A CRITICAL EVALUATION OF STATUTORY CONTROL AND MANAGEMENT OF GANGA POLLUTION WITH SPECIAL REFERENCE TO GANGA POLLUTION CONTROL POLICIES

 

AUTHORED BY - DR. MANOJ SINGH,

Associate Professor in Law, Unitedworld School of Law,

Karnavati University, Gandhinagar, Gujarat.

 

 

Abstract

River Ganges has a great importance in India. No other river affects the lives of so many people in so many states of India as the Ganges which is the largest river basin in our country covering over one fourth of its total surface area. This river is life line of north India. But this pious river is facing pollution problem. Although a number of laws has been passed to protect it from pollution but failed. Our judiciary has taken strict approach against polluters and responsible authorities, still Ganges is being polluted. Ganga Action Plan is an action plan for protecting Ganges from pollution which is less success. Recently Namami Gange program has been started by our present Prime Minister Mr. Narendra Modi but it is also not effective.

 

Key words; Ganga Action Plan, Namami Gange.  

                                                                                                       

Introduction

River Ganges   has a great importance in India. No other river affects the lives of so many people in so many states of India as the Ganges which is the largest river basin in our country covering over one fourth of its total surface area.[1] A total population of 45 million people dwells in its basin. Average water run oft amounts about thousand million cubic meters, traversing through three mater states, Uttar Pradesh, Bihar and West Bengal of the County.[2] Befittingly therefore, the fate of the river is equated with the destiny of the millions of people living down the indo Gangetic plain. Millions depend on this great river for physical and spiritual sustenance. People have immemorial faith in the powers of healing and regeneration of the Ganges which is one of the most sacred rivers in the world and is deeply revered by the people of the country.[3]  Bathing in Ganges is a lifelong ambition of many who congregate in large numbers for several river centered festival such as Kumbh Mela and numerous snan (bath) festival.[4]

 

Statutory Control of Ganga Pollution

Under tort law trespass, nuisance, strict liability and perfect liability are helpful in protecting Ganges. Nuisance is that branch of the law which is most closely concerned with “protection of the environment.” Pollution water is considered to be a nuisance. Nuisance is of two types, namely (1) public nuisance, and (2) private nuisance. These concepts can also viewed from civil side and criminal side proceeding. Strict liability originated in Rylands Vs Fletcher case [5] says that a person who, in the course of non natural use of his land is or is deemed to be, responsible for the accumulation on it of anything likely to harm, if escapes, is liable for the interference with the use of the land of another which results from the escape at the thing from his land.Trespass, is the wrongful and unwarranted entry, upon the land of another, or any direct and immediate act of interference with the possession of land.[6] The concept of absolute liability is based on the principle of no fault liability[7] was originated in Shriram Gas Leak Case[8] says   an enterprise which is engaged in a hazardous and inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken.

 

Bharatiya Nyaya Sanhita, 2023 also contains provisions which are helpful in protecting water from pollution. Section 279 of the Sanhita provides punishment for Fouling water of public spring or reservoir. Section 324 of the same Sanhita dealing with mischief also useful in protecting water from pollution.

 

Section 5 of the The Indian Fisheries Act, 1897 declares punishable offence making poisonous water to catch or destroy any fish.[9]Section 6 of the The Indian Ports Act, 1908  empowered the government to make necessary rules for the purpose of regulating the manner in which oil or water mixed with oil shall be discharged in any port and disposal of the same.[10] Section 21 of the same Act prohibits throwing of ballast or rubbish or any other thing likely to form a bank or shoal detrimental to navigation in to either the port or upon the place likely to be washed in to the port by tides, storm or land flood.[11]

 

Section 91 of the Civil Procedure Code, 1908 deals about public nuisance or other wrongful acts affecting the public. Under this section a suit for a declaration and injunction or for other relief may be instituted by an Advocate - General or two or more persons with the permission of the court. Section 91 of CPC is reservoir for class action against environmental violation. The other relevant provisions of the CPC include order XXXIX, rules 1 to 10 which deals with Temporary Injunction and interlocutory order. Section 26(1)(i) of The Indian Forest Act, 1927 provides that any person who, in contravention of the rules made by the state government,inter alias, poisons water, shall be punishable with imprisonment for a term of one year or with fine which may extend to one thousand rupees or both.

 

Indian Constitution is perhaps the first constitution in the world to attempt to secure the protection of fragile environment which lays down the basic foundation for environment legislation in the DPSP and citizens duty towards environment protection in India.[12]

 

Although, under Article 19(1) (g) of the constitution of India gives right to practice any profession or to carry on any occupation the citizens. But, if they pollute river by their occupation, their occupation will be restricted. Article 21 of the constitution of India ensure right to life and personal liberty. Contamination of water is violative of article 21 was declared in Madireddy Padma Rambabu and Others V District Forest Officer, E.G. Districts and Others case.[13] Article 25 of the constitution of India deals with religious freedom subject to public order, morality and to the other provisions of this part. It means that if we pollute Ganga water it will be against public order and can be restricted on the ground of violating public order. Under article 32 and 226 of the Constitution of India writs (Habeas Corpus, Mandamus, Prohibition, Quo Warranto or Certiorari, whichever is appropriate) are provided to be issued by the Supreme Court and High Court respectively in case of violation of fundamental rights by way of any act or omission of state within meaning of Article-12. 

 

Part-IV of the Constitution of India contains the directive principles of the state policy which are prescriptions for the guidance of the government.[14] The state shall regard 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"[15]Article 48-A incorporates the directive principle of state policy that the state shall endeavour to protect and improve the environment and to safeguard the forests and will life of the country.[16]Part IV A of the Indian Constitution describes some fundamental duties of citizens. Under Article 51 -A (g), it shall be duty of every citizen of India “to protect and improve the natural environment including forest, lakes, rivers and wildlife.[17]

 

Sections 18A- 18AA of The Industries (Development and Regulation) Act, 1951 are useful in preventing river water pollution. One of the requirements under the letter of intent is that the applicant should ensure that steps have been taken to prevent of water or air.[18]Section 13 of the The River Boards Act, 1956 Act, for regulation and development of interstate rivers and river valleys. One of the functions of the Board is to advice the government concerned in regard to pollution of waters of inter- state rivers. Although The Specific Relief Act, 1963 has no direct provisions regarding protection of water pollution but some provisions are useful in protecting environment from pollution. Sections 36 to 44 dealing with Preventive Relief are effective tool in the form of injunction.

 

Section 152 of the The Bharatiya Nagarik Suraksha Sanhita, 2023 deals with removal of public nuisance which includes every type of nuisance including Ganges pollution also.

 

The Water (Prevention and Control of Pollution) Act, 1974 seeks to maintain or restore “wholesomeness of water”.[19] The statement of objects and reasons of the Act states that the problem of pollution of the rivers and streams has assumed considerable importance and urgency.[20] For the purpose of carrying out the objectives of the Water Act, a set of machinery, both for Union as well as the state level has been laid down.[21] The water Act provides for separate pollution Central Boards for the States in India also[22] and a Joint Board by an agreement between two or more State Governments or by the Central Government (for one or more Union Territories) and one or more State Government can be set up.[23]

 

The Water (Prevention and Control of Pollution) Cess Act, 1977 deals with the various provisions relating to levy and collection of a cess on water consumed by person carrying on certain industries and by local authorities.[24] Under the Act State Government is empowered to levy and collect a cess. In case of default competent authority may impose a penalty.[25]This Act, only supplements the water (Prevention and Control of Pollution) Act, 1974 and indirectly helps to check water pollution by imposing cess on polluting industries or municipal authorities.

 

The Environment (Protection) Act, 1986 dealing with pollution covers water and abatement of water pollution. The main provisions are as follows:

1. Persons carrying on industry operation etc, are not allowed to emit or discharge environmental pollutant in excess of the standards.[26]
2. Persons handling hazardous substances are required to comply with procedural safeguards.[27]
3. Where any industry discharges excess environmental pollutant then it is duty of the person having control over the affairs of the industry to fur miss information to authorities.[28]
4. Any person, who fails to comply with or contravenes any of the provisions of this Act, is liable to be punished.[29]

 

The Public Liability Insurance Act, 1992 provides relief to person affected by accidents whilst handling hazards material, who are most likely to be workers. The National Environmental Tribunal Act, 1995 was passed to provide for strict liability for damages arising out of any accidents occurring while handling any hazardous substances and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to persons, property and the environment and for matters connected therewith or incidental thereto.[30] The Act has not been brought into force.

 

The National Appellate Authority Act, 1997 provides for the establishment of a The National Appellate Authority to hear appeals with respect to restrictions of areas in which any industries, operations or processes of class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under The Environmental Protection Act, 1986 and for matters connected therewith or incidental thereto. National Green Tribunal Act, 2010 provide for 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, giving relief and compensation for damages to persons and property other related matters. National Green Tribunal was established on 18.10.2010 under the National Green Tribunal Act, 2010.

 

Ganga Action Plan

Ganga Action Plan was launched by Government in January 1986 to reduce pollution load on the river Ganga.Besides abating pollution and improving water quality GAP given importance to: (a) conserve biodiversity, (b) developing an integrated river basin management approach, (c) conducting comprehensive research to further these objectives, and (d) gaining experience for implementing similar river clean-up programs also in other polluted rivers in India.[31] It was

implemented in two phases. Ganga Action Plan Phase-II was implemented in various stages during April 1993 to October 1996[32]. The States of Uttar Pradesh, Bihar, West Bengal, Delhi and Haryana were to implement the GAP-II by treating 1912 mid of sewage. GAP-II is scheduled for completion by December 2001. [33] GAP-II includes the incomplete works of GAP Phase-I, in addition of other class II and III towns along the Ganges. Through a Government Resolution dated 5.12.1996 GAP Phase-Il merged with the National River Conservation Plan.[34]

 

Administrative Structure under Ganga Action Plan

 1. At the Central Level

At The Central Level there are two authorities namely Central Ganga Authority and Ganga Project Directorate. The Central Ganga Authority was established in 1985 under the Department of Environment of India with a view  to improve water quality of river Ganges and its tributaries by reducing the pollution load and by establishing a series of sewage treatment plants, renovating existing sewage pumping and treatment plants, providing waste water sub-pumping stations at the outfall points of open drains not yet connected to the existing sewage system, extending sewage treatment system and constructing electric crematorium.[35]

 

Ganga Directorate Project was created in 1995 with a view to appraise and approve sub-subject prepared and submitted by field-level agencies, coordinates various agencies, provides fund and monitor the progress and report to the steering committee.[36] The Ganga Project Directorate is part of the Ministry of Environment and Forest.

 

   2. At the State Level

State River Conservation Authorities (SRCAs) were constituted at state level for functioning mainly as coordinating and monitoring agency for Ganga Action Plans in all the four concerned states, viz., Uttarakhand, Uttar Pradesh, Bihar, and West-Bengal.[37] Different para-statal agencies were brought in at the state level to actually carry out physical implementation of the drainage interception and diversion work, as well as erection, commissioning and operation and maintenance of treatment plants.

 

1. The Town Level

At the local level, the responsibilities of respective implementation, operation and maintenance were rested with mostly the local offices of the para-statal agencies. For example, in Kanpur, the local office of the U.P. Jai Nigam was renamed as Ganga Pollution Control Authority which looked after creation and O&M of the assets.[38]

 

National River Conservation Plan

The National River Action Plan was formulated in 1995.[39] Apart from Ganges, Yamuna, Gomti and Damodar other Indian rivers, whose stretches are badly polluted, were included in NRCP. [40]The main objective of the NRCP is to improve the water quality of the major rivers of the country to desirable standards.[41] NRCP essentially addresses pollution load from sewers systems of towns and cities, and works towards intercepting and diverting sewage, setting up STPs, electric crematoria, low cost sanitation, riverfront development, afforestation and solid waste management.

 

Namami Gange

The Namami Gange programme is an umbrella programme to ensure effective abatement conservation of the river Ganges and all its tributaries.[42]Objectives of Namami Ganges are setting river centric urban planning process to facilitate better citizen connects, through interventions at Ghats and River front, expansion of coverage of sewerage infrastructure in 118 urban habitations on banks of Ganges, enforcement of Ganges specific River Regulatory Zones, development of rational agriculture practice & efficient irrigation through methods and setting Ganga Knowledge Centre etc.[43] Government of India has approved Namami Gange Mission-II with a budget of Rs.22,500 crore until 2026. The Namami Gange Programme is scheduled to be complete by 2020.It is very interesting that entire campaign is fruitless while prime minister has taken it in his own hand.

 

Conclusion

The common law doctrines nuisance, trespass, strict liability and perfect liability are enforceable in India which are helpful in prevention of Ganga pollution. A number of civil and criminal laws are available to protect Ganga pollution. The Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution) Cess Act, 1977are special statute regarding river pollution. The Environmental (Protection) Act, 1986 is a general law for prevention of river from pollution. Besides statutes some government programmes like Ganga Action Plan, National River Conservation Plan and Namami Gange are trying to prevent Ganga from pollution but they are not giving expected result. Government agencies have declared it successful. But ground realities tells different story. Not only statutes but Ganga pollution control policies GAP, NRCP, Namami Gange etc. are failed massively and it is unnecessary burden on tax payer’s money.  Misuse the water should be stopped immediately at each and every level. People should avoid excessive washing of animals and clothing at various ghats, discarding carcasses and throwing post-worship debris.  In addition to these, chlorinating the water at the ghat is necessary. Simple biological measure like growing hyacinth plant to absorb toxic metal should be taken up. The best way to clean river is to leave them on their own. It will recover itself. Their original flow should not be disturbed and must be maintained. Deforestation can play a good role in protecting Ganga from pollution. Legal enforcement, along with necessary facilities will also aid in the river pollution abatement programmes. Polluters should be compelled and forced to pay to clean up. Public urinals and lavatories should be constructed at all the bathing ghats. Public should be educated and promoted to use them. Adequate arrangement is required for disposal of waste water.

 

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[1]P.R.Trivedi, Environmental Pollution and Control (A.P.H.Publishing Corporation, 2008), 47.

[2]  A.C. Shukla and Vandana A, Ganga: A Water Marvel (New Delhi: Ashish Publishing House, 1995), 48.

[3] Sachin Rai,Saurav Kumar,Aakash Marine, “Clean Ganges The Way Forward, International Conference on Emerging Trend On Engineering Technology, Science And Management”(Paper Presented at I.I.M.T. College of Engineering, Greater Noida, India, April 12,2017) .

[4] Ibid.

[5] (1868) LR3HL330

[6] Ratanlal & Dhirajlal, the Law of Torts (Lexis Nexis, 2013), 812.

[7] Dr. S.C Shastri, Environmental Law (Allahabad Central Law Publication, 2015), 267.

[8] M.C. Mehta V U.O.I. A.I.R. 1987 S.C. 1086.

[9] Section 5 of Indian Fisheries Act 1897.

[10] Section 6 of Indian Ports Act 1908.

[11] Ibid.S.21.                                                           

[12] Dharmendra Sengar, Environmental Law (PHI Learning Private Limited, 2007), 7.

[13] 2002(3) ALT 57.

[14] A.K.Tiwari, Environmental Laws in India; Contribution of Supreme Court (New Delhi: Deep and Deep, Publication, 2006), 10.

[15] Article 47of Constitution of India, 1950.

[16] Ibid. A.48(A)

[17]  A.51-A (g) of Constitution of India, 1950.

[18] Sunil Goyal, Sunil Prowal and K.G. Maheshwari, Manual of Pollution Control Laws in India (1988), 167.

[19] Bharat Desai, Water Pollution in India; Law and Enforcement (New Delhi: Lancers Book, 1990), 45.

[20] Ibid.

[21] Id. at 46.

[22] See, Section 4 of Water Act, 1974 (Act 6 of 1974).

[23] See Section 13(1) Water Act, 1974 (Act 6 of 1974).

[24] Mahesh Mathur, Legal Control of Environmental Pollution (New Delhi: Deep & Deep Publication, 1996), 288.

[25] S.11. of Water (Prevention and Control of Pollution) Act, 1974.

[26] S.7 of The Environment (Protection) Act, 1986.

[27] S.8 of The Environment (Protection) Act, 1986.

[28]  S.9 of The Environment (Protection) Act, 1986.

[29]  S.15 of The Environment (Protection) Act, 1986.

[30]  Mohammad Naseem, Energy Laws In India (Netherlands: Kluwer Law International, 2010), 223.

[31]  SWAT Analysis of Ganga Action Plan by.(2011)9,accessed on 03 january,2018. https://mpra.ub.uni-muenchen.de/81148/1/MPRA_paper_81148.pdf

[32]B.S.Sahay, Roger R. Stough,Amrik Sohal And Sonu Goyal(Editors),Green Business, Volume-I, ,(Allied Publishers Private Limited,2006)399,400.

[33] Ibid.

[34] Centre For Science and Environmental the state of India’s Environment,1999:  The Citizen’s Fifth Report, (New Delhi, Centre For Science And Environmental,1999),103

[35]  Joseph A Jabbra,Governmental Responses To Environmental Challenges In Global Persperspective (IOS Press,1998),152

[36] Neelima Rajvaidya and Dilip Kumar Markandey, Environmental Pollution Control (New Delhi: APH Corporation, 2008), 89.

[37] SWAT Analysis of Ganga Action Plan by. (2011)9, accessed on 03 January, 2018. https://mpra.ub.uni-muenchen.de/81148/1/MPRA_paper_81148.pdf

[38]Indian Institute of Technology, SWAT Analysis of Ganga Action Plan by. (2011)9, accessed on 03 January, 2018. https://mpra.ub.uni-muenchen.de/81148/1/MPRA_paper_81148.pdf

[39]Ashok Kumar Jain, a manual for engineers, architects and managers (Delhi: Daya Publishing House, 2007), 441-442.

[40] Centre for Science and Environmental the state of India’s Environment, 1999:  The Citizen’s Fifth Report, (New Delhi, Centre For Science And Environmental, 1999), 105.

[41] World Bank South Asia Region Rural Development Sector Unit in Collaboration with Government of India Ministry of Water Resources; Inter-Sectoral Water Allocation, Planning and Management, (New Delhi: Ministry Of Water Resources, Government Of India, 1999), 97.

[42]  Cleaning the Ganges River under Namami Ganga Mission-Accessed On 04january, 2018. http://pib.nic.in/newsite/PrintRelease.aspx?relid=154707

[43] Namami Gange Programme Accessed On 05 July, 2017. https://www.india.gov.in/spotlight/namami-gange-programme