Section 5: the Power to Give Directions

In one line

Section 5 is the Act's teeth: it allows an industry to be closed and its water and electricity cut off by a written direction.

In the wording a student can write in an examination: section 5 of the Environment (Protection) Act 1986 provides that notwithstanding anything contained in any other law but subject to the provisions of the Act the Central Government may in the exercise of its powers and performance of its functions under the Act issue directions in writing to any person, officer or any authority, who shall be bound to comply with them, and the Explanation declares that for the avoidance of doubts the power to issue directions includes the power to direct the closure, prohibition or regulation of any industry, operation or process, or the stoppage or regulation of the supply of electricity or water or any other service.

Why this section rather than a prosecution

A prosecution punishes after the event, requires a court, takes years and produces a fine. A direction stops the activity now.

Every effective enforcement action under this Act in the last thirty years has been a direction, and until 1 April 2024 the penal provisions produced almost nothing. That remains true even after the new penalty regime, because a penalty is money and a direction is closure.

Reading the section

Notwithstanding anything contained in any other law. A non obstante clause. A direction under this section prevails over an inconsistent provision of another law, subject only to the provisions of this Act itself. This is what allows a direction to override a licence granted under a municipal or an industrial statute.

But subject to the provisions of this Act. So the direction must be for the purposes of the Act and must comply with the rules, in particular rule 4 of the Environment (Protection) Rules 1986, which prescribes the procedure.

In the exercise of its powers and performance of its functions under this Act. A direction that is not referable to a power or a function is bad.

May issue directions in writing. In writing. An oral instruction is not a direction under this section.

To any person, officer or any authority. Any person. So a direction may issue to a private industry, to a municipality, to a State department or to a Board.

And such person, officer or authority shall be bound to comply with such directions. The obligation is absolute, and non-compliance is a contravention of the Act penalised under section 15.

The Explanation and what it added

Explanation. For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct (a) the closure, prohibition or regulation of any industry, operation or process; or (b) the stoppage or regulation of the supply of electricity or water or any other service.