What Pollution Is
Chapter One
Syllabus topic 1, "Pollution"
Pages 1 to 4 of 783
In one line
Pollution is the presence of a substance in a place where it does harm, in a quantity large enough to do it.
In the wording a student can write in an examination: pollution is the introduction into a receiving medium, whether water, air or land, of a substance in a concentration at which it is or tends to be injurious, so that the medium ceases to be fit for the uses to which it is ordinarily put.
Why the law needed its own definition
A chemist can tell you what is in a river. A chemist cannot tell you whether the river is polluted, because that is not a question about chemistry. It is a question about how much of the substance is there, what the river is for, and whether the amount present is enough to interfere with that purpose.
Every substance in the world is present in every river. Sea water contains arsenic. Rain contains nitric acid. A completely clean stream is not a thing that exists, and a law that forbade the presence of harmful substances in water would forbid water.
So the law could not adopt the ordinary meaning of the word. It had to build a definition with three moving parts, and every operative section on this syllabus is a variation on those three.
The three parts of every pollution definition
One, the substance. Something has to be introduced, or to be present. In the Water Act it is "any poisonous, noxious or polluting matter". In the Air Act it is "any solid, liquid or gaseous substance". In the Environment (Protection) Act it is "any solid, liquid or gaseous substance". Notice how little work these words do on their own: a solid, liquid or gaseous substance is every substance there is.
Two, the receiving medium. The substance has to be somewhere. Water pollution needs a stream or a well. Air pollution needs the atmosphere. Land pollution needs land. The Environment (Protection) Act does the interesting thing here, because its definition of environment ties the three together and says they are related, which is why one Act can govern all of them.
Three, the threshold. This is the part that carries the whole weight, and it is the part students skip. A substance in a receiving medium is pollution only when it is present in a quantity at which harm becomes likely. Below that quantity the same substance in the same river is not pollution and no offence has been committed.
Take the three apart and a great deal becomes clear. It explains why the law is built around numerical standards rather than around prohibitions. It explains why a consent order lets a factory discharge effluent rather than forbidding it. And it explains why proving a pollution case is largely a matter of proving a measurement, which is why the sampling procedure has a chapter of its own later in this module.
What Pollution Is
A worked example
Sunil runs a small dyeing unit in Tarapur. It discharges twelve thousand litres a day of spent dye liquor into a nullah that reaches a creek. The liquor contains chromium.
Ask the three questions in order.
Is there a substance? Yes. Chromium in solution is a liquid substance, and spent dye liquor is trade effluent within the Water Act's definition, because it is discharged from premises where an industry is carried on and it is not domestic sewage.
Is there a receiving medium? Yes. The nullah is a water course, and a water course is a stream under the Water Act whether or not it is flowing at the time. Sunil's argument that the nullah is dry for eight months of the year does not help him, because the definition expressly covers a water course "whether flowing or for the time being dry".
Is the threshold crossed? This is the real question, and it cannot be answered by looking at the nullah. It is answered by taking a sample, following a procedure laid down in the Act, sending it to a laboratory, and comparing the result against a standard notified by the Government. If the chromium is within the standard for that category of industry, there is no offence, however unpleasant the nullah looks. If it is above the standard, there is.
Sunil's neighbour, who runs an identical unit, discharges the same liquor into a drain connected to a common effluent treatment plant. The plant treats it to within the standard before release. The same substance, the same quantity, no pollution.
What this does NOT mean
It does not mean that pollution is only what a statute says it is. The definitions in the Acts govern those Acts. A person injured by a smell that breaks no standard may still sue in nuisance, and a court exercising writ jurisdiction is not confined to the statutory definitions at all. Modules II and IV both turn on this.
It does not mean that a standard is a licence to pollute up to the line. The Boards can and do impose conditions stricter than the notified standard when they grant consent, and a person who complies with every standard may still be liable in tort if actual damage is caused. Compliance is a defence to a prosecution; it is not a defence to everything.
It does not mean that harm has to be proved. Read the definitions again. The Environment (Protection) Act speaks of a substance present in a concentration "as may be, or tend to be, injurious". The Water Act speaks of matter that is "likely to" create a nuisance or render the water harmful. The law works on the likelihood of harm, not on harm that has already happened, and that is a deliberate choice tied to the precautionary principle in a later chapter.
What Pollution Is
Where the word does more work than you expect
Two places, and both are examined.
Noise. Nothing in ordinary speech makes a sound a pollutant. The Air Act makes it one, by putting the word "noise" inside the definition of an air pollutant. That single word is the entire constitutional basis of Module II, and without it there would be no Indian law of noise at all worth the name.
Land. There is no Land Pollution Act. Waste on land is regulated through the Environment (Protection) Act's definition of environment, which includes land, and through rules made under it. Module III is built on that.
Quick revision
- Pollution is substance plus receiving medium plus threshold. Miss the threshold and you have misunderstood the subject.
- No river is chemically clean; a law forbidding harmful substances in water would forbid water.
- The threshold is a notified numerical standard, which is why the sampling procedure decides most cases.
- The statutes work on likely harm, not proved harm.
- "Noise" sits inside the Air Act's definition of an air pollutant. That is where Module II comes from.
- There is no Land Pollution Act; land is reached through the Environment (Protection) Act.
Test yourself
1. Why could the law not simply use the ordinary meaning of "pollution"? Because in ordinary speech pollution means dirtiness, and every natural water body contains substances that are harmful in large enough amounts. A definition built on presence alone would make every river polluted and every discharge unlawful. The law therefore built its definition around a threshold, so that the question in every case is one of quantity rather than of presence.
2. A factory discharges effluent into a drain that is dry for most of the year. Is that a discharge into a stream? Yes. "Stream" under the Water Act includes a water course whether it is flowing or for the time being dry, and includes inland water, sub-terranean water and, to the extent notified, tidal water. The dryness of the channel is not an answer.
3. A unit complies with every notified standard, and its neighbour's crop still fails. Has it committed an offence? Probably not an offence, because the standard is the statutory threshold and it has been met. But that is not the end of the matter. The neighbour may sue in nuisance or negligence for the damage actually caused, and the Board may impose stricter conditions in the consent when it comes up for renewal. Compliance answers the prosecution, not the civil claim.
What Pollution Is
4. Where in the statutes does the word "noise" appear, and why does it matter? Inside the definition of an air pollutant in the Air Act. It matters because it brings noise inside a statute that already has Boards, consent, directions, closure powers and penalties, so that the rules made in 2000 have machinery to work with. Without that word there would be nothing but the law of nuisance.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.