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Legal Framework around Pollution

Environment and Constitution of India

The Indian Constitution, as adopted in 1950, did not deal with that the subject of environment or prevention and control of pollution as such (until 1976 Amendment). The original text of the constitution under Article 372(1) has incorporated the earlier existing laws into the present legal system and provides that notwithstanding the repeal by this constitution of enactment referred to in article 397, but subjected to the other provisions of the constitution, all laws in force immediately before the commencement of the constitution shall remained in force until altered, repealed or amended by a competent legislature or other competent authority. As a result, even after five decade of independence. The plethora of such laws is still in operation without any significant changes in them.

The Constitutional and Legislative measures – The Constitution of India and Environment.

Article 48A and 51 (A)(g)

A global adaption consciousness for the protection of the environment in the seventies prompted the Indian Government to enact the 42nd Amendment (1976) to the Constitution. The said amendment added Art. 48A to the Directive Principles of State Policy. It declares:-

“the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”.

A similar responsibility imposed upon on every citizen in the form of Fundamental Duty –

2.3 Art. 51(A) (g)

“to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have compassion for living creatures”.

The amendments also introduced certain changes in the Seventh Schedule of the Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State list to the Concurrent List. This shows the concern of Indian parliamentarian to give priority to environment protection by bringing it out the national agenda. Although unenforceable by a court, the Directive Principles are increasingly being cited by judges was a complementary to the fundamental rights. In several environmental cases, the courts have guided by the language of Art. 48A. and interpret it as imposing “an obligation” on the government, including courts, to protect the environment.

Fundamental Rights

Article 14 and Article 19 (1) (g)

ART. 14 states: “The states shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’’ The right to equality may also be infringed by government decisions that have an impact on the environment. An arbitrary action must necessary involve a negation of equality, thus urban environmental groups often resort to Art.14 to quash arbitrary municipal permission for construction that are contrary to development regulations.

2.7 Article 21

(Right to Wholesome Environment): “No person shall be deprived of his life or personal liberty except according procedure established by law.”

In Maneka Gandhi v Union of India, the Supreme Court while elucidating on the importance of the ‘right to life’ under Art. 21 held that the right to life is not confined to mere animal existence, but extends to the right to live with the basic human dignity (Bhagwati J.)

Similarly while interpreting Art.21 in Ganga Pollution Case as discussed before, Justice Singh justified the closure of polluting tanneries observed: “we are conscious that clo

The Air (Prevention And Control Of Pollution Act, 1981)

To implement the decision taken in the Stockholm Conference, the Parliament enacted the Air Act under Article 253. It controls mainly air pollution and its abatement. Also establishes air quality standards.

The Central and State Boards set up under section 16 and 17 independently notify emission standards. Every industrial operator within a declared air pollution area, must obtain a permit from the State Board (Sec-21(1) and (2)). Within four months from the date of application for the permit, the board must complete the formalities – either grant or refuse consent.

Power of the Boards:

  1. Power of entry and inspection
  2. Power to take samples
  3. Power to give directions
  4. Air pollution control areas

The State Government may, after consultation with the State Board, by notification in the Official Gazette, declare in such manner as may be prescribed, any area or areas within the State as air pollution control area or areas for the purposes of this Act. The State Government may, after consultation with the State Board, by notification:

  1. alter any air pollution control area whether by way of extension or reduction;
  2. declare a new air pollution control area in which may be merged one or more existing air pollution control areas or any part or parts thereof.

If the State Government, after consultation with the State Board, is of opinion that the use of any fuel, other than an approved fuel, in any air pollution control area or part thereof, may cause or is likely to cause air pollution, it may by notification in the Official Gazette, prohibit the use of such fuel. The State Government may, after consultation with the State Board, by notification in the Official Gazette, direct that with effect from such date as may be specified therein, no appliance, other than an approved appliance, shall be used in the premises situated in an air pollution control area :

  1. Provided that different dates may be specified for different parts of an air pollution control area or for the use of different appliances.
  2. If the State Government, after consultation with the State Board, is of opinion that the burning of any material (not being fuel) in any air pollution control area or part thereof may cause or is likely to cause air pollution, it may, by notification in the Official Gazette, prohibit the burning of such material in such area or part thereof.

Air Quality Control and Monitoring

Under the Air (Prevention and Control of Pollution) Act, 1981, the Central Pollution Control Board (CPCB) initiated National Ambient Air Quality Monitoring programme in the year 1984 and the network of monitoring stations has been extended throughout the country. This report outlines the guidelines for carrying out ambient air quality monitoring including selection of monitoring stations, number and distribution of monitoring stations, selection of pollutants, measurement methods, sampling duration and frequency etc.

The guidelines have been prepared on the basis of experience gained over the years in ambient air quality monitoring. Ambient air quality monitoring is required to determine the existing quality of air, evaluation of the effectiveness of control programme and to identify areas in need of restoration and their prioritization. The monitoring is carried out to meet the objectives of NAMP.

The objectives of the N.A.M.P. are as follows:

  1. To continue ongoing process of producing periodic evaluation of air pollution situation in urban areas of the country.
  2. To determine status and trend in ambient air quality and effects of air pollution in urban environment • To estimate the future worsening or improvement of air quality and to obtain the knowledge and understanding necessary for developing preventive and corrective measures.
  3. To understand the natural cleansing process undergoing in the environment through pollution dilution, dispersion, wind based movement, dry deposition, precipitation and chemical transformation of pollutants generated.
  4. To ascertain whether the prescribed ambient air quality standards are violated and to assess health hazard, damage to materials and to control and regulate pollution from various sources.

National Air Quality Index (NAQI)

National Air Quality Index is a tool for effective communication of air quality status to people in terms, which are easy to understand. It transforms complex air quality data of various pollutants into a single number (index value), nomenclature and colour.

There are six AQI categories, namely Good, Satisfactory, Moderately polluted, Poor, Very Poor, and Severe. Each of these categories is decided based on ambient concentration values of air pollutants and their likely health impacts (known as health breakpoints).

AQ sub-index and health breakpoints are evolved for eight pollutants (PM10, PM2.5, NO2, SO2, CO, O3, NH3, and Pb) for which short-term (upto 24-hours) National Ambient Air Quality Standards are prescribed. 3. Based on the measured ambient concentrations of a pollutant, sub-index is calculated, which is a linear function of concentration (e.g. the sub-index for PM2.5 will be 51 at concentration 31 µg/m3 , 100 at concentration 60 µg/m3 , and 75 at concentration of 45 µg/m3 ).

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