The 1988 Amendments to the water (Prevention and Control of Pollution) Act, 1947

CONSTITUTIONAL ASPECT CONCERNING ENVIRONMENT

India is the first country to provide constitutional protection to the environment. Originally, it did not contain any specific provision for such protection and promotion of environment. In 1972, UN Conference on human environment at Stockholm was held. Like other countries, India also participated in the said conference. In this conference the importance of environment and its protection was raised and two resolutions were listed under the said declaration as;

1. Man has the fundamental right to freedom, equality and adequate conditions of life of dignity and well-being.

2. Man bears a solemn responsibility to protect and improve the environment for the present and future generation. The above resolutions were considered to be the magna carta of environmental protection and sustainable development.

In pursuance of Stockholm Declaration, the 42nd Amendment Act under the Indian Constitution was passed providing for the protection and improvement of environment under Article 48A and Article 51A.

Article 48A provides that the State shall endeavor to protect and improve the environment and to safeguard the wildlife of the country.

Article 51A (g) lays down that it shall be the duty of every citizen of India to protect and improve the natural environment including the forests, flora, lakes, rivers, and wildlife, and to have compassion for living creatures.

The 1988 Amendments to the Water Act:

The 1988 amendments modified Sec. 49 to allow citizens to bring actions under the Water Act. Now a State Board must make relevant reports available to complaining citizens, unless the Board determines that the disclosures would harm “public interest”.

Previously, the Act allowed courts to recognize only those actions brought by a Board, or with a previous written sanction of a Board.

The 1988 amendments have provided for more stringent penalties under Sec. 41, for failing to comply with a court order under Sec. 33 or a direction from the Board under Sec. 33A. The penalties range from a minimum imprisonment of three months to a maximum of seven years, and a fine from Rs. 1,000 to Rs. 10,000. The Act also extends the liability for violations committed by companies to certain corporate employees and officials and to heads of government departments (Sec. 47-48).

Thus, these amendments have strengthened the Water Act implementation provisions.

Corporate Liability under the Water Act:

Sec. 47 lays down that where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be liable to be proceeded against and punished accordingly. Provided that such liability shall not extend to a person if he proves that the offence was committed without his knowledge for that he exercised all due diligence to prevent the commission of such offence.

Sec. 48 lays down that where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

CASE LAW

M.C. Mehta vs. Union of India

[Ganga Pollution (Tanneries) Case]

Facts: In 1985,M.C. Mehta, an activist advocate, filed a writ petition under Art. 32 of the Constitution. The petition was directed at the Kanpur Municipality’s failure to prevent waste water from polluting the Ganga. The discharge of trade effluents from tanneries at Jajmau near Kanpur, without treating the effluents first into a primary treatment plant has been causing considerable damage.

Sec. 24 of the Water Act, 1974, prohibits the use of any stream or well (the expression “stream” includes rivers) for disposal of polluting matter, etc. Notwithstanding the comprehensive provisions contained in the Act, no effective steps appear to have been taken by the State Board to prevent the discharge of effluents into the river Ganga. The fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provision of the law in force since ultimately the effluents reach the river Ganga from the sewerage system of the municipality.

Observations and Decision: The court observed that under the existing law, tanneries, like other industries, are expected to provide treatment of their effluents to different standards depending on whether they are discharged into stream or land. Accordingly, the court issued directions to the tanneries to set up effluent treatment plants within a period of six months.

The court further observed that the closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.

M.C. Mehta vs. Union of India

[Ganga Pollution (Municipalities) Case]

Observations and Decision: The Supreme Court in this case held that the Nagar Mahapalika of Kanpur has to bear the major responsibilities for the pollution of the river Ganga near Kanpur city.

The petitioner in the present case is not a riparian owner, but he is a person interested in protecting the lives of people who make use of the water flowing in the river Ganga. The nuisance caused by the pollution of Ganga is a public nuisance and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition has been entertained as a public interest litigation. The petitioner is entitled to move the court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Board constituted under the Water Act.

People United for Better Living in Calcutta vs. State of W.B.

Facts: The petitioner in a writ petition under Art. 226 prayed for the maintenance of wetlands in the eastern fringe of the city of Calcutta. The State-respondent wants to develop the 784 acres of Calcutta’s wetlands for commercial/residential purposes, under its ‘Salt Lake City Development Plan’. It contended that by the time the slogan ‘save wetlands’ was raised, 3,000 acres of salt lake had already been developed by early 1980s and only 784 acres more were to be essentially developed now to optimize the use of infrastructure already created. The contemplated co-operative housing complex facilities for the people, and a world trade centre cannot perhaps be given up in the larger socio-economic interests.

Observations

The court observed that there cannot be any manner of doubt that Calcutta’s wetlands presents a unique ecosystem apart from the materialistic benefits to the society at large. The court observed:
“While it is true that in a developing country there shall have to be development, but that developments shall have to be in closest possible harmony with the environment, as otherwise there would be development but no environment, which would result in total devastation…”.

Decision

The court ordered an injunction restraining the State from reclaiming any further wetland, and prohibited them from granting any permission to any person for purpose of changing use of land from agriculture to residential or commercial in the area. They are further directed to maintain the nature and character of wetlands in their present form and to stop all encroachments of wetland area.

Conclusion

It was very crucial amendment in provision of Water Act which to be reviewed again to the extent of current economical growth and lot more to do exercise over it. The 1988 amendment strengthened the Acts implementation provisions regarding closure of a defaulting industrial plant. The water act is comprehensive and applies to streams, inland waters, sea.

Submitted By:

Sunny Kumar, Pursuing Ph.d,
Mewar University, Chittorgarh