Laws existing in India to prevent and control water pollution

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Laws existing in India to prevent and control water pollution

Environmental Rule of Law

Environmental Laws in India and Gujarat

The need for protection and conservation of environment and sustainable use of natural resources is reflected in the constitutional framework of India and also in the international commitments of India.

Constitution of India

The Constitution under Part IVA (Art 51A-Fundamental Duties) casts a duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.

Further, the Constitution of India under Part IV (Art 48A-Directive Principles of State Policies) stipulates that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.

Some of the important legislation for environment protection are as follows:

  • The National Green Tribunal Act, 2010
  • The Air (Prevention and Control of Pollution) Act, 1981
  • The Water (Prevention and Control of Pollution) Act, 1974
  • The Environment Protection Act, 1986
  • The Hazardous Waste Management Regulations, etc.

The National Green Tribunal Act, 2010

The National Green Tribunal Act, 2010 (No. 19 of 2010) (NGT Act) has been enacted with the objectives to provide for establishment of a National Green Tribunal (NGT) for the effective and expeditious disposal of cases relating to environment protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

Water Prevention and Control of Pollution Act, 1974

The prime object of this Act is to provide for the prevention of water pollution and cater to the maintenance of the water bodies and carry out activities to promote restoration of water. With the objective of giving practical implementation to this Act, the Central Pollution Control Board and the State Pollution Control Board have been established by the central and state authorities. The Central Pollution Control Board is to promote the cleanliness of streams and wells in different areas of the state. The Central Pollution Control Board has the power to advise the central government on various matters, which are concerned with the prevention and control of pollution of water. Under the Act mentioned above, the board has the power to encourage and conduct research and investigation with a view of promoting, the prevention of contamination of water in a significant manner.

The Water Prevention and Control of Pollution Cess Act, 2003

Industrial waste is one of the causes of the of water pollution. Often the waste from the industries is being disposed of into the rivers which pollute the river to a significant extent. According to Section 2 of this Act, industries include any operation or process or sewage or disposal treatment or any industrial effluent. Section 3 of this Act provides an exemption to industries from levying cess on those industries, which consume water below the specified limit. Water gets polluted through the toxic or non-biodegradable substances when the processing of these materials is being done in any industry, and such industries are required to pay cess under this law.

Relevance of Section 24 of this Act

To promote the proper implementation of the Act, Section 24 of the Act imposes a duty upon a person to refrain from allowing any poisonous or noxious matter, as determined by the standards laid down by the Central Pollution Control Board, into any stream or sewer or on the land. Another duty imposed by this Act upon the person is that no person shall, knowingly enter into any stream in a manner so as to impede the flow of water or in any other way causes pollution of water. According to this Section, any person who violates or contravenes with the provision of this Section shall be made liable to be punished with imprisonment of one year and six months which may extend up to six years.

Drawbacks of this Act

  • One of the chief drawbacks of this Act is that the Act is silent about the Groundwater Management policies.
  • Another drawback with which this Act suffers from is the fact that it does not deal with the indiscriminate tapping of ground water, rain water harvesting, etc.

The Indian Penal Code and Pollution

  • Under the Indian criminal law, provisions have been explicitly laid down to punish the person who commits an offence in contravention to the Code. Section 277 of the Code provides for the punishment to be given to the person who commits an offence of fouling of a public reservoir or a public spring voluntarily shall be liable to be punished with imprisonment of three months or with a fine of 500 Rupees or with both. The explanation of this situation can be given through an illustration. A, a resident of Chandigarh, goes near a reservoir and voluntarily puts a toxic substance with an intention to cause harm to the environment and in consideration pollutes the water. The reservoir was fit for public use before, but after the Act of A, the reservoir became unfit for the utilization of the public. Therefore, A was being held liable for the offence under Section 277 of the IPC, and he was punished with imprisonment of up to three months and a fine of Rupees 500.

The River Boards Act, 1956

  • This act aimed at the establishment of rivers and the regulation of interstate water disputes. The interest of the public is considered to be the prime concern of this Act. The Act gives the power to the State Government to establish Boards by issuing a special notification. The object of this Act is to resolve and regulate the inter-state water disputes. Article 262 of the Constitution of India gives the power to the Union to establish and adjudicate the inter-state water disputes prevailing in the country. Through this Act, awards and tribunals were being formulated to regulate the interstate dispute prevailing in a particular country.

Public Liability Insurance Act, 1991

The Public Liability Insurance Act, 1991 was enacted with the objectives to provide for damages to victims of an accident which occurs as a result of handling any hazardous substance. The Act applies to all owners associated with the production or handling of any hazardous chemicals.)

Coastal Regulation Zone Notification

The Ministry of Environment and Forests had issued the Coastal Regulation Zone Notification vide Notification no. S O. 19(E), dated January 06, 2011 with an objective to ensure livelihood security to the fishing communities and other local communities living in the coastal areas, to conserve and protect coastal stretches and to promote development in a sustainable manner based on scientific principles, taking into account the dangers of natural hazards in the coastal areas and sea level rise due to global warming.

 

Hazardous Wastes Management Regulations

Hazardous waste means any waste which, by reason of any of its physical, chemical, reactive, toxic, flammable, explosive or corrosive characteristics, causes danger or is likely to cause danger to health or environment, whether alone or when in contact with other wastes or substances.

There are several legislations that directly or indirectly deal with hazardous waste management. The relevant legislation are the Factories Act, 1948, the Public Liability Insurance Act, 1991, the National Environment Tribunal Act, 1995 and rules and notifications under the Environmental Act. Some of the rules dealing with hazardous waste management are discussed below:

  • Hazardous Wastes (Management, Handling and Trans Boundary) Rules, 2008, brought out a guide for manufacture, storage and import of hazardous chemicals and for management of hazardous wastes.
  • Biomedical Waste (Management and Handling) Rules, 1998, were formulated along parallel lines, for proper disposal, segregation, transport, etc, of infectious wastes.
  • Municipal Solid Wastes (Management and Handling) Rules, 2000, aim at enabling municipalities to dispose municipal solid waste in a scientific manner
  • E – Waste (Management and Handling) Rules, 2011 have been notified on May 1, 2011 and came into effect from May 1, 2012, with primary objective to reduce the use of hazardous substances in electrical and electronic equipment by specifying threshold for use of hazardous material and to channelize the e-waste generated in the country for environmentally sound recycling. The Rules apply to every producer, consumer or bulk consumer, collection Center, Dismantler and recycler of e-waste involved in the manufacture, sale, purchase and processing of electrical and electronic equipment or components as detailed in the Rules.
  • Batteries (Management & Handling) Rules, 2001 deal with the proper and effective management and handling of lead acid batteries waste. The Act requires all manufacturers, assemblers, re-conditioners, importers, dealers, auctioneers, bulk consumers, consumers, involved in manufacture, processing, sale, purchase and use of batteries or components thereof, to comply with the provisions of Batteries (Management & Handling) Rules, 2001.

Other states acts for water pollution control:

  1. The Shore Nuisance Bombay and Kolaba Act – The objective, with which this act was being brought into force, was with the purpose of facilitating the removal of nuisances below the high water mark in the islands Bombay and Kolaba. This act aimed at safe navigation of the harbour in Bombay along with the objective of giving importance to the interest of the public. The Act empowered the land revenue collector of Bombay to issue a notice to remove the nuisances or obstructions which exist below the high water mark.
  2. Orissa River Pollution Act, 1953 – This Act was formulated with the view of regulating the disposal of waste and effluents into the river by the factories and enable maintenance of the streams and water bodies. With the intention of giving this Act a practical implementation, the state of Orissa had established a board to govern the provisions of the Act above. This Act gives the board the competency to represent the inhabitants of a particular locality.

Damodar Valley Corporation Prevention of Water Pollution Act, 1948

  • The Damodar Valley has been among the most flourished river basins which the country has witnessed since time immemorial. With the view of keeping a check on the functioning of this valley, Damodar Valley Corporation was established. During the monsoon season, 80 percent of the waste comprising of waste from mines and industries is discharged into this river. With the coming up of this Cooperation, the agricultural sector had undergone a change. The agricultural area decreased from[6]59 percent in 1925 to just 10 percent in 1984. The mining industry had become the need of the hour during that period. The discharge of effluents from these mines was made into this river. This results in the pollution of water.

Right To Clean Water: a Fundamental Right

  • The Indian Judiciary has initiated a positive step, with the view of controlling pollution of water. Under the Indian Constitution, the judiciary has given a liberal interpretation to Article 21 of the Constitution of India and included the right to clean water and environment under the ambit of Article 21, Article 48, Article51(g) of the Constitution of India. Various judicial decisions throughout the history of Fundamental Rights have paved a way to the broad concept of Right to Life. The judiciary had propounded that the Right to Clean water comes under the ambit of the right to life and hence the scope of Article 21, Article 48 and Article 51(g) can include the right to clean water. In the case of Narmada Bachao Andolan Vs. The Union of India, the Supreme Court, held that the right to clean water is a fundamental right under Article 21 of the Indian Constitution. The court had observed that right to clean water is a part of the basic necessity of the human’s right to life.The state is duty bound to prevent the water from getting polluted.In the leading case of MC Mehta vs. The Union of India, the court held that the preventing the water of river Ganga from being polluted is the need of the hour.
  • Though many acts have been passed by the Parliament to control the pollution of water still, there is an urgent need for preventing our streams, reservoirs ,rivers, lakes from being polluted. The government should keep a check on the functioning of reservoirs, streams, lakes and a body should be established to monitor the working of the government.

 

Citizenship Amendment Act, 2019

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Introduction:

Citizenship Amendment Act, 2019

Citizenship Amendment Act, 2019

The Parliament of India has cleared the Citizenship (Amendment) Bill, 2019 that sought to amend the Citizenship Act, 1955, to grant citizenship to illegal immigrants from Pakistan, Bangladesh and Afghanistan, belonging to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians Religions, if they faced religious persecution there. 

Salient features of Citizenship (Amendment) Act 2019:

Definition of illegal migrants: The Citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship. The amended provisions of the Act provides that the following minority groups will not be treated as illegal migrants: 

 

  • Hindus, 
  • Sikhs, 
  • Buddhists, 
  • Jains, 
  • Parsis and 
  • Christians 

 

from Afghanistan, Bangladesh and Pakistan. 

However, to get this benefit, they must have also been exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government.

How is citizenship acquired in India and How does the Act seek to change the criteria for determining citizenship? In India, citizenship is regulated by the Citizenship Act, 1955.  The Act specifies that citizenship may be acquired in India through five methods – 

  1. by birth in India, 
  2. by descent, 
  3. through registration, 
  4. by naturalisation (extended residence in India), and 
  5. by incorporation of territory into India.  

The amended provision of the Act specifies that the specified class of illegal migrants from the three countries will not be treated as illegal migrants, making them eligible for citizenship. 

 

Citizenship by naturalization: The 1955 Act allows a person to apply for citizenship by naturalisation if he meets certain qualifications. One of these is that the person must have resided in India or served the Central Government for a certain period of time: 

  1. for the 12 months immediately preceding the application for citizenship, and 
  2. for 11 of the 14 years preceding the 12-month period. For people belonging to the same six religions and three countries, the Act relaxes the 11-year requirement to five years.

Thus, the Act allows a person to apply for citizenship by naturalisation, if the person meets certain qualifications. One of the qualifications is that the person must have resided in India or been in central government service for the last 12 months and at least 11 years of the preceding 14 years.  For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.  

 

Consequences of acquiring citizenship: The Act says that on acquiring citizenship: 

  1. such persons shall be deemed to be citizens of India from the date of their entry into India, and 
  2. all legal proceedings against them in respect of their illegal migration or citizenship will be closed.

 

Are the provisions of the Amended Act applicable across the country?

 

The Act clarifies that the amendments on citizenship to the specified class of illegal migrants will not apply to certain areas. 

 These are: 

  1. the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule to the Constitution, and 
  2. the states regulated by the “Inner Line” permit under the Bengal Eastern Frontier Regulations 1873.  These Sixth Schedule tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.   Further, the Inner Line Permit regulates visit of all persons, including Indian citizens, to Arunachal Pradesh, Mizoram, and Nagaland.

 

How does the Amended Act change the regulations for Overseas Citizens of India?

 

The Act also amends the provisions on registration of Overseas Citizens of India (OCI). OCI cardholders are foreigners who are persons of Indian origin. For example, they may have been former Indian citizens, or children of current Indian citizens. An OCI enjoys benefits such as the right to travel to India without a visa, or to work and study here.  At present, the government may cancel a person’s OCI registration on various grounds specified in the Act.  In case of a cancellation, an OCI residing in India may be required to leave the country. 

The Amended Act adds another ground for cancelling OCI registration — 

Violation of any law notified by the central government.  However, the amended act does not provide any guidance on the nature of laws which the central government may notify.  The Supreme Court has noted that this guidance is necessary to set limits on the authority’s powers and to avoid any arbitrariness in exercise of powers.  Therefore, the powers given to the government under the amended act may go beyond the permissible limits of valid delegation. 

 

IS THE DIFFERENTIATION AMONG THE SPECIFIED CLASS OF ILLEGAL MIGRANTS AND ALL OTHER ILLEGAL MIGRANTS REASONABLE?

 

The Act makes only certain illegal migrants eligible for citizenship.  These are persons belonging to the six specified religious communities, from the three specified countries, who entered India on or before December 31, 2014, and do not reside in the Sixth Schedule areas or in the states regulated by the Inner Line Permit states. This implies that all other illegal migrants will not be able to claim the benefit of citizenship conferred by the amended act, and may continue to be prosecuted as illegal migrants. 

There are allegations that the amended act provides differential treatment to illegal migrants on the basis of :

  1. their country of origin, 
  2. religion, 
  3. date of entry into India, and 
  4. place of residence in India. 

Any provision which distinguishes between two groups may violate the standard of equality guaranteed under Article 14 of the Constitution, unless one can show a reasonable rationale for doing so.  The question is whether these factors serve a reasonable purpose to justify the differential treatment.  Therefore, we need to check the Statement of Objects and Reasons (SoR) of the Act. 

STATEMENT OF OBJECTS AND REASONS (SOR): 

While the Statement of Objects and Reasons (SoR) in the Act reasons that millions of citizens of undivided India were living in Pakistan and Bangladesh, (however, no reason has been provided to explain the inclusion of Afghanistan).  The SoR also states that these countries have a state religion, which has resulted in religious persecution of minority groups. There are thousands of Hindus, Sikhs, Jains, Buddhists, Christians and Parsis who have entered India after facing religious persecution in countries like Pakistan, Bangladesh and Afghanistan without any valid document.

FURTHER ALLEGATIONS :

There are allegations that there are other countries which may fit this qualification. For instance, two of India’s neighboring countries, Sri Lanka (Buddhist state religion) and Myanmar (primacy to Buddhism), have had a history of persecution of Tamil Eelams (a linguistic minority in Sri Lanka), and the Rohingya Muslims, respectively. Therefore, we need to analyse the historical reasons surrounding the Act.

NEHRU LIAQUAT PACT: 

An agreement between the Governments of India and Pakistan regarding Security and the Rights of Minorities that was signed in Delhi in 1950 between the Prime ministers of India and Pakistan, Jawaharlal Nehru and Liaquat Ali Khan. The need for such a pact was felt by minorities in both countries following the partition, which was accompanied by massive communal rioting. In 1950, as per some estimates, over a million Hindus and Muslims migrated from and to East Pakistan (present-day Bangladesh), amid communal tension and riots such as the 1950 East Pakistan riots and the Noakhali riots.

Some excerpts from the Pact:

“The Governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality,” the text of the Pact begins.

“Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively,”

Thus summarily under the Pact both the countries agreed as below–

  • Refugees were allowed to return unmolested to dispose of their property.
  • Abducted women and looted property were to be returned.
  • Forced conversions were unrecognized.
  • Minority rights were confirmed.

The Home Minister Shri. Amit Shah, while defending the bill said that while India protected its minorities, Pakistan failed to do so — and it was this wrong that the CAB would now correct. While equal rights are guaranteed to all minorities in India by its Constitution and under the doctrine of Positive Secularism, Indian Judiciary has allowed positive equality to Minorities. And despite that similar provision exists in the Objectives Resolution adopted by the Constituent Assembly of Pakistan, it has adopted State Sponsored Religion and the Constitution of both Pakistan and Bangladesh doesn’t give equal rights religious minorities. Therefore, religious minorities in Pakistan and Bangladesh, do not get equal rights and they are also religiously persecuted in these countries. Therefore, to finish the unfinished Agenda of Nehru Liaquat Pact, the Government of India has passed the Act to correct the historical wrong to persecuted minorities in Pakistan and Bangladesh, that were once the part of Undivided India. However, the reasons for extending the same treatment to minorities from Afghanistan are still unclear.  

Conclusion:

India has to undertake a balancing act here. India’s citizenship provisions are derived from the perception of the country as a secular republic. In fact, it is a refutation of the two-nation theory that proposed a Hindu India and a Muslim Pakistan. Independent India adopted a Constitution that rejected discrimination on the basis of religion and the birth of Bangladesh undermined the idea that religion could be the basis of a national community. Also we need to balance the civilization duties to protect those who are prosecuted in the neighbourhood. 

Muslims are not treated as a Residual Category in Citizenship Amendment Act 2019; they are equal stakeholders in the constitutional history of India. it is just that Muslims have got best protection under the respective constitutions of India, Pakistan and Bangladesh and therefore if still a section of Muslims illegally enters into India, they definitely cannot be termed as persecuted section of their respective country of origin. 

 

P.S. 

While religious persecution is a reasonable principle for differentiation, it may not be articulated in a manner that dilutes the republican and secular foundations of Citizenship in India, and anything in the Act that goes against constitutional morality that is liable to be struck down by the Constitutional Courts of India; and the issues surrounding the Reasonable Classification And Intelligible Differentia, are set to be decided by Hon’ble the Apex Court of India.