Air pollution

Law relating to air pollution

Introduction
• Air pollution refers to the presence of a pollutant in the air or the atmosphere.
• There are two types of air pollution: indoor and outdoor. The sources of indoor air
pollution include smoking, inefficient burning of inferior fuels and poor
ventilation.
• The sources of outdoor air pollution include vehicles, industries, power plants,
mining activities, construction activities, firecrackers, cigarettes and crop burning
etc.
• The urgent need to regulate air pollution is borne out by the finding of a 2010
report of the Central Pollution Control Board that particulate matter in the air of
180 Indian cities was six times higher than World Health Organization standards.
• Recently, the Yale Environmental Performance Index has ranked India 174 out of
178 countries on air pollution.
Legislative Framework

• The Constitution of India does not include any specific provision on

environmental pollution generally or air pollution specifically.
However, the judiciary has interpreted the fundamental right to life
guaranteed under Article 21 of the Constitution to include the right to
enjoyment of pollution-free air (See, for example, Subhash Kumar v
State of Bihar, AIR 1990 SC 420).
 Relevant legislation: General Provisions
• Two of the important environmental legislation in India with respect to
air pollution are the Air (Prevention and Control of Pollution) Act, 1981
(amended in 1987) and the Environmental (Protection) Act, 1986.
• Provisions concerning public nuisance under tort law, the Indian Penal
Code (section 268), the Code of Criminal Procedure, 1898 (section 133)
and the Code of Civil Procedure, 1908 (section 91) may also be
applicable to cases of air pollution. However, the length and expense of
the judicial proceedings and the difficulty of establishing liability etc.
have discouraged their application.
• Since its establishment the National Green Tribunal Act, 2010, the
National Green Tribunal (NGT) has adjudicated cases concerning air
pollution in the exercise of its original as well as appellate jurisdiction
Air (Prevention and Control of Pollution) Act, 1981

• One of the decisions taken at the United Nations

Conference on the Human Environment 1972 (or the
Stockholm Conference) was to take appropriate
measures to preserve air quality and control air
pollution. In order to implement this decision, the
Ministry of Environment and Forests, Government of
India (MoEF) enacted the Air (Prevention and Control
of Pollution) Act, 1981 (the Air Act) in exercise of the
power vested in it by Article 253 of the Constitution of
India
CONT….
• The primary objective of the Air Act is to prevent,
control and abate air pollution or ‘the presence in
the atmosphere of any air pollutant’.
• An ‘air pollutant’ is defined in section 2(a) of the Act
to mean: 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.
CONT…..
• The Central Pollution Control Board (CPCB) and the State Pollution Control
Boards (SPCB), established under the Water (Prevention and Control of Pollution)
Act, 1974, are responsible for prevention and control of air pollution.
• In performance of its function to lay down air quality standards (section 16(2)
(h)), the CPCB has notified the National Ambient Air Quality Standards, 2009 for
industrial, residential, rural and other areas, and ecologically sensitive areas.
• Similarly, one of the functions of the SPCB is to lay down, in consultation with the
CPCB, and having regard to the air quality standards laid down by the CPCB,
standards for:
• (i) emission of air pollutants from industrial plants and automobiles into the
atmosphere; or
• (ii) discharge of any air pollutant into the atmosphere from any other source (but
not a ship or an aircraft) (section 17(1)(g)).
Environment (Protection) Act, 1986
• Definitions under the act-
• 1)Environment-water, air, land and the inter-relationship, which exists
among and between water, air and land, and human beings other
living creatures ,plants, microorganism and property.
• 2)Environment pollutant-any solid, liquid or gaseous substance
present in such concentrations as may be or tend to be injurious to
environment.
• 3)Hazardous substance-any substance or preparation which by reason
of its chemical or physical-chemical properties or handling is liable to
cause harm to human beings, other living creatures,plant,micro
organism, property or the environment.
CONT---
• Under the Act, the Central Government has the power to take measures to
protect and improve environment, to constitute authorities, to give
directions, to enter and inspect, procure information from a State
Government, etc. The scope for delegating powers and functions to any
authority or State Government is envisaged. The Central Government has the
power to make rules under the Act.
• The Act characterizes certain activities like excess emission, handling
hazardous substances in violation of procedural safeguards and obstruction of
person empowered to enter and inspect as offences for which a penalty is
imposed. The Act addresses offences committed by companies and
Government departments separately. Cognizance of an offence can be taken
on a complaint by the Central Government or any authority or person
authorized in that behalf. The Act also provides that any person who has given
notice
CONT…
• of not less than sixty days of the alleged offence and his intention to
make the complaint to the SPCB or any officer authorized in this
behalf may also be considered. Section 22 of the Act bars the
jurisdiction of civil courts with respect to any action taken by the duly
competent authority under the Act
CONT…..
• Like the Air Act empowers the SPCBs to lay down standards for
emission/discharge of air pollutants into the atmosphere, under the
Environment (Protection) Act, the Central Government, through the
MoEF, may take measures to protect and improve the environment.
This includes laying down emission/discharge standards for air
pollutants, air quality standards for various areas and purposes,
maximum allowable limits of concentration of air pollutants for
different areas, etc. This has led to the inclusion of certain standards
in the Environment (Protection) Rules, 1986, which take precedence
over the standards laid down under the Air Act. However, in case an
offence is punishable under both the Acts, the Air Act will apply.
Specific Causes of Air Pollution: Legislation and Judicial Decisions

• Industrial pollution
• Vehicular pollution
• Noise pollution
• Smoking
• Open burning of waste
Industrial pollution

• Under section 19 of the Air Act, the State Government has the power to
notify certain areas within the State as air pollution control area(s) after
consultation with the SPCB. The use of non-approved fuel(s) or appliance(s)
and/or the burning of any material (which is not a fuel) in such areas may be
prohibited if it may cause or is likely to cause air pollution.
• Previous consent of the SPCB is required in order to establish or operate an
industrial plant in an air pollution control area. The SPCB shall either grant
or refuse to grant consent within a period of four months from the date of
receipt of the application. The decision shall be in writing and the SPCB is
required to record reasons for its decision. The consent is granted subject to
compliance with certain conditions, such as installation and operation of
specified control equipment. If the conditions subject to which consent is
granted are not fulfilled, the SPCB may cancel the consent but after
providing a reasonable opportunity to be heard
Cont…
• Further, an industrial plant operating in an air pollution control area
cannot discharge any air pollutant in excess of the standards laid down
by the SPCB.
• The Air Act inter alia penalizes emission of air pollutants in the air
pollution control area(s) in excess of the standards laid down by the
SPCB with imprisonment and/or fine (section 22). A person may also
be restrained from emitting an air pollutant in an air pollution control
area (section 22A). However, the SPCB does not have the power to
impose the penalty or restrain a potential air polluter unilaterally; it
has to make a complaint/application before a court, which will take
cognizance of the same in accordance with the rules of criminal
procedure (sections 22A & 37). But the Air Act does empower the
SPCB to direct the closure, prohibition or regulation
Cont…

• of any industry, operation or process, or stop or regulate supply of electricity, water

or any other service (section 31A).
• The Supreme Court and High Courts have considered the effects of industrial
pollution on human health and/or the environment in a number of cases.
• In MC Mehta v Union of India and Others (Taj Trapezium case), (1997) 2 SCC 353:
AIR 1997 SC 734, the petitioner was concerned about the effects of air pollution on
the Taj Mahal in Agra. A number of sources, including foundries,
chemical/hazardous industries and the Mathura refinery, brick kilns, vehicular
traffic and generator sets, were contributing to the air pollution. The Supreme
Court applied the precautionary principle, that is, environmental measures must
anticipate, prevent and attack the causes of environmental degradation. The
burden of proof is on the industry to show that its operation with the aid of
coke/coal is environmentally benign. The other observations/directions of the
Court include-
Cont….
• The emissions generated by the coke/coal consuming industries are
air pollutants and have damaging effect on the Taj and the people
living in the TTZ.
• The atmospheric pollution in the TTZ has to be eliminated at any cost.
Not even one per cent chance can be taken when human life and the
preservation of a prestigious monument is involved.
• The identified industries shall change over to natural gas as an
industrial-fuel.
• The industries, which cannot obtain natural gas connections, shall
stop functioning with the aid of coke/coal in the TTZ. Such industries
may relocate
Vehicular pollution

• The increasing number of vehicles plying on the roads, both public transport and
private vehicles, are a major source of air pollution in India. While gasoline-run
vehicles emit carbon monoxide (CO), hydrocarbons (HC) and lead (Pb), diesel vehicles
are responsible for the release of suspended particulate matter (SPM) and sulphur
dioxide (SO2).
• The Air Act empowers the SPCBs to lay down standards for emission of air pollutants
from automobiles in consultation with the CPCB (section 17(1)(g)). This has led to the
Standard for Emission of Smoke, Vapour, etc. from Motor Vehicles. In order to ensure
compliance with these standards, the State Government is required to give the
necessary instructions to the vehicle registration authority under the Motor Vehicles
Act, 1989 (MVA) (section 20). In addition, the MVA empowers the Central
Government to prescribe emission standards for vehicles and to frame rules to
regulate the construction, equipment and maintenance of motor vehicles in relation
to the emission of smoke, visible vapour, sparks, ashes, grit or oil. The Central Motor
Vehicles Rules, 1989 prescribes nationwide emission levels for old and new, diesel
and petrol engine vehicles, which are identical to the emission standards for motor
vehicles under the Environment (Protection) Rules.
Cont…
• In addition, or as an alternative, to the command-and-control
approach prescribed by the Air Act and the Environment (Protection)
Act, the government is also using market-based instruments, such as
pollution and road taxes, in order to reduce and/or prevent air
pollution resulting from vehicles.
• During the late 1980s and 1990s, Mr MC Mehta, a lawyer, filed several
public interest litigations before the Supreme Court with respect to
vehicular pollution. This led the Court to pass a number of orders,
inter alia, relating to:
• Mandatory use of catalytic converters for specific types of vehicles;
• Introduction and use of unleaded petrol for motor vehicles
Cont…
• Conversion of vehicles from the use of petrol/diesel to Compressed Natural Gas
(CNG);
• Setting-up of a timeframe for the gradual phasing out and banning of old
commercial/transport vehicles from Delhi roads;
• Conformity of certain vehicles, depending upon date of registration in the National
Capital Region, to Euro-I and Euro-II norms.
• On 10 February 2014, the Supreme Court acknowledged air pollution as a serious
concern with severe public health consequences and issued notices to the Central
government and the state governments of Delhi, Haryana, Rajasthan and Uttar
Pradesh on actions such as uniform Bharat Stage IV standards nation-wide and
tighter emissions standards, effective gap between diesel and CNG prices, lower
taxes on buses, immediate introduction of daily health alerts on air quality, uniform
vehicle tax measures across NCR, effective increase in parking pricing and
enforcement to cut car usage.
Noise pollution
• The definition of ‘pollutant’ in the Air Act includes noise (sections 2(a)). The sources of noise
pollution in India include microphones and loudspeakers used in religious ceremonies and
public meetings, electric and air horns used in buses and trucks, fireworks.
• The Environment (Protection) Rules empower the Central Government to provide maximum
allowable noise limits for different areas. Accordingly, the MoEF has laid down Ambient Air
Quality Standards in respect of Noise (Schedule III).
• The Central Government has also notified the Noise Pollution (Regulation and Control) Rules,
2000 (amended in 2010) for ‘regulation and control of noise producing and generating
sources’. The Rules specify Ambient Air Quality Standards in Respect of Noise for industrial,
commercial, residential or silence areas/zones.
• Some of the other important features are:
• The use of loud speakers/public address system and sound producing instruments is subject to
written permission.
• The permissible noise level at the boundary of a public place or a private place, where a noise
source is used, is prescribed.
• The use of horns, sound emitting construction equipment and bursting of firecrackers is
prohibited in silence zones or during night time (i.e. between 10.00 pm and 6.00 am) in
residential areas.
Cont….
• The Environment (Protection) Rules also include noise standards for
fire-crackers, noise level standards for coal mines, as well as noise
limits for automobiles and domestic appliances and construction
equipment at the manufacturing stage and for generator sets run with
petrol or kerosene or diesel. Any violation of a rule issued under the
Environment (Protection) Act is a punishable offence (section 12).
Provisions concerning noise pollution are also included in local
municipal laws and state-level police laws
Cont…
• The issue of noise pollution has formed the subject matter of a
number of cases before the Supreme Court of India as well as High
Courts. In In re Noise Pollution– Implementation of Laws for
Restricting Use of Loudspeakers and High Volume Producing Sound
Systems with Forum, Prevention of Environment and Sound
Pollution v Union of India, (2005) 5 SCC 733, the Supreme Court
observed: ...Any one who wishes to live with peace, comfort and
quiet within his house has a right to prevent the noise as pollutant
reaching him. No one can claim a right to create noise even in his own
premises which would travel beyond his precincts and cause nuisance
to neighbours and others...If any one increases his volume of speech
and
Cont…
• that too with the assistance of artificial devices so as to compulsorily
expose unwilling persons to hear a noise raised to unpleasant and
obnoxious levels, then the person speaking is violating the right of others to
a peaceful, comfortable and pollution free, life guaranteed by Article 21.
• The Court then issued a number of directions, which include the division of
firecrackers into light-emitting and sound-emitting categories. The Court
also imposed a complete ban on bursting sound-emitting firecrackers and
beating of drum or tom-tom or flow of trumpet or beat or sound of any
instrument of use of any sound amplifier between 10.00 pm and 6.00 am.
In addition, the Court directed the State Government to:  Seize
loudspeakers and amplifiers making noise beyond permissible limit 
Specify ambient air quality standards in different areas  Add a chapter in
textbooks regarding ill-effects of noise pollution
Smoking
• Cigarette smoke is also one of the causes of air pollution. The
Cigarettes and Other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production,
Supply and Distribution) Act, 2003 read with the Prohibition of
Smoking in Public Places Rules, 2008 prohibits smoking in public
places (where the public has access and includes workplaces,
shopping malls and cinema halls) and open places that are visited by
the public (such as open auditoriums, stadiums, railways stations and
bus stops). However, hotels with more than 30 rooms, restaurants
with more than 30 seats and airports are allowed to have a separate
smoking area or space
Open burning of waste

• The improper disposal of different types of waste (including municipal

solid waste, plastic waste, hospital waste, etc.) generated in urban
areas is a major problem and the illegal burning of such waste
contributes to air pollution. Different types of waste are governed by
different rules framed by the MoEF in exercise of the power conferred on
it by the Environment (Protection) Act. The Plastic Waste (Management
& Handling) Rules, 2011, prohibit the open burning of plastic waste.
Further, in response to a petition alleging illegal burning of plastic, rubber
and related waste, which releases deadly dioxins and furans, in various
villages in north and north-west Delhi, the National Green Tribunal
imposed a nationwide ban on ‘unregulated open burning of
plastic/rubber or such other articles’ on 12 December 2013. The Draft
Municipal Solid Waste (Management & Handling) Rules, 2013 also
prohibit the open burning of municipal solid waste
SUMMARY
• The extent and effects of air pollution on public health and the
environment are well recognized in India. A number of legal measures
have been introduced at the Central level as well as within states,
either in exercise of the powers conferred by the applicable legislation
or as a response to directions issued by the Supreme Court or High
Courts. However, the command-and-control approach adopted by the
existing environmental legislation and the inadequacy of some of the
emission standards undermines their ability to arrest the problem.
Further, while some of the measures contribute to alleviating the
problem, their implementation is not always satisfactory.
Nevertheless, concerned members of the public continue to increase
awareness about the adverse effects of different activities on air
pollution. They are also exerting pressure on the government, either
through lobbying or judicial proceedings, to improve the air quality