Q: Rule making power under Environment Protection Act, 1986 and E.P. Rules: Critical Analysis from Human Rights Perspective.
I. Introduction: The Umbrella Legislation and Rights Paradigm
The Environment (Protection) Act, 1986 (EPA) was enacted in the wake of the Bhopal Gas Tragedy, serving as “umbrella legislation” to plug the gaps in existing laws.1 From a human rights perspective, the EPA is not merely a regulatory statute; it is the legislative arm of Article 21 (Right to Life), Article 48A (State’s duty to protect environment), and Article 51A(g) (Fundamental duties).
The rule-making power under the EPA is an instance of delegated legislation. While necessary for technical flexibility, we must focus on whether this executive power enhances human rights or suffers from a “democratic deficit” where administrative efficiency overrides public health rights.
II. Statutory Framework of Rule-Making Power
The Parliament has delegated vast powers to the Central Government (Executive) to frame rules and standards.
1. Section 3: The Power of the Central Government
This is the core enabling provision. It empowers the Central Government to take “all such measures as it deems necessary” for protecting the environment.2
- Human Rights Critique: The phrase “deems necessary” grants subjective satisfaction to the executive. If the government values industrial growth over health, it can dilute standards without immediate parliamentary oversight, potentially violating the “Precautionary Principle.”
2. Section 6: Power to Regulate Environmental Pollution
This section specifically allows the government to make rules regarding:
- Standards of quality of air, water, or soil.3
- Maximum allowable limits of environmental pollutants (including noise).
- Procedures for handling hazardous substances.4
- Prohibition and restriction on the location of industries (Crucial for preventing displacement and health hazards).5
3. Section 25: General Rule-Making Power
This is the standard clause empowering the government to make rules to carry out the purposes of the Act.6
4. The Environment (Protection) Rules, 1986 (EPR)
- Rule 3: Sets standards for emission/discharge of pollutants.
- Rule 5: Empowers the government to prohibit/restrict industries in certain areas based on “biological diversity” or “proximity to human settlements.”
- Critique: This rule is the greatest tool for preventive human rights protection (preventing factories near schools/hospitals), yet it is often under-utilized until judicial intervention occurs.
III. Critical Analysis: A Human Rights Perspective
The intersection of administrative law and human rights reveals several tensions:
1. The “Standard Setting” Dilemma (Right to Health vs. Economic Feasibility)
Rules under the EPA often set “permissible limits” for pollutants.7 From a human rights view, any pollutant harmful to the body is a violation. However, the Executive sets standards based on “economic feasibility” (Best Available Technology Not Entailing Excessive Cost).
- Critique: When the Executive raises permissible limits (e.g., relaxing emission norms for thermal power plants), it effectively “licenses” a certain degree of health violation, arguably infringing on the Right to Clean Air derived from Article 21.
2. Procedural Rights and EIA Notifications
The Environmental Impact Assessment (EIA) Notifications (1994, 2006, 2020 drafts) are issued under these rule-making powers.
- Issue: The constant dilution of public hearing requirements in these rules violates Procedural Environmental Rights (Access to Information and Public Participation).
- Analysis: If the Executive uses rule-making power to exempt projects from public hearings (post-facto clearance), it denies communities their natural justice right to be heard (Audi Alteram Partem) before their environment is altered.
3. Hazardous Substances and the Right to Life
Rules governing hazardous waste management are often reactive rather than proactive. The definition of “hazardous substance” in the Act is broad, but the rules often narrow it down, leaving gaps for “new” chemical compounds to escape regulation until a tragedy occurs.
IV. Landmark Case Law Analysis
The judiciary has often stepped in to “read down” or “read into” these rules to align them with Human Rights standards.
Case 1: Vellore Citizens Welfare Forum v. Union of India (1996)
- Facts: Tanneries in Tamil Nadu were discharging untreated effluents into the Palar River, destroying the potable water source for residents.8
- Issue: Conflict between the “freedom of trade” (tanneries) and the “Right to Life” (clean water). Did the EPA rules effectively prevent this?
- Decision: The Supreme Court (SC) held that the “Precautionary Principle” and “Polluter Pays Principle” are essential features of “Sustainable Development” and are part of the law of the land under Article 21.9
- Human Rights Takeaway: The Court virtually amended the rule-making scope. The Executive cannot frame rules that violate these principles. If statutory rules are silent, these principles apply automatically to protect human life.
Case 2: M.C. Mehta v. Union of India (Oleum Gas Leak Case, 1987)
- Facts: Leakage of Oleum gas from Shriram Foods and Fertilizers in a densely populated area of Delhi caused death and injury.10
- Issue: What is the scope of liability for industries handling hazardous substances? Are existing safety rules sufficient?
- Decision: The SC evolved the doctrine of “Absolute Liability”.11 It held that an enterprise engaged in hazardous activity owes an absolute and non-delegable duty to the community.12
- Human Rights Takeaway: This decision expanded the EPA’s mandate. The rule-making power under Section 6 (handling hazardous substances) must now be interpreted strictly. The state cannot use rules to shield corporations; the “Right to Safety” is paramount.
Case 3: Research Foundation for Science v. Union of India (2005)
- Facts: India was becoming a dumping ground for hazardous waste imported from industrialized nations under the guise of “recycling.”13
- Issue: Inadequacy of Hazardous Waste Management Rules framed under the EPA to stop transboundary dumping.
- Decision: The SC invoked the Basel Convention and Article 21, directing the government to amend rules to ban such imports.
- Human Rights Takeaway: This illustrates that rule-making power is not purely domestic; it must respect international human rights covenants (Right to Health) that India has signed.
V. Conclusion
The rule-making power under the Environment (Protection) Act, 1986, represents a potent “double-edged sword” in legal jurisprudence. While it offers the flexibility to adapt to scientific advancements, a critical human rights analysis reveals that this delegated legislation often suffers from regulatory capture and a lack of participatory democracy.
the conclusion is clear: Environmental Rule-Making is not merely an administrative function but a “Trustee” function. The Executive, while drafting rules under Sections 3, 6, and 25, acts as a trustee of the public’s health. Any rule that dilutes standards or bypasses public participation is not just ultra vires the Act, but arguably unconstitutional for violating the “Right to a Wholesome Environment” guaranteed under Article 21. The judiciary’s role has been to constantly remind the Executive that economic expediency cannot purchase human rights.
