Environmental Protection Act, 1986 came into being, and hence the breakthrough amendment to Water Act, 1974 was finally passed by the lawmakers. [7]

As stated, the Water (Prevention and Control of Pollution) Act, 1974 was amended in to 1988, by virtue of which it acquired the distinction of being the first ever legislation with an appreciative intent of ascertaining that the water bodies, such as rivers, lakes and ponds be not adulterated with harmful wastes, excreted by industries. [8]With wastes being passed into the water bodies without sufficient approach, the water becomes inappropriate for drinking, farming related activities, and even kills the marine life, thereby destabilizing the ecosystem.[9]

Hence, for such reasons, the Government was forced to set up the PCBs to regulate the water pollution-created by the release of harmful chemicals, pollutants into rivers and lakes. Similarly, at the state level, the PCBs are well empowered to provide for a certificate, also knows and Consent for Establishment, whenever a new entity is proposed to be established. [10]

Furthermore, the PCBs are also required to check the functioning of the existing factories, and issue a Consent for Operation certificate, in order to certify the correct operations of the factories, from the perspective of water pollution. [11]Thus, the PCBs attempt to regularize the environmental degradation by way of various powers provided by the water laws in India.

C. REVIEWING THE FUNCTIONS AND POWERS OF POLLUTION CONTROL BOARDS

The PCBs in India are categorized at two major levels- one at the Centre, and the other in the individual States, also known as CPCB and SPCBs respectively. It may be noted that, by the virtue of Water Act, 1974, water boards were put in place, which were further bestowed the responsibility of controlling water pollution. [12]Consequently, these water boards were restyled as PCBs, with an objective laid down in Environmental Protection Act, 1986. As it could be gauged, the tasks of the PCBs increased multi fold times, coupled with various court directions that would be discussed later in this paper. [13]

By the virtue of relevant provisions of Water Act, 1974, CPCB was formulized in 1974, with a design to boost to promote clean environment, particularly water bodies in India. Nevertheless, with the advent of time, it also shouldered the additional responsibilities to enforce regulations, so as to keep the air pollution in check. The CPCB-with six zonal centers-is regulated by twelve full time members.  [14]

The CPCB, as a central governmental agency, is majorly responsible for stimulating aseptic surface groundwater and controlling air pollutants.  [15]

Additionally, it is also responsible for rendering guidance to the Central Government with respect to environmental matters, coordinating in settlement of water disputes such as interlinking of river waters, actively directing and guiding the SPCBs, in furtherance to even drawing up minimum national standards, and advancing research in the field of environmental pollution, especially caused by water and air pollutants. [16]

A noteworthy function of the CPCB, under the provisions of Water and Air Act, is to lay out the minimum national standards, also referred commonly as MINAS, for measuring dissolved discharges. The said standards, are therein approved b y the Ministry of Environment and Forests. Interestingly, the state boards are further empowered to formulate even stricter guidelines, than prescribes by the CPCB.[17] As per the available data till date, CPCB has been successful in prescribing eighty-four MINAS standards, comprising of thirty-seven industrial effluvium and thirty-one emission standards, for they are stilted by various factors, including finance, infrastructure, and high installation charges. In furtherance to this, the CPCB is also entrusted with the supervision of common effluent treatment plants. [18]

It is a well-known fact that a whirlwind expansion of industries will inevitably change manufacturing graphs, and may very well produce critical aspects in the environment.[19]Therefore, under these circumstances, the pollution boards might not be well equipped to deal with the situation in hand fully. This, in turn, requires even more support from the other side of the spectrum-that is the producers and consumers-to enable the government for controlling pollution.  The recently initiated eco-mark scheme is an important signal to the consumers, to the effect that product supports the environment.[20]  Though the scheme is voluntary in nature, it serves the purpose to inspire consumers to utilize eco-friendly products.

This drudgery of finalizing the standards for eco-labeling is undertaken by the technical group-which is then assisted by various other committees comprising of environmental and product related experts. Once finalized, these standards are published by the Ministry of Environment and Forests in the Official Gazette. [21]In fact, the said yardsticks are a result of micro- analysis of raw products used in the manufacturing of the final goods. Pursuant to this, and for the benefit of consumers, the eco-label is provided to only those products, which meet the specified strict requirements. [22]

With the waste produced by industries, manufacturing sites, production centers, and even homes, contribute to the enhancement of the health risks. The CPCB, by virtue of the responsibilities laid down in The Hazardous Waste Rules, 1989 and further, the EP rules, are accountable for superintendence of critical disposal sites, in such a way that none of these substances affect the critical strata of the ecosystem. [23]

Similarly, the State Pollution Control Board is further formed under Section 4 of the Water Act, 1974, which is also entrusted with identical functions to that of the CPCB.  The SPCBs are required to provide suggestions to the Central Government on the matters relating to environmental pollution. Additionally, the SPCBs, as per the relevant regulations, are required to co-ordinate with their respective counterparts in devising a national strategy with an aim to counter environmental degradation.[24] Besides, the said state bodies may adapt economical authentic methods for the usage of such effluents  in the field of agriculture, amongst other common function performed by the Central Pollution Control Board.[25]

Apart from the various responsibilities provided in the The Water (Prevention and Control of Pollution) Act, 1974, the State Boards are also provided with various powers.

Section 20 of the Act empowers the State Boards to obtain information from any establishment,  industry, including any place whereby any disposal or treatment is carried on, in order to be wary of the pollution levels of that particular area. Any failure on part of any establishment would result in a hefty fine of Rs 10,000, or alternatively 3 month imprisonment.  [26]

Even further, Section 23 of the Act provides that the officers from the SPCBs are empowered to enter and inspect any establishment for the purposes of ensuring that the said unit complies with all the environmental regulations, and in particular with any relevant provisions of Water Act, 1974.  The search and seizure in the said process will have to be in consonance with Civil Procedure Code, 1908.  [27]

Section 25 of the Act entitles the SPCBs to impose constraints on new outlets.[28]Interestingly, in another case of AP Pollution Board v. MV Nayadu[29], the Court has held that any consent or authorization from the pollution board would not mean that the said entity has a right to adulterate the environment with pollutants.

In a sweeping power, if SPCBs find that there is a contravention of the regulations provided in the Act, Section 27 provides them the power to refuse or withdraw consent, as has been confirmed by the Court in the case of Mahabir Soap v. Union of India[30]. [31]It is also interesting to note that even if there is an apprehension on behalf of the SPCBs on the account that a said entity would pollute the waters, the said body, by virtue of Section 33 of the Act are entitled to make an application to the Judicial Magistrate, so as to put a curb on the apprehended pollution. [32]

D. NEED TO CHECK GROUNDWATER DEPLETION: ANALYZING THE COURTS’ INTERVENTION

One of the significant functions of the pollution control boards is to regulate the quantity and quality levels of the groundwater. However, sadly so, nothing much has been done by the regulatory bodies to contain the groundwater level, which in turn has been touching new lows, year after year. To highlight the concerns, the Court in various instances have stepped in, and emphasized through various landmark cases, which will be discussed by the author in this paper.

To understand the gravity of the situation, it might be worthwhile to present some statistics. At the Coca Coca site of Nemam village, situated in the Indian state of Tamil Nadu, it is known that 2.5 million litres of water is withdrawn by the beverage company, out of which less than thirty percent is used for producing the drink.

The state of Andhra Pradesh has taken a step in the right direction. A notable piece of legislation namely, The Andhra Pradesh Water, Land and Trees Act, 2002 provides for various measures concerning the regulation of ground water, however its efficacy is yet to ascertained.  As per the Act, an authority would be set up, apart from the SPCB, to regulate the ground water resources, and to keep a check on the misuse of the ground water. Also, it provides for a mandatory registration for all the owners of water bodies. Even pump owners would have to get themselves registered by the concerned authority, which would be tasked with conducting periodic reviews of all such water bodies.

Besides the legislature and the executive, the Courts have played a fairly important role in underlining the problem. Even as early as 1990, the Court in the landmark case of F.K Hussain v. Union of India[33] stated the following-:

“Consistent with natural constraints, a scheme, viable technically and meeting the requirements as nearly as possible has to be involved. With changes in the way of life, even basically conventional society, may go in for modern means and make use of pumps to draw water from private wells. Restrictions, comprehending the total situation, will be necessary, even in the shape of statutory regulations. Safeguards must be evolved to stop withdrawal of ground water at a cut off level, to impose restrictions and introduce a system of effective monitoring at all levels. To decide on the modalities the matter receive a final look, at the hands competent Ministry of Science and Technology and the Ministry of Environment…”[34]

Further, in another landmark cases concerning over-extraction of ground water, the Kerala High Court directed to stop the activity, and urged that a suitable mechanism be formulated. In the words of Court,

“The right to life is much more than the right to an animal existence and its attributes are many fold, as life itself. A prioritization of human needs and a new value system has been recognized in these areas. The right to sweet water, and the right to free air, are attributes of the right to life, for, these are the basic elements which sustain life itself. Consistent with these diverse concerns, a methodology has to be evolved for extraction of ground water. As already indicated, over exploitation of water resources has to be contaminated..”[35]

Even the Supreme Court in the landmark case of Jagannath v. Union of India[36], held that right to usage of ground water cannot be fall under the ambit of Article 21 of Constitution of India, wherein it directed for the shutdown of shrimp industry.

E. CONCLUDING REMARK

As a concluding remark, the author would like to reinstate his belief in the working of the board, for it is of instrumental significance in the prevention of pollution in India. Having so, the author feels that the PCBs should do more to highlight and put a direct spotlight on the environmental concerns vis-à-vis the process of industrialization, especially when the new Government is upping the ante in the infrastructure sector, which should not be ideally implemented at the cost of environmental concerns. Since the PCBs shoulder massive responsibilities, from collecting information, seizure, controlling to devising MINAS, it exhibits inefficiency in implementing the water laws on a strict notice.

For this reason, there is a need to rework the structure of the PCBs, and establish an aggressive face of the said PCBs, especially in tackling the problem of the groundwater, thereby enabling them to impose stricter sanctions against the defaulting industries. All in all, smart cities have to be developed in consonance with smart environment, in which PCBs would have to play a crucial role.

[1] R. Ellikson, Alternatives to Zoning: Covenants, Nuisance and Fines as Land Use Controls, University of Chicago Law Review,  pp 681- 781, Vol 40, , pp 681-781, 1973.

[2] B. Razvellis, Water Law and India, pp 89- 159, Universal Publishing House, 1981.

[3] P.M. Prasad, Environmental Protection: The Role of Liability System in India, Economic and Political Weekly, pp  257-69, Vol 39, 2014.

[4] Anthony Ogus,  Regulation: Legal Forms and the Economic Theory, Clarendon Press, Oxford, 1994.

[5] Phillip Culllet, Sujith Koonan, Water Law in India: An Introduction to Legal Instruments, Oxford Scholarship Online, 2014.

[6] M.P Singh, Outlines of Indian Legal and Constitutional History, Universal Law Legal Publishing Company, pp 34-90, 2013.

[7] J. Imitiaz Ahmed, Water Law Discourse, pp 12- 30, Radha Mohan Publishing House, 2011.

[8]Ibid.

[9] CD Kolstand, Ex post Liability for Harm v. Ex ante Safety Regulation Substitutes or Complements?, pp 80, American Economic Review, 1990.

[10] Supra n.1.

[11] Ibid.

[12] Ramaswamy R Iyer, Water and Laws in India, SAGE Publications Pvt. Ltd, 2009.

[13] M.S. Siddiqui, Water Policies and Legal Framework in India, pp 78- 99, Indian Law Review, 2011.

[14]Supra n. 4.

[15]Supra n. 13.

[16] T. Rajkumar, Water Law, Poverty and Development, pp 190-213, Irish Law Review, 1996.

[17] B.R. Seshadri, Reviewing the Water Boards in India, pp 109-127, Lotus Publishing House, 1992.

[18]Ibid.

[19]Supra n. 4.

[20] Ramaswamy R Iyer, Water: Perspectives, Issues, Concerns, SAGE Publishing Pvt. Ltd., 2003.

[21] Ibid.

[22] Vishwa Ballabh, Governance of Water: Institutional Alternatives and Political Economy, pp 67-194, SAGE Publishing Pvt. Ltd, 2006.

[23] V. Shiva, Water Wars: Privatization, Pollution and Profit, India Research Press, 2002.

[24]Supra  n. 17.

[25] Supra n. 22.

[26]See Section 20 of the Water (Prevention and Control of Pollution) Act, 1974.

[27]See Section 23 of the Water (Prevention and Control of Pollution) Act, 1974.

[28]See Section 25 of the Water (Prevention and Control of Pollution) Act, 1974.

[29] 1999 (2) SCC 718.

[30] AIR 1995 Ori 218.

[31]See Section 27 of the Water (Prevention and Control of Pollution) Act, 1974.

[32]See Section 33 of the Water (Prevention and Control of Pollution) Act, 1974.

[33] O.P. 2741 of 1988.

[34]Ibid.

[35]Attackoya Thangal v. Union of India, 1988 CriLJ, 1206.

[36] AIR 1987 SC 811.