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Air (Prevention and control of pollution) Act,1981

According to the World Health Organization, the capital city New Delhi is one of the top most polluted cities in the world. Surveys indicate that in New Delhi the incidence of respiratory disease due to air pollution is about 12 times the national average. The act Provides for the prevention, control and abatement of air pollution. It makes provisions, Interalia, for Central and State Boards, power to declare pollution control areas, restrictions on certain industrial units, authority of the Boards to limit emission of air pollutants, power of entry, inspection, taking samples and analysis, penalties, offences by companies and Government and cognizance of offences etc..

The Act specifically empowers State Government to designate air pollution areas and to prescribe the type of fuel to be used in these designated areas. According to this Act, no person can operate certain types of industries including the asbestos, cement, fertilizer and petroleum industries without consent of the State Board. Decisions were taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972, in which India participated, to take appropriate steps for the preservation of the natural resources of the Earth which, among other things, include the preservation of the quality of air pollution;

The Government passed this Act in 1981 to clean up our air by controlling pollution. This Act also ensures controlling the level of air pollution. Accordingly, the Indian government enacted specific laws under Article 253 of the Constitution for the preservation of natural resources and the law enacted for air preservation. This act applies to Whole of India.

The main objectives of the Act are as follows:
  1. To provide for the prevention, control and abatement of air pollution.
  2. To provide for the establishment of central and State Boards with a view to implement the Act.
  3. To confer on the Boards the powers to implement the provisions of the Act and assign to the Boards functions relating to pollution.

Definitions:
Section 2(a) ‘Air Pollutant’ means any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment.

Section 2(b) ‘Air Pollution’ as the presence of any air pollutant in the atmosphere.

Section 2(j) ‘Emission’ means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet.

Section 2(m) ‘occupier’ in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance.

Constitution of the Board
Central Pollution Control Board – Section 3
  1. It shall have a full-time Chairman, having special knowledge and practical expertise in matters of environmental protection and having knowledge and experience in administering institutions dealing with such matters. This Chairman will be nominated by the Central Government.
  2. It shall have a full-time Secretary, who shall have the qualifications, knowledge and experience of scientific, engineering and management aspects of environmental protection. The Secretary will be appointed by the Central Government.
  3. It shall have not more than five officials nominated by the Central Government to represent that Government.
  4. It shall not have more than five members nominated by the Central Government, chosen from among the members of the State Boards.
  5. It shall not have more than three officials who represent the interests of the fishery, agriculture, or any other industry or trade, which the Government may think fit to be represented.
  6. It shall have 2 persons from the companies or corporations, owned, managed or controlled by the Central Government, nominated by that Government.

    State Pollution Control Board - Section 5
  7. A person, nominated by the State Government, who has special knowledge and practical experience of dealing with issues related to environmental protection, shall serve as the Chairman of the State Pollution Control Board. This Chairman may be whole-time or part-time. This decision will be left to the discretion of the State Government.
  8. The Board shall further constitute of not more than five officials, nominated by the State Government, to serve as representatives of that Government.
  9. Not more than five people from the local authorities, nominated by the State Government.
  10. Not more than three officials nominated by the State Government, who are believed to be representing the interests of the industries of fishery, agriculture or any other industry or trade which the Central Government thinks ought to be represented.
  11. Two persons from companies or corporations owned, managed or controlled by the State Government, and are nominated by that State Government.

Section 6 - Both the Central and State Pollution Boards have been established for prevention and control of Air Pollution.

Central Board can exercise the powers and performs the functions of a state Board in the Union Territories. No state Board shall be constituted for a Union Territory. Provided that in relation to any Union Territory the Central Board may delegate all or any of its power and functions under this section to such person or body of persons as the Central Government specify.

Disqualification of the Members
No person shall be the member of the Board who
  • has been adjudged insolvent, or
  • is of unsound mind and has been so declared by a competent court, or
  • has been convicted of an offence which in the opinion of the State Government involves moral turpitudes, or
  • has directly or indirectly by himself or by any partner, any share or interest in any firm or company carrying on the business of manufacture, sale, or hire of machinery, industrial plant, control equipment for the improvement of quality of air, or
  • has so abused in the opinion of the State Government his position as a member as to render his continuance or the State Board detrimental to the interest of the general public.
The State Government shall, by order in writing remove any member who is or has become subject to any disqualification mentioned above, he cannot be renominated as a member.

Tenure of the Members
3 Years from the date of appointment but can continue till the new member enters upon this office.

Powers and Functions
Central Board- Section 16
  1. The main function of the Central Board shall be to improve the quality of air and to prevent, control or abate air pollution in the country.
  2. It may:
    • Advise the Central Government on any matter concerning the improvement of the quality of air
    • Plan and cause to be executed a nation-wide programme for the prevention, control or abatement of air pollution;
    • Co-ordinate the activity of State and resolve disputes among them;
    • Provide technical assistance and guidance to the state boards, carry out and sponsor investigations and research relating to problems of air pollution.
    • Organize through mass media a comprehensive programme regarding the prevention, control or abatement of air pollution.
  3. The Central Board may establish or recognize a laboratory to enable the Central Board to perform its functions under this section efficiently.

State Board – Section 17
  1. To plan a comprehensive programme for the prevention, control or abatement of air pollution;
  2. Advise the State Government on any matter concerning the prevention of air pollution;
  3. To inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process, and to give by order such directions to such person as it may consider necessary to take steps for prevention of air pollution.
  4. It shall collect and disseminate information regarding air pollution. It shall organise training and mass awareness programmes regarding air pollution control, prevention and abatement.
  5. It shall lay down standards for the emission of air pollutants into the atmosphere from automobiles or industries, or any other pollutant from any source. However, a ship or aircraft cannot come into the ambit of a source.
  6. The State Boards shall also advise the State Government regarding the suitability of any location which is to be used for setting up any industry, keeping in mind the air quality which would be impacted if that industry is set up.
  7. The Boards shall also set up labs in their States, to enable the State Board to perform its functions effectively.

Power to give directions: Section 18
It states that the Central Board shall follow the directions of the Central Government while the State Boards shall follow the directions of the respective State Governments. Where a decision of the Central Board and a State Government direction are conflicting, the matter shall go to the Central Government for resolution.

Where the Central Government thinks that a grave emergency has arisen due to the State Board defaulting in complying with the orders of the Central Board, then it can perform the functions of the State Board.

Power to declare air pollution areas: Section 19
The Act states that the State Government, after consulting the State Board, may declare an area within the State as an ‘air pollution area’. The State Government may also order for the extension or reduction of an air pollution area or may even merge one or more areas to make a new pollution area or any part or parts thereof.

The State Government after consulting the State Board, may also by notification in the Official Gazette, prohibit the use of any fuel or appliance that may cause or is likely to cause air pollution. The State Government may also prohibit the burning of any material (which is not a fuel) if it causes or is likely to cause air pollution. This is also done after consultations with the respective State Board.

Power to give restrictions for ensuring standards for emissions from automobiles Section 20

It states that the State Government may, after consulting the State Board, issue instructions to the authority responsible for the registration of vehicles under the Motor Vehicles Act 1939 and such authority shall be bound to follow these instructions. This is done to ensure that the standards of emission prescribed under Section 17(1)(g) are complied with.

Power of Board to make application to Court for restraining a person from causing air pollution: Section 22A

when the Board believes that there is excess emission being caused by a person running an industrial plant in any air pollution area, then the Board can make an application before the Court to restrain him from doing the same.

Penalties
Under Section 37, whoever fails to comply with the provisions of Section 21, 22 and the directions issued under Section 31A, can be sentenced to imprisonment for a term of one year and six months. This sentence can be extended to six years and with fine, if the requisite compliances under the aforesaid sections are still not carried out, with an additional fine of five thousand rupees every day.

Under Section 38, penalties for certain acts are laid down. These acts are:
  • Destroying, defacing, removing etc any pillar, post, stake or notice fixed in the ground under the authority of the Board.
  • Obstruction of any person acting under orders of the Board from exercising his powers and functions under the Act.
  • Damaging any property belonging to the Board.
  • Failure to furnish information to an officer or any employee of the Board, which is required by such officer or employee.
  • Failure to inform about the excess release of emissions than the standard set by the State Board. Even an apprehension of the release of excess emissions should be informed to the State Board.
  • Giving false statements to Board authorities when furnishing information
  • Giving false information to the Board, for getting permission under Section 21 i.e. permission for setting up industrial plants.
These are offences that shall be punishable with imprisonment which may extend to three months with fine, which may extend to ten thousand rupees or both.

Under Section 39, any order or direction which has been flouted, and for which there is no punishment anywhere in the Act, shall be punishable with three months imprisonment or fine of three thousand rupees or both. If failure continues, there shall be a fine of an additional five thousand rupees every day.

Section 40 of this Act talks about offences by companies. If an offence is committed by a company, every such person shall be deemed to be guilty, who is directly in charge of the company, who was responsible to the company for the conduct of its business as well as the company itself. He shall be punished according to the provisions of this Act. However, where such an offence was committed without the knowledge of such person, or where he had made full efforts and due diligence to stop these offences, this person shall not be held liable.

Section 40(2) states that where the offence was committed after taking the consent of the director, manager, secretary or other officer or happened due to the neglect of the aforesaid people, then they shall be deemed guilty and can be punished according to the Act.

Section 41 talks about offences committed by governmental departments. Where any government department has committed an offence under this Act, then the head of that department shall be liable to be proceeded and accordingly punished. However, if the Head of Department had no knowledge of the committing of these offences, or had practised due diligence to prevent these offences from happening, he shall not be held liable.

Under Section 41(2), if such Head of Department had consented to, or neglected to prevent, the commission of these offences, then such person shall be liable to be proceeded against and punished accordingly.
  • Section 44 states that all members, officers and other employees shall be deemed to be acting as public servants under Section 21 of the Indian Penal Code 1860.

Judicial pronouncements and case studies regarding clean air
  1. M.C. Mehta v. Union of India 1991 SCR (1) 866 (Vehicular Pollution Case)

    In this case, a writ petition was filed by M.C. Mehta regarding air pollution caused due to vehicular emissions. He prayed for the Court to pass appropriate orders to prevent pollution.

    The Court held that environmental protection is the responsibility of the State as enshrined in the Directive Principles of State Policy and Articles 48A and 51A of the Constitution. The Supreme Court observed that the right to a healthy environment was a basic human right and this included the right to clean air, covered under the ambit of Article 21 of the Constitution. In this way, the Court expanded the scope of Article 21 to include the right to a healthy environment and clean air under the fundamental rights.

    This paved the way for the introduction of lead-free petrol supply in Delhi and paved the way for the introduction of compressed natural gas (CNG). The Court also assisted in setting up a committee that was not just aimed at litigation but also finding long term solutions to the air pollution problem in Delhi.
     
  2. Subhash Kumar v. State of Bihar 1991, it was held that right to life under Article 21 included the right to a healthy and safe environment, which in turn included the right to pollution-free air and water for the full enjoyment of life. It was held that municipalities and other governmental bodies had an obligation of taking positive measures to ensure a healthy environment.

Conclusion:

It is observed that the legislation to deal with air pollution is pretty strict and well formulated. It encompasses the scientific aspects of managing air pollution with the actions of State and Central bodies. The Pollution Control Boards are bestowed with a wide range of powers and functions to check emission limits and take appropriate action. However, enforcement still remains lax.

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