delegated legislation and delegation of powers: new

Delegated legislation and delegationof powers: new horizons of environ-mental protection

P. LEELAKRISHNAN*

Pressure upon legislature's time, inexpertise of the legislators to dealwith the technical details of the subject matter of the legislation, theneed for flexibility of execution and quickness in emergency actionsand the freedom to impose suitable regulations on economictransactions led to the growth of delegated legislation in modern times.'In an area where regulatory centralism is warranted for maintaininguniform standards from top to bottom, delegation of both deliberativeand executive powers to subordinate authorities and agencies helps toachieve the objectives to a considerable extent. Obviously,environmental protection is a typical area where conflict of competingvalues arises and is to be reconciled in order to evolve a standard regimeof sustainable development that aims at economic growth withoutdisturbance to the existing resource base but with proper safeguards tointergenerational equity.2

There may arise many unforeseen contingencies where theexecutive has to take immediate decisions for laying down generalguidelines and for generating specific action programmes. Delegationof powers and delegated legislation are necessary tools with which theexecutive is authorised to act, on behalf of the legislature, to meetunforeseen contingencies. No wonder that Environment (Protection)Act 1986' which concentrates power on the Central Governmentprovides for delegation of executive powers as well as delegation oflegislative powers to the executive.

*M.A.(Aligarh), M.L. (Kerala), Ph.D. (London), Professor, Department of Law,Cochin University of Science & Technology, Cochin - 682 022.

Sathe, S.R, Administrative Law (1991), pp.30, 31; Committee on Ministers'Powers - Report (1932), Cmd. 4060 pp:21,22.The World Commission on Environment and Development, Our CommonFuture (1987), pp.39,40.

3. Act 29 of 1986. For the text, see A.1.R.1986 Acts, pp.145-152.

C.U.L.R. P Leelakrishnan 53

Provisions in the Environment Act

Section 3 of the Environment Act is the fulcrum of the legislation.The responsibility of protecting and improving the quality ofenvironment is placed on the shoulders of the Central Government.Relevant provisions can be cited.

"3. Power of the Central Government to take measures to

protect and improve environment

Subject to the provisions of this Act, the Central Governmentshall have the power to take all such measures as it deemsnecessary or expedient for the purpose of protecting andimproving the quality of the environment and preventing,controlling and abating environmental pollution

In particular, and without prejudice to the generality of theprovisions of sub-section (1), such measures may includemeasures with respect to all or any of the following matters,namely :

planning and execution of a nation-wide programme for theprevention, control and abatement of environmentalpollution;

laying down standards for the quality of environment in itsvarious aspects;

restriction of areas in which any industries, operations orprocesses or class of industries, operations or processes shallnot be carried out or shall be carried out subject to certainsafeguards ;

laying down procedures and safeguards for prevention ofaccidents which may cause environmental pollution andremedial measures for such accidents;

54 Cochin University Law Review [1995]

(vii) laying down procedures and safeguards for handling ofhazardous substances;

(xiv) such other matters as the Central Government deemsnecessary or expedient for the purpose of securing theeffective implementation of the provisions of this Act".4

The Central Government may "make rules in respect of all or any ofthe matters referred to in section 3". 5 This may include specific matterssuch as "maximum allowable limits of concentration of variousenvironmental pollutants" safeguards for, prohibitions and restrictionson, "the handling of hazardous substances", prohibition or restrictionon location of industries and safeguards for the prevention of accidents.Standards(' for discharge or emission of environmental pollutants andprocedures and safeguards for handling hazardous substances' are to beprescribed by Rules. The authorities and agencies to whichintimation of the fact of occurrence or apprehension of occurrence ofthe discharge of any environmental pollutant in excess of the prescribedstandards shall be given and to whom all assistance shall be bound to berendered are also to be specified in the Rules.' The manner of takingsamples of air, water, soil and other substances,' the establishment andrecognition of environmental laboratories and their functions' and theappointment and recognition of Government analysts" are all governedby Rules framed by the Central Government. Rules have to prescribealso the authority or officer to whom any reports, returns, statistics,accounts and other information shall be furnished.''- The generalrule-making power is conferred on the Central Government for carryingout the provision of the Environment Act."

Environment (Protection) Act 1986, Section 3.Id., Section 6.Id., Section 7.Id., Section 8.Id., Section 9.Id., Section 11.Id., Section 12.Id., Section 13.Id., Section 20.Id., Section 25


The Central Government is empowered to constitute an authority orauthorities for taking up measures specified under Section 3 (2) forprotecting or improving the quality of the environment.' 4 Theseauthorities can exercise powers and perform functions as if they areempowered by the Act to do so. They can also exercise the directingpower conferred on the Central Government. 15 The power of issuingdirections may include the power to direct closure, prohibition orregulation of any industry, operation or process or stoppage orregulation of the supply of electricity or water or any other service.16The right of entry and inspection is given to any person empowered bythe Central Government.' There is specific provision for a generalpower of delegation. It enables the Central Government to delegate"such of its powers and functions under this Act (except the power toconstitute an authority under sub-section (3) of Section 3 and to makerules under section 25, as it may deem necessary or expedient, to anyofficer, State Government or other authority". 18

Over the short span of nine years since the commencement of theEnvironment Act there emerged a group of notable rules, notificationsand schemes that are meant to carry out the policy of the Act, namely,protection and improvement of the quality of environment. Besidesgeneral details to be highlighted, the Environment (Protection) Rules,1986' 9 laid down specifically the standards' of emission or discharge

Id., Section 3 (3).Id., Section 3 (3) and Section 5.Id., Explanation to S.5.Id., Section 10.Id., Section 23.

Notification No. S.0.844 (E) dated 19.11.1986. The Rules were made forcarrying out the provisions of the Environment Protection Act 1986 (seesections 6 and 25).Id., Rules,3, 12 and 13 and schedules I to IV. The standards are given in theschedules attached to the Rules. Originally there was only one schedule. Atpresent there are five schedules which provide the parameters and standardsof pollutants for each industry, the authorities who should get information,ambient air quality, standards in respect of noise and standards of emissionfrom Motor Vehicles.


of environmental pollutants and the factors' on which location of- industries and carrying on of processes and operations be prohibited or

restricted.

Environmental audit

At the take off stage of development with a plethora of industrialventures being embarked, self-regulation among the industries with aview to achieving better system of environment is an enigma in adeveloping country like India. The problem is attempted to be solvedin many countries by environmental auditing. The concept wasrecently introduced into our regime through delegated legislation. Byan amendment in 1992' of the Environment Protection Rules thesubmission of environmental audit report is made compulsory. Thoughoriginally stipulated to be filed on or before 15th May of every year, theaudit report, subsequently worded as audit statement, 23 is to be filed onor before September every year to the concerned State PollutionControl Board. Every person carrying on an industry, operation orprocess requiring consent under Water or Air Act or authorisation underHazardous \\ astc Nlanag,cment and Handling) Rules 1989 shall submitthis report for the financial year ending on the 31st March to the Board.The benefits of environmental audit can never be denied. Greaterindustry compliance with environmental laws, disclosure of dataon waste generation, adoption of clean technology for pollution

Id., Rule 5 (1). Such as standards of quality of environment laid down forthe area, the maximum allowable limits of concentration of various pollut-ants for an area, the likely emission or discharge to the prohibited or re-stricted, the topographic and climatic features and the biological diversityof the area, environmentally compatible land use, net adverse impact likelyto be caused, proximity to ancient monuments, area ecological sites, sanc-tuary, national park, game reserve, closed area, human settlements or placesprotected under any international treaty or convention and any other fac-tors as may be considered by the Central Government to be relevant to theprotection of the environment in the area.

Id., Rule 14. See notification G.S.R. 329 (E) dated March 13, 1992, (1992)Ill CCL 139 at p.178.

23. G.S.R. 386 (E) dated April 22, 1993, (1993) III CCL 178 at p.244.


prevention, waste minimisation, recycling and utilization, arrangementsfor off-site disposal and revealing of data on consumption of water andraw materials are some of the remarkable gains of audit. It is amanagement tool which ensures cost-effective compliance withcompany policies, reduces occurrence of industrial accidents andstrengthens expertise at the operational level.' It makes the companymore environment conscious."

Environmental impact assessment

While environmental audit serves as a post—natal control,environmental impact assessment denotes a pre-natal preventivemechanism rooted in the principle that prevention is not only betterthan cure but also in many respects cheaper as it tries to foresee andeliminate potential damage." Environmental impact assessment beforea project is designed or appro\ ed is a sine qua non of a sound regime ofenvironment. Although countries like the United States. the UnitedKingdom and even Srilanka had a statutory mandatory model of impactassessment, India remained for a long time with an administrative modelthat left to the discretion of administrative authorities to decide whetheror not an objective assessment had to be made.

Besides the duty to consider certain substantive matters" theEnvironment Protection Rules 1986 framed by the Ministry ofEnvironment and Forest imposes on the Central Government the need

"Environment Audit for Industries" IIPA Newsletter, September, 1991."Environment Audit to be Mandatory", IIPA Newsletter; April 1993". "Sincethe audit would form a part of the companies annual report, which iscirculated amongst share holders, the expectation is that it would leadexertion of public pressure on companies to become more environmentconscious and start accounting for natural resources, like water, in the costof production", p.5.

R.H. Williams, "The EIA of European Communities" in Michael Clark, et al(Eds.), The Role of Environmental Impact Assessment in the PlanningProcess, 79 (1988); Geoggrey Wandsfarde-Smith, "Environmental ImpactAssessment" in Michael Bothe, Trends in Enviromental Policy and Law 102(1990); and M.G. Royston, "Environmental Impact Assessment as a Toolfor Environmental Quality Management" in Desh Bandhu (Ed.)Environmental Management 15 (1981).Supra, n.21.

58 Cochin University Law Review [19951

to follow a specific procedure? when it wants to prohibit or restrict

location of industries or carrying on of pros asses and operations in

different areas. A draft notification shall be published and after

considering the objections,' the Central Government may take the

final decision. Notification for environmental clearance for a new project

or expansion or modernisation of an existing project was made by

virtue of these provisions in the Environment Protection Rules. The

original draft notification was issued as early as on 29.1.1992.

However, the final notification was issued in Jan. '94. 30 Durin g the

interval much debate took place on the various aspects of the problem.

Originally, projects needing. sanction from State Governments as well as

the Central Government were scheduled. However, the final notifica-

tion relates only to projects requiring central clearance. The system of

impact agencies envisaged both at the Centre and in the States gave way

to a single agency, namely. Ministry of Environment and Forests (MEF).

In respect of projects originally meant to get State clearance, some

were prescribed for Central clearance while others' were in effect left

out from the purview 'of any environmental clearance. Railways,

ventures relating to incineration plant for hazardous wastes and

chlorinated hydro-carbon, manufacture of pneumatic tyres, commercial

forestry and forest based industries which were scheduled for Central

clearance are also left out in the final notification.' It is also specified

that the notification is not applicable to most of the projects if the

28, Environmental (Protection) Rules. 1986, Rule 5 (2) & (3).

Id., Rule 5 (3) (di. Originally the period within which objections are to befiled was one hundred and fifty days. But after a series of notifications thisperiod is now extended to 365 days. The last notification in this regard inGSR 884 (E) dated 20.11.1992.S.O. 60 (E) dated 27.1.1994 (E) (1994) Hi CCL 91 and p.200.Such as storage batteries, mining and high way projects, tarred roads inHimalayas or forest areas, distilleries, raw skins and hyders, pulp. paper andnewsprints. dyes. cement. foundries and electroplating. See S.0.60 (E)dated Januar n, 27, 1904, Schedule 1.For example, projects or industries relating to coal washeries, ceramic prod-ucts, calcium carbide, carbon black, coaltar chemicals, glass and glasswaresand coke ovens de not find a place in the final notification whether or notthey go above. tit; threshold criteria mentioned in the earlier notification.

Supra ,n.31


investment is less than Rs.50 crores." In the case of tourism projects inthe coastal zone the investment must be more than Rs.5 crores only.'Certain projects', such as mining, pit-head thermal power stations,hydro-power-irrigation or flood control and ports and harbours(excluding minor ports) are retained for preliminary site clearance fromMEF. Exploration of major minerals in areas over 500 hectares wasadded later on by an amendment."

The MEF is the impact assessment agency (IAA) envisaged underthe notification. IAA will consult a committee of experts who have theright of entry and inspection of site or factory premises. IAA shallprepare a set of recommendations on technical assessment of documentand data furnished by the project authorities."' It was also specified thisshould be supplemented by data collected during visits to sites orfactories and interaction with affected population and environmentalgroups. However, by a recent amendment of the notification thisrequirement is made discretionary." It was mandatory to makeavailable to the parties concerned and environmental groups, onrequest, the summary of reports, recommendations and conditionssubject to which environmental clearance was to be given. Thisrequirement also is now made subject to the public interest privilege.Public hearings for soliciting comments from the public may bearranged only if IAA decides so. Thus, effective public participatioewhich is the sine qua non for rational impact assessment and a safeguardagainst arbitrariness is still absent in the Indian model of environmentassessment. In short what is mandatory in the model is only a technicalassessment41 of the project. It is the quantum of investment of the

Id., para. 3. (b).Id., Schedule I, entry 18.

Id., para. 2 II.This item was introduced by a recent amendment. S.O. 356 (E) dated May4, 1994. See (1994) III CCL 144 at p.200

Supra, n.31 para. III (c).S.0.356 (E) dated May 4, 1994, (1994) III CCL 144 at p.200See Lothar Gundling, "Public Participation Environmental Decision-making" in Michael Bothe (Ed.) Trends in Environmental Policy and Law(1990), IUCN, Gland, Switzerland.Supra, n.38.

60 Cochin Universit y Last . Review [1995]

project that is invariably the basis on which assessment becomesnecessary. In countries where EIA has come to stay, not only majorprojects but those having significant environmental effects' requiremandatory impact assessment. It is the possibility of adverseenvironmental effects that should be the criterion on which assessmentis required to be made. In that perspective the position of confining theresponsibility to MEF and assessment to certain specified projects doesnot help evolution of a sound environmental regime. Even projects oflocal importance and less investment may turn out to be environmen-tally malign and should have been allowed only after an impactassessment made by the State Government or other specialised agencyat the regional or local levels.

Hazardous industries and substances

In certain areas, such as hazardous wastes, hazardous microorganisms and hazardous chemicals, delegated legislation lays downgeneral norms of environmental regulation. The Hazardous Wastes(Management and Handling) Rules 1989 43 relates to the regulation oncollection, treatment, transport, storage and disposal of hazardous wastesspecified in the Schedule to the Rules.' The occupier or operator of afacility for disposal of wastes can manage and handle the wastes onauthorisation from the State Pollution Control Board.' The StateGovernment will make an environmental impact assessment while itidentifies a site as waste disposal site.' Import of these wastes to thecountry, though prohibited for dumping and disposal, is allowed withthe permission of the Central Government for processing or reuse as rawmaterial.' The Rules for the Manufacture, Use, Import, Export andStorage of Hazardous Macro-organisms/Genetically Engineered

See Leelakrishnan. P., "Environmental Impact Assessment: LegalDimensions", 34 J.I.L.1 541 at pp.542, 545, 547.S.D. 594 (E) dated July 28, 1989, (1989) III CCL 330 at p.569.

Id., Rules 4,5.Id., Rule 5.Id., Rule 8 (2).Id.. Rule II.


Organisms of Cells 1989, 4' framed with a view to protecting theenvironment, nature and health in connection with the application ofgene technology and micro-organism, came into force on 1.10.1993.49The regulation is made through a system of supervision, examinationand control by different committees." The Genetic EngineeringApproval Committee is the important body whose approval is essentialto import, export, transport, manufacture, process, use or sell anyhazardous micro-organisms or genetically engineered organisms/substances or cells. 5 ' The Manufacture, Storage and Import ofHazardous Chemicals Rules 1989 aims at regulating industrial activityinvolving hazardous chemicals, isolated storage of such chemicals andimport of hazardous chemicals." The method of control" over the sitewhere industrial activity is carried out or is about to be carried out isdone by way of requiring periodical up-to-date safety reports from theoccupier, on-site emergency plans by the occupier and off-site plans bythe occupier and off-site plans by the authority. 54 Under the Rules themajor accidents are to be notified to the concerned authorities who arerequired to make a full analysis of the accidents." The industrialactivity can be commenced only three months after it was reported tothe concerned authority." Control on import of hazardous chemicals ismaintained by imposing conditions of disclosing the details ofchemicals and of taking suitable steps for safe handling while they areoff-loaded."

G.S.R. 1037 (E) dated December 5, 1989, (1990) III CCL. 121 at p.262.S.0.677 (E) dated Sept. 13, 1993, (1993) II CCL. 361 at p.504.Id., Rule 4. Such as Recombinant DNA Advisory Committee (RDAC),Review Committee on Genetic Manipulation (RCGN), Institutional BiosafetyCommittee (IBSC), Genetic Engineering Approval Committee (GEAC),State Biotechnology Coordination Committee (SBCC) and District LevelCommittee (DLC).Id., Rule 7.(1990) III CCL 224.Id., Rules 8, 10, 11, 12, 13, 14.Id., The authorities include Ministry of Environment and Forests, ChiefController of Imports and Exports, Central and State control boards, In-spectors of Dock Safety, Mines, Atomic Energy Regulatory Board and theDistrict Collector.Id., Rule 5.Id., Rule 7.Id., Rule 18.


ECOMARK

Delegated legislation can be in various forms. It includes not onlyrules, regulations, notifications, orders and bye-laws but also programmesand schemes which the Executive formulates on the strength of thepower delegated by the legislature. The Environment Protection Actempowers the Central Government to take all such measures forprotection and improvement of the quality of environment whichincludes measures of "planning and execution of nation wide programmefor the prevention and control of pollution" and "laying downstandards for the quality of environment in its various aspects."56Obviously, in lines with these provisions MEF decided to institute ascheme on labelling of environment friendly products. 59 Householdand other consumer products can be accredited and labelled asenvironmental criteria in addition to the quality requirements of theIndian standards for the product. The label is known as ECOMARK.The logo was subsequently notified.' The logo with requireddimensions as notified is given in the next page.

The scheme was meant to provide incentives and initiatives to themanufacturers, to assist the consumers to become environmentallyresponsible and to improve the quality of environment leading tosustainable management of resources. The scheme is to operate throughthree committees' - a steering committee to determine the productcategories, a technical committee to identify the specific product onindividual criteria and the Bureau of Indian Standards to assess andcertify the product. After hearing objections the Central Governmentwill fix and notify the criteria for the products. In the case of toilet soapsand detergents,62 paints, 63 paper' and laundry soaps65 MEF has already

Environment Protection Act 1986, Section 3(1), 3(2) (ii) and 3(2) (iii).

G.S.R. 86(E) dated February 20, 1991.G.S.R. 831 (E) dated October 23, 1992 (1993) III CCL p.133 at 134.

Ibid.G.S.R.439 (E) dated April 12, 1992, (1992) III CCL, p.356; G.S.R.440 (E)dated April 27, 1992, (1992) III CCL, p.356.G.S.R.868 (E) dated November 9, 1992, (1993) III CCL, p.86.

G.S.R.867 (E) dated November 9, 1992, (1993) III CCL, p.85.

G.S.R. 4 (E) dated January 3, 1993, (1994) III CCL, p.144.


PREFERRED DIMENSIONS OF ECOMARK

A.1 A.2 A.3 B.1 B.2 B.3 B.4 B.5 B.6 C.1 C.2 C.3 C.4 D. I D.2 E F G H

10 3.9 0.2 6.8 5.4 0.4 4.2 5.9 0.9 4.9 2.5 0.2 0.6 6.9 1.8 1.0 1.7 64" 1.2

20 7.7 0.4 13.5 10.8 0.8 8.5 9.8 1.8 9.8 4.9 0.4 1.2 13.7 3.6 2.0 3.3 64" 2.5

40 15.4 0.8 27 21.5 1.5 17 19.6 3.6 19.5 9.8 0.7 2.4 27.4 7.2 4.0 6.5 64" 5

80 30.8 1.5 54 43 3.0 34 39.2 7.2 39 19.5 1.3 4.8 54.8 14.4 8 13 64" 10

Notes :

This drawing is the property ofCentre for Environment Educa-tion Ahmedabad and is not to beused or reproduced without theirwritten permission.

Drawings are not to be scaled.

Reproduce this symbol photo-graphically from negative only.

Measurements are for referenceonly.

5. Reduction of A.1 below lOmm isnot recommended.

All dimensionsare in mm Dealt PARESH Checked

ECOMARK Scale AS SHOWN Date : 7-9-1992

Drg. No. 003 Proj. No.

Centre forEnvironment

Education

-Client MINISTRY OF ENVIRON-MENT & FORESTS, NEW DELHI,

INDIA

Nehru Foundation for Development, Thaltej Tekra,Ahmedabad 380 054


finalised and notified the criteria. The criteria in general includepossibility for recycling, bio-degradability, saving of non-renewableenergy and natural resources and reduction of adverse environmentalimpact." The following criteria as notified for labelling laundry soapsare a typical illustration.'

1. All laundry soaps shall meet relevant standards of Bureau ofIndian Standards as amended from time to time pertaining toquality, safety and performance as listed below:

IS 285: 1992 Laundry Soap

IS 2887: 1992 Laundry Soap Powders

Note: BIS may formulate/incorporate optional standards forenvironment friendly characteristics.

2. The manufacturers must produce the consent clearance as perthe provisions of Water (Prevention and Control ofPollution) Act, 1974, Water (Prevention & Control ofPollution) Cess Act, 1977 and Air (Prevention and Control ofPollution)Act, 1981 along with the authorisation, if required,under the Environment (Protection) Act, 1986 to BIS whileapplying for ECOMARK.

The product must display a list of critical ingredients indescending order of quantity present as per cent by weight.The list of such critical ingredients shall be identified byBureau of Indian Standards.

The material used for product packaging shall be made fromrecyclable, reusable or biodegradable material and theparameters evolved under the scheme of labellingenvironment friendly products on specific subject ofpackaging shall apply.

5. The product packaging may display in brief the criteria basedon which the product has been labelled EnvironmentFriendly.

Supra, n.24, para. 5.Ibid.


The product may be accompanied by detailed instructionsfor proper use so as to maximise product performance andminimise wastage.

Product formulated or manufactured shall not containphosphates.

The non-soapy detergent (NSD) if used in the manufacture oflaundry soaps shall have a biodegradability of minimum 97%when tested as per method prescribed in IS 12795:1989.

The material shall pass the test when evaluated for irritantpotential as per the method prescribed in IS 11601 (Part-I):1986 and skin sensitization potential when evaluated as perthe method prescribed in IS 11601 (Part-2) : 1992.

The manufacturers will apply to the Bureau of Indian Standardsfor testing and certification of products. The scheme is yet to gainmomentum as after the stage of fixing criteria the initiative has to comefrom individual manufacturers or firms.

Coastal zone regulations

The coastal zone is an eternal meeting place of the land and sea andhas many characteristics different" from other parts. The ever-growingdevelopmental activities in the coastal zones enthused by theexpansion of trade, commerce and industry and by the evolution ofharbours and cities in the coastal belt created circumstances that ledto depletion of coastal resources, destruction of natural habitat,destruction of ecosystem and increase of pollution from municipal waste,deadly chemicals and effluents. Inevitably, regulation of activities inthe area is the dessideratum for sustainable development.

68, "The coastal zone is characterised by a diversity of habitat, extensive beachesof silvery sand; spit and dunes; rugged cliffs or slippery domes or rocks; saltmarshes, estuaries, lagoons, mangrove swamps, coral reefs, seagrass beds,and marshy wetlands which are the locus of lotus and lilies." N. BalakrishnanNair, Presidential Address to the National Conference on Coastal Manage-ment on 20.2.1989, Cochin (mimeographed).

66 Cochin University' Law Review [1995]

By virtue of the powers conferred under the Environment Act," theCentral Government took steps to protect the coastal area in conformitywith the requirements of environmental conservation and to classifycoastal zones for regulating setting up of industries, operations orprocesses in the area. A draft notification' was published in December15, 1990. This notification, another piece of delegated legislation, wasissued by virtue of the provision in the Environment (Protection) Rules,1986 which themselves were framed as delegated legislation under theEnvironment Act.' The final notification declaring coastal regulationzone (CRZ) and regulating activities in the CRZ was issued on February19, 1991. The notification declares' what coastal regulation zone is. Itconsists of the coastal stretches of seas, bays, estuaries, creeks, riversand backwaters which are influenced by tidal action in the landwardside upto 500 metres from the high tide line (HTL). However, thisdistance of 500 metres can be modified on a case-to-case basis by thecoastal zone management plan to be prepared by the States or UnionTerritories but in no case it shall below 100 metres.' The zone will alsoconsist of the land between the HTL and low tide line (LTL).

Many activities in the CRZ are declared as prohibited. 75 Setting upand expansion of industries and fish processing units, dealing inhazardous substances, discharge of untreated wastes and effluents,dumping of wastes for land fill, disposal of ash from thermal powerstations, land reclamation or bunding or disturbing natural course of seawater, mining of sands, rocks and other substrata materials, harvestingof ground water within 200 meter zone and construction of buildingsbeyond certain specification are all prohibited. However, activitiessuch as those connected with industries needing foreshore facilities,

Environment (Protection) Act 1986, Section 3 (1) and 2 (v). For text seesupra, n.3.S.0.944 (E) dated 15th December,1990 from the Ministry of Environmentand Forests. (1991) III CCL.30 at pp.37-42.Rule 5 (3) (d). Also see supra, nn. 19, 20, 21 and 29S.0.114 (E) dated 19th February, 1991, (1991) III CCL.97 at pp.125-131.Id., para. 1, Introductory part of the notification.

Id., Note and para. 3 (3) (i).

Id., para. 2.


hatchery and natural fish drying processes, control of sea erosion andmaintenance of waterways, channels and ports and constructionfacilities for carrying treated effluents and waste water discharges intothe sea permitted. Construction relating to defence needs, operationalactivities for ports, harbours and lighthouses and activities relating tothermal power plants require clearance from the Ministry ofEnvironment and Forests. 76 All other activities with investmentexceeding rupees five crores also require the clearance from theMinistry.' Clearance can be given only for an activity requiring waterfront and foreshore facilities. n Within the period of one year of thenotification, the Coastal States and Union Territory Administration shallprepare for the approval of the Central Government' s coastal zonemanagement plans identifying and classifying CRZ in the light of theguidelines of the notification. On approval, all development andactivities other8° than those that are declared to be prohibited under thenotification and that require environmental clearance from Ministry ofEnvironment and Forests shall be regulated" by the State governments,Union Territory Administration and the local authority as the case maybe in accordance with the guidelines. In the interim period" they shallensure adherence to the Regulations.

Guidelines are provided in annexure 1 and 2 of the Regulations.Annexure 1 classifies" the zones into four categories and providesnorms" for regulation while annexure 2 provides guidelines" fordevelopment of beach resorts or hotels in one of the categories of theCRZ.

Id., para. 3(2) (i) (ii) and (iii).Id., para. 3(2) (iv).Id., para. 3(1).Id., para. 3 (3) (i).Those covered by para. 2 and para. 3 (2). Ibid.Id., para. 3 (3) (ii).Id., para. 3(3) (iii).Id., para. 6 (1).Id., para. 6 (2).Id., para. 7 (I) and (2).


CRZ-I consists of ecologically sensitive areas such as mangroves,sanctuaries, wildlife habitats, places of natural beauty or historicalheritage and those areas likely to be inundated due to sea level riseconsequent upon global warming. The area between LTL and HTL willalso be in this category. No new construction will be permitted within500 metres of the HTL. CRZ-II indicates sufficiently developed urbanarea with drainage, approach roads, water supply and sewerage mains.Buildings shall not be permitted on the seaward side of either existingroads or existing buildings. Buildings in the landward side arepermitted only subject to Town and Country Planning Regulations andexisting norms of FSI/FAR. CRZ-III consists of relatively undevelopedareas in the villages and within urban areas. Area within 200 metresfrom HTL is a No Development Zone (NDZ) where no constructionother than repairs of existing authorised structures is permitted.However, agriculture, horticulture, gardens, pastures, parks, play fields,forestry and salt manufacture from sea water are permissible.Development of hotels or beach resorts between 200 and 500 metres ofHTL is to be permitted by MEF according to the guidelines' in AnnexureII. Traditional rights and customary uses of existing fishing villagesand goathans are recognized with permission to construct or reconstructvillage units strictly in accordance with certain set norms.' CRZ-IVconsists of coastal stretches in Andaman and Nicobar islandsand Lakshadeep and small islands. Norms provide regulation ofconstruction of buildings. They prohibit use of corals and sand forconstruction purposes. They prohibit also dredging and underwaterblasting in and around coral formations. The distance from whichconstruction in Lakshadeep and small islands is permitted shall bedecided upon the size of the islands. Again, the power to decide these

Id., Annexure II. Guidelines for development of beach resorts/hotels in thedesignated areas of CRZ-III for temporary occupation of tourist/visitorswith prior approval of the Ministry of Environment and Forests.Id., para. 6 (2) CRZ-III (iii). Construction or reconstruction will be subjectto the conditions that the total number of dwelling units shall not be twicethe existing number, that the total area covered shall not exceed 33% of theplot size and that overall height shall not exceed 9 metres and not be morethan 2 floors.


question will be given to each island but is conditioned with expertconsultation and MEF approval as well as analysis of the land userequirements for specific purposes vis-a-vis local conditions includinghydrological aspects, erosion and ecological sensitivity."

There are separate guidelines" for construction of beach resorts/hotels in the designated area in CRZ-III. This can be done only withprior approval of MEF. There is no development zone (NDZ) for 200metres from HTL and within the area between LTL and HTL. A studypane190 headed by Mr. V. V. Vora, a former bureaucrat turnedenvironmentalist suggested for case-to-case relaxation of the Rules byMEF with regard to coastlines with rocky formations and promontories.Fencing was not allowed originally in NDZ. However, the panelrecommended to give permission to fencing in the form of hedges thoughsolid wall or barbed wire fencing is allowed. The total plot shall not beless than 0.4 hectares. However, the total covered area on all floors shallnot exceed 33 per cent of the plot size.' The open area shall be suitablylandscaped with vegetal cover. The overall height of construction uptothe highest ridge of the roof shall not exceed 9 metres and be only in 2floors (ground floor plus one upper floor). 92 With 200 metres - 500metres zone groundwater can be tapped only with the concurrence ofthe Central/State Ground Water Board. Mining of sand, levelling ordigging except for foundation of building or swimming pool is notpermitted within 500 metres of HTL. Hotels are to ensure that treatedeffluents, solid wastes, emissions and noise levels do conform to thelegal standards and that sewage should go only to the sea and not on thebeach. In ecologically sensitive areas the construction shall not bepermitted.

Id., CRZ-IV Lakshadweep and small islands (i).See n.86 supra.

Usha Rai, "Coastal Hotels: Panel for 200 m NDZ", Indian Express (Cochin)dated 11.1.1993.Ibid. A modification is suggested by the panel to the effect the floor spaceindex (FSI) can be determined on the whole plot including the NDZ.Ibid. The panel suggested basement construction with no objection certifi-cate from ground water authority. The N.O.C. is necessary as the construc-tion may affect free flow of ground water and thus the local needs of thecommunity.

70 Cochin Universit y Law Review [1995]

Design and construction of building in CRZ-II and CRZ-IV and ofthe beach resorts and hotels in CRZ-III shall be consistent with thesurrounding landscape and local architectural style."

Delegation of powers

Central Government on whom powers under the Environment Actare concentrated may not be in a position to exercise all the powers andperform all the functions directly. No wonder that in such occasionsdelegation of powers and functions to other authorities becomesabsolutely necessary for carrying out the purposes of the legislation.

The mechanism envisaged in the Act is as follows. The CentralGovernment can constitute authorities for the purpose of exercising andperforming the powers and functions of the Central Government underthe Act.' Obviously, this paves the way for delegation of powers of theCentral Government to the authorities. It also denotes that theauthorities can be delegated to take all such measures' as are necessaryand expedient for the purpose of protecting and improving the qualityof environment. These authorities have to act subject to the control ofthe Central Government and act as if empowered by the CentralGovernment." Besides constituting these authorities the CentralGovernment is enabled "to appoint officers" and "entrust them withsuch of the powers and functions under this Act as it thinks fit". 97 It isinteresting to note that these officers are subject to the general controland direction not only of the Central Government or the authoritiesconstituted under section 3 (3) but also of any other authority andofficer." In other words, the Central Government can delegate itspowers and functions to any authority or officer that existed prior tothe Environment Act or that are constituted otherwise than underEnvironment Act.

S.0.944 (E) dated 15th December 1990 from MEF, para. 6 (2) CRZ-II (iii),CRZ-IV Andaman & Nicobar Islands (iii). Lakshadweep and Small Islands(iii) and para. 7 (I) (iii).The Environment (Protection) Act 1986, Section 3 (3).

Id., Section 3 (I) and (2).Id., Section 3 (3).Id., Section 4 (1).Id., Section 4 (2).


The general power" of the Central Government to delegate any ofits powers and functions to any officer, State Government or otherauthority is so wide that one commentator' even doubted theconstitutional validity of the provision. However, the power toconstitute an authority under Section 3 (3) is specifically excluded fromthe ambit of delegation. Only the Central Government can constitutethe authorities. The delegate cannot do so. But the power under section4 (i) to appoint an officer and to entrust him with any powers andfunctions stands in a different plane. This power is not excluded underthe general power of delegation. Hence it can be delegated to asubordinate authority - State Government, any officer or any otherauthority.

Similarly is the far reaching power" to issue directions. There areseveral notifications delegating this power to different StateGovernments.' A salient feature of this instance of delegation is thatthe notification specifically mentions that the Central Governmentretains the power to "revoke delegation in respect to all or anyone ormore of state governments" and to invoke the power to issue directionsitself, if in the opinion of the Central Government that such a course isnecessary in public interest.' It may be remarked that even withoutspecific mentioning the Central Government has the power to revokethe delegation and take back the directing power.

The entry and inspection clause' can be invoked by personsauthorized by the Central Government. Many officers under theCentral Government and under the State Governments were empowered

Supra, n.18.cf. P.M. Bakshi, The Environment (Protection) Act 1986 (1992), pp.64, 65.Supra, nn.15,16.S.0.152, (E) dated 10th February 1988 (Andhra Pradesh, Assam, Bihar,Gujarat, Haryana, H.P., Karnataka, Kerala, M.P., Mizoram, Orissa, Rajasthan,Sikkim and Tamil Nadu) (1988) 111 CCL 223 at p.217; S.0.389 (E) datedApril 14, 1988 (to Meghalaya, Punjab and Uttar Pradesh), (1988) III CCL283 at p.28; and S.0.479 (E) dated 21st July 1991 (Tripura), (1991) IIICCL 192 at p.335.Ibid.Supra, n.17.


with the power to enter and inspect any place for the purposes ofperforming any function of the Central Government, overseeing whetheror not the law is complied with or examining or seizing any equipmentor materials not only as evidence for prosecution but also for theprevention or mitigation of environmental pollution. Inspectors offactories, conservators of ports, officers empowered by the PollutionControl Board, food inspectors and drug inspectors are some amongthose so empowered."

The powers to take samples and to recognise environmentallaboratories or to recognise particular persons as government analystswere also delegated in different times. All those to whom the power ofentry and inspection has been delegated have also the power to takesamples of air, water, soil or other substance from any factory."'Laboratories existing in different parts of the country were recognisedas environmental laboratories along with the name of recognisedanalysts. m To take cognizance of any offence under the EnvironmentAct the Central Government, by issuing notification," authorizedcertain authorities and officers such as the Director, Joint Secretary andAdvisor to Government of India in the Department of Environment,Chairman or Member Secretary of the Central and State PollutionControl Boards and District Collectors. The Rules," Regulationsm

S.0.83 (E) dated 16th February, 1987. Fifty one persons are listed in thenotification, (1987) III CCL 193 at pp.384-386.See S.0.84 (e) dated February 16, 1987. All those listed in the notificationfor delegation of entry and inspection power (ibid) are listed in thisnotification also. See (1987) III CCL 194 at pp.387-389.

S.0.728 (E) dated July 21, 1987, (1987) III CCL, 429 at pp.709-713:S.0.838 (E) dated October 23,1987; (1987) III CCL p.783; S.0.989 (E)dated November 17,1987.S.0.394 (E) dated February 16,1987, (1987) 111 CCL 332 pp. 395-396;(1988) III CCL 226 at p.218.For example, see the Hazardous Wastes (Management and Handling) Rules1989. It is the State Pollution Control Board that arants authorization forcollection, treatment, transport, storage and disposal of hazardous wastes(R.5). It is the State Government that makes an environment impact studyof the site for disposal (R.8). Also see nn.45, 46 supra.Supra, nn.74, 81. Under the Coastal Zone Regulations it is the StateGovernment that prepares the coastal zone management plan and regulatesthe activities in cases other than those prohibited or those which requireMEF clearance.


and the schemes"' framed by the Central Government confer on variousauthorities responsibilities and functions specified not only under theEnvironment (Protection)Act but also under the Rules, Regulations andSchemes. Such authorities include State Governments,' agencies,";committees " 4 and officers 15 appointed, designated or recognised byCentral Government and State Governments.

Conclusion

Environment (Protection) Act 1986 is only a skeleton legislation.But it provides an umbrella for a plethora of activities generated throughthe mechanics of delegated legislation and delegation of powers. TheEnvironment Act did not repeal any prior law on environment orpollution control. It acts as a veritable supplement. One wonders whetherthe multiplicity of authorities and officers appointed, designated orrecognized for carrying out the measures under the Environment Act donot create a complex situation, where not only the functionaries butalso the functions overlap, leading to conflicts, lethargy and ineffi-ciency. The modern concept of sustainable development brings about ahappy union between environmental values and developmental needs.There are many areas where the arm of law has still to reach for achiev-ing this objective. Sustainable use of existing resources is one suchexample. Even among the resources, land is an important area wherestringent regulation is warranted for compelling sustainable land usepattern. Isolated approach towards similar problems can never be aneffective substitute for specific law. No doubt in many sectors that needenvironmental regulation, specific legislation is a must.

Supra, n.59.Supra,n.109.

Environmental audit statement is to be filed before Pollution Control Boardswhich will evaluate them. See n.23 supra. Also nn.54 and 105-108.Supra, n.61.Supra, nn.105-108.

delegated legislation and delegation of powers: new

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