Air Pollution: Control and Judicial perspective

Written by Bhanu Shree Jain*

Abstract

Air Pollution is the one of the concerned area in regards to pollution. Recent steps of Delhi Government to allow odd or even number of vehicles on a particular day is a welcoming note. The various judicial decisions and the provisions of the Air Act show the active participation of judiciary and legislature to stop the menace of Air Pollution. This Article delves upon the Air Act and the Judicial Perspective and Decision in regards to Air preservation and Conservation. It also gives a small glimpse on Aviation Emission as being the recent recognized attributor to the Air Pollution.

Keywords: Pollution, Judiciary, Government, Conservation, Law.

INTRODUCTION:

With a view to implementing the decisions taken in the United Nations Conference on Human Environment held in Stockholm in the year 1972, the parliament relied on the external affairs clause in the Constitution, and took steps towards the control of air pollution. The Air Pollution (prevention and Control of Pollution) Act 1981 (Air Act), was enacted on lines with the provisions of the Water Act.[1] Starting in 1987, India’s Central Pollution Control Board (CPCB) began compiling readings of Nitrogen Dioxide (NO2), Sulfur Dioxide (SO2), and particulate matter with 9 diameter less than 100 μm (PM). The data were collected as a part of the National Air Quality Monitoring Program (NAMP), a program established by the CPCB to help identify, assess, and prioritize the pollution controls needs in different areas, as well as to help in identifying and regulating potential hazards and pollution sources.[2] Throughout the 1980s and 1990s, India continued to adopt a series of policies designed to counteract the effects of growing environmental damage. The analysis focuses on two key air pollution policies, the Supreme Court Action Plans and the catalytic converter requirements, and the primary water pollution policies, the National River Conservation Plan. These policies were at the forefront of India’s environmental efforts. Importantly, these policies were also phased into different cities in different years.[3]

The distinguishing characteristics of the Air Act can be seen in the provision for declaration of air pollution control zones, inclusion of noise within definition of air pollution and control on pollution caused by motor vehicles. On consultation with boards, the state government can declare air pollution control area within the state.[4] The state government can prohibit use of any fuel other than approved fuel in the area. No appliance other than the approved appliances can be used. If it causes or likely to cause air pollution, burning any material, other than fuel, can be prohibited. Restrictions are imposed on the establishment and operation of any industrial plant within the area by the system of consent administration.

As in the case of Water Act, the board considers applications for grant of consent before allowing any establishment to operate. In order to ensure that the standards of emission of air pollution from automobiles are complied with, the government will issue instructions to authorities under the Air Act.[5] This is done after consultation with the state pollution control board. The control of vehicular pollution is not restricted to the air pollution control area, but may extend to the whole area within a state. The Air Act makes an attempt to bring noise pollution within its ambit by including noise within the definition of air pollution.[6]  After the introduction of the EPA, the rules framed there under lay down not only the standards to emission of discharge of pollutants, but also ambient air quality standards.[7]

Pollution Control: Judicial Perspectives

For a long time since the enactment of water and Air Acts, industries were invariably disregarding the directions of pollution control boards and violating the conditions of consent with impunity. The Boards, being the agencies envisaged to control pollution, stood as helpless witnesses to these tragic happenings. The malady stirred the conscience of the courts. The very negligence of the boards in their functioning also came to the notice of judicial vigilance.[8]

In AFD & C Ltd v Orissa State Pollution Control Board,[9] Orissa High Court looked into the different parameters of the directing power under the Air Act. In Chaithanya Pulverising Industry v Karnataka Pollution Control Board,[10] the question was whether a polluting industry was to be prohibited from carrying on its activities or if it were to be prohibited, should it be given an opportunity for mitigating pollution. In MC Mehta v Union of India,[11] the Supreme Court examined how far brick kilns located near Taj Trapesium could be allowed to function. Similarly, the old ‘bot’ technology of tyre treading should give way to new ‘cold’re- treading process, according to the High Court of Himachal Pradesh in Ved Kaur Chandal v State of Himachal Pradesh.[12] Automobile Pollution was the issue in Murli Purushothaman v Union of India,[13] where Kerala High Court directed the state government to commence centers to measure carbon monoxide and other pollutants emitted from automobiles. In another MC Mehta v Union of India,[14]  the Supreme Court took a firm stand for conversion from diesel vehicles to CNG vehicles as part of the campaign to free Delhi from pollution hazards. In Adarsh Brick Kiln Industry v Chairman, Pollution Control Board[15] Allahabad High Court fixed a distance rule for establishing brick kilns. In Jackson & Company v Union of India[16] Delhi High Court imposed the manufacturer’s liability for pollution caused by DG generators. In Maulana Mufti Sayed Md Noorur Rehman barkati v State of West Bengal[17] Calcutta High Court sustained the prohibition on the use of microphone for the call of azan before 7 am in the morning.

 

 

 

Strengthening the Hands of Agencies and Standards of Control

The Ganga Pollution case[18] is a specific illustration where the Supreme Court noticed the utter indifference of the tanneries, and ordered to stop the discharge of trade effluent into the river Ganga. It is rightly held that the immense adverse effect on the public at large by the discharge of trade effluents would outweigh any inconvenience caused to the polluting entities on account of the closure. Specific directions were issued to the tanneries either to set up primary treatment plant or to stop their functioning. The Central Government, state pollution control board and the district magistrate were asked to monitor the enforcement of its orders. Assignment of such a watch dog function to the authorities was unprecedented. It gave them more awareness and strength for taking up anti- pollution measures.

An Emerging Field in Air Pollution: Aviation Emission

The emission of Greenhouse gas from wide range of economic activities has lead to the increased global temperature and melting of polar caps.[19] This includes the global transport sector, which accounted for 13% of all greenhouse gas emission in 2004.[20] Global aviation was responsible for almost a quarter of these emissions, with over 60% of aviation’s emissions coming from international flights.[21] However, the absence of regulation for International Aviation emission is glaring omission in the international governance architecture for climate change.[22]

 

CONCLUSION

The increasing pollution in the cities of India is a most concerned area. India may, in coming future, have highest number of Polluted cities. The Recent orders of National Green Tribunal in regards to increasing pollution in capital city Delhi is the alarm. The Indian Judiciary had always taken proactive action in safeguarding the Environment. The current judicial trend in cases relating to Air Pollution shows the judicial activism of Indian judiciary as various directions and measures are enforced by ways of orders. Nonetheless, the fact is still intact that even having the effective laws and judiciary in place India is still not ready to curb the Air Pollution completely because of the lack of Implementation of the Act and the orders of the Court.

*4th Year Student, Institute of  Law Nirma University, Ahmadabad.

[1] P. Leelakrishnan, Environmental Law in India 170 (3rd ed. 2013).

[2] Michael Greenstone & Rema Hanna, Environmental Regulations, Air and Water Pollution, and Infant Mortality in India, Harv. Envtl Econ. Program (Sep., 2012).

[3] Id.

[4] Air (Prevention and Control of Pollution) Act, 1981, § 19.

[5] Air (Prevention and Control of Pollution) Act, 1981, § 20.

[6] Air (Prevention and Control of Pollution) Act, 1981, § 2(a).

[7] Noise Pollution (Regulation and Control) Rules, 2000.

[8] P. Leelakrishnan, Environmental Law in India 171 (3rd ed. 2013).

[9] A.I.R. 1995 Ori. 84(India).

[10] A.I.R. 1987 Kant. 82(India).

[11] (2001) 9 S.C.C. 235 (India).

[12] A.I.R. 1999 H.P. 59 (India).

[13] A.I.R. 1993 Ker. 297 (India).

[14] A.I.R. 2002 S.C. 1696(India).

[15] A.I.R. 2004 All. 8(India).

[16] A.I.R. 2005 Del. 334(India).

[17] A.I.R. 1999 Cal. 15(India).

[18] MC Mehta v. Union of India A.I.R. 1988 S.C. 1037(India).

[19] Michael C. Murphy and Karen M. Gillam, Greenhouse Gases and Climate in Environmental Impact Assessment – Practical Guidance available at:  http://www.iaia.org/conferences/iaia13/proceedings/Final% 20papers%20review%20process%2013/Greenhouse%20Gases%20and%20Climate%20in%20Environmental%20Impact%20Assessment%20%E2%80%93%20Practical%20Guidance.pdf?AspxAutoDetectCookieSupport=1 (last visited on 14th October, 2015).

[20] Terry Barker and others, ‘Technical Summary’ in Bertz and others (eds), Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2007) 27.

[21] David Lee and others, Shipping and Aviation Emissions in the Context of a 2 degree Celsius Emission Pathway (2013) available at: http://www.cate.mmu.ac.uk/wpcontent/uploads/2013/03/Shipping_and_Aviati on_Emissions_ in_the_Context_of_a_2_degree_Celsius_Emission_Pathway_22032013.pdf (last visited on 14th October, 2015).

[22] Beatriz Martinez Romera & Harro Van Asselt, The International Regulation of Aviation Emissions: Putting Differential Treatment into Practice 259 J. Envtl L., (2015).

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