The Colonial Statutes and the First Indian Laws

The Indian Easements Act 1882. Section 7 recognises the right of every owner of land to the air and water flowing to it in its natural condition. Section 15 allows an easement to be acquired by twenty years of peaceable enjoyment as of right. Put together, they mean that a right to discharge into a neighbour's land can be acquired by prescription.

The Explosives Act 1884 and the Petroleum Act 1934. Licensing of a dangerous substance in the interest of public safety. They are the ancestors of the hazardous substances law in Module III, and they show its original logic: the law licenses the storage of the thing rather than regulating what it does to the environment.

The Bengal Smoke Nuisances Act 1905 and the Bombay Smoke Nuisances Act 1912. Local statutes creating a commission to inspect chimneys and abate smoke. They are the direct ancestors of the Air (Prevention and Control of Pollution) Act 1981, and they were confined to two cities.

The Factories Act 1948. Enacted after independence but on the colonial model. Its Chapter III deals with the disposal of wastes and effluents and with the removal of dust and fume, but as a matter of the health of workers inside the factory rather than of anybody outside it.

Worked example

Ganpat keeps a tannery beside a creek in Bandra in 1930 and lets the liquor run into it. Which of these statutes touches him?

The Penal Code, if the creek is a public spring or reservoir. It probably is not; the section was drawn for a village well. This is the first gap.

The Bombay Smoke Nuisances Act, if he burns coal. Only for the smoke, and only in the city where the Act applies.

The Easements Act, in his favour. If he has been discharging peaceably as of right for twenty years, he may have acquired an easement to go on doing so, and his neighbour's suit will fail.

Nothing at all for the creek itself. No authority may fix a standard for the liquor, no officer may take a sample, and no order may close the tannery. The creek is protected only if somebody with an interest in adjoining land sues in nuisance and proves substantial interference.

That is the position the whole of this paper exists to change.

Distinctions

What it does NOT mean

It does not mean there was no environmental law before 1972. There were dozens of enactments touching the environment. What there was not was any enactment whose purpose was the environment.

It does not mean the colonial statutes protected the environment badly by accident. Forest law in particular protected the resource extremely effectively, for the State. The criticism is about whose benefit the protection was for, not about its efficiency.

It does not mean the Penal Code sections are dead. They are the ancestors of sections 279 and 280 of the Bharatiya Nyaya Sanhita 2023, which are live law and which the University asks about.

Limits and criticism

The standard account of this period is that colonial environmental law was resource law in disguise, and that is right as far as it goes. Two qualifications are worth making in an answer.

The first is that the same is true of a good deal of modern law. The Coastal Aquaculture Authority Act 2005 exists to regulate an export industry as much as to protect a coast.

The second is that the colonial statutes bequeathed one genuinely valuable idea, which is that a public wrong may be abated summarily by a magistrate on the complaint of an ordinary person. That idea produced Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622, more than a century later.

Facts. Residents of a ward in Ratlam complained of open drains and of effluent from an alcohol plant flowing through their street. The magistrate ordered the municipality to abate the nuisance; the municipality pleaded want of funds.

Held. The Supreme Court held that a statutory body cannot plead financial inability against a mandatory public duty, and that the abatement power is a tool of social justice for ordinary people.

Why it matters here. It is a colonial procedural device used to enforce a modern environmental right, which is exactly what this chapter is about.

Quick revision

• The first Indian pollution provisions are of 1853 and 1857, and both were about a port and a company.
• The Penal Code 1860 carried the only general air and water offences until 1974; they are now in the Sanhita of 2023.
• The Forest Acts of 1865, 1878 and 1927 were about revenue and control of a resource.
• The Easements Act 1882 still allows a prescriptive right to pollute.
• The smoke nuisance Acts of 1905 and 1912 are the ancestors of the Air Act 1981.
• The object throughout was commerce, revenue, safety or public health, never the environment.

Test yourself

1. Which colonial statute is the ancestor of the Air (Prevention and Control of Pollution) Act 1981, and why? The Bengal Smoke Nuisances Act 1905, with its Bombay counterpart of 1912. Both created a body to inspect chimneys and abate smoke in a defined urban area, which is the model the Air Act generalised in 1981 by creating Boards and air pollution control areas across the country.

2. Why is the Indian Easements Act 1882 an embarrassment in a modern environmental answer? Because section 15 allows an easement to be acquired by twenty years of peaceable enjoyment as of right, so a person who has discharged effluent onto a neighbour's land openly and without interruption for twenty years may acquire a legal right to go on doing so. The rule is a property rule and it has never been repealed for pollution.

3. Was the colonial forest law effective? Very. It was also not environmental law. It asserted State property in the forest, classified forests, settled and extinguished the rights of forest dwellers, and organised the extraction of timber. Its efficiency is not in question; its purpose is.