The Dirge of Indian Rivers – A Study on Water Pollution and Protection of Rivers: Ankit Raj & Muskan Agarwal

THE DIRGE OF INDIAN RIVERS: A STUDY ON WATER POLLUTION AND PROTECTION OF RIVERS.

Author: Ankit Raj

Co-Author: Muskan Agarwal

ICFAI Law School, Dehradun

ISSN: 2582-3655 

Abstract

The Scarcity and misuse of fresh water poses a serious and growing threat to sustainable development and protection of the environment. It may be noted that human’s health, welfare and the ecosystems on which they depend, are all at risk, unless water and land resources are managed efficiently. On the other hand, development and technological advancements have exploited and destroyed the balance of nature. In this connection, the problem of pollution in developing nations is significantly higher than the developed nations. In particular, India’s condition of rivers has been deteriorating since industrialization and growing trade activities, despite being termed as the land of pious rivers consisting of 20% of the world’s freshwater resources. Coming to some important principles relating to water problems, one must acknowledge the common law doctrines of ‘Public Trust’, ‘Precautionary Principle’, ‘Polluter Pays Principle’ and ‘Dublin’s Statement’ which have been part and parcel of the Indian municipal system. Interestingly, with the various environmental welfare legislations and policies, the nation has failed to preserve the sanctity of the rivers due to poor management, non-implementation of legislation, insufficient technology and lack of awareness. It is an appropriate time to think whether in the guise of development, we are ignoring our rivers’ inherent aesthetic nature? There is a Constitutional pointer to the State as well as to the citizens to protect and maintain the environment. Owing to the degradation of the environment, the Supreme Court has come forward to the rescue of the environment starting a new environmental regime. The paper analyses this facet by incorporating various landmark judgments like the Ganga tanneries case. Also the ‘right to life’ has now taken long strides and dimensions by including in it right to the enjoyment of pollution-free water. Moreover, the paper also comprises of concluding remarks wherein the researcher suggests reformulating and revisiting the existing legislations and policies for efficient implementation to protect and preserve the water bodies.

Keywords: Sustainable development, Precautionary Principle, Polluter Pays Principle, Environmental legislations, Case laws.

INTRODUCTION

Water is central to the well-being of people and the planet.”[1]

-Ban Ki-Moon, UN Secretary General

Water is the basis of all life. Water is a liquid of life, as there can be no life without water. Pure water is an animating fluid while polluted water is a real curse for living beings. It is fundamental for human existence, ecological balance and for the very future of our planet. Safe drinking water is a basic need and a right for every human being. Clean, safe and adequate freshwater is vital to the survival of all organisms and the smooth functioning of key systems, entities and economies. While water pollution and contamination weaken or destroy the natural eco-system that supports human health, food production and bio-diversity, polluted water can lead to serious problems with diseases and death of humans, animals, plants and vegetation.[2]“Water is at the core of sustainable development as it is closely linked to a number of key global challenges.”[3]

Water pollution is a serious problem in India as almost 70 per cent of its surface water resources and a growing percentage of its groundwater reserves are contaminated by biological, toxic, organic, and inorganic pollutants.[4] In many cases, these sources have been rendered unsafe for human consumption as well as for other activities, such as irrigation and industrial needs. This shows that degraded water quality can contribute to water scarcity as it limits its availability for both human uses and for the ecosystem.[5]

Rivers are valuable features of our natural landscape in addition to being valuable sources of water. River systems are considered as the arteries of the land supplying life-giving water to the organisms and supporting the modern civilizations at the same time. That is why Rivers are also called as the cradle of civilization. A river is not just a channel carrying freshwater, but a hydrological, geomorphic, ecological, biodiversity-rich, landscape-level system that serves as a key part of the freshwater cycle, balancing dynamic equilibrium between snowfall, rainfall, surface water and groundwater, and provides a large number of social and economic services to the people and ecosystems all through its watershed.

To develop consciousness and create awareness on the challenges to water the World Water Day is being organized on 22 March every year. The theme for World Water Day 2018 is ‘Nature for Water’ – exploring nature-based solutions to the water challenges we face in the 21st century.[6]Sustainable Development Goal 6 commits the world to ensuring that everyone has access to safe water by 2030, and includes targets on protecting the natural environment and reducing pollution.

INTERNATIONAL WATER LAW

The Stockholm Declaration, 1972 was perhaps the first major attempt to conserve and protect the human environment at the international level. Principle 2 of the declaration focuses on safeguarding the natural resources of the earth, including the air, water, land, flora and fauna for the benefit of present and future.[7] The Brundtland Report, 1987 gave a comprehensive definition of sustainable development as development that meets the needs of present without compromising the ability of future generations to meet their own needs.[8]

The Rio Declaration on Environment And Development, 1992 subsumes that human beings are at the center of concerns for sustainable development.[9] In addition, it envisages the precautionary principle. 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. Also, it incorporates the polluter pays principle which imposes the obligation on the polluter to bear the cost of pollution.[10]

UNITED NATIONS CONFERENCE ON WATER

The United Nations Water Conference held at Mar del Plata in 1977 observed that the unprecedented development and administration of water resources is a key element to improve the economic and social conditions of mankind and it would not be possible unless and until concerted actions are taken in the International and national fields.[11]

The main objectives of the conference include an assessment of the status of water resources;  ensuring the adequate supply of quality water to meet the needs of the world community; to increase the efficiency of water usage; and to encourage awareness and preparedness so as to avoid a water crisis.

DUBLIN’S STATEMENT

The need for redressing the global water crisis has been identified by the nations during the International Conference on Water and the Environment (ICWE) held in Dublin, Ireland, on 26-31 January 1992.[12]

The guiding principles of the Convention is “Concerted action is needed to reverse the present trends of overconsumption, pollution, and rising threats from drought and floods”.The Conference Report sets out recommendations for action at local, national and international levels, based on four guiding principles also known as Dublin’s Principles

Principle No. 1 – Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment.

Principle No. 2 – Water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels.

Principle No. 3 – Women play a central part in the provision, management and safeguarding of water.

Principle No. 4 – Water has an economic value in all its competing uses and should be recognized as an economic good.

HELSINKI CONVENTION

The Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes was held at Helsinki on 17 March 1992. It mainly relates to the issues regarding water pollution caused by trans-boundary watercourses. Article 2 of the convention states that the Parties shall, in particular, take all appropriate measures:

(a) To prevent, control and reduce pollution of waters causing or likely to cause Transboundary impact;

(b) To ensure that transboundary waters are used with the aim of ecologically sound and rational water management, conservation of water resources and environmental protection.[13]

CEDAW, 1979

The convention on the ination of all forms of discrimination against women is often described as the international bill of rights for women was held at Geneva.[14]Article 14 of the convention is as follows;

Article 2- States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women that they participate in and benefit from rural development and, in particular, shall ensure to such women the right;

(h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.

CRC, 1989

The convention on the rights of child was ratified by the general assemble on 20th November 1989.[15]Article 24 of the convention states that

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measure

(c) To combat disease and malnutrition, including within the framework of primary health care, though, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution.

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 2002

The committee on the economic, social and cultural rights, 2002 in its general comment 15 states that:

1. Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.[16]

2. The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking personal and domestic hygienic requirements.

UNITED NATIONS GENERAL ASSEMBLY RESOLUTION, 2010

The General Assembly acknowledged the human right to clean drinking water and sanitation as it recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.[17]

The Resolution calls upon States and international organizations to provide financial resources, help capacity-building and technology transfer to help countries, in particular developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all.

LEGAL FRAMEWORK IN INDIA

Our Constitution is committed to the formation of a Welfare State. The idea of Socialism and Justice is enshrined in our Preamble and the Directive Principles of State Policy. The basic aim of socialism is to provide a decent standard of living for all, which includes free access to natural resources as well as a pollution-free Environment.

After the commencement of the Constitution, there was not a single provision regarding the protection of the ronment. The only provision relatable to that was Article 47 of the Directive Principles of state policy.[18]

In the meantime, the problem of pollution and ronment was observed all over the world. In 1972, the kholm Declaration was attended by the then Prime Minister Mrs. Indira Gandhi which paved the way for the 42nd amendment of the constitution in the year 1976.

CONSTITUTIONAL PROVISIONS

Our Constitution is one of few constitutions in the world which contains provisions for the protection of the ronment. However it doesn’t confer any right to pollution-free environment explicitly, but after the interpretation of various provisions, the result is the same. Further in the DPSP, a constitutional mandate directs the State to protect the environment and prevent its degradation.

The scope of Article 21 has been largely expanded by the Supreme Court and for the first time in Rural Litigation and Entitlement Kendra v. State of U.P.[19]  it was held that the t to wholesome environment is a part of right to life and personal liberty. Interpreting Article 21 in M. C. Mehta v.  Kamal Nath[20]Any disturbance of the basic environment elements, namely air, water and soil which are necessary for life would be hazardous to life within the meaning of Article 21 of the Constitution.

Directive Principles of State Policy-

The DPSPs are the Instruments of instructions which are fundamental in the governance of the country. They are regarded as the Book of interpretation and set our proximate goals.[21] Article 37 bars the enforceability of the DPSPs yet they are nonetheless a mandate of the constitution that shall not be ignored. In the Directive Principles of State Policy,a new provision has been added by the 42ndAmendment 1976.

Article 48A directing the State regarding the Protection and improvement of environment and safeguarding of forests and wildlife states that “the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.”

Explaining the scope of DPSPs, the Supreme Court in Sachidanand Pandey v. State of West Bengal[22] observed that “Whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48-A of the Constitution, the Directive Principle and the fundamental duty under Article 51-A (g).

Division of Subject Matters under the three lists-

One of the federal features of our Constitution is the distribution of the subject matters under the Seventh schedule. The schedule clearly demarcates the legislative competence of the Union, the States and the subjects upon which both the union and the States have legislative competence. List I i.e. the Union List in the seventh schedule contains various entries relating to water which are as follows;

  • Entry 24-Shipping and navigation on inland waterways, declared by Parliament by law to be national waterways, as regards mechanically propelled vessels; the rule of the road on such waterways.
  • Entry 30-Carriage of passengers and goods by railway, sea or air, or by national waterways in mechanically propelled vessels.
  • Entry 56- Regulation and development of inter-state rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.

Similarly list II referring to State list contains following entries;

  • Entry 6- Public health and sanitation; hospitals and dispensaries.
  • Entry 13- Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of ListI and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.
  • Entry 17- Water, to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.

The subject matters in list III i.e. Concurrent List on which both the centre and state has legislative competence are;

  • Entry 32. Shipping and navigation on inland waterways as regards mechanically propelled vehicles, and the rule of the road on such waterways, and the carriage of passengers and goods on inland waterways subject to the provisions of List I with respect to national waterways.

Moving on to other provisions, Article 253 confers the power on the parliament to legislate for the implementation of any International Treaty.[23] Entry no. 13 and 14 of the union list provides for the subject matter over which Parliament can legislate participation in international conferences associations and other bodies and implementing of decisions thereat[24] And implementing of treaties ,agreements and conventions with foreign countries.[25]

Fundamental Rights and reasonable restrictions-

Article 19(1) (g) of the Constitution guarantees to every citizen the fundamental right to carry on trade and occupation.[26] But these Fundamental rights are not absolute it itself and are subject to reasonable restrictions.[27] The clause “in the interest of the ral public has been interpreted so as to protect the environmental interests from the possible threats resulting from the trade or business.

The Supreme Court in M/s. Abhilash Textiles v. The Rajkot Municipal Corporation[28]has observed that no one has a right to carry on business so as to cause a isance to the society. The fundamental right to carry on trade or business is subject to reasonable restrictions and regulations that may be placed in the public interest.

 Article 32 and the expansion of the locus standi for environmental protection-

The writ jurisdiction of the Supreme Court is very wide in nature and whenever there is an infringement of the fundamental rights the aggrieved can approach the Apex court directly. That is why Article 32 is regarded as “the heart and soul of our constitution.” Since the right to the payment of pollution-free environment, clean water and air and other attributes of life has been incorporated within the meaning of Right to life, therefore any violation of such rights would give the aggrieved party to directly approach the Supreme Court.

One of the major restraints in maintaining a petition for the enforcement of fundamental rights is the prolonged litigation which can cause an irreparable loss to the environment as well as human life. To prevent such a loss, the remedy provided under the writ jurisdiction would be an effective and appropriate remedy. Therefore the Supreme Court, however, diluted the concept of locus standi for the rescue of the ronment by starting a new Environmental regime and any public-spirited person acting in good faith can approach for the enforcement of the rights of the community as a whole.

INDIAN PENAL CODE 1860

 Chapter XIV of the act contains provisions regarding dealing with the offences affecting the public health and safety of the people.

Section 268 defines public nuisance in general as “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the erty in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage”

Further, the fouling of Water so as to render it unfit for ordinary use has been considered as offence punishable for a term which may extend to three months.[29]

CODE OF CRIMINAL PROCEDURE, 1973

Section 133 of the act confers wide discretionary powers on the Magistrate to deal with public nuisance arising out of any unlawful obstruction or nuisance in the way, river or channel which is or may be lawfully used by the public, conduct of any trade or the disposal of any substance, any tank, well or excavation adjacent to any such way or public place arising danger to the public. The Magistrate shall order to remove such obstruction or nuisance; or to desist from carrying on, or to remove or regulate in such manner as may be directed to prevent or stop the construction of such building, or to alter the disposal of such substance. The Supreme Court in Ratlam municipality case[30] observed that whenever there is a public nuisance, the presence of section 133, Cr. P.c. must be felt.

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

A committee was set up by the Government of India in 1962 to draw a draft regarding the prevention of water pollution. Ultimately, the act was passed water pollution was passed in 1974 with the objective to provide for the prevention and control of water pollution and maintaining the wholesomeness of water. The act provides for the establishment of a ntral and state pollution control board entrusted with the functions to control and abate pollution. Similarly, PCBs are entrusted with the functions of planning a comprehensive programme regarding prevention, control and abatement of pollution of streams and wells in the state and giving advice to the State government on any matter relating the prevention, control and abatement of water pollution.[31]

Section 24 of the act provides for the power to prohibit any kind of discharge polluting matter into the stream or well. Sub-sec (a) prohibits any person to discharge any poisonous, noxious or polluting matter into any stream or well or sewer or on land; further sub-section (b) prohibits any person to enter into any stream any other matter which may tend to impede the proper flow of the water

Penalties under the act: The water act uses the term offence under different sections but that does not provide any definition clause for the word offence.  All the act provides is for the penalties it may be classified into penalty against violation of the board’s order or direction, a nalty against violation of the court’s order, a penalty against individual action. Section 41 provides for the penalty in case of failure to comply with the directions under sub-section 2 or subsection 3 of section 20 or the directions which are issued under sub section 2 of section 33 or section 33.

Section 43 provides a penalty for the contravention of section 24 which shall be punishable with imprisonment for a term which shall not be less than 1 year and may extend to 6 years.

ENVIRONMENT (PROTECTION) ACT, 1986

EPA is an umbrella legislation enacted for the protection of Environment. The object of the legislation focus on the coordination activities of various regulatory Agencies, authority with power for Environmental Protection, regulation of discharge of pollutants and handling of hazardous substances.

The central government has issued various rules under the Environment act

  1. Hazardous Waste (Management and Handling) Rules, 1989
  2. Bio –Medical Waste (Management and Handling) Rules, 1998
  3. Municipal Solid Waste (Management and Handling) Rules, 2000
  4. Plastic wastes management rules, 2016

Cognizance of offence and penalties: Environmental Protection act also use different offences like the Water Act but it does not define as to what an act or omission would constitute an offence. Section15 provide for penalty in case of failure to comply with the directions, orders made under the act or the contravention of any of the provisions of the Act which may be in the form of punishment with imprisonment which may extend to five year.

THE NATIONAL GREEN TRIBUNAL ACT, 2010

The Supreme Court in various cases has observed that “environment courts” must be established for expeditious disposal of environmental cases and reiterated it time and again. Ultimately the Indian Parliament has passed the ‘National Green Tribunal Act, 2010 to handle all the cases relating to environmental issues.

The Preamble of the Act clearly sets out the objectives of the Act as “for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.”

Jurisdiction, Powers and Proceedings of the Tribunal: Section 14 of the act provides that the tribunal shall have the jurisdiction on all the civil matters where a substantial question relating to environment arises out of the following Acts namely

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

2. Water (Prevention and Control of Pollution) Cess Act, 1977

3. Forest (Conservation) Act, I980

4. Air (Prevention and Control of Pollution) Act, 1981

5. Environment (Protection) Act, 1986

6. Public Liability Insurance Act, 1991

7. Biological Diversity Act, 2002

It further declares that “no application for adjudication of dispute under this section shall be entertained by the tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose”. On providing “sufficient cause”, the tribunal may extend this time-limit for a further period but not exceeding 60 days. The tribunal shall not be bound by the procedure laid down by the CPC but shall be guided by the principles of natural justice.[32]

Relief compensation and restitution: The tribunal has been given wide powers to award relief, compensation and award while deciding the case.[33]The tribunal by order may provide for relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance); for restitution of property damaged; and for restitution of the environment for such area or areas, as the tribunal may think fit. It is to be noted that such relief, compensation and restitution shall be in addition to any relief paid or payable under the Public Liability Insurance Act, I991.

Penalty and punishment: The Act has also provided provisions for not abiding by the decision/ award of the tribunal. It provides that in case of non-compliance of award/order/decision, one shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to 10 crores, or with both and in case the failure or contravention continues, with additional line which may extend to Rupees 25,000 for every day during which such failure or contravention continues after conviction for the first such failure or contravention.[34]

POLICIES

GANGA ACTION PLAN

The main objectives of the plan includes abatement of pollution, improving the water quality, Diversion and treatment of household sewage and noxious and trade chemical wastes from polluting units from discharging into the river.

The Plan also envisages other objectives as such as the prevention of non-point pollution from human defecation, agricultural run-off, and throwing of human bodies into the river and Scientific Research and Development to preserve the biodiversity of the river to enhance its productivity.

NATIONAL RIVER CONSERVATION PLAN

The programme for the abatement of river pollution was further expanded to include other major rivers of the country in 1995 under the NRCP.  The objective of NRCP is to decrease the pollution load in rivers through the implementation of various schemes and thereby improving quality of water.

The functions regarding the pollution abatement under the NRCP include identifying and diverting the sewage flowing into the rivers, ensuring the setting up of Sewage Treatment Plants (STPs) for the treatment of sewage, preventing open defecation on river banks and Construction of economical Sanitation Toilets, works relating to River front development like improving the bathing ghats and spreading awareness and ensuring Public participation.

NATIONAL WATER POLICY

 National Water Policy was adopted in 1987, reviewed in 2002 and updated in 2012. This document by the Ministry of Water Resources, highlights the importance of water for human existence as well as for all economic and development related activities. It addresses the problem of scarcity of water and the need to conserve this resource through optimal, economical, sustainable and equitable means. It provides for conservation of river corridors, water bodies, infrastructure, water supply and sanitation.[35]

NATIONAL MISSION FOR CLEAN GANGA

It was registered as a society on 12th August 2011. It acted as the ementation arm of the Ganga River Basin Authority (NGRBA) which was constituted under the provisions of the Environment (Protection) Act, 1986.The aim is to clean the Ganga and its tributaries in a comprehensive manner. It comprises a ve-tier structure at national, state and district level to take measures for prevention, control and abatement of environmental pollution in river Ganga. NGRBA has been dissolved w.e.f. 7th October 2016. [36]

The objectives of NMCG is to ensure effective abatement of pollution and rejuvenation of the river Ganga by adopting a river basin approach to promote inter-sector co-ordination for comprehensive planning and management and to maintain minimum ecological flows in the river Ganga with the aim of ensuring water quality and environmentally sustainable development.[37]

NAMAMI GANGE PROGRAMME

The Vision for Ganga Rejuvenation constitutes restoring the wholesomeness of the river defined in terms of ensuring “Aviral Dhara” (Continuous Flow”), “Nirmal Dhara”(“Unpolluted Flow”), Geologic and ecological integrity. It is an Integrated Conservation Mission by the Union Government in June 2014 with budget outlay of Rs.20,000 Crore to accomplish the twin objectives of effective abatement of pollution, conservation and rejuvenation of National River Ganga. Main pillars of the Namami Gange Programme include Sewerage Treatment Infrastructure, River-Surface Cleaning and Industrial Effluent Monitoring.[38]

JUDICIAL RESPONSE

With the introduction of Public Interest Litigations and expansion of the locus standi, the judiciary has come forward to the rescue of environment by expanding the scope of Article 21 and starting a new environmental regime. In the case of Subhash Kumar v. Union of India[39], it was held that right to life includes the right to pollution-free water and air for full enjoyment of life. In the case of Narmada Bachao Andolan v. Union of India,[40]the Supreme Court upheld that “Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 and the right to healthy environment and sustainable development are fundamental human rights implicit in the right to life.” Similarly in N.D.Jayal v. Union of India[41] which was regarding the safety and environmental aspects of Tehri Dam in Uttarakhand. The Court held that “The adherence to sustainable development is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development.

The public trust doctrine has been discussed by court in M.C.Mehta v. Kamal Nath[42] that is a part of the law of the land. The Supreme Court in Vellore Citizens Welfare Forum v. Union of India, [43] elaborately discussed the concept of ‘sustainable development’ which has been accepted as part of the law of the land. Further, the precautionary principle’ and the ‘polluter pays principle are essential features of ‘sustainable development’. In Kanpur tanneries case,[44]courtwas of the view that “the financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plans” Recently, in Mohd Salim v. State of Uttarakhand case[45], the Uttarakhand High court observed while exercising the parens patrie jurisdiction, the rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, are declared as juristic/legal persons/ living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person in order to preserve and conserve river Ganga and Yamuna.

CONCLUSION

The concept of Sustainable development and its fundamental principles like Precautionary Principle and Polluter Pays Principle has been accepted as a part of our municipal law. The judiciary has also recognized and applied these principles while deciding numerous cases. Our country is also a signatory of various International Environmental Conventions committed for the protection of the Global Environmental. However,being a signatory of these conventions and treaties imposes only a moral obligation upon the State parties.

We have plethora of legislation and policies governing the abatement of pollution and protection of water bodies, but in spite of this the menace of water pollution remains the same and the conditions of Rivers also got degraded both qualitatively and quantitatively. It is also observed that more legislation and policy created only a confusion regarding the jurisdiction.

The environmental laws in India have provided for the establishment of Central and State Pollution Control Boards to, inter alia, prosecute the environmental delinquents (individuals and corporations) and to take preventive steps to check further degradation and deterioration of the water, air, land etc. The boards are more or less failed in controlling the pollution. The PCBs are not empowered with taking punitive legal measures against the polluter and it has to approach the Judiciary for the same. The burden of proof also rests upon the PCBs to show that the industry is polluting the water. In the absence of green benches,the cases are filed to the overburdened lower courts which fail to devote sufficient time on environmental related issues. The long period of litigation not only burdens the judiciary but also boosts the moral of the polluter industries. The penalty for polluting water also does not create any deterrent effect in the minds of the polluter.

Technology utilized in the sewage treatment plants is not adequate to meet the desired result and it is often seen that the sewage is allowed to get discharged into the water bodies without being treated effectively. Further the shortage of electricity required for running these STPs is also a major problem

The GAP has launched thirty years ago but the quality of River Ganga has deteriorated further as the plan does not make any significant contribution towards improving water quality. ome of the key factors for the failure of the Plan are the weakness of a legislative basis, failure in the implementation, lack of heavy sanctions and penalties, non-enforcement of directions from environmental courts, inefficiency in the monitoring system and the involvement of various agencies for the same work and planning without a careful field investigation.

The total expenditure incurred on Namami Gange in the initial three years, 2014-17 was Rs 3673 Crore and for the present year i.e. 2017-18 a total of Rs 2300 crore has been distributed in the financial plan. It is nonetheless, observed that the rate of utilization under this program has not been satisfactory. The slow execution of project is attributed to delay in tendering, non-availability of resources, legal complications, delay in permissions and approvals pending in the government departments.

Despite the major steps and a strong government focus on cleaning up the Ganga, we are yet to see results. As per a recent report of the Central Pollution Control Board, Ganga receives 3,048 million litres of waste water per day. Disposal of industrial and domestic sewage effluent, directly by drains or indirectly through tributaries, has been the chief cause for the high levels of pollution.

The project of interlinking of river will not solve the problem of dying rivers as Rivers are a natural phenomenon and not a human artifacts. To link the rivers is to destroy their natural flow. The geographical conditions of our country are not like the European countries and it will not be possible to interlink the Himalayan Rivers. Therefore the scope of the ILR would be limited to peninsular Rivers. Also the ILR would face serious challenges like the rehabilitation of the people and socio political unrest and the attitudes of the State Governments as no state would like to transfer its abundant water resources for other States. It has to stand valid on the Principles of federalism.

More than half the rivers in India are polluted, with the developing economic power unlikely to meet demand for fresh water from its still-growing population unless dramatic measures are taken, a new report by government scientists has found. The number of rivers defined as “polluted” in India has more than doubled in the last five years, from 121 to 275, an assessment by the central pollution control board (CPCB) says. There is a huge difference between the reports of the Government and the NGOs regarding the status of the Rivers and water pollution.

The judicial contribution, however, has been comparatively praiseworthy. It has read the right to ‘life’ as encompassing the right to a ‘wholesome environment’. To that end, it has formulated diverse principles, ordered the closure of industries, imposed liability on directors of erring corporations, and directed them to pay compensation to the helpless victims of environmental disasters. However, Starting a glorious environmental regime in the Ratlam Municipality case and carrying it to RLEK and later on to the Bichchri village case and evolving new principles regarding the liability of the polluter in the Oleum gas leak case the Supreme Court later on remained a silent observer of the degradation of the Environment. The decision of the Narmada Bachao Andolan poses a question upon the role of judiciary.

Coming on to the recent judgment of the Uttarakhand High court declaring Rivers as legal entities, it is humbly submitted that the creation of law is truly a function of the legislature and the court has been assigned the function of interpreting it. The declaration of Whanganui River as a legal entity in New Zealand has been supported by a legislation passed by their Parliament whereas the declaration in the present case can be termed as an example of Judicial outreach which is too vague for implementation.

The Polluter Pays Principle can be applied to industries and individuals having deep pockets  but very difficult to punish intangible things such as corporations, or groups such as slum dwellers, especially when they are not properly organized.

SUGGESTIONS

(i) The comprehensive preservation, protection and development of the environment in India may be vested upon three agencies, namely National Environmental Commission, Central State Pollution Control Board and Environmental Court.

(ii) The legislature, should frame one consolidated environmental code like the German Environmental Code instead of enacting various laws dealing with diverse environmental aspects. It would prevent the overlapping of provisions, environmental policies and eco-management.

(iii) The word “voluntarily” in Section 277 of the IPC should be needed the word knowingly as the term voluntarily includes mens rea which creates obstacles in fixing the liability.

(iv) Subsection (e) of section 17 which deals with the functions of the SPCBs regarding the tion of mass awareness programs should be performed in letter and spirit.

(v) The technology used in the STPs should be upgraded and a continuous supply of electricity should be provided to them for ensuring proper functioning.

(vi) Special task force should be employed near the industries entrusted with the functions to check the quality and quantity of the discharge from the industries.

(vii) There is a need to set up environmental courts or green courts having exclusive jurisdiction over environmental matters. The court should consist of a District Judge and two other environmental experts who shall assist the course of proceedings.

(viii) The need of the hour is to formulate a well-defined legal basis for policies which clearly outlines the responsibilities of each agency involved, along with indicating the Ministries responsible for the implementation of the policy

 (ix) The non-point sources of pollution need to be identified and redressed immediately. The pollution through religious activities like discharging idols, burnt ashes of corpses should be regulated.

(x) The State as well as the citizens are under a Constitutional obligation to protect and preserve the environment. These obligations must be performed by its soul as its non-observance will make the purpose of incorporation of these directives infructuous.

 (xi) Tourism and other activities in the State such as River rafting and adventurous activities should be regulated with suitable legislation without compromising the sanctity of rivers.


[1] At the launch of International Year of Water Cooperation by the United Nations available at https://news.un.org/en/story/2013/02/431772-un-kicks-year-promoting-international-cooperation-water-management (Last visited  2/4/2018)

[2] Available at http://www.indiaenvironmentportal.org.in/files/file/water%20pollution%20in%20india.pdf (Last visited  10/4/2018)

[3] The Future We Want: Outcome document adopted at Rio+20 available at https://sustainabledevelopment.un.org/futurewewant.html (Last visited  3/4/2018)

[4] Ali Mehdi, Water Pollution Laws and Their Enforcement In India, 1 (R. Cambray And Co. Private Ltd.,Kolkata 1st edition 2007)

[5]Available at https://www.idfc.com/pdf/report/2011/Chp-19-Water-Pollution-in-India-An-Economic-Appraisal.pdf (Last visited  2/5/2018)

[6]Available at  http://worldwaterday.org/ (Last visited  2/4/2018)

[7] Available at http://legal.un.org/avl/ha/dunche/dunche.html (Last visited  20/3/2018)

[8] Available at http://www.un-documents.net/our-common-future.pdf (Last visited  20/3/2018)

[9] Principle 1 of  The Rio Declaration On Environment And Development (1992)

[10] Available at http://www.un.org/geninfo/bp/enviro.html (Last visited  20/3/2018)

[11]Available at http://www.who.int/water_sanitation_health/unconfwater.pdf (Last visited  10/6/2018)

[12]The Dublin Statement on Water and Sustainable Development, Dublin available at http://www.wmo.int/pages/prog/hwrp/documents/english/icwedece.html (Last visited  2/6/2018)

[13]  Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes , Helsinki, on 17 March 1992 available at https://www.unece.org/fileadmin/DAM/env/water/pdf/watercon.pdf (accessed on 10/6/2018)

[14]Available at http://un-documents.net/cedaw.htm (Last visited  12/6/2018)

[15] Available at http://un-documents.net/crc.htm (Last visited  12/6/2018)

[16]Available at http://www.ohchr.org/english/issues/water/docs/CESCR_GC_15.pdf (Last visited  12/6/2018)

[17]Available at http://www.un.org/waterforlifedecade/human_right_to_water.shtml (Last visited  12/6/2018)

[18]Article 47- Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

[19]  (1985) 2 SCC 431

[20] AIR 2000 SC 1997

[21] As observed by Chinappa Reddy in Atam Prakash v. State of Haryana AIR 1986 AIR 859

[22]  1987 AIR 1109

[23] Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

[24] Entry No. 13  of the Union list in the VII schedule to the Constitution

[25] Entry No. 14 of the Union list in the VII schedule to the Constitution

[26] Freedom to practise any profession, or to carry on any occupation, trade or business.

[27] Article 19(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

[28] AIR 1988 GUJ. 57

[29] Section 277- Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

[30] AIR 1980 SC 1622

[31] See Section 16 of the The Water (Prevention and control of Pollution) Act, 1974

[32] Sec. 19 of the Act has provided the procedure to be followed by the National Green Tribunal.

[33] See Sec. 15 of the National Green Tribunal Act

[34] See Sec. 26 of the National Green Tribunal Act

[35] Available at http://nwm.gov.in/?q=national-water-policy-2012 (Last visited  March 20,2018)

[36] Available at http://nmcg.nic.in/about_nmcg.aspx (Last visited  March 20,2018)

[37] Available at http://nmcg.nic.in/aims_obj.aspx (Last visited  March 20,2018)

[38] Available at http://nmcg.nic.in/NamamiGanga.aspx (Last visited  March 20,2018)

[39] 1991 AIR 420

[40] AIR 2000 SC 3751

[41](2004) 9 SCC 362

[42](1997)1 SCC 388

[43] AIR 1996 SC 2715

[44] M.C.Mehta v. Union of India AIR 1988 SC 1037

[45] MANU/UC/0219/2016

Leave a Reply

Your email address will not be published.