Amendment to the Environmental Protection Act of 1986

This Article is written by Bharatee Preeya A.K. student of Alliance University. 

Introduction:

We consider the environment to be a part of our everyday lives since our history began. Sooner or later, we lost track, and as a result of globalization and industrialization, concern for the environment had long since faded away. It had not been the case for a long time as the concern for nature and nature for the future had increased rapidly. There are British laws in India concerning environmental concerns, but there was a void somewhere. In both international forums as well as Indian forums, there was pressure on India to pass a specific law on environmental protection. In 1972 saw the Stockholm conference on Humans and the Environment serve as the catalyst in the international forums. Bhopal’s Gas Tragedy in 1984, which led to thousands of deaths overnight from a gas leak, gave this process a major push. Neither the perpetrators nor the company was held accountable for such accidents due to the absence of legislation. This led to indignation in India, leading to government intervention.

 

As a result of official notification in November of 1986, the EPA 1986 took effect throughout India. It consists of 26 sections organized into 4 chapters. It derives its authority from Article 48(A) of the Indian Constitution and Article 51(A)g of the Indian Constitution. The Environment (Protection) Act, 1986 is under Article 253 of the Indian Constitution and empowers the government to conserve and improve the natural environment, control and reduce pollution from all sources, and prohibit or restrict any industrial activity for environmental reasons. The Environment (Protection) Act of 1986 aims to protect the environment and improve it.

 

Amendments need in the existing sections:

Chapter 1of the act deals with preliminary aspects of the act i.e. definition. By section 2 (b) of the act the term “environmental pollutant” includes three states of the matter however, after the advancement in technology and science we can observe that “Plasma” (Fourth state) must be added to it. The wastes generated from plasma have been recycled efficiently in various parts of the world yet we haven’t included it as a pollutant in itself.

 

Even the draftsman at the time of drafting the act would not anticipate the noise pollution later it was added in section 6(2) (b) of the act. However major urban environmental issues like traffics, overburdened mass transportation systems, slums and congestion were excluded from the act.

The next major amendment should be made to section 6 and section 25 as rule-making power under section 6 and the power to make a rule under 25 more or like a duplicate of each other and must be combined as one.

 

However, the delegation power lies to the government by section 23 of the act the recognition of experts in certain conditions is needed to be mandatory. This change is needed in section 10 of the act (mandating taking expert assistance) reason behind this is that Section 6 (2)(a) states that “The standard of quality of air, water or soil for various areas and purposes” even though government set up the standard by the assistance of experts the assistance of other experts (second opinion), locals, activist plays the immense role as standards and the situation is not same in every place and is practically impossible for authority to have knowledge about every locality under his jurisdiction. However, the delegation power is discretion if it’s mandated then it will be more transparent, effective, and efficient with less probability of errors and manipulation.

 

After the amendment in section 15, the penalty provision had increased but it should be amended in a way to prescribe a minimum penalty for a different type of industries and further decided by the impact on the environment.

 

We could see that sections 16 and 17 had not been effective as most of the time the defense of lack of knowledge was often taken into hands and the penal provision is diluted in many ways as the sections were mere provisions.

 

Section 24 of this act is the destruction of the objective behind this act. In today’s scenario, there is not a single environmental offense without any connection with the offenses under other acts. When this modern generation claims of giving the RIGHT OF NATURE (Ecuador had made it a constitutional right whereas countries like India, New Zealand, Colombia, Philippines, United States had recognized the right of nature) yet this single section in the act had aborted the whole purpose and needed to be amended by giving priority equally to all the laws governed with environmental act stands much with priority

 

When this act talks about the defenses under section 18 (good faith) and ousting the Jurisdiction of the Civil court there is no section in this act deals with the forum and the prosecution of the offender.

 

Some interpretation difficulties in the acts as such in section 9(2) the law stated to take remedies as early as “practicable” considering the irreplaceable loss on the environment and the technological advancement- the word practicable should be replaced to “Possible”. Section 10 and 11 must be amended in a way to mandate the mobile laboratories (During Inspection) which is possible by tremendous advancement in testing procedures and technologies.

By section 12 it stated the CG “may” establish environmental Laboratories. It needed to be amended and need to mandate the setup of labs according to the need of that particular place.

 

Suggestions for Inclusion:

The best among all is by section 102(2)(c) of the National Environmental policy act of US every industry is mandated to submit a (Detailed report) with the expert assistance along with government assistance, which states the impact of the project /industry on the environment and the cost-efficient alternatives that are available before getting the approval.

The provision for the judicial review of the state’s action must be included in the act. By the laws of Lithuania (1st among environmental democracy ranking) the members of the public gave the power to challenge the government on environmental rights. Whereas in Latvia the public is allowed to take part in the climate-related decision, however in India due to population restrain it’s impossible but at least expert opinions are needed to be considered. Moreover, they should mandate the laws to get access to environmental information from the government transparently.

 

Conclusion:

The environmental ministry is drafting a new environmental management law with a private firm just like in 2015. TSR Subramaniam, a former Cabinet secretary, led a high-level committee set up by the Union environment ministry in 2014. The committee was tasked with suggesting changes to six environmental laws to meet current environmental objectives. Among its 55 recommendations, the committee recommended that the Union environment ministry revise the Environment Protection Act, 1986. This is done by incorporating relevant provisions of the Water Act, 1977, and the Air Act, 1981. These can be repealed when the revised EP Act, 1986 is brought into effect. The Committee also recommended creating an “umbrella” law – the Environmental Laws (Management) Act (ELMA) which would enable the establishment of the National Environmental Management Authority and State Environment Management Authority. Let’s hope the best of all will come.

 

REFERENCE:

[1]K.Jayakumar, Environmental Protection act a critical overview, pg 35, http://dspace.cusat.ac.in/jspui/bitstream/123456789/10926/1/Environment%20Protection%20Act%20A%20Critical%20Overview.PDF

[2]  Signed in January 1, 1970,  https://www.epa.gov/nepa/what-national-environmental-policy-act#:~:text=The%20National%20Environmental%20Policy%20Act%20(NEPA)%20was%20signed%20into%20law,actions%20prior%20to%20making%20decisions

[3] Jayashree Nandi, India’s umbrella environment law idea triggers renewed concerns,

https://www.hindustantimes.com/environment/indias-umbrella-environment-law-idea-triggers-renewed-concerns-101616052674150.html,

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