The Efficacy of the Act, and Measures for Better Implementation

In one line

The Act has one of the widest powers in Indian law and one of the poorest records, and the question is why.

In the wording a student can write in an examination: the efficacy of the Environment (Protection) Act 1986 must be assessed against what it achieved, namely a general power covering every medium, an instrument capable of creating the coastal, clearance and eco-sensitive zone regimes, a citizen's right to prosecute, and a machinery for restricting the location of industry; against what it failed to achieve, namely enforcement, deterrence, institutional capacity and information; and the measures for its better implementation are the conversion of powers into duties, the scrutiny of notifications, independent authorities, capacity in monitoring and analysis, transparency of environmental information, and the alignment of penalties with the gain from non-compliance.

What the Act achieved

It covered the field. Land, soil, hazardous substances, noise, the coast and the assessment of impact are all regulated under an Act whose two predecessors reached only water and air.

It created the regimes that matter. The coastal regulation zone, the environmental clearance requirement, the eco-sensitive zones and every waste rule set exist under it. None required a further statute.

It gave the citizen a role. Section 19's sixty-day notice, in 1986, was ahead of the Water and Air Acts by eleven years.

It supplied the vehicle for the principles. Sustainable development, precaution and polluter pays were read into it, and Parliament ratified them in 2010.

It provided an emergency mechanism. Section 9's duty to prevent, to report and to have the authority remediate at the polluter's cost, recoverable as arrears of land revenue, is well designed and was well ahead of its time.

What the Act failed to achieve

Deterrence. For thirty-eight years the penalty was a prosecution that almost never happened. The rewriting of the penalties in 2023 is an admission of that failure by Parliament itself.

Enforcement capacity. The Act creates no inspectorate, no laboratory and no cadre. Every enforcement action borrows staff constituted under another statute.

Institutional independence. Every authority in this book is constituted by an order of the Government, exercises the powers that order confers, and is subject to the Government's supervision and control.

Information. Section 20 permits the Government to demand reports from anybody; rule 14 requires an environmental statement; rule 11 entitles a complainant to the relevant reports. Very little of this reaches the public in usable form, which is what MU's question about environmental information is really about.

A duty to act. The single largest structural failure. Section 3 confers a power and no duty, and the courts have had to direct its exercise.

The evidence for the assessment

The courts had to build the machinery. Vellore Citizens Welfare Forum v. Union of India and S. Jagannath v. Union of India both directed the constitution of authorities under section 3(3), a decade after the Act.