Legislation

Main environmental regulations

What are the main statutes and regulations relating to the environment?

There are multiple legal instruments dealing with the environment, the most notable of which are mentioned below:

  • The Environment (Protection) Act, 1986 (EPA) is the umbrella legislation for environmental protection in India. It empowers the union government to initiate various steps for environmental protection and improvement, some of which include the determination of standards for emissions and effluents from industries, regulation of the location of industries, assessment of the environmental impact of projects before they commence operations and, most importantly, framing rules and regulations on various aspects relating to environmental protection across the country. In exercising the powers provided under this Act, the union government has introduced multiple rules, regulations and policies. Some of these include the Coastal Zone Regulation Notification, 2019 (CRZ Notification); Environmental Impact Assessment Notification, 2006 (EIA Notification); Solid Waste Management Rules, 2016; E-Waste (Management) Rules, 2016; Plastic Waste (Management) Rules, 2016; and Hazardous and Other Wastes (Management) Rules, 2016.
  • The Water (Prevention and Control of Pollution) Act, 1974 (Water Act) lays down the framework for the prevention and control of water pollution.
  • The Air (Prevention and Control of Pollution) Act, 1981 (Air Act) lays down the framework for the prevention, control and abatement of air pollution.
  • The Forest (Conservation) Act 1980 (Forest Act) provides the framework for the conservation of forests in India and the requirement to obtain prior clearance for diversion of forest land for non-forest purposes.
  • The Biological Diversity Act, 2002 (Biodiversity Act) provides for the conservation and sustainable use of biological resources and the fair and equitable sharing of the benefits arising out of their use.
  • The Wildlife (Protection) Act, 1972 (Wildlife Act) is the legislation focussing on the conservation of wildlife species and their habitats in India.
  • The National Green Tribunal Act, 2010 provides for the establishment of the National Green Tribunal (NGT) for the adjudication of cases involving any substantial question relating to the environment.
  • The Public Liability Insurance Act, 1991 lays down the requirement to obtain public liability insurance for providing immediate relief to persons affected by accidents while handling any hazardous substance.
Integrated pollution prevention and control

Is there a system of integrated control of pollution?

The Air Act and the Water Act mandate industries that are likely to emit pollutants or discharge effluents to obtain a prior consent from their respective State Pollution Control Board (SPCB) or Union Territory Pollution Control Committee (UTPCC) to establish and operate their industrial facility. The Central Pollution Control Board (CPCB) has also released a list categorising various industries into red, orange, green and white based on their pollution potential. While the red category industries are highly polluting industries and require consent from the SPCB or UTPCC, white category industries do not require prior consent but only need to inform the SPCB or UTPCC. These environmental consents prescribe conditions and standards for undertaking industrial activities, based on factors such as the nature of raw materials, products being manufactured, production quantity, emissions, effluents, hazardous and other wastes generated, wastewater utilisation, water consumption and effluent treatment.

Similarly, there are requirements for seeking environmental consents and authorisations under other legislations as well depending on the nature of the industrial activity and the proposed location of a given industry. For instance, approval is required under:

  • the Wildlife Act for projects located in or around notified protected areas;
  • the Biodiversity Act for commercial utilisation of biological resources;
  • EIA Notification to assess the environmental impact of a proposed project; and
  • CRZ Notification for projects located in notified coastal zones.
Soil pollution

What are the main characteristics of the rules applicable to soil pollution?

There are multiple pieces of legislation that are relevant in the context of soil pollution in India. If the release of any pollutant has caused the contamination of soil, groundwater or land, the extent of liability will largely depend on the nature of the business activity, the location of the industry and the cause of contamination. The law requires that the collection and testing of samples is done according to the provisions of the EPA and the Water Act and the rules notified under these legislations. In cases where any contamination is discovered, the law provides for liability, which could be civil or criminal or both. Additionally, it may result in the closure of the industrial facility until such contamination is remediated and the non-compliances are addressed. In such cases of contamination, the current occupier or operator of the facility where the contamination has been discovered will be held liable. As mentioned above, this liability could include the cost of clean-up and remediation, environmental damages and compensation to those affected by such pollution. If the pollutant is ‘hazardous’ in nature, the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (Hazardous Waste Rules) and the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 will assume relevance. In cases involving hazardous chemicals and wastes, the extent of liability may be higher due to the higher potential of such hazardous substances and wastes to cause harm.

Regulation of waste

What types of waste are regulated and how?

Specific rules have been framed to regulate various types of waste, some of which are mentioned below:

  • The Hazardous Waste Rules mandate the safe handling and disposal of specified waste products that are considered hazardous in nature. Occupiers handling, generating or disposing of such waste are essentially required to obtain prior authorisation from the relevant SPCB or UTPCC and ensure regular disclosure of methods used for handling and disposing of it in an environmentally safe manner.
  • The E-Waste (Management) Rules, 2016 mandate the environmentally safe management of waste from specified electronic and electrical equipment. Persons producing or marketing such equipment are required to obtain the requisite authorisation from the CPCB and ensure their safe ‘end-of-life’ disposal as per the Extended Producer Responsibility (EPR) norms.
  • The Plastic Waste Management Rules, 2016 require persons manufacturing or using plastic material for packaging or wrapping commodities to obtain prior authorisation from the CPCB or the relevant SPCB or UTPCC. They also need to ensure environmentally safe collection and disposal of plastic waste generated from their products under the EPR framework.
  • The Bio-Medical Waste Management Rules, 2016 provide that persons generating, handling or disposing of biomedical waste obtain prior authorisation from the relevant SPCB or UTPCC and regularly disclose details like the manner of handling and disposal adopted for the safe disposal of such waste.
  • The Solid Waste Management Rules, 2016 essentially require persons generating solid municipal waste to ensure the segregation, collection and disposal of such waste through specified channels.
  • The Construction and Demolition Waste Management Rules, 2016 have been introduced to regulate the waste generated due to construction and demolition activities in the country, as they are a major source of air pollution.
Regulation of air emissions

What are the main features of the rules governing air emissions?

The Air Act mandates that any industry likely to emit air pollutants must obtain a prior consent to establish and thereafter the consent to operate from the SPCB or UTPCC in the concerned state or union territory where the industry is proposed to be located. The central government has introduced the National Ambient Air Quality Standards under the Air Act and standards under the EPA to provide parameters and standards for air pollutants such as sulphur dioxide, particulate matter, ozone, lead and carbon monoxide. SPCBs or UTPCCs can also introduce stricter standards for industries operating in a region with poor air quality.

The central government has produced guidelines, such as the Energy Conservation Building Code, 2017, Eco-Niwas Samhita, 2018, the Design Guidelines for Energy Efficient Multi-Storey Residential Buildings, 2014 and the Energy Efficiency Label for Residential Buildings, 2019, to encourage energy conservation and efficiency in residential and commercial buildings across India. Under the Energy Conservation Act, 2001, authorities can direct an energy audit of buildings (where notified energy-intensive industries are operating) if they consider it necessary for ensuring energy efficiency and conservation in such a building. Currently, a specified category of buildings is required to engage empanelled energy auditors for building design, installation of energy conservation measures and equipment.

Protection of fresh water and seawater

How are fresh water and seawater, and their associated land, protected?

In India, water resources are managed and regulated by the government on behalf of the general public as per the public trust doctrine. The Water Act lays down the framework for the prevention and control of water pollution in India. It prohibits the release of pollutants beyond prescribed limits into any stream, well, sewer or land. SPCBs and UTPCCs have been set up under this statute to inspect, issue approvals, and regulate and prevent industries from discharging effluents into a stream, sewer or land. Further, for the protection of seawater, CRZ Notification regulates commercial activities in the coastal zones identified in India’s coastal areas based on their distance from the coastline and their ecological sensitivity. Such activities require prior approval from the Coastal Zone Management Authorities established under this notification. Any violation of this law will attract civil or criminal liability.

Protection of natural spaces and landscapes

What are the main features of the rules protecting natural spaces and landscapes?

The EPA provides powers to the union government to take measures through the Ministry of Environment, Forest and Climate Change for environmental protection and conservation. It can, among other aspects, regulate the location of industries, designate ecologically sensitive zones, impose restrictions on activities therein, and examine proposed projects in any area before their commencement to assess their potential impacts on the environment and prescribe appropriate conditions to address such impacts.

The Forest Act mandates any person seeking the diversion of forest land for non-forest purposes to obtain prior clearance from the union government. It also has obligations related to compensatory afforestation and payment for forest land diverted. Moreover, the Wildlife Act provides for different types of protected areas in India – national parks, wildlife sanctuaries, community reserves and conservation reserves. Commercial activities within a national park or wildlife sanctuary, or in Eco-Sensitive Zones around them, require prior approval from the National Board for Wildlife headed by the Prime Minister of India. The rights of private persons dependent on forest land and protected areas are required to be heard, considered and identified before the proposed activities are commenced in these areas.

Protection of flora and fauna species

What are the main features of the rules protecting flora and fauna species?

The Wildlife Act lays down the regulatory framework for the protection of wildlife and its habitat in India. The Act has six schedules, with each schedule providing a different level of protection to wild flora and fauna, which is usually based on their population level, threats and conservation needs. The highest protection is accorded to threatened species such as rhinos, tigers, leopards, elephants and Great Indian Bustards. The Act prohibits hunting, possessing, dealing and trading in threatened wildlife species and products derived from them. India has also set up an administrative system to regulate trade in wildlife as per the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Certain animals, such as crows and mice, are mentioned as vermin (ie, provided with the lowest level of protection). The Act also provides for different types of protected areas where hunting, extracting or trading in any wildlife is strictly restricted. In addition to the Wildlife Act, the Biodiversity Act provides for the conservation and sustainable use of biological resources and the fair and equitable sharing of the benefits arising out of their use.

Noise, odours and vibrations

What are the main features of the rules governing noise, odours and vibrations?

The Noise Pollution (Regulation and Control) Rules, 2000 regulate the level of noise in any area. They provide different standards for industrial, commercial, residential and silence zones for day and night. State and local government authorities including the SPCB, UTPCC, District Magistrate, Police Commissioner, or any other officer not below the rank of the Deputy Superintendent of Police designated for this purpose are responsible to enforce the prescribed standards. The rules allow any person to file a complaint with the concerned government authorities if the noise level from any activity exceeds the prescribed standards. There are provisions concerning public nuisance in India’s criminal law as well which cover noise, odours and vibration.

Liability for damage to the environment

Is there a general regime on liability for environmental damage?

In cases where the violation of environmental statutes like the EPA, Air Act and Water Act results in pollution or any adverse impact on the environment in a facility or region, the person in charge or responsible for such damage will be held liable. The liability for such damage could be civil, criminal or both in nature. As per the existing norms, the current occupier or operator of the facility is held liable for the environmental harm according to the polluter pays principle. There are guidelines in place to determine the amount of environmental compensation to be paid for such harm, based on various relevant factors. The responsible person may also be prevented by the CPCB, SPCB or UTPCC from continuing such polluting activity until the remediation measures are taken and the operations are environmentally benign.

Environmental taxes

Is there any type of environmental tax?

India levies a Goods and Services Tax Compensation cess on coal produced in or imported into India. India also levies an implicit carbon tax on petrol and diesel sold in India. Some states in India, such as Delhi and Goa, also levy cess or tax on polluting activities within their jurisdictions.

Environmental reporting

Are there any notable environmental reporting requirements (eg, regarding emissions, energy consumption or related environmental, social and governance (ESG) reporting obligations)?

Any industry that requires environmental consent or clearance from the concerned authorities is required to submit an annual environmental statement providing information on air emissions, effluent discharge, waste generation, disposal, etc. A similar requirement to submit annual reports also exists for the generation and management of waste in India, be it hazardous, biomedical, plastic, e-waste, etc. Further, the Securities and Exchange Board of India has mandated the top 1,000 listed entities in India to make disclosures related to the ESG aspects of their operations in the prescribed format from the financial year 2022–2023.

Government policy

How would you describe the general government policy for environmental issues? How are environmental policy objectives influencing the legislative agenda?

The government, in light of its international commitments, is focussing much more on issues relating to climate change, biodiversity loss, pollution, degradation of ecosystems and ocean acidification. India is focussing on the rejuvenation of rivers, reduction of air pollution, a shift to clean mobility and renewable energy, stricter standards for thermal power plants, groundwater recharge, scrapping of end-of-life vehicles, waste management and enhancing forest cover. These objectives have positively influenced the legislative agenda with multiple revisions being made to the existing environmental law and new policies being introduced in recent times.

Hazardous activities and substances

Regulation of hazardous activities

Are there specific rules governing hazardous activities?

Indian law regulates various types of hazardous substances and wastes. The generation, handling, management and disposal of specified hazardous waste generated from industrial activities require prior authorisation from the relevant State Pollution Control Board (SPCBs) or Union Territory Pollution Control Committees (UTPCCs). Further, industries manufacturing, utilising, importing or storing specified hazardous chemicals need to ensure compliance to prevent and control contamination from such chemicals. Persons or entities manufacturing, using, importing or storing specified hazardous micro-organisms also require prior permission from appropriate authorities. Industries handling such hazardous substances need to take out public liability insurance policy to pay compensation for any damages caused due to the accidents involving such substances.

Regulation of hazardous products and substances

What are the main features of the rules governing hazardous products and substances?

The EPA defines ‘hazardous substance’ to mean any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.

The Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 mandate safe handling and disposal of specified hazardous waste (which can cause or are likely to cause danger to health or the environment). Occupiers handling, generating or disposing of such waste are essentially required to obtain prior authorisation from the relevant SPCB or UTPCC and ensure regular disclosure of the methods used for handling and disposing it in an environmentally safe manner.

The Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 prescribe various requirements for the occupier of a property where specified hazardous chemicals are manufactured, imported, stored or utilised. The occupier must take steps to prevent any accident at the property through training of staff, disclosure of hazardous chemicals used at the site, preparation of safety reports and an on-site emergency plan detailing how major accidents would be dealt with, etc.

The Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organisms/Genetically Engineered Organisms or Cells Rules, 1989 mandate persons manufacturing, using, importing or storing specified micro-organisms to obtain prior permission from the appropriate authorities. These organisms may be required for food, pharmaceutical or other products. Such persons must establish internal organisational committees for the administration of these organisms and comply with biosafety and contamination level guidelines to prevent any leakage or damage from such organisms.

Industrial accidents

What are the regulatory requirements regarding the prevention of industrial accidents?

Industries handling specified hazardous chemicals, wastes or micro-organisms at the site must prepare an emergency response plan in case of industrial accidents. Industries also require fire safety approval for evacuation in case of fire. They must also ensure training of staff, disclose hazardous chemicals or wastes used or stored at the site and prepare safety reports.

The government is required to establish crisis groups at the central, state, district and local levels, which will be responsible for aspects such as planning, preparedness and mitigation of accidents at the site; preparation of emergency plans; training of personnel involved in handing hazardous chemicals; educating the population likely to be affected in a chemical accident about the remedies and existing preparedness in the area; conducting mock drills at the site and responding to public queries in this regard.

Environmental aspects in transactions and public procurement

Environmental aspects in M&A transactions

What are the main environmental aspects to consider in M&A transactions?

It is important for any acquirer or buyer to undertake thorough environmental due diligence of the target entity for assessing the current status of its compliance with environmental law, historic non-compliances, pending enquiries by regulators, complaints and ongoing litigations etc. The acquirer needs to check if the target is operating with all relevant environmental approvals. It is also important to examine past non-compliances by such an entity, as the ‘current occupier’ (ie, the resulting entity or acquirer) will be held responsible for the damages caused by such past non-compliances at the site post the transaction.

Environmental aspects in other transactions

What are the main environmental aspects to consider in other transactions?

In all commercial transactions it is important to assess the current status of compliance with environmental law, historic non-compliances, pending show-cause notices, ongoing litigations, pending complaints or findings in the inspection reports involving the relevant entity. It is important to check whether the entity is operating with all valid environmental clearances, consents and authorisations. It is also important to examine the past non-compliances by such entity, as the acquirer (who will be the ‘current occupier’ post transaction) will be held responsible for the damages caused by such past non-compliances at the site.

Environmental aspects in public procurement

Is environmental protection taken into consideration by public procurement regulations?

The government has launched the Sustainable Public Procurement initiative under the government e-marketplace portal. The portal helps government buyers to procure various products and services with a sustainability component, including electric vehicles, water management services, waste management, energy efficiency services and the maintenance of solar, wind and hydro plants, etc. Similarly, the Green Room Air Conditioners initiative was also launched in 2021 to promote procurement of energy-efficient and environment-friendly air conditioners by government agencies.

Environmental assessment

Activities subject to environmental assessment

Which types of activities are subject to environmental assessment?

The Environmental Impact Assessment Notification, 2006 (EIA Notification) provides that an environmental impact assessment must be carried out when seeking an environmental clearance (EC) for new projects or expansion or modernisation of existing projects. The notification lists various activities that require an EC from the central or state authorities, depending on factors such as size, location and production capacity. Power plants, metal industries, mining projects, chemical industries, infrastructure projects (highways, airports, ports), waste treatment plants and pharmaceutical industries are some examples of the projects that require a prior EC.

Environmental assessment process

What are the main steps of the environmental assessment process?

EIA Notification provides for screening, scoping, public consultation and appraisal as the four stages for seeking an EC. The first two steps require the relevant government authorities to examine the application filed by the project proponent for the categorisation of the project on the basis of its location, size, capacity, etc., as well as the determination of key aspects for the EIA process. A draft EIA report is prepared by the project proponent on the basis of these aspects. The draft EIA report is then shared with the public for consultation through a public hearing and written comments. This process is to be completed within a period of 45 days. Advance notice of 30 days must be given to the public for this process. Based on the comments received from the public, a final EIA report is prepared by the project proponent and provided to the government authorities. This report is appraised and considered in detail by the expert appraisal committee, which may either recommend the project for an EC or reject it. It may also impose certain conditions for the operation of the project to mitigate its potential environmental impacts. Lastly, the central or state government authority accepts or rejects the application for an EC on the basis of the comments received from the concerned expert appraisal committee.

Regulatory authorities

Regulatory authorities

Which authorities are responsible for the environment and what is the scope of each regulator’s authority?

The Ministry of Environment, Forest and Climate Change is the nodal ministry for enforcing the regulatory framework related to the environment, biodiversity, forests, wildlife and climate change in India. It lays down the general policy framework on environmental issues.

The Central Pollution Control Board (CPCB) is the central authority that frames the standards and implements the regulations relating to industrial pollution, waste management, emissions or effluent standards, etc. across the country with the assistance of the relevant State Pollution Control Boards (SPCBs) and the Union Territory Pollution Control Committee (UTPCCs). The CPCB can issue directions, restrict operations and impose environmental compensation against non-compliant industries.

The SPCBs and UTPCCs are responsible for granting environmental consents to the industries located within their jurisdiction and thus monitoring the operations of the industries on a regular basis. They are the authorities responsible for ensuring proper implementation of the regulations relating to pollution control, waste management, compliance with emission and effluent standards, etc. They have the power to issue directions, closure orders and remediation costs against non-compliant industries.

Investigation

What are the typical steps in an investigation?

Authorities like the CPCB, SPCB and UTPCC have powers to conduct an inspection at any industrial facility based on complaints received from the public or on the basis of their own cognisance. They can seek any information about the activities being undertaken at the occupier’s facility, which may include details about effluent discharges, air emissions, waste disposal, etc. They can, among other things, undertake a survey of any area within the facility, collect information, soil or water samples, enter and search any facility for any potential case of contamination, or ask the occupier or other persons to provide further information. However, these statutory powers are required to be exercised in accordance with the procedure prescribed under the law.

Administrative decisions

What is the procedure for making administrative decisions?

If the regulatory authorities find any non-compliance on the basis of site inspection, sample analysis or online continuous monitoring system reports, a show-cause notice could be issued to the occupier or operator of the project for violation of environmental laws. Once the response is received, if it is not found to be satisfactory, closure orders could also be issued to such non-compliant projects. However, closure orders are issued only after the parties are given sufficient opportunity to show that they are compliant. This response may include reasons backed by scientific evidence, such as sample analysis reports and other documents to show that the occupier or operator has been operating the project in compliance with all environmental conditions and standards applicable in its case.

Sanctions and remedies

What are the sanctions and remedies that may be imposed by the regulator for violations?

The authorities can issue directions requiring polluters or violators to cease or restrict operations or activities causing pollution until such violations are rectified, pay environmental compensation for the damage caused, install a specified technology or equipment to ensure compliance, etc. They can also disconnect electricity, water or other provisions for such an industry and initiate criminal prosecution against the persons responsible for the business activities of such violators.

Appeal of regulators’ decisions

To what extent may decisions of the regulators be appealed, and to whom?

The occupier can challenge the directions issued by the authorities either before the Appellate Authority (established under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974) or the National Green Tribunal (NGT). An appeal can be filed before the Appellate Authority established by the state government within 30 days from the date of communication of the directions being challenged. Further, it could also file an appeal against such directions before the NGT within 30 days from the date of communication of such directions. Moreover, persons could also approach the relevant High Court under its writ jurisdiction seeking a remedy against the authority’s directions. Orders of the NGT and the High Courts are appealable before the Supreme Court of India, which is the apex court in the country.

The aggrieved party could file an appeal against the order of the regulatory authority if it feels that there has been a violation of the principles of natural justice or, despite the industry being compliant, action has been initiated against it. Such instances could be those where the industry is compliant with the applicable laws and consent conditions, its effluents and emissions are in compliance with the prescribed standards and the authority has failed to appreciate the information and documents submitted before it or the sanctions imposed are not commensurate to the nature of the violation committed.

Judicial proceedings

Judicial proceedings

Are environmental law proceedings in court civil, criminal or both?

India’s environmental laws prescribe that their violation will attract civil liability, criminal liability or both. Civil liability will be imposed in the form of environmental compensation against the violators by the CPCB, SPCB or UTPCC and could be further revised by the courts, the National Green Tribunal (NGT) or the Appellate Authority based on relevant considerations. A criminal prosecution could also be initiated against persons responsible for the conduct of business of the non-compliant industry before the appropriate criminal court, which cannot be inferior to one helmed by the Metropolitan Magistrate or a Judicial Magistrate of first class.

Powers of courts

What are the powers of courts in relation to infringements of environmental law?

India has established the NGT as an expert multi-disciplinary body to adjudicate cases involving substantial questions relating to the environment. While it adjudicates matters under both original and appellate jurisdiction, it has also been granted the power to take suo moto cognisance of issues involving the violation of environmental law. While adjudicating matters, the NGT can constitute expert committees for fact-finding exercises, including assessing the status of compliance with the law and the extent of damage caused. If it is proved that an individual or entity has violated the environmental law, the NGT has the power to issue interim or final directions requiring such individual or entity to shut down or restrict its operations, take specific measures for rectification, pay environmental compensation under the polluter pays principle, restore the damage caused to ecology, persons, or property, or pass any other direction that it may deem fit to ensure justice. The NGT usually directs the relevant regulatory authorities to initiate appropriate action against such violators and ensure that its orders are complied with. It can also issue directions to initiate disciplinary action against government officials for failure to perform their statutory duties.

In cases where criminal prosecution has been initiated, the relevant criminal courts (which cannot be inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class) will determine the punishment for the responsible persons after their trial as per the criminal law.

Further, India’s constitutional courts (High Courts and Supreme Court) can also adjudicate in environmental law cases under their writ jurisdiction and grant remedies to the aggrieved parties whose rights have been affected by such environmental violations.

Civil claims

Are civil claims allowed regarding infringements of environmental law?

Yes, civil claims are allowed in cases of violation of environmental law. Non-contractual claims can be filed by an aggrieved person before the authorities or courts seeking relief from the activity causing such violations, payment of environmental compensation for the damage caused and restoration of the ecological damage.

Contractual claims can also be filed by the parties before the relevant court or tribunal seeking indemnification against environmental liabilities where provisions to this effect have been mentioned in the contract between the two parties.

Defences and indemnities

What defences or indemnities are available?

While there are various defences available to a person, depending on the facts and circumstances of a case, some of the common ones could be:

  • non-maintainability of the case due to the lack of jurisdiction of the authority or court, absence of locus standi of the claimant, or breach of limitation period prescribed in the relevant environmental statute;
  • the person has ensured compliance with all relevant provisions that can be showcased with relevant scientific evidence; and
  • said case falls under the exceptions to the tortious principle of ‘strict liability’ (ie, act of god, claimant’s own fault, claimant voluntarily agreed to suffer harm, and damage caused due to an act of a third party).

 

The Supreme Court of India in MC Mehta v Union of India, (1987) 1 SCC 395 laid down the principle of ‘absolute liability’. Under this principle, where a person is engaged in any hazardous or inherently dangerous activity and damage is caused due to an accident resulting from such an activity, such person would be absolutely liable without any exceptions, unlike the case of ‘strict liability’.

Directors’ or officers’ defences

Are there specific defences in the case of directors’ or officers’ liability?

Non-compliance with environmental laws in India makes a company, as also the person, who at the time the offence was committed was directly in charge of and responsible to the company for the conduct of its business, liable for punishment. However, in such cases, liability cannot be imposed if such person proves that the offence was committed without his or her knowledge, there was no way in which such person could have known about such non-compliance or that he or she exercised all due diligence to prevent the commission of such an offence.

Moreover, if it is proved that the offence has been committed with the consent or connivance, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

The determination of the liability of directors is based on the facts and circumstances of a given case. In Securities and Exchange Board of India v Gaurav Varshney, (2016) 4 SCC 430, the Supreme Court of India held that the liability of a director for an offence committed by the company does not arise merely based on his or her designation or position in the company but is based on his or her role in the affairs of the company. Specific averments regarding the director’s role in the affairs of the company need to be provided for holding him or her liable.

Appeal process

What is the appeal process from trials?

The orders or judgments at the trial stage of criminal prosecution under environment laws can be appealed before the sessions court of the relevant jurisdiction. The decisions of the sessions court can be further appealed before the High Court and the Supreme Court of India.

International treaties and institutions

International treaties

Is your country a contracting state to any international environmental treaties, or similar agreements?

India is a party to various international environmental treaties, including the Declaration of the United Nations Conference on Human Environment or Stockholm Declaration (1972), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (1975), the Montreal Protocol on Substances that Deplete the Ozone Layer (1987), the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal (1989), the Convention on Biological Diversity (1992), and the Rio Declaration on Environment and Development (1992).

International treaties and regulatory policy

To what extent is regulatory policy affected by these treaties?

The Constitution of India empowers India’s Parliament to make suitable laws for the effective implementation of international agreements, treaties or conventions to which India is a party. In response to its international commitments, India has implemented various laws and policies to address specific environmental issues across the country. The Supreme Court of India in State of West Bengal v Kesoram Industries Ltd. and Ors, (AIR 2005 SC 1646) observed that unless international commitments are enshrined in domestic law, they cannot be considered law of the land. However, courts can refer to these international commitments as a means to interpret domestic law, provided the international commitments are not inconsistent with domestic law. For instance, India enacted the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 to implement the provisions of the Stockholm Declaration (1972). Similarly, the Environmental Impact Assessment Notification, 2006 was introduced to implement the provisions of the Rio Declaration on Environment and Development (1992).

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in environment law in your jurisdiction?

The government of India is working on various aspects of environmental protection. These include management of different kinds of waste, such as e-waste and plastic waste. Draft rules to revise India’s regulatory framework for e-waste management to meet the current market demands have been notified. Similarly, the obligations of producers, brand owners and importers to collect, recycle and manage plastic waste generated from their products have also been notified. The government has also prohibited the manufacture, use and sale of various single-use plastic products from 1 July 2022. Provisions to encourage biodegradable and compostable plastics have also been introduced.

The government is also focussing on creating a circular economy to promote resource efficiency and reduction in the exploitation of new resources for economic activities. This aspect has been enforced in the transportation sector through mandatory scrapping of end-of-life vehicles to reduce air pollution and promote the recycling and reuse of the material used for vehicle manufacturing. The Union Budget for financial year 2022–23 has also proposed various policy initiatives for other sectors to implement the circular economy.

Efforts are also being made to overhaul (through decriminalisation of minor offences, uniformity in compliance structure, suiting current market realities, etc.) the environmental framework. Consultation papers in this regard were recently circulated for the Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of Pollution) Act, 1974, the Environment (Protection) Act, 1986, and the Public Liability Insurance Act, 1991. Similarly, draft amendments to the Wildlife (Protection) Act, 1972 and the Biological Diversity Act, 2002 have also been introduced to propose key changes in these laws.

Coronavirus

What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

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