Prior to 1974, the penalties on crimes against the environment (apart from that for Wildlife, which was protected under the Wildlife (Protection) Act of 1972) were encapsulated under the IPC. This changed with the enactment of the Water (Prevention and Control of Pollution) Act of 1974, which was in accordance with the historic declaration of the United Nations Conference on the Human Environment held at Stockholm in 1972. Henceforth, through consecutive legislative measures the act of pollution was subjected to criminal jurisprudence. The ruling dispensation then initiated a number of measures to push for an agenda to protect the environment. This included the creation of a Department of Environment and addition of articles 48A and 51A(g) to the Constitution of India to add to the directives to the state and append to the list of duties of citizens the responsibility of protecting the environment.
The scope of environmental laws were further increased with the inclusion of the protection of the atmosphere implemented through the Air (Prevention and Control of Pollution) Act in 1981. This was the result of the concentrated efforts by NGOs headed by The Society for Clean Environment (SOCLEAN). Environmental protection in India received further impetus post the 1980s with the creation of a ministry for environment and forests and through various public interest litigations filed before the judiciary. Further the Forest (Conservation) Act, 1980 and the subsequent amendment in 1988 sought to penalize the transgression of the same.
Finally, the comprehensive Environment (Protection) Act was enacted in 1986 as a response to the tragedy at the Union Carbide plant in Bhopal in 1984. The act was passed with the objective to protect, regulate and penalize to deter.
We start with the analysis of India’s unemployment calculated as per “usual status” based on the data sourced from the Economic Survey of 2022-23. This gives us a bird’s eye view of the employment scenario in India and the general trends of the same.
The Indian data:
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The data was gathered by the National Crime Records Bureau. A comparative analysis was conducted to see the rate of cases of environmental violations that are reported officially. As it is seen in the charts, the Environmental Protection Act and The Air and The Water (Prevention and Control of Pollution) Act have reporting close to zero.
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The report found that the maximum number of violations was found to be in the cities in the year 2019 and 2020 consecutively. Coimbatore, Chennai and Jaipur report substantial number of violations. Reporting in most of the cities remain close to zero.
The maximum number of violations (per lakh of population) comes from Coimbatore, Jaipur and Kochi. However, for most of the cities, the number of reported violations stay close to zero.
Hence, this does suggest the need of new interventions that would help the cause of environmental governance better. One of the moves includes de-criminalization of non-serious offenses, which can have a huge influence on reporting of environmental violations.
The data collected over a longer period of time (usual status) gives us a more comprehensive perspective of the country’s employment situation, compared to the data from just one week (current week status). When we look at the long-term data, it is evident that the country has been steadily reducing its unemployment rates. This trend has remained consistent over the past few decades and shows the positive effects of the numerous government programs and the strong growth of the Indian economy.
Proposed amendments and insertions (notable) in the draft:
- Powers of entry and inspection: Individuals carrying on any industry, operation or process of handling any hazardous substance are no longer bound to assist inspections by the Central government. Further, failing to assist and wilful delays or obstructions will not be considered an offense under the act but only lead to liability to pay a fine of not less than Rs 5 lakhs extending to Rs 5 crores , and an additional fine of not less than Rs 1 lakh/day extending to Rs 50 lakhs for continued contravention or non-compliance.
- Penalty for contravention of the provisions of the act and the rules, orders and directions: Imprisonment extending to 5 years with fine which may extend to Rs 1 lakh or both, and an additional fine extending to Rs 5,000/day for contravention after conviction has been replaced with a penalty of not less than Rs 5 lakhs extending to Rs 5 crores, and an additional fine of not less than Rs 50,000/day extending to Rs 5 lakhs for continued contravention or non-compliance.
- Penalty for contravention by companies: not less than Rs 5 lakhs extending to Rs 5 crores. If damage is more than penalty, penalty to be equal to the damages.
- Penalty for contravention by Government Departments: Head of the department to pay not more than Rs 2 lakhs.
- Penalty to be imposed through a duly authorized Adjudicating Officer.
- Appeal: can be made to the National Green Tribunal within 60 days of the aggrieved party receiving the order.
- Environmental Protection Fund: amount of the penalties to be credited to the EPF.
- Failure to pay penalty: shall be considered an offense, and the individual shall be liable to imprisonment of up to 3 years or fine extending to Rs 10 crores or both.
Further, if the offense is committed by a company, every person directly in charge of the company and partners implicated in the offense shall be proceeded against.
Conclusion
The government is transitioning from regulatory governance to a more market based approach. These market based approaches operate on the principle of economic risks to the businesses for any given violation. Criminalisation of environmental offenses has led to reduced reporting. Hence, it has affected the capacity of the government to track down offenses and take necessary action. De-criminalisation is a step towards effective environmental management. This shall be done with involvement of civil society and economic approaches like incentivisation of good practices.
Read more on the subject here: Broadening the reach and scope of the EPA beyond recent amendment
