By Shonottra Kumar

India does not have one centralized law on water conservation, supply or control of pollution, but rather a collection of policies at both Centre and State levels. While there are many reasons for this distribution, one of the early ones was owing to the local policies that the British government established at smaller levels for betterment and expansion of their trade, in India.

As their control in India grew, the British focused on developing canals and irrigation facilities to respond to both, growing trade needs and the existing famine. Soon after followed the common law principles of controlling surface water by landowners, which further developed through decisions of Courts and the enactment of the Indian Easements Act of 1882.

As and when the need arose, statutes addressing certain situations were adopted. Some examples of these were statutes to address drainage systems, agricultural irrigation, development of canals, taxation on the use of water and related services, etc. Even the Government of India Act of 1935 had provisions for the provinces to have control over issues relating to the water supply.

Post-independence a similar model continued to exist and the subject of water was added in the State List of the Indian Constitution. This meant that though the Constitution had certain provisions regarding access to water, regulations concerning the governance of water supply would be dealt with by the respective State government.

Each state has the exclusive right to make laws and rules regarding the water supply, canals, irrigation and drainage within their own State. However, to curb the problem of water pollution, certain central Acts were also adopted.

Constitutional Provisions

There is no specific provision recognising ‘the right to water’ in the Constitution of India, but on various occasions, the Supreme Court has declared that the right to life guaranteed under Article 21 of the Constitution includes ‘the right of enjoyment of pollution-free water and air for full enjoyment of life’. It has also stated that for the survival of human beings, a right to water needs to be recognised under the said article.

There are other related provisions in the Constitution that have safeguards and directives with respect to accessing water:

• Article 15: The article on anti-discrimination provides a safeguard on accessing to wells, tanks and bathing ghats, irrespective of your religion, caste, place of birth or sex.
• Articles 37 and 39: Directive principles of state policy not only recognise equal access of the community to material resources but also encourage the State to ensure the distribution of these resources for the common good.
• Article 51A: There is a fundamental duty upon every citizen to protect and improve the natural environment, including forests, lakes, rivers and wildlife.

Controlling Water Pollution

Water Act

To address the problem of water pollution in India, the Water (Prevention and Control of Pollution) Act was passed in 1974 (Water Act). This law has two main tasks:

• to prevent and control water pollution; and
• to maintain or restore the wholesomeness of water.

An important provision of the Water Act is the duty it imposes on all persons, including industries and body corporates, to refrain from allowing any poisonous or noxious matter into any stream, water or on land. It also requires all persons to refrain from knowingly entering or obstructing any stream that would impede the flow of water or cause water pollution. Any person who violates these provisions will be punished with imprisonment between 18 months and 6 years.

Pollution Control Board

To achieve its aim, the Water Act set up Pollution Control Boards at Centre and State levels. These Boards would, amongst other things, lay down standards of discharge and treatment of effluents into water bodies for all persons to follow, including body corporates. Anyone who violates these standards can be punished under the law.

As per this Act, it is also mandatory for any industry or business to take prior permission of the Pollution Control Board at their State if their operations or process would discharge sewage waste or trade effluent into a stream, well, sewer or land. It also made it compulsory to report any alterations made in the existing discharge outlets. Any non-compliance would invite a severe punishment of imprisonment and/or a fine.

Power of the Pollution Control Board

To control and prevent water pollution, the Board can:

• Undertake emergency measures to remove and dispose the polluting matter
• Issue immediate orders restraining or prohibiting the activities causing the pollution to reduce the same
• Apply to courts to stop existing water pollution in streams and wells and request the court to direct the polluter to remove the polluting matter or stop a potential polluter from doing the same. In case the pollution has already occurred, the Board can be authorised by the Court to remove and dispose off the polluting materials at the expense of the polluter.
• Direct closure or regulation of any industry or business for violation of standards or noncompliance of any orders. It even has the authority to stop or regulate the water supply, electricity or any other service of the industry.

Environment (Protection) Act, 1986

Many believe that the Environment (Protection) Act was a knee jerk reaction to the Bhopal gas tragedy that preceded it. However, for the first time, it introduced a consolidated framework for all kinds of pollution in India, including water pollution.

Under this law, the Ministry of Environment and Forests (MoEF) has the set standards of environmental quality through notification of several rules. For controlling water pollution, it has notified rules for different areas setting the maximum allowable limits of concentration of various water pollutants.

Any person or industry that discharges or emits water pollutants beyond the permissible limits will be punished under this Act. If the discharge of water pollutants occurs because of an accident or an unforeseen incident, it is the duty of the person responsible for the discharge and the person in charge of that place to prevent or control the water pollution. They also have to inform the authority set up under the Act of the occurrence of such an incident. They will take necessary remedial measures as soon as the accident is reported.

MoEF has also issued specific notification for the prevention and control of water pollution. These are:

• Coastal Regulation Zone Notifications
• Environment Impact Assessment Notification
• Eco-sensitive Zone Notifications

Filing a Complaint about Water Pollution

Approach State Pollution Control Board

Reporting a case of water pollution is not an easy task because there isn’t one authority you can go to for such complaints. The Pollution Control Boards in each State are required to be a grievance redressal body for such complaints, but more often than not, they are not accessible. Please check the website of your State Pollution Control Board in order to take necessary action. You can even visit the regional offices of the Board in your State to enquire about filing complaints.

Some states have been proactive in this regard and have launched online mechanisms to file your complaints, for instance, Uttar Pradesh has an online form. Some states like West Bengal have laid down the process for filing a complaint in a very clear manner.

Approaching National Green Tribunal

Complaints made to Pollution Control Boards often escalate to the National Green Tribunal. However, citizens can directly file cases of water pollution directly with the Tribunal as well. The Tribunal was set up in 2010 to ensure speedy disposal of cases relating to environmental pollution.

The Tribunal’s website allows you to file cases online as well. Visit their website for more information.

Approaching a District Magistrate or the Police

If you want immediate action to be taken on water pollution, you can directly make an application to your District Magistrate under Section 133 of Code of Criminal Procedure. By an application made under this section, the Magistrate has the power to pass a conditional order to remove the nuisance, i.e. the act or person causing the pollution.

You also have the option of filing an FIR with the police under Section 277 of the Indian Penal Code if someone is intentionally corrupting or fouling the water of a public spring or a reservoir. The person who pollutes a public spring or reservoir can be punished with imprisonment and/or fine.

Testing Your Water Quality

The Department of Drinking Water and Sanitation is currently working on a scheme to set up drinking water testing laboratories in the country. The aim of this scheme is to ensure access to potable drinking water in all rural households and to empower the public to be able to ascertain the quality of their tap water.

The scheme aims to set up water testing laboratories in every district and block level. These laboratories will be accredited the National Accreditation Board for Testing and Calibration Laboratories. Currently, there are only 54 laboratories that have the necessary accreditation. Though this scheme is not yet in place, they plan to achieve their targets by 2024.

References

Water (Prevention and Control of Pollution) Act, 1974

Environment (Protection) Act, 1986

Indian Penal Code, 1860

Code of Criminal Procedure, 1972

Subhash Kumar v. State of Bihar and Ors. 1991 SCC (1) 598

Narmada Bachao Andolan v. Union of India and Ors. (2000) 10 SCC 664

S. Murlidhar, The Right to Water: An Overview of the Indian Legal Regime, International Environmental Law Research Centre — http://www.ielrc.org/content/a0604.pdf

The Print, Coming Soon — govt lab in every district where you can test your water supply for toxins, March 4 2020 — https://theprint.in/india/coming-soon-govt-lab-in-every-district-where-you-can-test-your-water-supply-for-toxins/374823/

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Shonottra Kumar is a Research Fellow at Nyaaya. Views are personal.