The Tail of the EPA: Good Faith, Delegation and Rules

Section 22: the bar on the civil court

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order or direction issued by the Central Government or any other authority or officer in pursuance of any power conferred by or in relation to its or his functions under this Act.

This is the provision that answers "can I sue in the district court".

What it bars. A suit or proceeding in respect of anything done, action taken or an order or direction issued in pursuance of a power under the Act. So a suit to set aside a closure direction, or to restrain an officer from taking a sample, does not lie.

What it does not bar. A suit that is not in respect of anything done under the Act. A neighbour's suit in nuisance against a polluter is not a suit about anything the Government did, and section 22 does not touch it. The distinction is between challenging the administration of the Act and suing a polluter, and students routinely collapse the two.

And it does not touch the writ jurisdiction, which a statute cannot take away, nor the Tribunal, whose jurisdiction is conferred by its own Act.

Section 23: delegation, and its two exceptions

The Central Government may, by notification, delegate such of its powers and functions under the Act as it deems necessary or expedient, subject to conditions and limitations, to any officer, State Government or other authority. Two things are expressly excepted:

• the power to constitute an authority under section 3(3), and
• the power to make rules under section 25.

The exceptions are the point. The Government may delegate the doing of things but not the making of the machinery or of the law. That is a familiar constitutional line and it is worth being able to state.

Section 23 also opens "without prejudice to the provisions of sub-section (3) of section 3", so the two routes, delegation to an officer and constitution of an authority, stand side by side.

Section 24: the effect on other laws

The provisions of this Act and the rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

This is the overriding clause and it is short and absolute. Where the Act or a rule or an order under it is inconsistent with any other law, the Act prevails.

Read it with section 5, which is separately non obstante, and with the fact that the Water Act and the Air Act continue in force underneath. The scheme is that the earlier Acts operate in their own fields and the EPA operates over them and prevails on inconsistency, which is what the word umbrella actually means in law.

Section 25: the rule-making power

The general power: the Central Government may by notification make rules for carrying out the purposes of the Act, and sub-section (2) lists particular matters without prejudice to that generality, including the standards under section 7, the procedure and safeguards under section 8, the authorities to be informed under section 9, the manner of taking samples and the form of notice under section 11, the functions of environmental laboratories and the form of the laboratory report under section 12, and the qualifications of a Government Analyst under section 13.

Clauses (ga), (gb) and (gc), inserted in 2023, are the newest: the manner of holding an inquiry and imposing a penalty by the adjudicating officer under section 15C and the other factors for determining the quantum, and matters relating to the Environmental Protection Fund under section 16. They are the machinery of the decriminalised regime and Module IV takes them up.

Note the relationship with section 6. Section 6 is the specific rule-making power over the matters in section 3; section 25 is the general one for carrying out the purposes of the Act. Rules are commonly made under both together.

Section 26: laying before Parliament

Every rule made under the Act shall be laid before each House of Parliament while it is in session, for a total of thirty days, and takes effect subject to any modification or annulment the Houses agree upon.

This is the only parliamentary control over an Act whose substance is almost entirely delegated legislation, and it is the answer to the criticism in the chapter on standards that the boundary of liability moves by notification. Whether it is much of an answer is a fair question: a laying requirement is not a scrutiny requirement.

A worked example

The Central Government issues a direction under section 5 requiring a distillery to close and requiring the electricity distribution company to disconnect supply. The distillery holds a licence under a State excise Act which entitles it to operate, and the distribution company points to its own obligation to supply under the electricity legislation.

The distillery's argument. Its State licence permits it to operate. The answer. Section 24. The Act and orders under it have effect notwithstanding anything inconsistent in any other law. Section 5 is separately non obstante in its own terms.

The distribution company's argument. It is statutorily obliged to supply. The answer. The same, and the Explanation to section 5 expressly names stoppage of the supply of electricity as within the power to direct.

Where can the distillery go? Not to the civil court: section 22 bars a suit in respect of a direction issued in pursuance of a power under the Act. It appeals to the Tribunal under section 5A, and it may move the High Court under Article 226 on a ground the appeal cannot reach.

What it does NOT mean

Section 22 does not bar a suit against a polluter. It bars a suit about something the Government or an authority did under the Act.

Section 24 does not repeal anything. It resolves inconsistency in favour of this Act; the other law stands and continues to operate where it is not inconsistent.

Section 18 does not protect bad faith. Good faith is a condition, and an officer acting for a collateral purpose is outside the protection.

Quick revision

• 18 good faith, protects anything done or intended to be done, officers included.
• 20 information, reaches a State Government, which is bound.
• 21 public servants; the reference to the Indian Penal Code is now read as the Bharatiya Nyaya Sanhita 2023.
• 22 bar on the civil court, only for things done under the Act; a nuisance suit against a polluter is unaffected.
• 23 delegation, except constituting an authority under section 3(3) and making rules under section 25.
• 24 the Act and rules and orders prevail notwithstanding anything inconsistent in any other law.
• 25 general rule-making power; clauses (ga) to (gc) added in 2023 for the adjudicating officer and the Fund. Section 6 is the specific power.
• 26 rules laid before both Houses for thirty days.

Test yourself

1. A neighbour wants to sue a factory in nuisance for the smell from its effluent. Does section 22 bar the suit? No. Section 22 bars a suit or proceeding in respect of anything done, action taken or an order or direction issued by the Central Government or another authority or officer in pursuance of a power under the Act. A suit against a polluter for a common law wrong is not a suit about anything the administration did, so the bar does not apply. What would be barred is a suit challenging, say, the sample the officer took or the direction he issued.

2. What may the Central Government not delegate under section 23, and why does the exception make sense? It may not delegate the power to constitute an authority under section 3(3) or the power to make rules under section 25. The exception preserves the line between exercising a power and creating the machinery or the law by which powers are exercised: delegating the making of rules would mean the delegate could define the boundaries of its own authority, and delegating the power to constitute authorities would let it create further delegates.

3. State the effect of section 24 in a sentence, and give an example. The Act, and rules and orders made under it, prevail over anything inconsistent in any other law in force. So a direction under section 5 requiring an electricity distributor to disconnect supply prevails over the distributor's statutory obligation to supply, and a closure direction prevails over a State licence that would otherwise entitle the unit to operate.

4. What is the difference between the rule-making powers in section 6 and section 25? Section 6 is the specific power: it lets the Central Government make rules in respect of the matters referred to in section 3, and its sub-section (2) names standards of quality, maximum allowable concentrations including noise, and the handling and location of hazardous substances and industries. Section 25 is the general power to make rules for carrying out the purposes of the Act, with a long list of particular machinery matters. Rules are commonly made under both together, and both are subject to laying under section 26.