COMPARITIVE ANALYSIS

OF THE AIR ACT

The Position in India

Akshay Shreedhar
09LLB10
DEFINING WHAT A POLLUTANT IS
The Act defines air pollutants under Section 2(a) as
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.
An important aspect of this definition is that it has acknowledged
that noise is also a form of pollution and comes within the ambit of
air pollution.
Encompassing definition:
Damage may be to living creatures/plants/property/environment
SETTING UP THE BOARDS
Section 3 and Section 4 of the Act lay down that CPCB and SPSB
respectively shall be the same as have been constituted under the Water
(Prevention and Control of Pollution) Act, 1974. Section 5 also provides
for a constitution of SPCB in states where it does not already exist.
Section 6 lay down that the Central Board can exercise the powers and
functions of SPCB in Union Territories. The members of the SPCB
shall hold office for a period of 3 years and their tenure may be
terminated in the situations mentioned in Section 7.
The board has to compulsorily meet once in three months.
This is an important provision in the respect that it has been
incorporated to ensure that adequate safeguards are taken at regular and
not prolonged intervals.
POWERS OF THE BOARDS
Chapter III of the Act elaborates on the powers and functions of the
Boards. The main function of Central Board, under Section 16, is to
improve the quality of air and to prevent, control or abate air
pollution in the country. The board may also advise the Central
Government, plan and execute nation-wide programmes, co-
ordinate the SPCBs, organise and train personnel, collect, compile
and publish statistical data, and most importantly, lay down
standards for the quality of air. (What are these standards and is
there anyone who may challenge them as being inadequate?)
Section 17 lays down the functions of SPCB and their relation with
the respective State Government. But the SPCB have to lay down
standards for emission of air pollutants in consultation with CPCB.
Other powers
Chapter IV lays down the methods to be adopted in order to prevent and
control air pollution. The State Government may, after consultation
with the SPCB and by notification in the official gazette, declare air
pollution control areas, prohibit the use of any fuel in such areas and
prohibition of burning of any material other than fuel. Under Section
20, they may set standards for emissions from automobiles and Section 21
empowers them to put restrictions on use of certain Industrial Plants.
Section 22A further empowers them to restrain a person from causing air
pollution by operation of an industrial plant or other reasons, by making
an application to a court not inferior to a court of Metropolitan
Magistrate of JMFC. Any person can also be empowered to enter
premises during reasonable hours to gather information, inspect, take
samples of air pollutants, etc. Section 28 lays down that State Air
Laboratories may also be constituted which will analyse these samples.
Repercussions of not complying
In case of failure to comply with the provisions of the Act, a person can
be imprisoned for a minimum 1 year 6 months extendable upto 6 years
with fine, and the continuance of the failure may lead to fine of 5
thousand rupees per day, and beyond 1 year may lead to imprisonment
from 2-7 years with fine. Section 38 lays down certain acts and the
specified penalties for the same. Section 40 says that in case of
companies, the persons responsible in charge of the company shall be
held responsible. Thus, artificial persons are also covered by the Act.
Section 42 extends protection to the Board and its members in respect of
any action taken in good faith. The Cognizance of offences under
Section 43 by the court can also be made by either the board or its
members, or any other person who has given a notice of atleast 60 days
to make a complaint of an offence.
 THE TAJ TRAPEZIUM CASE
The Agra foundries, chemical and hazardous industries and the refinery at Mathura were
the major source of damage to the Taj. The affluents and waste of these industries led to the
creation of Acid Rain, which had a corroding effect on the gleaming white marble of Taj.
Industrial and refinery emissions, brick kilns, vehicular traffic and generator sets were
primarily responsible for polluting the ambient air around the Taj Mahal. Thus some
preventive steps were required urgently to prevent further pollution. Looking at this, the
National Environment Engineering Research Institute (NEERI) gave its over view report
regarding the status of air pollution around the Taj.
As a result, in this landmark case, Supreme Court directed to follow suggestions and
recommendations of NEERI, of shifting the polluting industries to an area outside TTZ and
setting up of the green belt development plan around the Taj Mahal to save it from the
effect of air pollution. The Supreme Court observed that:
The main function of the central pollution control board and the state board is to improve the quality
of air and prevent, control and abate air pollution in the country. In many cases, environmental
protection means something more than the preservation of the habitat. It may cover protection of
historical monuments and cultural heritage. Pollution may gradually efface such monuments into
extinction. The supreme court hardly had any hesitation to interfere in such instances.
In a similar case to control air pollution in Delhi, in M.C. Mehta v. Union of India and
Others, Known as Industrial Closure and Relocation case, the apex court ordered the
shifting, relocation and closure of certain industries.
M.C. MEHTA V. UNION OF INDIA AND OTHERS, AIR 1997 SC 734
SMOKING IN PUBLIC PLACE
In Murli Deora v. Union of India and others, while prohibiting smoking
in Public Places, the Apex court stated that, Fundamental right under
Article 21 of the constitution of India provides that no one shall be
deprived of his life without due process of law. A non-smoker who is
affected by various diseases including lung cancer, or of heart problem,
only because he is required to go to public places, he is indirectly being
deprived of his life without due process of law.
Understanding the gravity of the situation and considering the
undesirable effect of smoking on smokers and passive smokers, the
Supreme Court directed and prohibited the smoking in Public Places and
issue directions to the Union of India, State government as well as the
union territory to take effective steps to ensure prohibiting smoking in
public places.
(Required in States and UTs too)
CNG VEHICLES CASE
To the general people in the Metropolitan city of delhi, pollution from
thousands of automobiles was a real health hazard. Supreme Court took
the step to reduce this pollution on many occasions. Among the various
attempts, the decision relating to conversion of diesel vehicles to
compressed natural gas (CNG) vehicles merit scrutiny.
In MC Mehta v. Union of India , the attention of the court was focused
on the delay to convert diesel vehicles to CNG by the central
government, thereby frustrating the orders of the Supreme Court in MC
Mehta v. Union of India . The plea of the central government that there
is shortage of CNG supply as a major chunk of it went to the industrial
sector was met with the following observation by the court,
Not only is there no shortage of CNG as far as the transport sector is
concerned, but even if there be such a shortage, if crude oil can be
imported and supplied to the refineries for manufacture of petrol and
diesel, there is no reason why CNG, if need be, cannot be imported, so
that it ensures less pollution.
NOISE POLLUTION
The Forum, Prevention of Envrn. And Sound Pollution v. Union of
India is a leading case on Noise Pollution. This case reported a story
about the girl who was victimized to rape. In this case the victim of rape
cried for help but her voice went unheard because of the blaring noise of
music and loudspeakers in the neighbourhood. The principal prayers
sought by the petitioner is rigorous enforcement of existing laws for
restricting the use of loudspeakers and other high volume noise
producing audio video system used specially by political parties, at
religious places and on religious and social occasion or festivals.
This case provided an opportunity to the court in examining different
aspects of noise pollution, its adverse affects and the reliefs which can be
sought. The court in this case came up with several directions in order to
reduce the menace of noise pollution.
POWER OF THE AUTHORITY UNDER THE AIR
ACT
In Assam Pollution Control Board v. Mahabir Coke Industries , the
court held that the authorities under the act in which the parliament
has reposed confidence must be made answerable if they are guilty
of dereliction of duties. In this case the industry was ordered to
close down for non- compliance of standard prescribed by the
board. It was directed that the industry should confirm to the
required standards and inform the court. The three experts who
submitted the inspection report indicated that the emission level of
suspended particulate matter from the industry confirm to the
stipulated standard where as the facts appeared otherwise. The
court directed for issue of show cause notice against them.
POLLUTION CONTROL AREA
In Animal Feeds Dairies and Chemical Ltd. v. Orissa State Pollution
Control Board , the Orissa high court held that the state government
alone is empowered under section 19 of the act to declare a Pollution
control area and to prohibit the fuels causing the air pollution. The court
held that the SPCB could not issue such directions.
Further in Orissa State Prevention and Control of Pollution Board v.
Orient Paper Mills , the Supreme Court held that even if the state
government has not framed under s. 54 (2)(k) rules prescribing the
manner in which an area is to be declared as air pollution control area,
the state government is empowered to declare any area within the state
as an air pollution control area by notification in the official gazette. It
may, however, be after consultation with the board and in the manner as
may be prescribed. Absence of rules will not render the act inoperative.
The act under s. 19 vests the state government with power to notify any
area, in an official gazette, as Air Pollution Control Area, but it cannot
be said that exercise of such power is solely dependent upon framing of
the rules prescribing the manner in which an area may be declared as Air
Pollution Control Area.
CONSENT OF THE BOARD
In AFD & C Ltd v. Orissa State Pollution Control Board , Orissa high
court looked into the different parameters of the directing power under
the Air Act. In this case, the secretary of the board issued a direction
under s. 31- A of the Air Act to close down the petitioners cattle and
poultry feed factory, and to shift the same to an isolated place.
The measures are remedial and that is the reason why in case of an
established industry, consent of the board is insisted upon. However, the
board can issue such direction within the ambit of s. 31A only on being
satisfied that the industry in question emits air pollutant by which
there has been air pollution. There needs to be finding to the effect that
there has been emission of air pollutant.
Such a finding only can clothe the jurisdiction of the Board to issue any
direction. In the absence of any finding that the petitioners factory
emits any air pollutant as defined in section 2 (a) of the act, it was not
within the jurisdiction of the board to issue the direction to shift or close
down the industry in exercise of power under s. 31-A of the Air Act. The
court quashed the direction for the closure.
THE WAY FORWARD
Identifying the Problem:

Legislations?
Interpretations?
Enforcements?

Incentivising the adherence of rules