Punishment under the noise pollution(regulation and control)rules 2000

Querist : Anonymous (Querist) 21 October 2011 This query is : Resolved
I want to know about punishment under the above Rules .

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Nadeem Qureshi (Expert) 21 October 2011
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11. Statutory provisions of noise pollution. -

(i) Constitution of India and Noise Control. - Rapid industrial development, urbanisation and regular flow of persons from rural to urban areas has made major contribution towards environmental degradation but at the same time the Authoritiesentrusted with the work of pollution control-Pollution Control Board cannot be permitted to sit back with folded hands on the pretext that they have no financial or other means to control pollution and supported the environment.

Apart from that Art. 21 of the Constitution of India, which guarantees right to life, Arts. 48A and 51A (g) of the Constitution are as under: -

Article 51 A (g)-”to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures”.

Article 48A-”Protection and improvement of environment and safeguarding of forests and wildlife. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.

(ii) Law o f Torts and Noise Control. -Noise in India is actionable under the law of torts. As regards the statutory control of noise, it is surprising that there exists no law, under the Indian legal system exclusively dealing with the problem of noise or its control, whereas many countries of the world have already enacted specific laws to control the noise menace. We have stray provisions here for the control of noise despite the fact that public health is greatly threatened here due to increasing noise pollution.

(iii) Indian Penal Code and Noise Control.

(a) Provisions under Sec. 268 of the Indian Penal Code, 1860, noise is actionable as “public nuisance”. The section reads : “A person is guilty of Public nuisances who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right”. People who by any offensive means corrupt the air or by any means cause loud and continued noise- and thereby cause injury or annoyance to those dwelling in the neighborhood in respect of their health or comfort and convenience or living are liable to prosecution for causing public nuisance.

(b) Noise nuisance can also be punishable under the provisions of Sec. 290 of the code, which prescribes a punishment, which may extend to two hundred rupees, for those cases of nuisance not specifically covered under the Code. Neither the right to make noise can be acquired by prescription nor it can be accepted as a defence to a charge of nuisance.

In spite of the serious consequences of noise, nuisance by noise has not been accorded its proper place under the Indian Penal Code. It is till date relegated to the residuary provision in Sec. 290 which prescribes just nominal punishment. The provisions of the Code, in view of the recent scientific and industrial developments, is inadequate to cope with increasing menace of noise pollution.

The provisions of the Code also do not lead us to uniform and certain rules for application to the criminal cases of noise nuisance. There have been very rare prosecutions for nuisance by noise as the offence of public nuisance under Sec. 290 is non-cognizable.

Nuisance action under the penal code is a poor remedy as it is nominally punitative rather than preventive or compensatory.

(iv) Criminal Procedure Code and Noise Control. -Provisions under the Sec. 133 of the Criminal Procedure Code, 1973 the Magistrate has the power to make conditional order requiring the person causing nuisance including that of noise to remove such nuisance.

(v) Police Act, 1861 and Noise Control. - The Police Act, 1861 also deals with noise pollution and punishment thereof.

(i) Provisions under Sec. 30 of the Act, District Superintendent or Assistant District Superintendent of Police are authorised to direct the conduct of all assemblies and processions on public roads or in the public streets or thoroughfares. They can prescribe the routes by which and the times at which such processions may pass. These police officers may also require by general or special notice for the procurement of a licence in cases where in the judgment of Magistrate of the district, the convening of the assembly or of a procession likely to be formed or pass through such road, street or thoroughfare, if uncontrolled, is likely to cause a breach of peace. Under the same section, the above-mentioned police offices are also empowered to regulate the extent to which music may be used in the streets on festivals and ceremonies.

(ii) Provisions under Sec. 30-A, the above said police officers and Inspectors of Police or any Police Officer incharge of a station are authorised to exercise the power of stopping, dispersing or declaring the assemblies or processions as unlawful which violate the conditions of licence.

(iii) Provisions Sec. 32 of the Act, (on conviction before a Magistrate), provides for a penalty of a fine not exceeding two hundred rupees, for violation of the conditions of any licence for the use of music or for the conduct of assemblies and processions, issued by the district Superintendent or Assistant District Superintendent of Police.

(vi) Railways Act, 1890 and Noise Control.-It is surprising to note that railway engines and carriages are a big source of noise in India but railway locomotives enjoys a statutory protection under the Indian than Railways Act, 1890 against any action for the noise created thereby. There is no provision in the Act, which provides for the regulation of noise by railway locomotives. Sec. 16 of the Act gives statutory authority for the use of locomotives to railway administration.

[The section reads: “16-Right to rise locomotives

(i) A railway administration may with the previous sanction of the (Central Government) use upon a railway locomotive engines or other motive powers and rolling stock to be drawn or propelled thereby”.]

The Railway Act, 1890 has been repealed by the Railways Act of 1989 but the new Act also does not contain any specific provision dealing with the control of noise pollution resulting from railway locomotives. Noise from railway locomotives cannot be subjected to strict statutory control, for railways constitute the largest means of public transportation in India.

(vii) Aircraft Act, 1934 and Noise Control. -The impact of civil aviation on the environment is evident in the rising public concern regarding noise, which is most irritating and the most responsible element for the rising opposition to further growth of aviation. The concern over the increasing noise levels from aircrafts has been appreciated by the world aviation community.

Accordingly, in 1968 at the sixteenth Assembly session of the International Civil Aviation Organisation (ICAO) at Buenos Aires, a resolution was adopted whereby ICAO was asked to study on urgent basis the problem of noise pollution from aircrafts. The ICAOI- pursuant to this resolution carried out a detailed study of the noise problem and developed laws in the form of International Standards and Recommended Practices for aircraft noise. These were finally adopted by ICAO in the form of Annex. 16 to the Convention on International Civil Aviation. According to these standards all aircrafts are required to be noise certified by the authorities of the state of registry of the aircraft on the basis of satisfactory evidence that the aircrafts complies with requirements which are least equal to the applicable standards specified in Annex. 16.

India is a member state of ICAO and has accordingly accepted the noise specifications of Annex. 16 for implementation in India. Hence as per an Aeronautical Information circular issued, a legal directive, which lays down that aircrafts which are not noise certified in accordance with Annex. 16 standards will not be permitted to operate in India after 31st December' 1987.

Under the Indian Aircraft Act, 1934 causing wilful damage or injury is actionable. Although there is no specific provision relating to control of noise pollution from aircrafts but under the rule making powers confirmed by Sec. 8 (A) of Aircraft Act, 1934 and its supersession of the Indian Aircrafts (Public Health) rules, 1946 Government can make rules to control noise pollution for safeguarding health. Noise restriction regulations and safety regulations are incorporated in the Aircrafts Rules. To enforce rules Airfield Environment Committees headed by Secretaries, of the State Governments with broad-based membership from Civil Aviation Department, Municipal Corporations, Health Department, etc., are established at all airports. These committees also consider ways and means to maintain environmental cleanliness, disposal of wastes and removal of unathorised slums or eating places etc., around the airport.

It may be mentioned here that theoretically there are noise restrictions at the Indian airports, but there are not known cases where airline has been penalised for infringement of the laid down noise regulations. No serious effort has been made to impose night curfews to cut down noise pollution.

(viii) Motor Vehicles Act and Noise Control. -The Motor Vehicles Act, 1939 under Secs. 20, 21j, 41, 68, 681, 70, 91 and 111A empowered the State Government to frame rules regulating equipment and maintenance of motor vehicles and trailers. Without prejudice to the generality of the foregoing powers, rules, under Sec. 70 may be made, governing any of the following matters either generally in respect of motor vehicles or trailers or m respect of motor vehicles or trailers of a particular class or in particular circumstances, namely:

(i) The reduction of noise emitted or caused by vehicles;

(ii) Prohibiting the carrying of appliances likely to cause annoyance or danger;

(iii) The periodical testing and inspection of vehicles by prescribed authorities; and

(iv) The use of trailer with motor vehicles.

It is noteworthy that Motor Vehicles Rules made by various states do not contain any effective control measures to control the noise pollution. To a certain extent, use of 'horns' and silencers is regulated by the rules. The Rules certainly are directed at curbing the noise but despite their presence the menace and the open violation of the Rules still persists due to inadvertence shown by the state in their effective implementation.

The Motor Vehicles Act, 1939 has been repealed by the newly enacted Act of 1988.

(i) Section 110 of this Act empowers the Central Government to make rules regarding equipment and inbuilt safety measures to be provided in motor vehicles at the manufacturing point such as safety belt, standards of component, controlling air and noise pollution etc., so as to bring uniformity of standards. The proviso to the section provides that any rules relating to the matters dealing with the protection of environment. so far as may be, shall be made after consultation with the Ministry of the Government dealing with environment.

(ii) In pursuance of the powers so conferred, Central Motor Vehicle Rules, 1989 have been framed by the Central Government but the rule-making powers have not been fully utilised for regulating effectively noise pollution. The new Act provides among others for penalty for violation of noise pollution standards.

(iii) Provision of Sec. 190 (2) provides that any person who drives or causes or allows to be driven, in any public place a motor vehicle, which violates the standards prescribed in relation to road safety, control of noise and air pollution, shall be punishable for the first offence with a fine of one thousand rupees and for any second or subsequent offence with a fine of two thousand rupees”.

The Motor Vehicles Act should provide for a provision specifying the limit of noise in terms of decibels.

(ix) Factories Act, 1948 and Noise Control. -The Factories Act, 1948 does not contain a specific provision of noise control while it has been found in a number of cases that high intensities, high frequencies and intermittency of noise are the factor of annoyance for the workers. Such situations not only cause physical and psychological damages but also impairs workers efficiency resulting into their giving low production and causing dissatisfaction practically to all. Only Sec. 11 of the Factories Act, 1938 provides protection from noise by making it obligatory on the part of an occupier for keeping every factory clean and free from any drain, privy or other nuisance. The use of word 'nuisance' in Section 11 may include noise. It is pertinent to note that under Sec. 35 of the Act, protection to eyes of employees is given but protection to ears is nowhere given in the Act. The omission to specifically provide for protection of workers against the noise pollution is uncalled for whereas under the schedule under Sees. 89 and 90 of the Act, noise induced hearing loss is mentioned as a notifiable disease.

Industrial laws such as Factories Act need to incorporate safety provisions against noise pollution to safeguard the workers such as provision for ear plugs and insulation in addition to provisions for the reduction of noise at source such as reduction of noise by proper machine design, proper maintenance, lubrication, mounting equipment on rubber enclosing the noise, use of baffles, use of sound proofing material like walls, ceilings and floors, etc.

(x) The Air (Prevention and Control of Pollution) Act, 1981 and Noise Control. -Prior to the 1987 amendments to the Air Act, 1981, the Act did not include in its gamut the regulation of noise pollution. But after the 1987 Amendments noise has been recognised as an air pollutant. The amended Sec. 2 (a) now defines 'air pollutant' to “mean any solid liquid or gaseous substance including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment”. Hence the 1987 Amendment to the Air Act now specifically extends the provision of Air Act, including increased penalties citizen's suits and the issuance of injunctions by Magistrates, to control noise pollution.

The Central and the State Boards now exercise the powers and functions under Secs. 16 and 17 of the Air Act, respectively with regard to the prevention and control of noise pollution including the laying down of noise standards. In pursuance of the powers conferred under Sec. 16, the Central Pollution Control Board has laid down noise standards during the reporting years.