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Water Pollution and the Laws in India: A Critical

Analysis
Today, in the twenty-first century the greatest threat to our water
resources undoubtedly comes from pollution. While this is a problem
worldwide, it is particularly severe in developing countries due to
presence of large population, lack of finances and inadequate
scientific expertise. Undoubtedly, in a country like India, where
achieving industrial growth is the call of the day, the problem of
water pollution has to be addressed urgently in order to avoid large
scale public calamities. It is in this context that this research paper
looks at the existing legal mechanisms in India that address the
issue of water pollution and seeks to analyses how effective have been
the legal mechanism in mitigating this menace. The main aim of this
paper is to establish that legal regime in general and water Act in
particular dealing with water pollution is faulty and pollution control
continues to be ineffective. This paper also suggests possible
alternatives to overcome the lacunae so that ensure effective
implementation of the law. However, this paper is not, and does not
purport to be, an exhaustive study of the nature of water pollution in
its fullest import and dimensions. It is merely an urgent look at a
critical issue of water pollution.

INTRODUCTION

Everything originated in water and everything is sustained by


water.

Goethe1

The unconscionable industrialization, the unpardonable


deforestation and inhuman extermination, of living species betray an
exploitative brutality and anti-social appetite for profit and pleasure
which is incompatible with humanism and conservationism. Today a
bath in the Yamuna and Ganga is a sin against bodily health, not
a salvation for the soul, so polluted and noxious are these holy
waters now.

Justice V.R.Krishna Iyer2

Research Hypothesis

Comprising over 70% of the Earths surface, water is


undoubtedly the most precious3 natural resource that
exists on our planet. Without the seemingly invaluable
compound comprised of hydrogen and oxygen, life on
Earth would be non-existent: it is essential for everything
on our planet to grow and prosper. Although we as
humans recognize this fact, we disregard it by polluting
our rivers, lakes, and oceans. Subsequently, we are slowly
but surely harming our planet to the point where
organisms are dying at a very alarming rate. In addition to
innocent organisms dying off, our drinking water has
become greatly affected4 as is our ability to use water for
recreational purposes. Pollution is the biggest threat to
our existing water resources (both fresh water and
seawater) as well as to mankind.5 For example, globally,
estimates suggest that nearly 1.5 billion people lack safe
drinking water and that at least 5 million deaths per year
can be attributed to waterborne diseases. In India a
staggering 70% of the available water is polluted. It is
estimated that 73 million work days are lost every year
due to water related diseases, such as typhoid, infective
hepatitis (jaundice), cholera, diarrhoes and dysentery.
Many of them become epidemic proportions. The cost of
treating them and loss in production amounts to Rs. 600
crores a year.6 It is in this context that there is an urgent
need to look at the matter and propose some solutions so
as to make the current legal regime more productive and
effective.

Chapter One

WATER POLLUTION AS A CONCEPT: AN


ANALYSIS

1.1 Water Law and Water Pollutionthe


Relationship: position in india and usa

Position in USA

Traditionally water law is concerned with resource allocation;


water law determines who can use water and for what
purposes. Therefore water law is concerned primarily with
the quantity (allocation of water) and not quality. However
water quality control is an important part of
environmental law, but presents only a peripheral aspect
of water law.7 However resource allocation is not an end
itself, but, the end is or should be the advancement of
social values and needs. Thus a person who gets rid of a
noxious or offensive substance by discharging it into
water receives a benefit of a sort. Nevertheless, there has
been little interplay between water law and pollution
control.

But with the development of industry and technology, it


was felt that the ambit of water law has to be widened so
as to prevent mass scale pollution in an effective way, as
Riparian and appropriation Law did not produce very
satisfactory or predictable results in pollution cases.
Therefore, Pollution of surface and groundwater was a
fertile ground for litigations.

However, finally in the case of Kennebunk, Kennebunkport


& Wells Dist. V. Maine Turnpike Authority8 it was held that
the scope of water law is wide enough to include water pollution
within its ambit. Now the principal law governing
pollution of the USAs surface waters is the Federal Water
Pollution Control Act, 1972 or Clean Water Act.9

Position in India

In India the primary objective of any legislation is to


ensure social justice and well being through enforcement
of certain codes of conduct. Legislation for environmental
protection is also based on the recognition of the fact, it is
necessary to abide by the requirements to prevent damage
to the environment which is a common property. On this
objective water law was enacted and it was never in
dispute that water pollution come within the ambit of
water laws in India

1.2 Water Pollution: Framing the problem

Controlling of water pollution is an extremely difficult


task. Added to this are also other economic and
administrative problems. These problems can be framed
here. First, India is a federal country where all rivers are
inter-state and water is a state subject. An upper riparian
state may frustrate the attempts of a lower riparian state
to control the water pollution of its river by using its river
water for various purposes which may have the effect of
changing the quality and quantity of water flowing to the
lower riparian state. Secondly, it is not always easy to
measure water pollution and more so in the case of India
where the technology and expertise are not sufficient. At
present, scientists use physical methods for measuring
water pollution, such as inserting meters which measure
the electrical conductivity of the water. The most
common test is to measure for Bio-chemical Oxygen
Demand level of the water. Thirdly, there is a problem of
attaining purity between standards of industry and sewage
effluent which goes into the stream and the standard of
purity of water of the stream.

1.3 Water pollution: The Definition

There are many definitional variations of water pollution,


stemming from the fact that it is a phenomenon
addressed by Civil Engineers, Biologists, Ecologists,
Policy makers and even laymen.

According to the American College Dictionary,


pollution is defined as: to make foul or unclean; dirty.
Thus water pollution occurs when a body of water is
adversely affected due to the addition of large amounts of
materials to the water. When it is unfit for its intended
use, water is considered polluted.

As per Water (Prevention and Control of Pollution)


Act, 1974 (hereinafter water Act), pollution means such
contamination of water or such alteration of the physical,
chemical or biological properties of water or such
discharge of any sewage or trade effluent or of any other
liquid, gaseous or solid substance into water (whether
directly or indirectly) as may or is likely to, create a
nuisance or render such water harmful or injurious to
public health or safety, or to domestic, commercial,
industrial, agricultural or other legitimate uses, or to the
life and health of animals or plants or plants or of aquatic
organism.10

Halsburys Laws of England11 defines the term water


pollution as the doing of something which changes the
natural qualities of water, including its temperature.

In the Helsinki Rules on the use of Waters of


International Rivers12, water pollution has been
defined as something referring to any detrimental change
resulting from human conduct in the natural composition,
content, or quality of the waters of an international
drainage basin. Changes in the physical, chemical,
biological or bacteriological characteristics can be the test
for determining pollution.

Thus, a working definition of water pollution could be


anything that changes the quality of our surface and
subsoil waters to such a degree that its suitability, either
for human consumption or for the support of mans
natural life processes, will decrease or cease.13

1.4 Sources of water pollution

The sources of water pollution are many and varied. They


can be divided into two distinct categories, i.e. point and
non-point sources. Point sources are those sources which are
determinate and identifiable and occur when harmful
substances are emitted directly into a body of water. For
example, Industrial Effluents, like the Exxon Valdez oil
spill best illustrates a point source water pollution.

While nonpoint sources are those sources which are


indeterminate and not easily identifiable and deliver
pollutants indirectly through environmental changes. An
example of this type of water pollution is when fertilizer
from a field is carried into a stream by rain, in the form of
run-off which in turn affects aquatic life. The technology
exists for point sources of pollution to be monitored and
regulated, although political factors may complicate
matters. Nonpoint sources are much more difficult to
control. Pollution arising from nonpoint sources accounts
for a majority of the contaminants in streams and lakes.14

1.5 Types of water pollution and its causes

Generally, the types of water pollution can be divided into


following heads:

Natural Pollution: Natural pollution has always with us.


There has been waste material in water right from the first
appearance of men, animals and plants on the earth.

Industrial Pollution: Water pollution is also caused by


industrial activities through discharging floating matter,
settleable solids, colloidal matter, dissolved solids, toxic
substances, sullage etc15. These industrial pollutants16
include chemical substances, heavy metals, hydrocarbons
and radioactive substances from food industries.
Sewage Pollution: This pollution consists of raw or
partially treated domestic waste. Urban centers are
generally divided into Class I Cities (those with a
population of over 1 lakh) and Class II Cities (those with
a population between fifty thousand and 1 lakh). Total
sewage generation from urban centers in India grew from
about 5000 million liters a day in 1947 to around 30,000
billion liters a day in 1997. Besides Industrial and
Municipal wastewater, there exist subsidiary causes of
water pollution, including certain religious17 and social
practices. For example, carcasses of humans and animals
alike are disposed in the holy rovers.18 Cremations are
done on the riverbeds and very often partially burnt
bodies are thrown into the rivers.19 According to a survey
Kanpur alone dumped 274.3 million liters of new sewage
into the Ganges everyday.20

Thermal Pollution: This occurs due to power plants and


factories. The excess heat discharged by power plants into
a stream, lake or river causes pollution as an increase in
natural temperature of water upsets the natural balance.
Fish cannot survive in high temperature, which also kills
natural foods of river life. Hot water is put into water
courses by industries that use water for cooling purposes,
Steel mills; oil refineries and breweries use large quantity
of water for cooling.21

Radioactive Substances Pollution: This type of pollution


is more difficult to handle. These materials are produced
in the making of uranium and other radioactive
substances or in testing of the thermonuclear devices that
produce nuclides in blast devices and fallouts.

Agricultural Pollutants Pollution: Agricultural pollutants


include fertilizers, herbicides and pesticides. Pollution
caused by these agents is generally spread over vast areas
by irrigation water or rain water; the pollutants include
nitrates, phosphates and sulphates.22

Apart from these classifications of water pollution there


are two more categories which can also be mentioned at
this juncture:

Surface Water Pollution: This is caused mainly by point


sources, which account for the bulk of pollutants released
into rivers, which fortunately can be targeted for pollution
abatement measures. Out of the total pollution
contributed by industrial sub-sectors, 40%-45% of the
total pollutants are caused by chemical processing plants
and nearly 70% of total organic pollution to the food and
agro-based industries.23

Groundwater Pollution: Groundwater is a primary source


which is very crucial and valuable for drinking purposes.24.
Nationally, 53% of the population relies on ground water
as a source of drinking water. In rural areas this figure is
even higher, but this primary source is now threatened
with pollution from seepage pits, refuse dumps, septic
tanks, barnyard manure, transportation spills, and with
diverse agricultural and industrial pollutants.25 Most soil
types do not have excess oxygen; therefore oxidation
which can normally purify or decontaminate surface water
does not occur in deep aquifers26. Once the water source
is contaminated deep within the ground, there is no way
to clean it up. Groundwater reserves are, therefore,
progressively being depleted because more water is being
drawn than the rate of annual recharge through rainwater
which has remained the same or has even decreased.27

1.6 Effects of water pollution

When our population was limited, water supplies seemed


endlessly renewable. We could then afford to foul one
water source, abandon it, and move on to another. This
however is not the case as the exponential rates of
population have already reduced the availability of water
to below its per capita availability.28 Polluted waters pose
serious threat to communities living nearby, and which
depend on that source for most of their activities.29

The most common threat of water pollution to mankind


is water borne diseases.30 It is estimated that 73 million
work days are lost every year due to water related diseases,
such as typhoid, infective hepatitis (jaundice), cholera,
diarrhoes and dysentery. Many of them become epidemic
proportions. The cost of treating them and loss in
production amounts to Rs. 600 crores a year.31 Also,
waterborne diseases kill more than thirty million people
and cause about 900 million cases of illness in the world
annually.32

Chapter two

LEGAL APPROACHES TO WATER


POLLUTION: A CRITICAL ANALYSIS OF
ENVIRONMENTAL LEGISLATIONS IN INDIA

The primary objective of any legislation is to ensure social


justice and well being through enforcement of certain
codes of conduct. Legislation for environmental
protection is also based on the recognition of the fact,
that, it is necessary to abide by the requirements to
prevent damage to the environment which is a common
property.

However, with the introduction of legislation, the


responsibility of ensuring the social objectives was, to a
great extent, taken over from the society by a new set of
enforcement mechanism and the non- compliance of laws
was recognized as a criminal offence. Probably, this is the
reason as to why most of .the laws particularly those
relating to environment protection are classified as
criminal laws.

Environmental Legislation in India: Constitutional


Framework

The Constitutional provisions provide the bed-rock for


framing of environmental legislation in the country.
According to the VII Schedule of the Indian Constitution,
the areas of responsibility between the Central and State
Governments have been defined through the subject
grouped in Central, concurrent and State lists.
Environment does not figure in any of these lists, as yet
and there is no explicit provision for environmental
protection in the Constitution although the directive
principles, in the amendments of the Constitution,
through Articles 48(A) and 51A (g) assign specific
responsibilities on the State and the citizens. Most of the
environment related laws enacted by the Parliament have
been based on the Articles 252 and 253 of the
Constitution.
The legal approaches to control water pollution can be
divided into three stages:

I. Ancient Indian Jurisprudence;

II. Common Law Remedy( or pre-independence legal


approaches); and

III. Modern Legal Mechanism (post independence


legal approaches).

I. Ancient Indian Jurisprudence

Preservation of nature is as old as civilization itself. There


is evidence that the people in Harappa and Mohenjodaro
were nature-worshippers, and that the forces of nature
were treated with reverence and piety. Manu writes in,
The laws of Manu, And from light as it transforms itself come
the waters, which are traditionally known to have the quality of
taste; and from the waters comes earth, with the quality of smell.
33
This is the creation in the beginning. There are also
innumerable prohibitions against the defilement of water,
including a bar on urinating in water,34 throwing any other
bodily fluids or excrement into the rivers.35 Years later too
wrote at length about conservation of nature in his
treatise, the Arthashastra. He wrote about the duty of state
in maintaining forests, preserving sources of water, and
protecting wildlife. Many Ashokan edicts also spell out
rules and guidelines for the use and preservation of
natural resources.36

II. Common Law Remedy (or pre-independence


legal approaches)

A. Common Law Remedy

The origin of water pollution control law in India can be


traced to the common law remedies introduced in the
courts by British in the three Presidency Towns of
Calcutta, Madras and Bombay. These Common law
remedies were of three categories:

Liability for Escape of Noxious Object


The Strict Liability on a person for the damage caused by
the escape of a dangerous or noxious object can be traced
back to the famous rule in Rylands v. Fletcher37 wherein
justice Blackburn observed:
We think that true rule of law is that the person, who for his
own purposes, brings on to his lands, and collects and keeps
there, anything likely to do mischief if it escapes, must keep it
there at his own peril and if he does not do so he is prima facie
answerable for all the damage which is the natural consequence
of its escape.

Careless Use of Noxious article or Pollutant


The careless use of noxious article or pollutant could give
rise to an action in law of negligence, as also in the law of
nuisance.

The Infringement of Property Rights in Water


Every riparian owner enjoys a natural right to the flow of
water in his stream, substantially in quality and quantity.38
In this head it is interesting to note that under the
Easement Act, every owner of land has a natural right
that within his own limits, the water, which naturally
passes or percolates by, over or through his land shall
notbefore so passing or percolatingbe unreasonably
polluted by other persons.39 Thus it has been opined that
the Act gives landowners and users a reasonable right to
pollute. But the term reasonable read with the spirit of
the other provisions of the Act, nevertheless, a clear
indication that pollution was to be prohibited to the
greatest extent possible.

B. Pre-Independence Legal Approach

Indian Penal Code, 1860.

Long standing concern for the purity of water and


environment generally is evident from sections 277 and 278
of IPC, 1960. Section 277 lays down that whoever
voluntarily corrupts or fouls the water of public spring or
reservoir will be punished. Section 278 lays down that
voluntarily vitiating the atmosphere in any place so as to
make it noxious is punishable

III. Modern Legal Mechanism (post independence


legal approaches).

A. Factories Act, 1948:

Section 12 provides for effective arrangements for disposal


of water and effluents by factories.

B. Criminal Procedure Code, 1973


Under Section 133 the magistrate has been given powers
to remove any unlawful constructions.

D. Water (Prevention and Control of Pollution) Act, 1974

The Water (Prevention and Control of Pollution) Act,


1974 was promulgated as a Central Legislation under
Article 252 of the Constitution. Since water belongs to
the State list, a Resolution from two or more State
Legislatures empowering the Parliament to enact the
legislation on the subject was required. Also, the Act
became effective at the State level and when it was
adopted by the State Legislatures. Although the Act was
passed in 1974, it took several years for its adoption
throughout the country and for setting up enforcement
machinery.

For the first time, a big attempt at prevention and control


of water pollution was made by the Water (Prevention
and Control of Pollution) Act, 1974(hereinafter water
Act). This Act was enacted to provide for the prevention
and control of water pollution and maintaining or
restoring of wholesomeness of water, and for the
aforesaid purposes to provide for the establishment of
Boards for prevention and Control of Water Pollution
and by conferring on such Boards adequate powers.40

Critical Analysis of the Provisions in Water Act: How


Far Effective

It is often argued that our enforcement mechanism is very


weak although the laws are very well drawn up. But, a
careful analysis of the laws may reveal their inherent
deficiencies which are closely linked to lapses in
enforcement. There are many shortcomings in the provisions
of the Water Act, 1974, which can be mentioned under
different heads:

1. Definitional shortcomings:

I. Firstly, in the Preamble itself which only speaks of


prevention and control of water pollution and not total
prohibition of water pollution.

II. Secondly, in the term outlet41, it is not clear


whether intention to pollute water is a prerequisite
for application of this Act.
III. Thirdly, the definition of pollution42 does not
include pollution of water due to its radiological
disintegration.

IV. Fourthly, the definition of the term Stream43 does


not include rain water, thereby giving right to pollute
the rain water.

V. Fifthly, some very relevant and important terms


like pollutants, toxic pollutants, discharge of
pollutants etc. are not defined.

2. shortcomings Regarding Fines and Punishments:

I. Possible offences are not specifically defined and


also the punishments prescribed are not applicable to
for all probable violations.

II. Punishments mentioned on the Act are not such


as to give a deterrent effect. Punishment is provided
only if violation is committed knowingly. It is not
provided for negligent acts44 of the polluter.
III. The Fines prescribed are also small and also,
imprisonment as a punishment is not compulsory in
all cases of violations.45

3. Procedural Shortcomings

I. As per the legal provision for penal action against


the polluters, the State Pollution Control Board has to file a
case before the lower court for action against a polluting unit
and the "onus of proof" is vested with the Board In a good
number of cases where decisions are taken, the
polluters have been given the benefit of doubt
because of technical reasons as the Boards could not
adequately meet the "onus of proof".

II. Yet another legal lacunae faced by the Pollution


Control Boards relates to prosecution against public
servants. According" to the provisions of Sec. 197 of
the Cr. P.C., permission from the Government is required for
prosecution of such persons and more often than not it becomes
difficult for the Boards to take legal action against them.

III.The Central Pollution Control Board can issue


directions to the State Boards, which are binding on
them. However, at the same time, the Act makes it
obligatory for the Boards to comply with the
directions of the concerned State Governments.
There are occasions when the directions of two
authorities are not mutually complementary and, at
times, totally contradictory!46

IV.The key person for enforcement of this Act is the


Chairman of the State Pollution Control Board who
should be professionally qualified and appointed on a
full time basis. However, the Act does not stipulate such
requirement.47 Several State Pollution Control Boards
are headed by part-time Chairmen without requisite
qualifications and experience. Also, the Member
Secretaries of the Pollution Control Boards are often
drawn either from administrative service or even
forest service, who, do not have the requisite
technical background in pollution control. As a
result, it becomes difficult for them to provide
proper leadership and guidance to their sub-
ordinates.
4. Shortcomings with respect to Institutional
framework.

I. The Pollution Control Boards are hardly equipped


with the necessary wherewithal to cope up with these daunting
tasks. Professional manpower and laboratory
infrastructure for pollution monitoring are the basic
requirements for effective functioning of the
pollution control machinery.

II. The inadequacy in our enforcement mechanism is


evident from a comparison with other countries. In
USA, the Environment Protection Agency (EPA) has more
than 10,000 employees while the Central Pollution Control
Board (CPCB) in India has to make it with less than 500
personnel.

III. The Pollution Control Boards are expected to


function as statutory autonomous bodies. But, in
reality, the Boards cannot function in such a manner for
various reasons including over-dependence on the Government
for their existence. For effective functioning, the
Pollution Control Boards should have the autonomy
and over-ridding powers to enforce the laws.

IV. The Pollution Control Boards are expected to


receive funds from the Government exchequer for
their Plan and Non-plan expenditure. But, several
State Governments have curbed and even totally
stopped the "grants-in-aid" to the Boards.

5. Other Lacunas

I. There is no system of compulsory public hearing

II. There is no specific provision in the Act for


Public Participation, for better implementation of
the Act.

III. There are no provisions in the Act for fixing up


standards of quality and targets for eradication of
pollution.

IV. State government has the power48 to limit the


application of this Act to a particular area in a state.
But this power in most of the cases is used
arbitrarily.49
E. The Environmental (Protection) Act, 1986

In response to Stockholm Conference, India enacted The


Environmental (Protection) Act, 1986 and the
corresponding Environmental (Protection) Rules, 1986.
This Act is a general enactment empowering the Central
Government to prevent, control and abate environmental
pollution.50 As the ambit of the Act includes water
resources, its provisions extend to the streams, lakes,
rivers etc. and a citizen has recourse to the mechanism
under the EP Act.51

Chapter three

JUDICIAL RESPONSE TO CONTROL OF


WATER POLLUTIONA JUDICIAL ACTIVISM:
A CASE BASED ANALYSIS

Despite having an impressive line-up of laws within the


statute books, the Indian legal system has constantly been
failing in terms of enforcement. Bureaucratic lethargy,
lack of sensitivity amongst legislators towards
environmental problems, and an errant industrial-
manufacturing combine with state inefficiency are some
of the reasons ,which prompted the judiciary in general
and Supreme Court in particular to step in and correct the
wrongs.

But the question is, can the environment be protected at


present times when almost all the countries in South-East
Asia are still at their developing stages? Development
comes through industrialization, which in turn the main
factor behind the degradation of environment. To resolve
the issue, the Judiciary had to make a balance between
economic development and preservation of the eco-
systems; therefore judiciary came with a doctrine called
'Sustainable Development', i.e. there must be a balance
between development and ecology.52

Subhash Kumar v. State of Bihar53 was one of the first few


cases wherein the Supreme Court emphasized the
importance of protecting and conserving the natural
environment. The scope of Article 21the right to life
was widened when the court read into it the right to
wholesome environment.54 The court went even further and
said, The Right to Life includes the Right to enjoyment
of pollution-free water and air for a fuller enjoyment of
life.

The greatest milestone in the development of water


quality control jurisprudence has been the string of Ganga
Pollution Cases. In the Kanpur Tanneries case55 , which opened
new vista in the direction of protecting environment and
pollution caused by hazardous activities of the industries,
the court has summed up the main causes of pollution of
the Ganga precisely as urban liquid waste and
industrial waste surface run-off. Venkataramaih J;
observed that:

Under the law of the land, responsibility for treatment of the


industrial effluents is that of the industry. While the concept of
strict liability should be adhered to in some cases, circumstances
may require that plans for sewerage and treatment systems should
consider industrial effluents as well56

The court directed the tanneries to set up Treatment


Plants and held that the financial capacity of the polluter
was irrelevant.57
Next case is The Kanpur Municipalities Case58. In this case
the court suo moto laid down a series of guidelines for the
municipality on issues like removal of wastes,
construction of sewer lines, construction of urinals etc.

Indian Council for Enviro-Legal Action v. Union of India59


popularly known as Bichhiri case struck a blow to chemical
industries in Rajasthan, which were releasing highly toxic
effluents and untreated sludge into the environment,
leading to the pollution of underground aquifers. The
court took the question of liability of the respondent from
the different angle and stamped the validity of polluter
pays Principle60 and absolute liability61 in this case.62

Another historical case is the Vellore Tanneries Case.63 A


PIL was instituted by the plaintiffs against the tanneries in
Tamilnadu, which had been releasing vast amount of
untreated sludge into river water. As a result, arable lands,
wells used for agriculture and drinking water sources were
affected. The court in this case recognized the Precautionary
Principle64, reiterated Polluter Pays Principle and fined the
tanneries. In this case for the first time the doctrine of
public Trust was applied. More recently in the case of
M.C.Mehta v. Kamal Nath and others65 , this doctrine of
public Trust has been recognized and applied.

CONCLUSION AND SUGGESTIONS

From the above parts of this paper it is clear that the


situation of water pollution is taking a turn in our country.
The reasons for this are many. The root cause, as
researcher feels, is the explosion of population whereby it
becomes practically impossible to cope effectively with
environmental problems, even if the desire to do so is
there. Secondly, the planning is also defective. Thus the
result is that the growth of resources is not keeping pace
with the growth of in population and resources per capita
are diminishing, as a consequence, there is an ever-
increasing pressure on water resources too. This is
resulting in large scale water pollution which is growing
very rapidly.

To combat the growing menace of water pollution in the


country, the Union government had promulgated the
Water (Prevention and Control of Pollution) Act, 1974 to
preserve the wholesomeness of water. In addition,
Environmental (Protection) Act, 1986 was passed and
prior to that pollution Control Boards was established
both at the union and state level.

However the biggest culprit in realizing the desired results


of control of water pollution is the industrialistsstates
combine which has been frequently flouting the water
pollution control laws. For example, in Delhi, Effluent
Treatment Plants [ETPs] have been installed or under
installation for only 16 out of total 63 polluting units.
According to the study there are 28 approved industrial
areas in Delhi with a total of 21,627industrial units. Nearly
two thirds of all industrial units are located in six larger
industrial areas namely Anand Parbat Industrial Estate
(17.23%), Mayapuri Industrial Area (15.10%), Okhla
Industrial Area (11.34%), Narela Industrial Area (9.59%,
Wazirpur Industrial Area (7.70%) and Kirti Nagar
Industrial Estate (6.82%). Only one third of the units are
located in the remaining 22 industrial areas. More than 50
percent of the industrial units are the major sources of
solid waste pollution, but, no measurement has been
taken to resolve this problem of pollution.66 Thus under
these circumstances, it is imperative that the water
pollution control laws be made more stringent and
adequate provision for funds and trained personnel to the
agencies entrusted with the task be added. A proper State-
Centre coordination and the strong determination [on the
part of official agencies to make the laws click and deliver]
should also be ensured. The role of judiciary in
controlling water pollution and conservation has been
laudable which are very clear from the number of cases
decided by the Apex Court in India. The judicial activism
has proved to be useful in these cases in controlling
pollution of water and improvement of the environment.

Suggestions:

I. There should be some amendments with respect to


following definitions:

The definition of pollution should be amended to


include pollution of water due to its radiological
disintegration within its ambit.
The definition of the term Stream should be
mended to include rain water, thereby not giving
any scope to pollute the rain water.

Some very relevant and important terms like


pollutants, toxic pollutants, discharge of pollutants
etc should be defined.

Section 4(2) (a) should be amended so as to provide


for the qualification criteria for the chairman to be
appointed under the Water Act.

Section 24 should be amended as it does not put


any liability on a person if she/he unknowingly does
anything which causes pollution. The concept of
absolute liability should be introduced.

II. There is should be a system of compulsory public


hearing.

III. There is a need of specific provision in the Act for


Public Participation, for better implementation of the
Act.
IV. There should be provisions in the Act for fixing up
standards of quality and targets for eradication of
pollution.

V. Trained personnel to the agencies entrusted with the


task should be added.

VI. Equally important is the establishment of a National


Environment Protection Authority which should also be
made a department of Ministry of Environment but have
sufficient authority.

VII. Also setting up of environment court to tackle


pollution cases, more media involvement and
dissemination of information through documentation
centres is required at both centre as well as state level

Above all, it is necessary to make the best out of the


existing conditions by generating social consciousness
about environment by forming social action groups and
the importance of peoples participation in fighting the
increasing menace of water pollution in our country,
because it is all up to us either to perish or to preserve the
environment and protect the earth:
Live on, the Earth!

And you, earth folk, take this into your head:

We shall have not another Earth

If this one were dead.

Of a thousand planets no loved one like it

Of a thousand planets none so green and so sweet

So live on, the Earth!

Live on!

____________________________________________

1. Kumar, U. and Kakrani, B., WaterEnvironment and


Pollution, Agrobios, Jodhpur, 2000, at p. 5.

2. Krishna Iyer, Environmental Pollution and the Law,


1984 at p. 95 quoted in Chaterjee, Benimadhab,
Implementation problems and Perspectives, 2002, at p. 9.

3. Only 2.5% of all the water on earth is fresh, and only a


fraction of that is accessible. According to various
estimates, each of us requires about 50 liters of water per
day for drinking, cooking, bathing and other basic human
needs. See Kluger, Jeffery and Dorfman, Andera. The
Challenge We Face, TIME, September 2, 2002, at p. 38.

4. According to Center for Science and Environment,


about 81% of the countrys total population has access to
drinking water, but per capita availability has been
reduced from 5000 cubic meters a year at the time of
independence to 2000 cubic meters as of now. See
Sharma, Sudhirender, Water Resources in India available at
www.infochangeindia.org (19th august, 2005).

5. In this context, the UN Secretary General Mr. Kofi


Annan has dutifully warned countries on more than one
occasion that the threat of water insecurity due to water
pollution looms darkly in our collective future. He says,
Unless we take swift and decisive action, by 2025, two-
thirds of the worlds population may be living in countries
that face serious water shortages. See Kluger, Jeffery and
Dorfman, Andera. The Challenge We Face, TIME,
September 2, 2002, at p. 38.

6. The state of Indias environment 1992Citizens


Report (unpublished by the Centre for Science and
Environment, New Delhi), p.17 in Pal, Chandra,
Environmental Pollution and Development:
Environmental law, Policy and Role of Judiciary, Mittal
Publication, 1st edn, New Delhi, 1999, at p. 82.

7. Gould, Gearge, A. and Grant, Douglas L.; Cases and


Materials on Water Law, American Case Book Series,
6th edn, West Group, USA, 2000, at p. 565.

8. 71 A. 2d 520 (1950).

9. For a summary of this Federal Water Pollution Control


Act, 1972 See Clean Water Act: A Summary of the Law
available on
http://usinfo.state.gov/usa/infousa/laws/majorlaw/cwa.
pdf (19th August 2005).

10. See Section 2(e) of Water (Prevention and Control of


Pollution) Act, 1974

11. 4th edn, Vol. 49, Para 783.

12. Pal, Chandra, Environmental Pollution and


Development: Environmental law, Policy and Role of
Judiciary, Mittal Publication, 1st edn, New Delhi, 1999,
at p. 89.

13. Sinha, R.K, Marine and Water Environment:


Pollution Control Laws, Ludian Publishers Distributors,
New Delhi, 1999, at p.200.

14. Chaturbedi, R.G. Law on Protection of Environment


and Prevention of Pollution, Deep and Deep
Publication, New Delhi, 2001, at p. 65.

15. Singh, Chhatrapati, Water Rights and Principles of


Water Resource Management, ILI, 1991, at p. 18.

16. See Kumar, U. and Kakrani, B., Water


Environment and Pollution, Agrobios, Jodhpur, 2000, at
p. 70.

17. West Bengal Pollution Control Board has very


recently issued guidelines with respect of immersion of
idols after festive season, for detailed order and guidelines
kindly See the order available at:
http://www.wbpcb.gov.in/html/orderdirections/idol_or
der_310804.pdf (19th August 2005).
18. Supra note 1 at p. 71

19. See Centre for Science and Environment, Citizens


Fifth Report, 1999, at p. 59.

20. Mangla, Bhupesh, Pollution Seizes the city, the


Hindustan Times Sunday magazine, June 5, 1988, at p. 5.
Courtesy: National Library, Kolkata.

21. Dixit, D.K., Thermal Plants and Pollution, The


Hindustan Times, February 6, 1984, p. 9. Courtesy.
National Library, kolkata.]

22. For a general but very extensive work on pollution


caused by agricultural pollutants, See Lochr, Raymondc,
Pollution Control for Agriculture, Academic Press Inc.,
New York, 1984.

23. TERI, Looking back To Think Ahead: Green India,


available at

http://www.teri.res.in/teriin/peers/about.htm (19th
August 2005). .

24. An exhaustive study of water supply in the developing


countries by Dietrich and Henderson suggested that at
least 60% of the population were still dependent on
underground sources of drinking water, especially in outer
city areas and villages.

25. Supra note 1, at p. 99.

26. 95% of all fresh water on earth is ground water.


Ground water is found in natural rock formations, called
aquifers, and these are a vital natural resource with many
uses.

27. Supra note 23.

28. Supra note 1, at p. 5.

29. For a detailed account on effects of water pollution


See Roy, M.Harrison (ed.), Pollution: Causes, Effects and
Causes, University of Lancaster, London, 1983. Chapter
7.

30. The World Health Organization has reported that


about 21% of all communicable diseases in India are
waterborne.

31. Supra note 6 at p. 82.

32. Supra note 2 at p. 203.


33. Ch.1 Verse 78. See The Laws of Manu ( Wendy
Doniger and Brian Smith Trans., 1991), at p. 11

34. Ch., Verses 46-49, at p. 78.

35. Ch. Verse56, at p. 79.

36. Rosencranz, Armin & Divan, Shyam, Environmental


Law and Policy in India, Oxford University Press, 2nd
edn, New Delhi, 2001, at pp. 24-25.

37. 1868 LR 3 HL 330.

38. Wood v. Wand 1849 3 Ex. 748.

39. Illustration (f) to section 7.

40. See the Preamble of the Water (Prevention and


Control of Pollution) Act, 1974.

41. See section 2(dd) of The Water (Prevention and


Control of Pollution) Act, 1974

42. See section 2(e) of The Water (Prevention and Control


of Pollution) Act, 1974

43. See section 2(j) of The Water (Prevention and Control


of Pollution) Act, 1974
44. There is no concept of absolute liability under The
Water (Prevention and Control of Pollution) Act, 1974 See
section 24 of The Water (Prevention and Control of
Pollution) Act, 1974

45. See sections 24, 25 and 26 of Water Act, 1974.

46. See Section 18 of The Water (Prevention and Control


of Pollution) Act, 1974.

47. See section 4(2) (a) of The Water (Prevention and


Control of Pollution) Act, 1974.

48. See Section 19 of the Environmental (Protection) Act,


1986.

49. See A.P. pollution Board Case [2001] 2 SCC 62.Where


despite declaring a particular area as water prone area ,
state govt. later allowed certain industrial set up in that
area by limiting the application of Water Act, 1974.
However, this was struck down by the A.P. High Court.

50. Section 3.
51. However in case of any conflict between Water Act
and EP Act, the former will prevail over the later as
former being specific legislation.

52. The concept of 'Sustainable Development' is not a


new concept. The doctrine had come to be known as
early as in 1972 in the Stockholm declaration. It had been
stated in the declaration that:" Man has the

fundamental right to freedom, equality and adequate conditions of


life, in an environment of a quality that permits a life of dignity and
well being and he bears a solemn responsibility to protect and
improve the environment for present and future generation.

But the concept was given a definite shape in a report by


world commission on environment, which was known as '
our common future'. The commission, which was chaired
by the then Norway Prime Minister, Ms. G.H. Brundtland
defined 'Sustainable Development' as:" Development that meets
the needs of the present without compromising the ability of the
future generations to meet their own needs".

53. AIR 1991 SC 420, at p.424.


54. The first case which is historic in the environmental
jurisprudence and begins with a tough judicial approach
for environmental protection is, perhaps, Municipal Council
,Ratlam v. Vardhichand AIR 1980 SC 1622.See also,
M.C.Mehta v. U.O.I ( Delhi Stone Crushing Case) 1992 (3)
SCC 256;Virender Gaur v. State of Haryana 1995 (2) SCC
577.

55. M.C.Mehta v. U.O.I AIR 1988 SC 1037.

56. Id; at p. 1044.

57. Id; at p. 1045.

58. M.C.Mehta v. U.O.I. AIR 1988 SC 1115.

59. AIR 1996 SC 1446.

60. The origin of Polluter Pays Principle is Principle 16 of


the Rio declaration, which states that :

"National authorities should endeavor to promote


the internalization of environmental costs and the
use of economic instruments, taking into account the
approach that the polluter should, in principle, bear
the cost of pollution, with due regard to the public
interest and without distorting international trade and
investment."

It is quite obvious that the object of the above


principle was to make the polluter liable not only for
the compensation to the victims but also for the cost
of restoring of environmental degradation. Once the
actor is proved to be guilty, he is liable to
compensate for his act irrelevant of the fact that
whether he's involved in development process or not

61. This principle was, for the first time, coined in


M.C.Mehta v. U.O.I (1987) 1 SCC 395.

62.Supra note 58.

63. Vellore Citizens Welfare Forum v. U.O.I (1996) 5 SCC


647.

64. This principle has widely been recognized as the most


important principle of 'Sustainable Development'.
Principle 15 the Rio declaration states that: "In order to
protect the environment, the precautionary approach shall
be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a
reason for postponing cost effective measures to prevent
environmental degradation."

In other words it means: 1) Environmental measures


by the state government and the local authority must
anticipate, prevent and attack the causes of
environmental degradation. 2) Where there are
threats of serious and irreversible damage, lack of
scientific certainty should not used as a reason for
postponing measures to prevent environmental
degradation. 3) The 'onus of proof' is on the actor or
the developer to proof that his action is
environmentally benign.

65. AIR 2000 SC 1997.

66.See Pollution from Small Scale Industrial Sector of


Delhi available on
http://www.ncaer.org/Upload/others/106/Pollution.pdf
. (19th August, 2005).

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