This article is written by Ishaan Banerjee and co-authored by Pruthvi Ramkanta Hegde. This article emphasises the purpose and important provisions of the Air Prevention and Control of Pollution Act, 1981. The article further covers the important judicial pronouncements with regard to the same. Further, it discusses various drawbacks of the Air Prevention and Control of Pollution Act, 1981.
This article has been published by Shashwat Kaushik.
Table of Contents
Air pollution has been one of the most serious and persistent problems in India. According to the Lancet Study in 2019, air pollution was the cause of 1.6 million deaths fatalities in India. Thus, the urgency for attention and action on this issue needs no further stretching. Many of us must be aware of the plight of Delhi residents in the winter. The winter fog and the smoke from stubble burning, vehicles, carried by the incoming northern winds, combine to make Delhi a ‘gas chamber’. In 2019, Delhi was ranked as one of the most polluted major cities in the world. In these circumstances, we must examine the law framed by India to combat air pollution and determine whether it is enough to combat air pollution. In order to mitigate and control air pollution in India, our lawmakers passed the Air Prevention and Control of Pollution Act, 1981 (hereinafter referred to as the ‘Act’).
Sweden first suggested to the United Nations that there should be a global conference to discuss and prevent pollution and degradation of natural resources. Therefore, with the passing of General Assembly Resolution 2398, the United Nations Conference on the Human Environment was held in Stockholm in June 1972. At this conference, it was decided that the countries would undertake steps to preserve the natural resources, which also include air. Accordingly, the Indian government enacted specific laws under Article 253 of the Indian Constitution for the preservation of natural resources, and the law enacted for air preservation was the Air (Prevention and Control of Air Pollution) Act, 1981.
The Act’s Preamble states that this Act is for the prevention, control, and abatement of air pollution, and the burden of fulfilling such purposes falls on the boards established under this Act.
This Act applies to the whole of India as enumerated under Section 1(2) of the Act. The Act contains certain definitions which fall under the scope of this Act. Knowing these definitions is important as they will help to understand what qualifies as air pollution according to Indian law so that air polluters can be punished under this Act.
In order to control the problem of air pollution the Act has been enacted. The Act has set rules for the establishment of the Air Quality Control Board as per Section 3 and Section 4 of the Act. The main function of the Board is to reduce and control the level of air pollution in India as per Section 16 and Section 17 of the Act. The main purpose of the Act is to improve air quality, by setting rules to control industrial pollution, control pollutant emissions from the industries to protect the environment, and set rules to protect human health. The government has the power to make rules as per Section 53 and Section 54 of the Act whenever it is necessary.
Section 3 and Section 4 of this Act state that the appropriate powers and functions shall be given to the Central Board and the State Boards respectively, and they shall exercise these powers and not go outside the ambit of these powers.
Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 explains the constitution of the Central Pollution Control Board-
Section 5(2) of the Act explains the constitution of a State Board-
Section 7 of the Act states the terms and conditions of services of the members. Those are outlined as follows:
Section 8 of the Act, prescribed disqualifications for the members to contest as a member of the State Board. According to Section 8(1) of the Act, the following members are considered disqualified members:
As per Section 8(2) of the Act, if the member falls under any disqualifications as stated in Section 8(1), the State Government can remove such member from their position. While removing the members from their position on any one of the grounds, the State Government needs to issue a written letter for removal and also give the opportunity of hearing to such members. No matter what is stated under Section 7(1) and Section 7(6) of the Act, members will be removed from their services if they are found under any disqualification grounds. Such removed members can’t continue their office until their replacement takes over, and they can’t be nominated again.
Section 10 of the Act prescribes the provisions for the board meetings. Accordingly, the Board established under this Act must conduct a meeting every three months. During these meetings, they follow certain rules on how they discuss and decide on things, as stated under the law. If the Chairman feels that there is something very urgent that the Board needs to discuss and decide on, they can call for a meeting at a time other than the regular three-month interval. After conducting each meeting, the Board has to send a summary of what was discussed and decided to both the Central Board and State Government.
As per Section 11 of the Act, the Board has the authority to create different committees. These committees can be made up entirely of board members or a mix of board members and other individuals, depending on the need. Each committee is formed for specific reasons or tasks the Board thinks are important. Once the committee is formed, it will have its own schedule for when and where they meet. They also have specific rules to follow during their meetings, which are in accordance with the Act. If there are other persons on the committee who are not a part of the Board, they can be paid fees and allowances for attending meetings and doing work for the Board. Payment details will be determined in accordance with the Act.
As per Section 12 of the Act, the Board has the flexibility to bring additional individuals, by following certain rules for specific purposes as per the Act. The individuals who are associated with the boards can participate in discussions relevant to their assigned tasks. However, they do not have the right to vote during the board meeting and are not considered full-time board members for any other purposes. Individuals brought in for assistance are entitled to receive compensation in the form of fees and allowances, in accordance with the Act.
Section 16 of the Act lays down the functions of the Central Board-
Section 17 lays down the functions to be performed by the State Boards-
Power to give directions: Section 18 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.
Section 31A prescribes that the Central Government may issue directions to any person, officer, or authority and such party shall be bound to follow the directions. These instructions should be within the powers and functions of the Board, and include-
Power to declare air pollution areas: Section 19 of 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 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.
Restrictions on the use of certain industrial plants: Section 21 talks about setting up industrial plants in compliance with and with the consent of the respective State Board. It prescribes the procedure for making an application to the Board, for which a decision has to be made and intimated to the applicant regarding whether he has permission to set up the plant or not. The conditions are also given for setting up the plant. These should be complied with, otherwise, the permission for the plant can be revoked. The conditions under Section 21(5) are-
Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standard laid down by the State Board: Section 22 states that no person heading an industry shall emit any excess amount of emissions than the standards set out by the State Board.
Power of Board to make application to Court for restraining a person from causing air pollution: Under 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.
Furnishing of information to State Board and other agencies in certain cases: Under Section 23, where any emission over the prescribed limit occurs due to an accident or unforeseen event, the person operating the industrial plant shall report the facts of the same to the State Board and other relevant authorities, to which they shall take remedial action as soon as possible.
Power of entry and inspection: Under Section 24, a person authorised by the State Board shall have the power to gain entry into any place for carrying out the performance of any of the functions assigned to him. He may examine and inspect any control equipment, industrial plant, record, register or any other document or object or any place which he has reason to believe was used for the commission of any offence under this Act. The person in charge of these equipment, plants, records, etc. shall assist the person from the State Board to perform the functions. Not doing so, will be an offence.
Power to obtain information: In Section 25, it is stated that the State Board or any person empowered under it shall have the power to call the person operating such plant or control equipment about any information regarding the type of air pollutant and the amount of emissions released by such plant or equipment. It shall also carry out inspections to verify the same.
Power to take samples from air or emission and procedure to be followed: Section 26(1) states that samples of air or emissions may be taken from any chimney, flue, duct or any outlet as prescribed. The samples shall be admissible in legal proceedings only on the compliance of conditions laid down in Sections 26(3) and 26(4). These are-
In a condition where the occupier or agent wilfully absents himself, then the sample shall be put into the container and be signed by the person taking the sample only. In a condition where the sample is being taken in the presence of the occupier or agent, and such occupier or agent refuses to sign the container, the person taking the sample shall sign the container.
As per Section 28 of the Act, the State Government is empowered to establish air laboratories within a particular state by notifying through its official gazette. States can establish more than one laboratory within the state boundary. The functions of the state air laboratories are determined by the concerned State Government. In order to determine the functions of the air laboratory, the state can consult with the State Board. After consulting with the State Board, the State Government can set the rules and regulations with regard to procedures for submitting air or emission samples for analysis, testing to the laboratory, fee structure, laboratory reports, and some other necessary matters that are essential for the laboratory to perform its activities.
As per Section 31 of the Act, if any person is not satisfied with the decision or order of the State Board under this legislation, they can opt for an appeal. Section 31(1) of the Act, states that the appeal shall be made within thirty days from the date of the order which is communicated to the aggrieved person. The appeal shall be made to the Appellate Authority as constituted by the State Government as it thinks fit. However, if there are sufficient reasons for not appealing within thirty days, a higher authority can consider it with discretionary power.
Section 31 of the Act prescribes the provisions for the constitution of the Appellate Authority that include:
As per Section 31B of the Act, if a person is not satisfied with the order or decision of the Appellate Authority issued under Section 31, such aggrieved party can make an appeal before the National Green Tribunal, provided that such decisions are taken after the establishment of the National Green Tribunal Act, 2010. The appellant can seek an appeal under Section 3 of the National Green Tribunal Act 2010.
Section 33 of the Act, states the funds of each Board. It states about the management of the funds of the Boards. Accordingly, every State Board has its own fund, which includes money from the Central Government and other sources like contributions from the State Government, fees, gifts, grants and donations. This fund is used to support the Board’s activities. The State Board can spend money from its fund on tasks outlined in the Act. all expenses made by the Board come from this fund. There is an exception for State Pollution Control Boards under the Water (Prevention and Control of Pollution) Act 1974. These Boards have the authority to use their funds for tasks related to preventing, controlling, or reducing air pollution. According to Section 33A, the Board has the power to borrow money, either through loans or by issuing bonds, debentures, or other instruments. This power requires consent or approval from the Central or State Government.
According to Section 34, each year, the Central Board or the State Board must prepare a budget showing expected income and expenses for the upcoming financial year. The budget needs to be in a prescribed form and submitted to the Central or State Government for review.
Section 35 of the Act, specifies the annual report of each Board includes as follows:
Every year, the Central Board has to create a report that describes every activity that occurred during the past year. This report needs to follow a specific format. Within four months from the end of the financial year, the Board sends copies of this report to the Central Government. The Central Government then has to share these reports with both houses of Parliament within nine months from the end of the financial year.
Every year, each State Board also has to prepare a report. It needs to state the previous year’s activities which are made by each State Board. The report copies with the prescribed form need to be sent to the respective State Government within four months from the end of the financial year. The State Government then shares this report with the State Legislature within nine months from the end of the financial year.
As per Section 36 of the Act, it is compulsory that Central and State boards must be required to maintain correct financial records and accounts of their activities. Every board needs to prepare an annual financial report as set by the Central or State Board. The financial accounts of the board will be audited by an auditor. Appointment of an auditor will be conducted by the State Government or Central Government after getting the necessary instructions from the Comptroller and Auditor-General of India. The auditor has every power to inspect any officers of the concerned board to get each and every financial record, including, accounting reports, books of account, related vouchers, and other documents essential for conducting the audit. After conducting the audit, the auditor has to submit an audited report to the connected State Government or Central Government as the case may be. Finally, the Central Government will present such a report to both Houses of Parliament. Similarly, the State Government will present such a report to the State Legislature.
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 a 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-
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.
Section 40 includes two definitions-
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.
Furthermore, as provided 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.
Sections 42 to 46 cover procedures. Section 42 states that no suit, prosecution or another legal proceeding shall lie against the government, any officer of the government or any member, employee or officer of the Board, where the actions are done by such body or persons are done or intended to be done in good faith in pursuance of this Act.
Section 43 states that the Court shall take cognizance of only those offences where the complaint is made by-
No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try any offence punishable under this Act.
According to Section 51 of the Act, Every State Pollution Control Board must keep a register. This register includes information about people who have been given permission under Section 21. It also notes the emission standards set by the Board for each of these permissions. Other details required by the rules are also recorded. Register, can be checked by anyone interested or affected by the emissions standards. This means that during reasonable hours, any person or someone authorised by them can look at the register to understand emissions standards and related details.
According to Section 52, the Act has a superseding effect. This means that this legislation has higher authority and overriding effect. That overrides any conflicting provisions in other laws except for the specific exceptions like those related to radioactive air pollution in the Atomic Energy Act 1962.
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. Similarly, in Subhash Kumar v. State of Bihar (1991), it was held that the 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 to take positive measures to ensure a healthy environment.
This case involves disputes over a piece of land in Haryana that is adversely affecting the environment. The court considered environmental concerns by emphasising the importance of maintaining a healthy and pollution-free environment for human well-being. The Municipal Committee in Thanesar had plans for the area and the government of Haryana approved it in 1975. Further one of the landowners gave up part of her area for construction purposes. However, the Government later allowed land to be leased to a private trust, Punjab Samaj Sabha (PSS) for constructing Dharamshala. Meanwhile, people who originally owned that land filed the petition before the court. They claimed that the government had no right to lease the land to the PSS for such construction. They argued that the government’s original plan was for public spaces and the government exceeded its authority. The private trust on the other hand argued that they wanted to construct Dharamshala which was for charitable purposes, which was allowed. The Judiciary, after considering both party’s arguments, held that a clean and healthy environment is crucial for a good life. The government and Municipalities both are vested with the duty to protect the environment. The court found that government decisions to lease the land to the PSS are violative of the original purpose. Further, the court also widens the scope of Article 21 of the Indian Constitution by interpreting that, ‘pollution-free air’ is also a part of the right to life. Having clean air, water, and proper sanitisation is very important for an individual to lead a well-dignified life. The court also cited the Stockholm Declaration of the United States on Human Environment, stating that individuals have the fundamental right to live in an environment conducive to dignity and well-being.
In this case, the Honourable Supreme Court ruled for the protection of the Taj Mahal. Accordingly, Indian environmental activist M.C. Mehta filed a Public Interest Litigation (PIL) before the Honourable Supreme Court of India regarding the prevention of the Taj Mahal from harmful emissions being released by some industries. With respect to PIL, the court took cognizance of the issue and marked certain areas as special zones that are known as the Taj Trapezium Zone (TTZ). That encompasses around 10,400 square kilometres. This zone was considered a special zone to combat pollution and to preserve the monument. By considering the urgency of the matter immediate actions were taken by the court. Similarly, factories that were causing pollution by emitting poisonous gas had to close or use cleaner technologies like compressed natural gas. The court while giving the judgement also considered the Varadarajan Committee’s Report and directed the Ministry of Environment and Forest, the State of Uttar Pradesh and the Government of India to create a plan for moving industries gradually in an organised way. While deciding the matter, the court has taken several principles of law that include, the Polluter Pay Principle, Precautionary Principle and ideas of Sustainable Development. The court also ordered the closure of 292 industries in the Taj Trapezium Zone. This case is considered one of the landmark judgments being given by the Honourable Supreme Court.
This case is considered one of the landmark cases in India because of its profound impact on the legal, environmental and corporate governance issues in India. Generally, this case is named as ‘Bhopal Gas Tragedy’. The Honourable Supreme Court of India has upheld the aspects of environmental protection in this case. Accordingly, the pesticide plant, which was owned by the American subsidiary company known as Union Carbide India Limited (UCIL) is situated in the city called Bhopal which is a central part of India. One fine day, a dangerous disaster was caused by the release of methyl isocyanate (MIC) gas. This gas is one of the most toxic gas substances that is used in the production of pesticides. The gas had leaked due to a lapse in precautionary measures, and a lack of maintenance. Suddenly, water entered a storage tank that contained MIC. This resulted in the release of large amounts of poisonous gas into the atmosphere. Due to this incident, so many people died and many suffered a lot of health issues due to the release of toxic substances. When the matter was brought before the Honourable Supreme Court, it was held that Union Carbide Corporation should pay compensation to victims of the gas leakage. The court also widens the scope of Article 21 of the Constitution, which guarantees the right to life. Accordingly, the right to live in a pollution-free environment is also a fundamental right that is stated under Article 21. While deciding the matter, the court also considered the strict liability principle.
This case involves an industrial disaster that is causing adverse effects on the environment. The Shriram Food and Fertiliser Gas Leak is about a gas leak that happened in 1985, similar to the Bhopal gas tragedy. Environmental activist MC Mehta filed the petition before the Honourable Supreme Court of India to stop the Shriram Food and Fertiliser industry from reopening after the leak of toxic gas. The court, after considering facts, both parties’ arguments, public interest, and protection of the environment, applied the absolute liability principle. Accordingly, without considering the fault grounds the wrongdoer will be made liable. The court also considered Article 21 and Article 32 of the Constitution. Article 21 which guarantees the fundamental rights of life and liberty, was interpreted as being an important public interest in relation to private companies. However, the Supreme Court ultimately granted temporary permission for the plant to reopen and has formulated several rules that the company must abide by those rules strictly. The court also contended that failure to follow those rules would lead to the closure of the industry.
In this case, the Kerala High Court upheld the protection of the environment through its decisions. In 1990, the court heard a case, where a company was accused of causing pollution by releasing harmful substances like calcium carbide and acetylene black into nearby streams and air. This pollution caused serious health issues. The court found that the pollution exceeded acceptable limits. Further, it was found that the act is violative of Article 21 of the Constitution of India. The court interpreted the right to life which includes clean air and good health. The court emphasised the fact that industry and life must coexist, but environmental protection is too important. The court also suggested the establishment of a National Environment and Audit Agency with the power to plan, control, manage, and enforce environmental standards. The court recommended that before allowing the company to operate, there should be an environmental audit to ensure it won’t harm the environment.
In this case, the petitioner filed this case before the court to stop people from smoking in public places. They wanted the government to take action against those who were smoking in public. The same is considered an offence as per the Indian Penal Code, 1860, which is addressed as affecting public tranquillity and public nuisances. The court decided that smoking in public not only caused air pollution but also harmed the health of people around. It is further stated that smoking in public, whether it is cigarettes, cigars, or any other form, is against the law. It is also violative of Article 21. The court interpreted the right to life also includes the right to lead a healthy life. The court contended that smoking in public places is a public nuisance. It affects everyone in the community.
In this case, the Honourable Supreme Court of India ruled that certain businesses like manufacturing units, cannot operate if they don’t have prior approval for environmental clearance. The key issue in this case was whether a business with about 8000 workers, had obtained Consent to Establish (CTO) and Consent to Operate (COP) from the concerned authority. It could be closed down while waiting for retroactive environmental clearance, even if it was not causing pollution and compiled with pollution control standards.
While the Act is essential for mitigating air pollution in India, it faces certain challenges. The rules are not consistently enforced, making it hard to control and monitor pollution effectively. The major issue with this enactment is that it mainly focuses on the major sources of pollution like factories and industries, forgetting about other important sources of pollution like landfills, vehicles, and households. When this law was enacted in those periods, these were not major concerns. The study conducted by the Indian Institute of Technology Kanpur in 2015 stated that dust is one of the biggest sources of air pollution. The provisions of the enactment are not updated except in 1987. This change allows the Board to get more powers and punishments for rule breakers. However, this Act still insists officers go into factories and collect the samples in order to check in the laboratory, so even if the new system shows that the pollution control boards can’t use that information to take legal action against factories. It is like having a better way to catch polluters, but the rules have not changed to use it properly. The Act may not grant the pollution control board to make the necessary independent decisions. Similarly, boards may have limited power in making rules and amendments. The Board requires prior government approval for enforcing any critical decisions taken. Sometimes, the punishments for breaking the pollution rules may not be strict. On the other hand, it is difficult to keep a record of the pollution. The provisions do not keep up with new technologies since they are not updated. In 2014, the Environment Ministry appointed T.S.R Subramanian to lead the committee reviewing environmental laws. The Committee expressed the opinion that the provisions of the Air Prevention and Control of Pollution Act are already subsumed in the Environmental Protection Act, 1986, therefore the Air Prevention and Control of Pollution Act should be repealed. MP Gourav Gogai promised to bring many changes to this enactment by giving more authority to the Central Board, in November 2019. However, despite the promise, Gogai has not introduced any new bills or any such amendments.
In order to improve the legislation, the law needs to be updated by making necessary amendments regularly. The provisions of the Act currently focus on the big industries and factories. The rules and regulations needed to focus on the other sources of air pollution like dust, household wastes etc., for instance, in Punjab and Haryana farmers burn leftover parts of the rice plants in order to get their fields ready for the next crop. Though it helps them to get their field for growing other crops, it creates very thick smoke that causes huge air pollution and affects human health too. The rules also need to keep up with new technology, this is possible only when it is updated as per the new technology. Moreover, both the Central Board and the State Board have to make decisions independently, with less government intervention.
It is observed that the legislation to deal with air pollution is pretty strict and well formulated. It is one of the crucial legislation in India which safeguards air quality and mitigates pollution. Likewise, 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. Robust regulation helps to regulate air pollution and reduces the occurrence of disasters which happen due to negligence. Therefore, “prevention is always better than cure.” However, enforcement still remains lax. Meanwhile, the Judiciary and Government do not often rely on this legislation to regulate air pollution. Many efforts were made to make changes and repeal the Act with an updated one. But enactment still exists the way it is enacted except for some changes made in 1987.
The Act is implemented by the Central Pollution Control Board at the national level and the State Pollution Control Board at the state level.
The Act has provisions for the control of vehicular pollution by setting emissions standards for vehicles and promoting the use of cleaner fuels. Section 20 to section 22A of the Act covers different provisions for the control of vehicular pollution.
Yes, industry does have the right to appeal against the decisions of the pollution control authorities. Section 31 of the Act deals with the provisions for the appeal.
