Pgp1 Labreport Secd Ashutosh Kumar Srivastava 2008pgp041d
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Compliance and Liability under Environmental Laws Assignment Report
Legal Aspects of Business (LAB) Course Instructor: Prof. Latitha Sreenath PGP 2008 – 10 Date of Submission: July 11, 2008
Submitted by Ashutosh Kumar Srivastava Roll Number: 2008PGP041D Section D
TABLE OF CONTENTS INTRODUCTION...............................................................................................................3 Environmental Laws in India......................................................................................................................................3
COMPLIANCE AND LIABILITIES UNDER ENVIRONMENTAL LAWS..........................5 Compliance and Liabilities under the Environment (Protection) Act, 1986...........................................................5 Compliance and Liabilities under Water (Prevention and Control of Pollution) Act, 1974..................................7 Compliance and Liabilities under Air (Prevention and Control of Pollution) Act, 1981.......................................9
REFERENCES.................................................................................................................11
Introduction Environmental Laws in India The constitution of India has laid a special emphasis on protection of environment, wild life and other natural resources. Right to good environment is considered as a Fundamental Rights (Fundamental Rights, Article 21 of Constitution of India reads “No person in the country may be deprived of is life or personal liberty except according to procedure established by law”. The Supreme Court, in various cases, has interpreted “life” to include ones environment1,2). Further, the constitution of India has proclaimed that protection and improvement of the environment should be one of the guiding principles of the state policy. (Directive Principle of State Policy, Article 48A of the Constitution of India reads “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”. Also, protection and improvement of environment is considered as one of the fundamental duties of citizens (Fundamental Duties: Article 51A (g) of the Constitution of India reads “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”. The government has put into place various laws3 and regulations for the protection of environment. These include laws relating to:
o Water Pollution (The Water (Prevention and Control of Pollution) Act, 1974, amended 1988, The Water (Prevention and Control of Pollution) Cess Act, 1977) 1
Hinch Lal Tiwari vs. Kamala Devi and others: “…It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution…” 2
M.C. Mehta vs Union of India and Others: “…It was held that the writ petition is not really for issuance of appropriate writ, order or directions against the units/factories which were running polluting industries and had not even installed any equipment for treatment of highly toxic effluents by them, but is directed against Union of India, Government of Rajasthan and Rajasthan Pollution Control Board to compel them to perform their statutory duties which they had failed to carry out and thereby seriously undermined the right of life of the residents of Bichhri and the affected area guaranteed by Article 21 of the Constitution…” 3
http://envfor.nic.in/legis/legis.html
o Air Pollution (The Air (Prevention and Control of Pollution) Act 1981) o Environmental Protection (The Environment (Protection) Act, 1986, amended 1991), containing various rules relating to: o
Coastal Regulation Zone
o
Eco-sensitive Zone
o Environmental Clearances o
Hazardous Substances Management
o
Loss Of Ecology
o
Noise Pollution
o
Ozone Layer Depletion
o Wildlife (The Wild Life (Protection) Amendment Act, 2002, The Indian Wildlife (Protection) Act, 1972, amended 1993)
o Forest Conservation (Forest (Conservation) Act, 1980, amended 1988, The Indian Forest Act, 1927)
o Biodiversity (Biological Diversity Act, 2002)
All of these laws outline in detail various provisions for compliance and liabilities for organizations and/or persons which come under their purview. A brief description of the compliance and liabilities under the three most important environmental laws in India, namely The Environment (Protection) Act, 1986, The Water (Prevention and Control of Pollution) Act, 1974, and The Air (Prevention and Control of Pollution) Act 1981, is given in the following section.
Compliance and Liabilities under Environmental Laws Compliance and Liabilities under the Environment (Protection) Act, 1986 Compliance under the Environment (Protection) Act, 19864 All organizations/persons (referred to as organization) under the purview of this law will ensure that: o
The organization does not discharge to the environment, any pollutant in excess of the standard specified by the law.
o
All hazardous substances are handled in accordance with the prescribed procedures and comply with the prescribed safeguards.
o In case of any real or anticipated discharge of any environmental pollutant in excess of the prescribed standards, the concerned organization will be bound to take all necessary steps to prevent or mitigate the environmental pollution caused as a result of the discharge. o
The organization will also inform all the facts of the real or anticipated discharge to the concerned authorities.
o
The organization will be bound to assist the authorities in undoing the damage caused by the discharge
o
The expenses incurred by the authority in undoing the damage can be recovered from the organization.
Liabilities under the Environment (Protection) Act, 19865 Anyone who fails to comply with the provisions of the law are liable to the following penalties and punishment:
o Imprisonment for a term of up to five years, or a fine of up to one lakh rupees, or both
4
Section 7-9, The Environment (Protection) Act, 1986
5
Section 15-17, The Environment (Protection) Act, 1986
o In case the failure to comply with the provisions of the law continues, an additional fine of up to five thousand rupees per day can be levied
o In case the failure to comply with the provisions of the law continues for more than a year, an imprisonment of up to seven years can be awarded
o In cases the failure to comply with the provisions of the law has been committed by a company, persons directly in charge of and responsible to the company for the conduct of its business as well as the company, will be considered guilty and will be punished accordingly.
o In case, it is proved that the failure to comply with the provisions of the act was with the consent or connivance of, or was due to the neglect on the part of any director, manager, secretary or other officer of the company, then such director, manager, secretary or other officer will be considered guilty and will be punished accordingly. However, these persons will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o In case, the failure to comply with the provisions of the law has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and will be punished accordingly. However, the Head of the department will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
Compliance and Liabilities under Water (Prevention and Control of Pollution) Act, 1974 Compliance under Water (Prevention and Control of Pollution) Act, 19746 All organizations/persons (referred to as organization) under the purview of this law will ensure that:
o The organization does not discharge any poisonous, noxious or polluting matter, identified with the standards laid down by the law, in any water body
o The organization is not involved in establishment of any industry, operation or process, or any treatment and disposal system which can discharge sewage of other pollutants to a water body without the approval of the State Pollution Control Board.
o The organization has taken steps to prevent the use of new/altered outlet for discharge o In case of any real or anticipated discharge of any poisonous, noxious or polluting matter a water body, which may pollute the water body, then the organization/person in charge of the organization/polluting plant will inform the same to the State Board (or other appropriate authorities prescribed in the law)
Liability under Water (Prevention and Control of Pollution) Act, 19747 Anyone who fails to comply with the provisions of the law is liable to the following penalties and punishment:
o Imprisonment for a term of at least one and a half year and up to six years and fine – for failure to prevent any poisonous, noxious or polluting matter, identified with the standards laid down by the law, from entering any water body
o Imprisonment for a term of at least one and a half year and up to six years and fine – for failure to prevent the establishment of any industry, operation or process, or any treatment and disposal system which can discharge sewage of other pollutants to a water body without the approval of the State Pollution Control Board.
o Imprisonment for a term of at least one and a half year and up to six years and fine – for failure to prevent the use of new/altered outlet for discharge 6
Section 20-26, The Water (Prevention and Control of Pollution) Act, 1974
7
Section 41-48, The Water (Prevention and Control of Pollution) Act, 1974
o In case the failure to comply with the provisions of the law continues, an additional fine of up to five thousand rupees per day can be levied
o In case repeated failures, imprisonment for a term of at least two years and up to seven years and fine can be awarded o
In cases the failure to comply with the provisions of the law has been committed by a company, persons directly in charge of and responsible to the company for the conduct of its business as well as the company, will be considered guilty and will be punished accordingly.
o
In case, it is proved that the failure to comply with the provisions of the act was with the consent or connivance of, or was due to the neglect on the part of any director, manager, secretary or other officer of the company, then such director, manager, secretary or other officer will be considered guilty and will be punished accordingly. However, these persons will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o
In case, the failure to comply with the provisions of the law has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and will be punished accordingly. However, the Head of the department will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o In case of repeated failures, the offender's name and place of residence, the offence and the penalty imposed will be published (for example in a newspaper). The expense for the same will be borne by the offender.
Compliance and Liabilities under Air (Prevention and Control of Pollution) Act, 1981 Compliance under Air (Prevention and Control of Pollution) Act, 19818 All organizations/persons (referred to as organization) under the purview of this law will ensure that:
o The organization is not involved in the establishment or operation of an industrial plant in a pollution control area, without the prior approval by the state.
o The organization does not discharge to the environment, any air pollutant in excess of the standard specified by the law.
o In case of any real or anticipated discharge of any air pollutant in a pollution control area, in excess of the prescribed standards, the concerned organization will be bound to prevent or mitigate the environmental pollution caused as a result of the discharge. o
The organization will also inform all the facts of the real or anticipated discharge to the concerned authorities.
o
The organization will be bound to assist the authorities in undoing the damage caused by the discharge
o
The expenses incurred by the authority in undoing the damage can be recovered from the organization.
Liability under Air (Prevention and Control of Pollution) Act, 19819 Anyone who fails to comply with the provisions of the law is liable to the following penalties and punishment:
o Imprisonment for a term of at least one and a half year and up to six years and fine – for establishing or operating any industrial plant in a pollution control area, without the approval of the state.
o Imprisonment for a term of at least one and a half year and up to six years and fine – for discharging air pollutants greater than the prescribed limits
8
Section 19-23, The Air (Prevention and Control of Pollution) Act, 1981
9
Section 37-42, The Air (Prevention and Control of Pollution) Act, 1981
o Imprisonment for a term of up to three months and fine up to ten thousand rupees or both – failure to inform the authorities about any real or anticipated discharge of air pollutants, above the prescribed limits. o
In cases the failure to comply with the provisions of the law has been committed by a company, persons directly in charge of and responsible to the company for the conduct of its business as well as the company, will be considered guilty and will be punished accordingly.
o
In case, it is proved that the failure to comply with the provisions of the act was with the consent or connivance of, or was due to the neglect on the part of any director, manager, secretary or other officer of the company, then such director, manager, secretary or other officer will be considered guilty and will be punished accordingly. However, these persons will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o
In case, the failure to comply with the provisions of the law has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and will be punished accordingly. However, the Head of the department will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o In case of repeated failures, the offender's name and place of residence, the offence and the penalty imposed will be published (for example in a newspaper). The expense for the same will be borne by the offender.
References 1. “The legal and regulatory framework for environmental protection in India” from the webpage http://envfor.nic.in/divisions/ic/wssd/doc2/ch2.html, accessed at 4:00 PM, July 10, 2008
2. Ministry of Environment and Forests website (http://envfor.nic.in/) 3. Bare Act, The Environment (Protection) Act, 1986 4. Bare Act, Water (Prevention and Control of Pollution) Act, 1974 5. Bare Act, Air (Prevention and Control of Pollution) Act, 1981
Legal Aspects of Business (LAB) Course Instructor: Prof. Latitha Sreenath PGP 2008 – 10 Date of Submission: July 11, 2008
Submitted by Ashutosh Kumar Srivastava Roll Number: 2008PGP041D Section D
TABLE OF CONTENTS INTRODUCTION...............................................................................................................3 Environmental Laws in India......................................................................................................................................3
COMPLIANCE AND LIABILITIES UNDER ENVIRONMENTAL LAWS..........................5 Compliance and Liabilities under the Environment (Protection) Act, 1986...........................................................5 Compliance and Liabilities under Water (Prevention and Control of Pollution) Act, 1974..................................7 Compliance and Liabilities under Air (Prevention and Control of Pollution) Act, 1981.......................................9
REFERENCES.................................................................................................................11
Introduction Environmental Laws in India The constitution of India has laid a special emphasis on protection of environment, wild life and other natural resources. Right to good environment is considered as a Fundamental Rights (Fundamental Rights, Article 21 of Constitution of India reads “No person in the country may be deprived of is life or personal liberty except according to procedure established by law”. The Supreme Court, in various cases, has interpreted “life” to include ones environment1,2). Further, the constitution of India has proclaimed that protection and improvement of the environment should be one of the guiding principles of the state policy. (Directive Principle of State Policy, Article 48A of the Constitution of India reads “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”. Also, protection and improvement of environment is considered as one of the fundamental duties of citizens (Fundamental Duties: Article 51A (g) of the Constitution of India reads “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”. The government has put into place various laws3 and regulations for the protection of environment. These include laws relating to:
o Water Pollution (The Water (Prevention and Control of Pollution) Act, 1974, amended 1988, The Water (Prevention and Control of Pollution) Cess Act, 1977) 1
Hinch Lal Tiwari vs. Kamala Devi and others: “…It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution…” 2
M.C. Mehta vs Union of India and Others: “…It was held that the writ petition is not really for issuance of appropriate writ, order or directions against the units/factories which were running polluting industries and had not even installed any equipment for treatment of highly toxic effluents by them, but is directed against Union of India, Government of Rajasthan and Rajasthan Pollution Control Board to compel them to perform their statutory duties which they had failed to carry out and thereby seriously undermined the right of life of the residents of Bichhri and the affected area guaranteed by Article 21 of the Constitution…” 3
http://envfor.nic.in/legis/legis.html
o Air Pollution (The Air (Prevention and Control of Pollution) Act 1981) o Environmental Protection (The Environment (Protection) Act, 1986, amended 1991), containing various rules relating to: o
Coastal Regulation Zone
o
Eco-sensitive Zone
o Environmental Clearances o
Hazardous Substances Management
o
Loss Of Ecology
o
Noise Pollution
o
Ozone Layer Depletion
o Wildlife (The Wild Life (Protection) Amendment Act, 2002, The Indian Wildlife (Protection) Act, 1972, amended 1993)
o Forest Conservation (Forest (Conservation) Act, 1980, amended 1988, The Indian Forest Act, 1927)
o Biodiversity (Biological Diversity Act, 2002)
All of these laws outline in detail various provisions for compliance and liabilities for organizations and/or persons which come under their purview. A brief description of the compliance and liabilities under the three most important environmental laws in India, namely The Environment (Protection) Act, 1986, The Water (Prevention and Control of Pollution) Act, 1974, and The Air (Prevention and Control of Pollution) Act 1981, is given in the following section.
Compliance and Liabilities under Environmental Laws Compliance and Liabilities under the Environment (Protection) Act, 1986 Compliance under the Environment (Protection) Act, 19864 All organizations/persons (referred to as organization) under the purview of this law will ensure that: o
The organization does not discharge to the environment, any pollutant in excess of the standard specified by the law.
o
All hazardous substances are handled in accordance with the prescribed procedures and comply with the prescribed safeguards.
o In case of any real or anticipated discharge of any environmental pollutant in excess of the prescribed standards, the concerned organization will be bound to take all necessary steps to prevent or mitigate the environmental pollution caused as a result of the discharge. o
The organization will also inform all the facts of the real or anticipated discharge to the concerned authorities.
o
The organization will be bound to assist the authorities in undoing the damage caused by the discharge
o
The expenses incurred by the authority in undoing the damage can be recovered from the organization.
Liabilities under the Environment (Protection) Act, 19865 Anyone who fails to comply with the provisions of the law are liable to the following penalties and punishment:
o Imprisonment for a term of up to five years, or a fine of up to one lakh rupees, or both
4
Section 7-9, The Environment (Protection) Act, 1986
5
Section 15-17, The Environment (Protection) Act, 1986
o In case the failure to comply with the provisions of the law continues, an additional fine of up to five thousand rupees per day can be levied
o In case the failure to comply with the provisions of the law continues for more than a year, an imprisonment of up to seven years can be awarded
o In cases the failure to comply with the provisions of the law has been committed by a company, persons directly in charge of and responsible to the company for the conduct of its business as well as the company, will be considered guilty and will be punished accordingly.
o In case, it is proved that the failure to comply with the provisions of the act was with the consent or connivance of, or was due to the neglect on the part of any director, manager, secretary or other officer of the company, then such director, manager, secretary or other officer will be considered guilty and will be punished accordingly. However, these persons will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o In case, the failure to comply with the provisions of the law has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and will be punished accordingly. However, the Head of the department will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
Compliance and Liabilities under Water (Prevention and Control of Pollution) Act, 1974 Compliance under Water (Prevention and Control of Pollution) Act, 19746 All organizations/persons (referred to as organization) under the purview of this law will ensure that:
o The organization does not discharge any poisonous, noxious or polluting matter, identified with the standards laid down by the law, in any water body
o The organization is not involved in establishment of any industry, operation or process, or any treatment and disposal system which can discharge sewage of other pollutants to a water body without the approval of the State Pollution Control Board.
o The organization has taken steps to prevent the use of new/altered outlet for discharge o In case of any real or anticipated discharge of any poisonous, noxious or polluting matter a water body, which may pollute the water body, then the organization/person in charge of the organization/polluting plant will inform the same to the State Board (or other appropriate authorities prescribed in the law)
Liability under Water (Prevention and Control of Pollution) Act, 19747 Anyone who fails to comply with the provisions of the law is liable to the following penalties and punishment:
o Imprisonment for a term of at least one and a half year and up to six years and fine – for failure to prevent any poisonous, noxious or polluting matter, identified with the standards laid down by the law, from entering any water body
o Imprisonment for a term of at least one and a half year and up to six years and fine – for failure to prevent the establishment of any industry, operation or process, or any treatment and disposal system which can discharge sewage of other pollutants to a water body without the approval of the State Pollution Control Board.
o Imprisonment for a term of at least one and a half year and up to six years and fine – for failure to prevent the use of new/altered outlet for discharge 6
Section 20-26, The Water (Prevention and Control of Pollution) Act, 1974
7
Section 41-48, The Water (Prevention and Control of Pollution) Act, 1974
o In case the failure to comply with the provisions of the law continues, an additional fine of up to five thousand rupees per day can be levied
o In case repeated failures, imprisonment for a term of at least two years and up to seven years and fine can be awarded o
In cases the failure to comply with the provisions of the law has been committed by a company, persons directly in charge of and responsible to the company for the conduct of its business as well as the company, will be considered guilty and will be punished accordingly.
o
In case, it is proved that the failure to comply with the provisions of the act was with the consent or connivance of, or was due to the neglect on the part of any director, manager, secretary or other officer of the company, then such director, manager, secretary or other officer will be considered guilty and will be punished accordingly. However, these persons will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o
In case, the failure to comply with the provisions of the law has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and will be punished accordingly. However, the Head of the department will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o In case of repeated failures, the offender's name and place of residence, the offence and the penalty imposed will be published (for example in a newspaper). The expense for the same will be borne by the offender.
Compliance and Liabilities under Air (Prevention and Control of Pollution) Act, 1981 Compliance under Air (Prevention and Control of Pollution) Act, 19818 All organizations/persons (referred to as organization) under the purview of this law will ensure that:
o The organization is not involved in the establishment or operation of an industrial plant in a pollution control area, without the prior approval by the state.
o The organization does not discharge to the environment, any air pollutant in excess of the standard specified by the law.
o In case of any real or anticipated discharge of any air pollutant in a pollution control area, in excess of the prescribed standards, the concerned organization will be bound to prevent or mitigate the environmental pollution caused as a result of the discharge. o
The organization will also inform all the facts of the real or anticipated discharge to the concerned authorities.
o
The organization will be bound to assist the authorities in undoing the damage caused by the discharge
o
The expenses incurred by the authority in undoing the damage can be recovered from the organization.
Liability under Air (Prevention and Control of Pollution) Act, 19819 Anyone who fails to comply with the provisions of the law is liable to the following penalties and punishment:
o Imprisonment for a term of at least one and a half year and up to six years and fine – for establishing or operating any industrial plant in a pollution control area, without the approval of the state.
o Imprisonment for a term of at least one and a half year and up to six years and fine – for discharging air pollutants greater than the prescribed limits
8
Section 19-23, The Air (Prevention and Control of Pollution) Act, 1981
9
Section 37-42, The Air (Prevention and Control of Pollution) Act, 1981
o Imprisonment for a term of up to three months and fine up to ten thousand rupees or both – failure to inform the authorities about any real or anticipated discharge of air pollutants, above the prescribed limits. o
In cases the failure to comply with the provisions of the law has been committed by a company, persons directly in charge of and responsible to the company for the conduct of its business as well as the company, will be considered guilty and will be punished accordingly.
o
In case, it is proved that the failure to comply with the provisions of the act was with the consent or connivance of, or was due to the neglect on the part of any director, manager, secretary or other officer of the company, then such director, manager, secretary or other officer will be considered guilty and will be punished accordingly. However, these persons will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o
In case, the failure to comply with the provisions of the law has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and will be punished accordingly. However, the Head of the department will not be liable to be punished if he is able to prove that the compliance failure occurred even after exercising all due diligence to prevent the occurrence of such compliance failure.
o In case of repeated failures, the offender's name and place of residence, the offence and the penalty imposed will be published (for example in a newspaper). The expense for the same will be borne by the offender.
References 1. “The legal and regulatory framework for environmental protection in India” from the webpage http://envfor.nic.in/divisions/ic/wssd/doc2/ch2.html, accessed at 4:00 PM, July 10, 2008
2. Ministry of Environment and Forests website (http://envfor.nic.in/) 3. Bare Act, The Environment (Protection) Act, 1986 4. Bare Act, Water (Prevention and Control of Pollution) Act, 1974 5. Bare Act, Air (Prevention and Control of Pollution) Act, 1981
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