CRITICAL ANALYSIS OF THE WATER (PREVENTION AND CONTROL OF

POLLUTION) ACT,1974

Submitted By
Ramasayi Gummadi
BC0180042

Structure:
1. Central Pollution Control Board Provisions
2. State Pollution Control Board Provisions
3. Joint Board Provisions
4. Penalty Provision
5. Personal Critique of the Water Act
6. Suggestions

The Water Act of 1974 came into existence in the year 1974 in order to prevent water
pollution as a whole and to restore the purity of the polluted waterbodies such that they don’t
pose any harm to the flora and fauna. While the same was initially made applicable only to
the states of Assam, Bihar, Rajasthan, Madhya Pradesh, West Bengal, Tripura, Gujarat,
Jammu and Kashmir and the Union Territories it is imperative to note that it has a provision
to make it such that the Water Act can be adopted by any state through a resolution passed in
order to adopt the aforementioned act.

One of the prime features with regards to this act is that it prescribes two different agencies
that are to be set up in order to work as under the Mandate of this act to prevent and control
the rising water pollution. They are- a) Central Pollution Control Board and State Pollution
Control Board

CENTRAL POLLUTION CONTROL BOARD

As under Section 3 of the Act, it gives in guidelines with regards to the constitution of a
Central Pollution Control Board as under the aforementioned act. Section 3 basically states
that through a notice as under the official gazette, the Central Government has the power to
set up a Central Board named as the Central Pollution Control Board, whose composition is
as follows:

1. Chairman who should be well versed with the environmental laws as such and not to
mention he should be specialized in this field with special emphasis on practical experience
in dealing with cases pertaining to environmental protection. Such an individual who poses as
chairman will be appointed as under the Central Government.

2. Lesser than or equal to five member representatives of the Central Government are to be
appointed In the committee

3. Lesser than or equal to five members who were a part of the State Water Board will have
to be nominated by the Central Government

4. Members who are pioneers in the field that are affected by the water pollution (say
something on the lines of fisheries, agriculture) must be a part of such an establishment

5. Two member representative of the Corporate Entities that are owned by the Central
Government

6. A member secretary with due expertise on the field of Environment Protection and
scientific management is to be present.

The main functions of this Central Pollution Control Board is mentioned as under Section 16
of the Act which mere states that the mere functions of the Board are-

1. Preside and act as an advisory panel of the Central Government on all the matters
concerning the prevention and control of water pollution

2. Collaborate with the state water boards in order to make sure that the initiatives that are
carried down in the state level are in coherence with the initiatives that are being carried
down in the Central Level

3. Assist the State Pollution Control Board with regards to operations on pollution control,
problems of water pollution and carry out and sponsor studies on the same so as to maximise
the effectiveness of the steps taken by the State Pollution Control Boards

4. Train individuals engaged in the prevention of Water pollution with due respect to the
terms and conditions as specified by the Board.
STATE POLLUTION CONTROL BOARD
Section 4 of the Water Act, 1974 merely provides for the constitution and composition of the
State Pollution Control Board. As under this provision it merely states that the state
government which has adopted the Water Act,1974 has the power to set up a State Pollution
Control Board after issuing an official notification in the gazette. The composition of the
board is as follows-

1. There ought to be a Chairman who is specialized in the areas dealing with the prevention
of Water pollution and such an individual must have a first hand experience in dealing with
the same.

2. Five member representatives to be appointed by the State Government to represent the

State Government

3. Member representatives of the local authorities of the State Government not more than two
individuals are to be present

4. Three members who are nominated by the State Government who belong to the areas of
fisheries, agriculture or any other interest as deemed by the government.

5. Two member representatives of the companies controlled and managed by the state

6. A member secretary who has prior experience In the field of Water Pollution Management
with due knowledge and qualifications.

The functions of the State Board as under Section 17 are as follows-

1. To formulate plans with regards to prevention and control of pollution of water and to
secure its execution

2. To advise the state government on initiatives with regards to prevention and control of
water pollution
3. To collaborate with the Central Pollution Control Board to merely train the members of the
State and Central Board in preventing and controlling water pollution

4. To merely lay down conditions with regards to the effluent standards of sewage and trade
effluents so as to make sure that the quality of water is unaffected

5. To formulate measures to treat and utilize the effluents in such a way that it doesn’t hinder
agricultural development

6. To set up laboratories to make sure that the board performs efficiently with a scientific
backing with regards to collecting of water samples for examination.

As per section 19 of the Act the state board has the mere power to make sure that the
territorial jusrisdiction is limited with regards to any order that so is passed by it on matters
relating to the prevention and control of water pollution. In very simple terms the restriction
of jurisdiction is of the nature such that the same is restricted to the areas that are affected by
water pollution and the power to determine as to which area is polluted or not inadvertently
lies with the Board as a whole and the Board can use any territorial and statistical data in
determining the same. As with regards to Section 20 of the Act it merely states that the state
board has the power to inspect any area or conduct survey so as to ascertain with regards to
the level of water pollution that is seen in that particular locality and not to mention the Board
can also ask any company to dispose off any information that will help the state board in
determining the water pollution in that particular area. Not to mention as under Section 25,
the Board is viewed upon as an approving authority where, as under the conditions of this
Section, any individual intending to start an establishment must do so only after getting an
approval for the same as under the State Board’s mandate. Not to mention, Section 27 of the
Act merely states that the State Board can issue any guidelines so as to ensure that any
establishment that so is incorporated is obligated to follow the same and not to mention, the
Board also has the power to review the conditions which it attached before giving the notice
of approval

JOINT BOARD
Joint Board refers to a collaborative board of one state government with that of the other’s or
the Central government with that of the Government of a Union Territory. The joint board is
primarily mandated by the agreement that is entered by the respective pollution control
boards.

The composition of such a Joint Board is mentioned as under Section 14 of the Act which
states that the composition of the Joint Board is of the following manner-

1. There ought to be a chairman who has the required knowledge and experience with regards
to dealing with water pollution at hand.

2. Two member representatives of each state so as to represent the interests of either of these
states must be present

3. One independent individual specializing in the fields that are influenced greatly by water
pollution needs to be present as a representative of interests of the field from either of these
states.

4. Members from the companies who are merely nominated by the Central Government such
that they represent the views of the companies that are controlled or owned by the
participating state government.

5. A full time member secretary with due expertise and experience with regards to the
controlling and prevention of pollution as under the act.

As under Section 6 of the Act it is important to note that it provides grounds for the
disqualification of the members of the board. The grounds are:
1. A person of unsound mind or someone who is convicted of moral turpitude by the laws of
either State or the Central Government

2. A person who is judged upon as an insolvent or has not paid his debts or has compounded
with his creditors cannot become a member

3. if the person is holding any office of profit or is a salaried employee under a company that
so is connected with the board.
4. If the person under consideration has misused his position as a member of the board which
will come under the scope of moral turpitude then in such a case the person can be removed
by the Central as well as the State Government

As under Section 8 of the Act, the board has to meet every three months and in the meet, it
should aim to formulate a plan of action so as to counter the negative effects of water
pollution. While this is the established protocol, the Chairman can hold an emergency
meeting as under circumstances so as to counter the emergency at hand.

Further, Section 28 of the Act speaks with regards to the appeals, where it states that any
individual who is aggrieved by the state pollution control board that so is made under Section
25 to 227 can file an appeal within 30 days of such a pronouncement as under the concerned
appellate authority prescribed by the State Government. The provision also mandates that the
coram of the appellate authority can be one or three as the government may think fit based on
the facts and circumstances of the case.

PENALTIES
1. It is imperative to note that if an individual fails to abide by the order of the board as under
20(2) and 20(3) of the act, the individual is then punishable for imprisonment upto 3 months
or fine or both

2. If an individual fails to comply by the order of the board as under Section 32(1)(e) and
Section 33(2) of the act then in such a case then such an individual will be subject to an
imprisonment of 6 months extending to 6 years or fine or both

3. Section 42 mentions for a punishment of imprisonment upto 3 months or fine of upto Rs

10000 or both for an individual under the following circumstances-
a) The person removes or pulls down any notice that is put up by the board
b)The person acts as a mere hindrance to the individual acting as an agent of the board
by performing its functions
c) Any information that so was given to the board, which is false in nature and such
an information was known as false by the individual giving it to the board.

CRITICAL ANALYSIS
The water act can be looked upon as something that suffers from a serious lack of practicality
as under the following conditions-

Firstly, with regards to the nature of the consent administration that so is seen as under the
Act, it is important to note that the prevention and the control of water pollution is being
carried out as under the Consent procedure. As under Sections 24 and 25 of the Water Act,
proper consent needs to be obtained from the State Pollution Control Board for the placement
of a drain outlet or the discharge of sewer effluents into a waterbody. It is imperative to note
that practically Speaking as under Section 41 of the Water Act, it has a very broad scope and
the State Board can alter the conditions that so are set at any time while also revoking
consent, while at the end of the day such powers of the State Board are not used up in the
actual functioning of the board. In contrary to the actual spirit of the aforementioned
provision, the Board usually resorts to institution of a prosecution suit and impose a fine
which Is not as effective when it comes to the deterring of the Environmental Pollution as
under this Act. Not to mention, as under Section 25(7) of the Act, the wording merely
mentions that the consent is deemed to have been given on an expiry of four months by the
board unless and until the board actually refuses to such a consent before that particular date
which as a matter of fact imposes an extra pressure upon the board to explicitly deliver the
message of rejection of the applications and not to mention it is imperative to note that the
mere effect of this clause is that the applications can use this loophole to merely obtain an
unconditional consent as under the law at hand and not to mention taking into consideration
the already under-staffed boards with inefficient functioning of the same, one can very well
anticipate the validation of legally void polluting activities.

Further with regards to the constitution of the Boards as under the Water Act. One can
observe that except for the chairman and the secretary of these boards, no one else needs to
have a technical expertise in the environmental matters, not to mention, in other terms, there
is nothing prescribed as to what will be the qualification for the other individuals who are to
be appointed as under the Board. With regards to the members who are appointed by the
government, again, at the end of the day they are going to be the government individuals who
are already overburdened with the governmental work as under multifaceted departments.
Subjecting them to a further overburden would only mean that the efficiency of the board is
at stake. Not to mention it is imperative to note that the Boards are already understaffed with
hiccups on financing which further complicate the issue at hand. Also, the Public Sector
Companies too equally contribute towards a higher intensity of pollution such as but not
limited to Chemical Industries, Iron and Steel, Oil and Natural Gas etc which would only
mean that any board that is instituted will be biased towards the Governmental Companies
which could also mean that there is excessive governmental control over the functions of the
board. The Scope of the powers of Central Board are limited and they really don’t have any
powers to impose penalties as in contrary to the State Boards, which have the power to
impose penalties over the non complying industries. In my opinion the Boards should
function as an independent regulatory authority with no bias.

The main essence behind the enactment of the Anti-Pollution laws is to make sure that the
public are saved from the ill effects of the pollution as a result of which one can reasonably
expect that the public should be given opportunities to be heard at all stages of pollution
control decisions which is not necessarily the case. As under Section 25(3) of the act it is
imperative to note that the board merely asks one of its members to evaluate on the applicant
at hand decide based on the merits of the facts and circumstances of the case if the
application that so was filed by the entity is permissible or not as under the Act. Now, with
the legislation dealing with the interests affecting the interests of the General Public as a
whole doesn’t have any mandate to consult with the members of the public or question. There
is no right for the public to participate in the decision making sessions as under the stages of
legislation. Although one can opine that this is a developing country which needs to cater to
the interests of the industrial sector, at the end of the day the same should not be
compromised as with regards to the public participation in the board’s decisions.

Also, with regards to the judicial recourse that so Is available it Is imperative to understand
that the Water Act is not effective when it comes to the matter of effective enforcement of
powers. In short, a state board cannot impose a fine or imprisonment as under the authority
and at the end of the day, they can seek to enforce only by initiating a prosecution with the
aid of public prosecutors and not to mention, such prosecutions are time consuming, costly
and might not necessarily reflect effectiveness in my opinion. The judicial rights with regards
to the right to seek courts by the public and the right of a court to take cognizance of the
offense are merely barred and denied which only means that the right of an individual to
initiate prosecution is not recognized.. An example of this can very well be seen as per
Section 58 of the Water Act which states that an injunction cannot be granted by any court or
an another authority with regards to actions taken as under the powers conferred as under the
law at hand.

SUGGESTIONS
1. in my opinion it would be better if this act is applicable all over India and not just select
states owing to the common jurisdiction at hand
2. Proper funding with measures against the prevention of understaffed officers of the Board
must be allocated and carried forward.
3. The boards should also concentrate upon the public policy and make sure that the public
opinions are being executed by the board and not to mention improving of transparency with
methods to show the public as to the various orders passed or as a matter of fact with regards
to any announcement is a welcome move
4. Sustainability must be given a priority and the plans that so are framed must be on the lines
of the same so as to cater to the needs of the developing nation
5. The Act should have included provisions on the basis of pollution control with regards to
the water sharing between the trans-national borders.
6. The act can very well call for the establishment of protected water bodies so as to make
sure that they are conserved of their clean conditions for the ecological development and not
to mention, the protected zones will have no extraction of water or discharge of waste so
seen.