The Environment (Protection) Act 1986

Back ground of the Act In the wake of Bhopal tragedy ,the Government of India enacted “the Environment (Protection) Act of 1986”.under Article 253 of the Constitution. The purpose of the Act is to implement the decision of the ‘United Nations conference on the Human Environment of 1972.’ The Act relate to the protection and improvement of the human environment and the prevention of hazards to human beings, other living creatures, plants and property. The Act is an “Umberlla” Legislation designed to provide a frame work for central government co-ordinating the activities of various central and state authorities established under previous laws.

Objectives of the Environment Protection Act 1986 The Act come in to effect on 9th November 1988 with following objectives: 1) to co-ordinate the activities of other various regulatory agencies already in existence. 2) Creating an authority with adequate power for environmental protection 3) Regulation of discharge of environmental pollutions and handling of hazardous substances. 4) Speedy response in the event of accidents threatening environmental equilibrium and different punishment to those who endanger human and environmental safety and health.

Definitions of certain terms of the ACT Environment includes water , air , and land and the inter-relationship which exists among and between water,air and land, and human being , other living creatures,plants,micro-organism and property. Environment Pollutant means any solid, liquid, or gaseous substance present in such concentration as may be,or tend to be, injurious to environment

Contd… definitions Environment pollution means the presence of any environment pollutant in the environment Hazardous Substance means any substance or preparation of which,by reason of its chemical or physio-chemical properties or handling,is liable to cause harm to human being , other living creatures , plants, micro organism, property or environment. “Occupier” in relation to any factory or premises, means a person who has control over the affairs of the factory or the premises and includes ,in relation to any substance , the person in possession of the substance. “Handling” ( in relation to any substance) means the Manufacture processing,treatment,package,storage,transportation,use,collection,conversion, destruction,offering sale etc . of such substance.

General Power of Central Govt. in relation to protection of environment. A) Take all such measures to protect and improve the quality of the environment. B) prevent, control, and abating (reduction)environmental pollution c) Co-ordination of actions of the State Government offices and other authorities , under this Act or any other laws. D) planning and execution of a nation-wide program for prevention,control and abatement(reduction/decrease) of environmental pollution E) laying down standards for the quality of environment in its various aspects. F) fixing standards for emission or discharge of environmental pollutants from various sources. G) Restriction of Areas in which any industries ,operations,or processes,or class of industries shall not be carried out or shall be carried out subject to certain safeguards

Contd…General Power of Central Govt Contd…General Power of Central Govt. in relation to protection of environment. H)examination of such manufacturing process ,material substances that are likely to cause environmental pollution i) Establish and recognize environmental laboratories and institutes to carry out such functions which are entrusted by the Act. J) such other act as the Central Government deems fit to secure the implementation of the provision of the Act.

Contd…General Power of Central Govt. in relation to protection of K) power to appoint officers and delegation of their powers as it thinks for the purpose of this Act. L) power to make rules to regulate environmental pollution

ROLE of the Central Government to prevent and control environ ROLE of the Central Government to prevent and control environ.. pollution Section 7 to 26 of the Environment protection Act 1986 provide the measures for prevention ,control and abatement of Environment pollution 1. Persons carrying on Industry,operation or process,should not allow emissions or discharge of environmental pollutants in excess of the standards. 2)persons handling hazardous substances has to comply with procedural safety measures and other prescribed procedure. 3)Information should be given to authorities concerned regarding discharging of any environmental pollutions in excess of the fixed standards. So that accidents can be prevented and quick measures could be taken to mitigate the likely losses. 4)Central Government can empower any person to enter any place of any time in order to examine whether all provisions of the Act are scrupulously followed or not. 5) such person /officer can test any equipment ,plants, registers or document and can search any building ,plant, documents ,materials as necessary to protect the environment and prevent pollution. 6) The provisions of criminal procedure, code are applicable whenever search or Seizure takes place

FEMA 1999.(Foreign Exchange Management Act 1999) Major changes have been introduced in Indian Economy in 1991,to facilitate increased inflow of foreign investment and capital . This is done to accelerate industrial growth and promote trade, especially Exports. In this Scenario FERA(Foreign Exchange Regulation Act )1973 was amended to simplify regulations relating to foreign Investment. Considering these developments,.the FEMA Bill was introduced in the loka sabha on Augaust 4th 1998 and the Foreign Exchange Managemet Act ,1999 came in to force on 1st June 2000. OBJECTIVES OF FEMA 1999. 1)substantial increase in our foreign exchange reserves, 2)growth in foreign trade , 3) liberalization of Indian investments in abroad, 4)increased access to external commercial borrowings by Indian corporates 5) participation of foreign Institutional investors in our stock markets, 6) To promote an orderly maintenance of the foreign Exchange market in Our Country. etc.,

Scope of FEMA 1999 The FEMA 1999 is applicable to the whole of India It shall also apply to all branches,offices,and agencies,outside India owned or controlled by a person resident in India and Any contraventions, of the provisions of FEMA by all those who are covered under the above two aspects, committed outside India

Definitions/ meaning of TERMS used in the ACT Foreign Currency ,means any currency other than Indian Currency. Foreign exchange means foreign currency and includes: 1) deposits,credits, and balances payable in foreign currency. Ii) drafts, travellers cheques,letters of credit, bills of exchange drawn by banks,institutions or persons out side India,but payable in Indian currency. Adjudicating Authority. Means an officer authorised under subsection (1) of section 16(8.2 (a). Authorised person means an authorised dealer, money changer,off-shore banking unit, or any other person for time being authorised under sub section (1) of section 10 to deal in foreign exchange. Appellate Tribunal means the Appellate Tribunal of Foreign Exchange established under section 18 of the Act. Capital Account Transaction means transaction which alters the assets or liabilities ,including contingent liabilities,outside India of persons resident in India and of assets or liabilities in India of persons resident outside India, and includes transactions referred to in sub-section (3) of section 6

Definitions/ meaning of TERMS used in the ACT “Currency” Includes all currency notes,postal notes,postal orders,money orders, cheques,drafts,travellers cheques,letters of credit,bills of exchange and promisory Notes, credit cards or such other similar instruments,as may be notified by the reserve Bank “Currency Notes” means and includes cash in the form of coins and bank notes

Definitions/ meaning of TERMS used in the ACT “Current Account Transactions” means a transaction other than a capital account transaction and without prejudice to the generality of the foregoing such transaction includes : ( i ) payments due in connection with foreign trade , other current business,services,and short term banking and credit facilities in the ordinary course of business. (ii) payments due as interest on loans and as net income from investments , (iii) remittances for living expenses of parents,spouse,and children residing abroad (iv) expenses in connection with foreign travel, education,and medical care of parents ,spouse and children

Definitions/ meaning of TERMS used in the ACT “Export” means : (i) taking out of India to a place outside India any goods ; (ii) provision of services from India to any person out side India “Import” means bringing into India any goods or services “Foreign Security” Means any security , in the form of shares, stocks,. Bonds,debentures, or any other Instrument denominated or expressed in foreign currency and includes securities expressed in foreign currency, but where redemption or any form of return such as dividend or interest is payable in Indian Currency

Definitions/ meaning of TERMS used in the ACT “person resident in India” means : (1) a person residing in India for more than one hundred and eighty two days during the course of preceding financial year but does NOT include: (a) a person who has gone out of India or who stays outside India , in either case: (i) for or on taking up employment out side India or (ii) for carrying on outside India a business or vocation out side India or (iii) for any other purpose , in such circumstances as would indicate his intention to stay out side India for a uncertain period

Definitions/ meaning of TERMS used in the ACT Indian Currency means currency which is expressed or drawn in Indian rupees but does not include special bank notes and special one rupee notes issued under section 28A of the RBI Act of 1934. Person resident outside India means a person who is not resident in India Repatriate to India means bringing to India the realised foreign exchange and: (i) the selling of such foreign exchange to an authorised person in India in exchange for rupees or (ii) the holding or realised amount in an account with an authorised person in India to the extent notified by the Reserve Bank, and includes use of the realised amount for exchange of a debt liability denominated in foreign exchange and the expression “ repatriation” shall be construed accordingly.

Salient features of FEMA 1999 1. Dealing in Foreign Exchange (section 3) 1. No person shall deal in or transfer any foreign exchange or foreign security to any person not being an authorised person ,without the general or special permission of the Reserve Bank and as per rules and regulations made in this FEMA Act. 2. No person shall make any payment to or for the credit of any person resident outside India in any manner other than mentioned in Act. 3. No person shall receive otherwise through an authorised person any payment by order or on behalf of any person resident outside India in any manner. 4. enter into any financial transaction in India as consideration for or in association with acquisition or creation or trtansfer of a right to acquire , any asset outside India by any person. Holding of Foreign Exchange. ( section 4) No person in India shall acquire ,hold,own,possess,or transfer any foreign exchange ,foreign security or any immovable property situated out side India.

Current Account Transaction Section 5. Any person may sell or draw foreign exchange to or from an authorised person if such sale or drawal is a current account transaction,subject to Reserve Bank restrictions. CAPITAL ACCOUNT transactions. Subject to Section 6,sub section(2) of the FEMA 1999,any person may sell or draw foreign exchange to or from an authorised person for a capital Account transaction

Contd….Capital Account Transactions The Reserve Bank may in consultation with the Central Government, specify: (i) any class or classes of capital account transactions which are permissible (ii) the limit up to which foreign exchange shall be admissible for such transactions: Provided that The RBI shall not impose any restriction on the drawal of foreign exchange for payments due on account of amortization of loans for depreciation of direct investments in the ordinary course of business. ( to pay off(as mortgage) by instalments of principal & interest -------- to gradually reduce or write off the cost or value of an asset)

Export of Goods & Services AS per Section 7 of the FEMA , every Exporter of goods shall :- (a) furnish to the RBI or to such authority a declaration in such form and in such manner as may be specified correct material particulars including full value of Export of goods. If the full value of export is not ascertainable at the time of export, the expected value has to be furnished to RBI. (b) the exporter should also furnish such other information as may be required by RBI for the purpose of ensuing the realisation of such export proceeds.

Contd…Export of Services Every exporter of Services shall furnish to the RBI or to such other authorities a declaration in the prescribed format containing the true and correct material particulars in relation to payment of such services.

Realisation and Repatriation of foreign exchange. As per section 8 , any amount of foreign exchange due or accrued to any person resident in India,such person shall take all reasonable steps to realise and repatriate to India such foreign exchange in such manner as prescribed by RBI.

Exemption from realisation and repatriation Provisions of sections 8 shall not apply to the following: A) possession of foreign currency or foreign coins by any person up to such limit as the RBI may specify. B) foreign currency account held or operated by such person or class of persons and the limit up to which the RBI may specify.

OFFENSES under FEMA 1999 1. Only a person Authorised by Reserve Bank can deal in Foreign Exchange. 2. No one can make a payment to a person resident outside India, without permission of RBI 3. No one receives any Payment from a person resident outside India, without permission of Reserve Bank 4.A person resident in India cannot deal in foreign exchange,or any immovable property situated out side India ,without permission of RBI 5.Similarly a person resident out side India, cannot acquire immovable property in India without permission of RBI

Difference between FERA & FEMA Consisting of 81 Sections and was more Complex Terms like Capital Account Transaction & Current Account Transctions were not defined in FERA Definition for “Authorised Person “ was Narrow F E M A Only 49 Sections and is much Simple Terms Like Capital Account Transaction/ current Account Transactions are Well defined in FEMA Definition For “Authorised Person”were widened to include Banks,money changes, Offshore Banking Units etc.

Contd…Difference between FERA & FEMA Criminal Offence punishable with Imprisonment as per Criminal Procedure Amount of Penalty was nearly 5 times the amount involved It conferred wide powers on a police officer not below the rank of Deputy Superintendent of police to make a search. F E M A Offence is Considered as CIVIL offence only punishable with some amount of money as penalty. Penalty is considerably decreased to 3 times the amount Involved. The Scope and power of search and seizure has been curtailed to a great extent.

Contd…Difference between FERA & FEMA There was a major difference in the definition of “Resident” under FERA and Income tax Act. An appeal against the order of “Adjudicating Office” before Foreign Exchange Regulation Appellate Board went before High Court The Definition of “Resident”as per FEMA are in consistent with Income tax Act.( i.e. the Criteria that residing In India for 182 days) is same both in FEMA and Income tax Act. The Appellate Authority under FEMA is the Special Director (Appeals). Appeal against the order of Adjudicating Authority and special Director (Appeals) lies before “Applleate Tribunal For Foreign Exchange”.