ISSUE XV : Re-evaluating the impact of mobile towers: A legal perspective

Introduction

The colossal expansion of the telecom industry in recent years along with new mobile products has ensured telecom services have broadened the Indian subscriber base which is expected to grow at approximately 17 percent per annum.¹ Such a massive subscriber base means that the number of mobile towers will, inevitably, significantly increase with time. There have been continuous debates regarding the impact of mobile towers as they emit non-ionizing radiation that could be harmful and may impact the health of people who are within the range of its exposure.

This bulletin attempts to analyze the current situation pertaining to the alleged radiation from mobile towers and whether such radiation can be termed as a “pollutant” under India’s environmental legislations. It further seeks to assess, if technological advancement is a viable option to overcome this burgeoning issue.

1. Current Concerns

There are approximately 400,000 mobile towers and projected to grow at approximately 3 percent over the next 4-5 years.² Such proliferation is due to the growing popularity of mobile phones and network consumption. There will only be an upward trend with an increase in spectrum demand of 4G and more sophisticated networks. The radiation that people may be exposed to depends largely upon the antennas that vary widely in power and the potential for exposing people to radiation.³ The alleged danger by mobile towers has been mooted several times at different forums, notably the direct link that may exist between their radiation and health hazards.

Media has reported multiple cases of impact on health, due to such radiation. In 2010, four people contracted cancer, which was allegedly attributable to a mobile tower installed on a building adjacent to theirs.⁴ In 2012, in Jaipur two family members were diagnosed with brain cancer after three towers were erected in their locality.⁵ Clearly, radiation from mobile towers does pose a serious threat to people living near them. People conscious of the dangers of mobile phones prefer not to carry them at all times and even if they do, they try as much as possible to keep it away from them. Growing concerns have prompted apprehensive citizens to file law suits against telecom service providers as well as authorities responsible for issuing licenses for erecting them. Different courts in India have taken cognizance of these issues and analyzed them from different perspectives. However, there seems to be a variation in their interpretation regarding the issue of radiation as is evident from the cases discussed herein below.

2. The Legal Position

In Justice I.S. Israni (Retd.) v. Union of India⁶, the petitioner sought for removal of mobile towers near hospitals, schools and residential areas as they affected the health and life of the people living in the vicinity. The petitioner contented that by erecting such towers near hospitals and schools may affect young children, aged persons and pregnant women who are more prone to electro-magnetic radiation as compared to other individuals, and may likely be susceptible to cancer, fatigue, headaches etc. It was further submitted that necessary efforts were not made to educate the people regarding the risks of using mobile phones as well as mobile towers. The court scrutinized the evidence placed before it, including the report of the inter-ministerial committee which supported the position that, if electromagnetic radiation is higher than the prescribed limit, it could possibly lead to health hazards. Upon review, the court took the position that the report was not conclusive on the ill-effects of radiation, which could be dangerous even at prescribed levels. Accordingly, it directed the state government to remove the mobile towers erected near colleges, hospitals and jails.

On the contrary, in Vikas Luthra v. M.C.D. & Ors.⁷, a writ petition was filed before the High Court of Delhi for removal of cell phone towers as they allegedly emitted radiation, which cause health problems such as blood pressure, prostate cancer and heart problems. The respondents contended that electromagnetic energy from mobile towers was not harmful and that there was no concrete scientific evidence to show that radiation from mobile towers led to adverse health effects. Moreover, exposure from mobile towers is much less than from radio and television transmissions. Upon hearing the contentions of the parties, the court dismissed the petition due to lack of evidence put forth by the petitioner, as adequate material was not placed on record to prove that radiation from cell phone towers resulted in the aforementioned health hazards.

3. Mobile Tower Radiation – An Air Pollutant?

Based upon the foregoing, it would not be out of place to state that radiation from mobile towers can be considered as an air pollutant, which is present in the very air that surrounds us. “Air Pollutant” has been defined in Section 2 (a) of the Air (Prevention and Control of Pollution) Act, 1981 as follows:

““air pollutant” means 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.”

The presence of radiation in the air of varying concentrations from mobile towers has the potential to be injurious to human beings, other living creatures, plants, property or environment over a period of time and can, accordingly, be considered as an air pollutant. Of course, other sources in daily life may emit radiation such as FM/AM towers, microwave ovens etc. However, due to dense installations and unscientific proliferation, the emission from mobile towers is amplified and unlike other sources it is continuous.⁸ For example, the state of Kerala witnessed a decline in its commercial bee population used for apiculture (raising and caring for bees), attributed to increase in electropollution or radiation in the environment. The term coined for this is “colony collapse disorder”, wherein due to consistent electromagnetic background noise leads to bees being unable to find their way back home. This phenomenon has spread to other parts of the world as well.

The Indian Council of Medical Research has stated, on the basis of a number of studies, that adverse effects may be caused due to radiation from mobile phones and towers. Moreover, World Health Organization has classified the radio frequency electromagnetic radiations emitted from wireless phones under a 2-B carcinogen category (possibly carcinogenic to humans as classified by the International Agency for Research on Cancer). Such alleged radiation does not only affect human beings, but has an adverse effect on wildlife as well. An expert committee constituted by the Ministry of Environment and Forests, to study the possible impact of communication towers on wildlife, had in its report indicated that the biological systems of animals get affected due to electromagnetic radiation.⁹ The Supreme Court in M.C. Mehta v. Kamal Nath & Ors¹⁰, stated that any disturbance of the basic element of the environment such as air, water and soil which are necessary for life would be hazardous for life under Article 21 of the Constitution of India which states “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

A pertinent dictum was laid down in M.C. Mehta v. Union of India¹¹, wherein it was held that even in case of a reasonable doubt or suspicion, the precautionary principle requires that an anticipatory action be taken in order to prevent any harm. Therefore, debates on lack of direct evidence on this issue really should not matter given the cases of indirect damage and efforts being made to take preventive steps.

4. Regulatory Framework in India

Although India has adopted stringent norms with respect to mobile towers; however, further regulation is necessary. The Department of Telecommunication (“DoT”) has adopted a strict approach with respect to radiation exposure and has a defined specific absorption rate or SAR value of 1.6 W/kg averaged over 1 gram of human tissue¹² which all mobile companies must adhere to. In its advisory guidelines the DoT has, amongst other actions,

adopted even stricter limits for radiation emanating from base transceiver station (“BTS”) which is 1/10 of the International Commission on Non-Ionizing Radiation Protection (“ICNIRP”) norms.¹³ Such checks & balances are paramount for monitoring the radiation levels from the BTS. In one such instance a team of DoT officials found approximately 205 BTS that were non-compliant to the prescribed radiation limits and, accordingly, a penalty of INR 10.8 crores or about $1.6 million¹⁴ was imposed on the non-compliant telecom service providers.

If despite the ICNIRP guidelines to reduce radiation the citizens are getting affected, then it is time that the effects of mobile towers are relooked at and, accordingly, appropriate technologies should be adopted to prevent more harm. Despite the norms, certain scientific assessments need to be undertaken, taking into account the hot tropical climate of the country, low body mass index and low fat content of an average Indian that may place Indians at a higher risk of adverse effects of electromagnetic radiation.¹⁵

Conclusion

Radiation from mobile towers is a relatively new kind of environmental issue which is being recognized as an unseen and subtle pollutant that may be affecting life forms in multiple ways. If such towers are necessary for socio-economic development and health of the people is also at stake, the government must adopt technologies that help in reducing the radiation thereby dealing with the issue holistically. For instance, technologies such as low-power radiating antennae or distributed antennae systems to make it more efficient and environmentally sensitive should be considered. Furthermore, use of smart meters or other measuring devices should be adopted, wherein they can be installed near mobile towers and if electromagnetic radiation is triggered beyond the prescribed limit, a fine can be imposed. Even an online system for monitoring the radiation levels through measuring centres should be setup in various cities. DoT and other key departments should conduct audits more frequently and efficiently. The government can further make it mandatory for telecom service providers to install some kind of electromagnetic shielding technology near mobile towers which may reduce the electromagnetic radiation exposure to nearby people.