India: Law Regulating The Environmental Impact Of Mobile Towers In India

  1. INTRODUCTION
  1. The radiations from mobile towers have been a concern in India for some time and this concern seems to have grown in recent times with the growing network of mobile service providers. The interim order passed by the Hon'ble Supreme Court of India on 30 March, 2017 in the case of Bhupesh Sehgal v Delhi Development Authority to deactivate a mobile tower as it was seen to be causing cancer has highlighted the issue.
  1. As per the "awareness note on mobile tower radiation and its impacts on environment", as circulated by the Central Pollution Control Board1 ("CPCB"), a mobile tower is a triangular / cone shaped metal structure which is more than nine meter in height and on which three or more antennas are fixed. Mobile Tower Antennas are the source of radiation in a mobile tower. However, a telecom infrastructure consists of electronic (active) and non-electronic infrastructure.
  • Electronic infrastructure includes base tower station, microwave radio equipment, switches, antennas, transceivers for signal processing and transmission.
  • Non-electronic infrastructure includes tower, shelter, air-conditioning equipment, diesel electric generator, battery, electrical supply, technical premises.

For a good quality wireless communication, Mobile Tower Base Stations ("MTBS") are an inevitable part of the telecom infrastructure system.

  1. THE EXISTING LAW IN INDIA 
  1. While the provisions of various environmental statutes, especially the Air (Prevention and Control of Pollution) Act, 1981 along with those of the Constitution of India have been cited on various occasions, there still remains to be some clarity as to whether the existing environmental statutes cover electromagnetic radiations.
  1. India adopted the International Commission for Non Ionizing Radiation Protection (ICNIRP) Guidelines in 2008. The Department of Telecommunications has time and again issued advisory guidelines for state governments for issue of clearance for installation of mobile towers including the one issued in 2013. The CPCB, as mentioned above, issued an awareness note on mobile tower radiation and their impact on human health.
  1. In the case of Arvind Gupta v Union of India2, the National Green Tribunal ("NGT") observed that "it is clear beyond doubt that the radiation from electromagnetic waves resulting from the mobile towers is not explicitly covered in any of the scheduled acts to the NGT Act, 2010. In fact, even under the NGT Act, 2010, relevant definition under provisions do not refer to the radiation specifically."    
  1. The NGT held that the issue of radiation i.e. emission of electromagnetic waves from the towers constructed by the respective respondents does not fall within the ambit, scope and jurisdiction vested with the NGT under the provisions of the NGT Act with reference to the Environment (Protection) Act, 1986.
  1. The Hon'ble Tribunal has however observed that the aforesaid order only deals with the issue of jurisdiction and that it has not recorded any finding as to whether radiation is a pollutant generally or under any other specific law including environmental law. The NGT pointed out that it is not dealing with the question whether the Central Government or other State Governments are liable to be directed to frame statutory or other regulatory regime covering the construction, its specification, sites and operation of mobile towers and other towers. The NGT also rejected any finding as to whether radiation is above prescribed limits and the guidelines and/or beyond them is actually injurious to human health and environment.
  1. JUDGMENTS AND ORDERS
  1. While the aforesaid order of the NGT highlights the uncertainty in the existing law, in so far as addressing the issue of electromagnetic radiations is concerned, there have been orders passed by various high courts in India which have either found electromagnetic radiations to be a health hazard or have highlighted the uncertainty due to lack of evidence in this regard.
  1. The Hon'ble High Court of Rajasthan in the case of Justice  I.S.  Israni (Retd.) v Union  of  India3 has held that towers on hospitals and school buildings etc. should be avoided as children and patients may be more susceptible to possible harmful effects of electro-magnetic radiation. The case related to the erection of mobile towers in certain high-risk areas like schools, hospitals and high-density residential areas and the validity of bye-laws which prohibited the erection of mobile towers in such areas. The court held to be valid the bye-laws of the State Government, made on the recommendation of the Central Government. In the case of the densely populated residential areas, the court directed the State Government and the local authorities to take decision on case wise basis with regard to installation of towers in the densely populated areas in accordance with law.
  1. The high courts have also had contrary views in various other cases in this regard. In the case of Vijay Verma v State of Himachal Pradesh4, petition was filed for prohibition from installing mobile towers on the roofs of the petitioners. In this case, the Hon'ble High Court of Himachal Pradesh held that the main issue was whether the radiations from the towers cause any health hazard or not. The Hon'ble High Court found out that radiation is something that is not new and it was in existence since life began on earth. There was no alarm with regard to possible ill-effect of the electromagnetic field (EMF) from mobile phone towers or the mobile phones as the limit adopted by India will not have any biological effect on the life of the people. The Hon'ble High Court observed that there was no conclusive evidence or scientific backing that the mobile towers would cause health hazards.
  1. There have been quite a few other cases as well where it has been held that that installation of mobile tower is not by itself harmful to the lives of human beings.5 It has been held that establishment of mobile towers would not cause any health hazards or affect fundamental rights of a citizen. There was no reliable material or evidence to warrant conclusion that tower if permitted to be established, would be health hazard to local residents.6
  1. More recently in 2016, in the case of Asha Mishra v State of UP7, it has been observed that "all studies indicate that presently there appears to be no definitive scientific material or data which may warrant EMF radiation being classified as endangering health. However the state of the research can at present, as we have noted above, be best described as being still nebulous and tenuous. This is perhaps the reason for research in the field being continued and ongoing. The standards adopted in our country are stated to be more stringent than those suggested by the WHO."
  1. Interestingly, it has been held in the case of Reliance Infocomm Ltd. v Chemanchery Grama Panchayat8 that Right to Life enshrined under Article 21 includes all those aspects of life which make life meaningful, complex and worth living. Development of technology has its own ill-effects on human beings, but, at times people will have to put up with that at the cost of their advantages.
  1. KCO COMMENTS AND SUGGESTIONS
  1. The petition pending before the Hon'ble Supreme Court of India is crucial to the telecom companies as it would affect the manner in which mobile towers would be erected in a densely populated country like India and thus the telecom business in this country. While it has been observed by various high courts in their respective orders in this regard that the standards in India are way more stringent than even the WHO standards or the standards in other countries, it is important to appreciate that each case is different and India due to its population density and other typical reasons is very different from other jurisdictions. This leaves immense scope for law-making and therefore uncertainty looms large on the sector.
  1. As mentioned above, there is no clarity yet as to whether mobile towers actually cause harm to human health and environment. It is in this regard that the proceedings pending before the Hon'ble Supreme Court of India become crucial. Be it the guidelines issued by the CPCB or the various orders passed by the Hon'ble National Green Tribunal and the Hon'ble High Courts, it is yet to be decided as to whether there is any impact of mobile radiations on human health and environment. Interestingly, while the awareness note published by CPCB doesn't mention that mobile tower radiations in India cause any harm to human health, the note refers to a report by the 'Expert Committee to study the possible impacts of Communication Towers on Wildlife including Birds and Bees', constituted by the Ministry of Environment & Forests, Government of India on 30th August 2010. The Expert Committee on the basis of its review of the available scientific information, in its Report indicates that the Electro-Magnetic Radiations (EMR) interfere with the biological systems besides impact on human beings.      

Footnotes

1 http://cpcb.nic.in/Note_Mobile_Tower_Radiation_UPCD_Div.pdf (last visited on 09 May 2017)

2 MANU/GT/0202/2015

3 2013(4)CDR1973(Raj); MANU/RH/1496/2012

4 MANU/HP/1116/2015

5 Kalu Singh v State of Rajasthan, 2015(3)RLW2175(Raj.)

6 Sudevan v Mundur Grama Panchayat, 2013(4)KLT55; Vikas Luthra v. MCD, MANU/DE/1120/2016; Kapil Choudhary v. Union of India, 231(2016)DLT158    

7 MANU/UP/0515/2016

8 AIR2007Ker33

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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