3

CENTRAL GOVERNMENT'S POWER TO TAKE

MEASURES: SECTION 3

3.1 Section 3(1): general power to take measures

Section 3(1) of the Environment Protection Act gives power to the
Central Government to take all such measures "as it deems necessary or
expedient" for the specified purposes. The specific purposes are —
(i) protecting and improving the quality of the environment,
(ii) preventing, controlling and abating environmental pollu-
tion.
The power is, as stressed in the very opening words of section 3(1),
"Subject to the provisions of this Act". This is, by its wording, a restrictive
provision. On the other hand, the words "as it deems necessary or expedient"
are words of an expansive character. But the general scope of the power to
take measures is defined by the two purposes enumerated above. It would
seem that the measures taken must have some demonstrable nexus with one
or the other of those two purposes, since those two purposes constitute the
raisin d'etre of the entire legislation. Protection and improvement of the
environment (or "human environment") is referred to in the preamble to the
Act, where its two paragraphs also refer to the international decisions on
the subject.

3.2. Section 3(2): Types of measures

The types of measures that can be taken by the Central Government
under section 3(1) are more particularly enumerated in section 3(2) — of
course, without prejudice to the generality of the power conferred by section
3(1). There are fourteen clauses in section 3(2), enumerating a large variety
of measures that can be taken by the Central Government. But it will
facilitate understanding, if one can group them under a few convenient
categories. Broadly speaking, the measures that are enumerated in section
3(2) fall in one or the other of the following groups: —
24 The Environment (Protection) Act, 1986

(a) co-ordination and planning, covered by section 3(2)(i) and

(ii).
(b) preventive and regulatory measures, covered by section
3(2)(iii) to (viii);
(c) ancillary measures, by way of investigation, inspection,
analysis, information and statistics, covered by section 3(2) (ix)
to (xiii); and
(d) residuary measures, covered by se ~tion 3(2) (xiv).
3.3 Section 3: the question of overlapping

It would be proper to mention at this stage, that, in regard to many

of the matters set out in section 3(2), there is a certain amount of overlapping
between section 3(2) and other provisions of the Act. By way of illustration
and without any intention of being exhaustive, the following topies may be
mentioned: —
(1) standards for the quality of environment and standards for
emission or discharge of environmental pollutants from various
sources whatsoever —dealt with in section 3(2)(iii) and
3(2)(iv), and also in section 6(2)(a) and section 6(2)(b), and
again in section 7, read with section 25(2)(a);
(2) restriction of areas for carrying out certain industries, operations
orprocesses — dealt with in section 3(2) (v) and also in section
5 and section 6(2)(e) — though the language of section 6(2)(e)
is wide, as it uses the comprehensive term "location of in-
dustries";
(3) laying down procedures and safeguards for the prevention of
accidents which may cause environmental pollution etc. —
dealt with in section 3(2) (vi) and also in secion 9 and section
25(2)(c);
(4) laying down procedures and safeguards for the handling of
hazardous substances — dealt with in section 3(2)(vii) and also
in section 8, read with section 25(2) (b);
(5) examination of manufacturing process etc. — dealt with in
section 3(2)(viii) and also in section 10(l)(c);
(6) inspection of premises etc. — dealt with in section 3(2) (x) and
also in section 10(1);
Central Government's Power To Take Measures 25

(7) establishment of laboratories etc. — dealt with in section

3(2)(xi)and also in section 12(7);
(8) collection of information relating to environmental pollution -
dealt with in section 3(2) (xii) and also in section 20, read with
section 25(2)(i).
3.4 Section 3(2)(v): a verbal point

Apart from the question of overlapping arising from section 3(2), certain
verbal points arise out of some of its clauses. Thus, section 3(2) (v) reads as
under: —

"(v) restriction of areas in which any industries, operations or

processes or class of industries, operations or processes shall
not be carried out or shall be carried out subject to certain
safeguards;"
The word "not", appearing a few words after "restriction", does not
sound quite appropriate. The object is to restrict the areas in which in-
dustries may be carried out. The negative or exclusionary element is already
contained in "restriction" and need not be duplicated by using the word "not".
Again, the portion "restriction of areas in which any industries shall
be carried out subject to certain safeguards" also does not sound very happy.
The problem could be solved by the substitution of the word "specification"
in place of the word "restriction". Section 3(2) (v) will then read as under: —
"(v) specification of areas in which any industries shall not be
carried out or shall be carried out only subject to certain
safeguards;"
3.5 Section 3 and the status of "measures". —
A legal question of major importance, arising out of section 3, still
remains to be considered , namely, what is the legal status of "measures"
taken by the Central Government and what is the legal effect of these
measures? What are the sanctions to be imposed in case of their breach?
The Environment (Protection) Act does not give adequate guidance in this
regard. By couching the power of the Central Government in the words
"power to take all such measures", section 3(1) employs phraseology which

Paragraph 3.3, supra.

See also paragraph 3.10 infra.
26 The Environment (Protection) Act, 1986

does not conform to the usual phraseology adopted to denote statutory

instruments of a general nature. Generally, if a section is intended to give
power to issue delegated legislation, the legislature uses words like "notifica-
tion", "order", "rule"and the like. Such a nomenclature has, however, been
avoided in section 3(1). The matter has become more complicated by the
fact that some of the clauses of section 3(2) relate to matters which could
have been dealt with by the Central Government in the discharge of its
normal executive authority on the administrative side, without specific
legislative mandate. Section 3(2)(ix), 3(2)(xii) and 3(2)(xiii) are examples of
activities in this category; the functions in question are essentially of an
executive character, not requiring legislative sanction. This mixing up of
various types of "measures" — some of them even overlapping the more
formal powers enumerated in other provisions of the Act - raises a basic
question — what are the sanctions that can be resorted to, if the measures
taken by the Central Government are not complied with? The Act is not at
all specific on this point. The general penal provision, contained in section
15(1), punishes contravention of the following: —
(i) provisions of the Act;
(ii) rules made under the Act;
(iii) orders issued under the Act;
(iv) directions issued under the Act.
None of these is appropriate enough to cover "measures" taken under
section 3. It can be argued that the words "Subject to the provisions of this
Act", with which section 3(1) opens, were intended to indicate that the
"measures" to be taken must be backed up by, or expressed in, the form of
formal statutory instruments, such as "rules", "orders" or "directions". But, if
that were so, one would have expected more clear wording. As matters stand
at present, no clear indication exists as to the exact legal status of the
measures to be taken under section 3(1) and 3(2).
3.6 Section 3(3): Delegation by Central Government
Section 3(3) is an equally far-reaching provision. The structure is
somewhat involved. But the main ideas are as under: —
(a) The Central Government may institute an authority for exer-
cising the powers of the Central Government, mentioned in
(b), (c) and (d) below.

1 Paragraph 3.3 supra.

Central Government's Power To Take Measures 27

(b) The powers to be so delegated are—"such of the powers and

functions of the Central Government under this Act
as may be mentioned in the order".
(c) They include the power of the Central Government to issue
directions under section 5.
(d) The authority can be also vested with the power of the Central
Government under section 3(2), of taking "measures" on the
matters mentioned in the delegation order.
(e) On the issue of such order by the Central Government in the
Official Gazette, the authority may exercise such powers etc.
"as if such authority or authorities had been empowered by this
Act" to exercise those powers etc. This specific refinement was
perhaps unnecessary, because, if a delegation is valid as per
legal and constitutional norms, then it is generally unnecessary
to add the formula "as if empowered by this Act". Even without
such a formula, the effect would have been the same.
3.7 Section 3(3) as inter-related to section 4: further delegation
The difficulty, however, is that the one-tier delegation permitted by
section 3(3) does not stop there. Section 4(1) creates another channel df
delegation and authorises the Central Government to appoint officers to
whom it may "entrust" such of the powers and functions of the Central
Government as the Central Government may deemfit.Thus, parallel chan-
nels of delegation are constituted by section 3(3) and section 4(1).
This is not all. Section 4(2) specifically provides that if the Central
Government so provides, the officers entrusted under section 4(1) shall be
subject to the control, not only of the Central Government, but also of the
authority acting as the delegate of the Central Government under section 3(3).
To cap it all there are immense potentialities of delegation under section 23."
3.8 Statutory authorities and functions
It may be mentioned that authorities vested with functions under a
statute may be of various types, depending on the nature of the function with
which they are invested. These may be enumerated as under: —

1 The point is of importance in the context of multiplication of authorities.

2 Paragraph 3.9, infra.
28 The Environment (Protection) Act, 1986

(a) Authorities invested with the function of issuing subordinate

legislation, i.e. rules and orders of a general nature.
(b) Authorities vested with the function of taking executive action,
to implement the Act in specific cases.
(c) Authorities performing auxiliary functions, i.e. functions in
aid of those falling under (b) above.
Thus, in the context of the Environment Protection Act, 1986, a
function of the type mentioned in (a) above is performed by the Central
Government, under sections 6 and 25. Function of the type mentioned in (b)
above is performed by officers' entrusted with functions under section 4 (to
give only one example). Function of the type mentioned at (c) above is
performed by officers and agencies mentioned in sections 11,12 and 13.
3.9 Multiplication of authorities under Environment Protection Act

But peculiar problems arise, by virtue of the actual content of the

provisions of the Act.
(1) The Act contains more than one provision dealing with functions
of a particular type. Thus, the "sub-legislative" function of making rules is
dealt with in sections 6 and 25. Besides this, by reason of the wide language
of section 23, the power of the Central Government to make rules under
section 6 can be delegated to "any officer, State Government or other
authority". This may be called "internal" overlapping of provisions. There are
other defects such as multiplication, delegation and confusion of functions,
dealt with below.
(2) There is noticeable mutliplicity of authorities under the Act. The
following are the actual or potential authorities invested with functions
under the Act. 1
(a) Central Government - section 3(1), 3(2) (for taking
m e a s u r e s ) , section 4 ( 1 ) (for
appointing officers), section 5 (giving
directions), sections 6 and 25 (rules).
(b) Authority "constituted" by s e c t i o n 3(3) (for p e r f o r m i n g
the Central Government - delegated functions of the Central
G o v e r n m e n t ) , section 5 (if
delegated).
(c) Officers- s e c t i o n 4(2) [(for p e r f o r m i n g
functions of the Central Government
or of the authority constituted under
section 3(3)].

1 Point important in the context of multiplicity.

Central Government's Power To Take Measures 29

Prescribed authorities - section 9 (entertaining reports of

(d) accidents).
Person empowered by section 10 (entry and inspection).
(e)
Central Government -
Officer empowered by section 11 (power to take samples).
(0 Central Government -
Environmental Laboratories sections 12, 13 (Analysis etc.)
(g)
and Government Analysts -
Authority or officer authorised Section 19 (complaint of offences).
(h)
by Central Government -
Section 20 ( p o w e r to r e q u i r e
(0 Central Government -
information etc.) Sections 6 and 25
(Rules).
Central Government - Sections 6 and 25 (Rules).
Ü)

(k) Central Government - Section 23 (Power to delegate).

The last item mentioned above, which pertains to section 23, has
immense potentialities of creating overlap of functions. The section em-
powers the Central Government to delegate its functions to "any officer,
State Government or other authority". The only powers that cannot be
delegated are the power to "constitute" an authority under section 3(3) and
the power to make rules under section 23. This means, inter alia, that a large
part of the Central Government's functions, namely, those under sections
3(1), 3(2), 4, 5, 6 and 20, can be delegated. These are all far— reaching
powers. It may be recalled that the "measures" that can be taken by the
Central Government under section 3(1) and 3(2) are of a very far-reaching
character . They exhaust almost the entire gamut of protection of the
environment. It may also be recalled that under section 6, the power of the
Central Government to make rules — a power which can be delegated under
section 23 — also covers a pretty large slice of regulatory sub legislation and
executive steps in the sphere of protection of the environment. Again, the
power of the Central Government to issue written directions to any person,
officer or authority is also a wide power and includes power to direct the
closure etc. of any industry, operation or process or stoppage or regulation
of supply of electricity, water or any other "service" — which would even cover
posts and telephones. The situation of several of authorities becoming
competent to exercise the same function is indeed unique, so far as the power

1 Paragraphs 3.1,3.2 supra.

30 The Environment (Protection) Act, 1986

to issue "directions" is concerned. Such "directions" can, in the scheme of the

Act, be issued by four authorities or officers as under:—
(i) The Central Government, by reason of its original power
under section 5.
(ii) The authority "constituted" under section 3(3), by reason of
the delegation of power made by the Central Government
under section 3(3).
(iii) The officer entrusted under section 4.
(iv) The authority empowered by the Central Government under
section 23, by virtue of a delegation made under that section.
It should be mentioned that contravention of a direction under
section 5 can attract imprisonment upto 5 years. It has been considered,
necessary to labour this point, as it illustrates the highly unsatisfactory
situation that can arise, if the same powers comes to be vested, under the
same Act, in four different authorities. If these authorities issue directions
similar in substance but not identical in every respect, the position of the
citizen is bad enough. If the directions are dissimilar in substance or in
wording, the position becomes much worse.

3.10. Confusion as to nature ofJunctions

It remains to conclude the discussion of this aspect by repeating that

in section 3(1) of the Act, there is an obscurity as to the nature of the power
conferred on the Central Government. It is a power to "take measures" for
certain purposes. The power itself can be delegated under sections 4(1) and
23 and in many respects, overlaps powers conferred by several other
provisions of the Act. But there is no precise indication of the legal status
and effect of these measures — whether they are sub-legislative, executive
or quasi- judicial. Nor does the Act lay down, in so many words, any penalty
for a violation of these measures.

1 See Section 15,16 & 17.

2 Cf. paragraph 3.5 supra.