The story so far: On July 1, the Ministry of Environment, Forest and Climate Change put out a note, proposing amendments in the Environment (Protection) Act, 1986. The EPA establishes the “framework for studying, planning, and implementing long-term requirements of environmental safety and laying down a system of speedy and adequate response to situations threatening the environment.” In its note, the Environment Ministry has proposed legislation which scales down punishment for some environmental violations. Stakeholders — citizens, State governments, Union Territories and others concerned — have till July 21 to respond with suggestions. Besides changes in the EPA, the Ministry, in a set of notifications, also proposed amendments to three other legislations.
What are the Environment Ministry’s proposed amendments?
The Environment Ministry has proposed amendments in four key legislations: The Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Public Liability Insurance (PLI) Act, 1991. These are the cornerstone environmental laws that led to the setting up of the Central Pollution Control Board (CPCB), empowering it to take action against individuals and corporate bodies who pollute air, water and land. The clutch of laws currently empowers the CPCB to either shut down a polluting industrial body or imprison executives of an organisation found to be environmental violators.
The Environment Ministry said it had received “suggestions” to decriminalise existing provisions of the EPA to weed out “fear of imprisonment for simple violations.” With a set of amendments, the Environment Ministry proposes to modify provisions of the Environment Protection Act (EPA), by replacing clauses that provides for imprisonment with ones that only requires violators to pay a fine. These, however, don’t apply to violations that cause grave injury or loss of life.
How will violators be punished?
The EPA currently says that violators face imprisonment up to five years or a fine up to ₹1 lakh or both. If the violations continue, an additional fine of up to ₹5,000 for every day during which such failure or contravention continues after the conviction may be be levied. There’s also a provision for the jail term to extend to seven years.
The changes proposed include the appointment of an ‘adjudication officer’ who will decide on the penalty in cases of environmental violations such as reports not being submitted or information not provided when demanded. Funds collected as penalties would be accrued in an “Environmental Protection Fund.” In case of contraventions of the Act, the penalties could extend to anywhere from five lakh to five crore, the proposal notes, but the clause on provision of a jail term for the first default has been sought to be removed.
Do these amendments defang environment laws?
The Environment Ministry hasn’t laid out a clear rationale on why these amendments were necessary. However, the history of environmental action and its success in India shows that the current laws have had limited effectiveness. An analysis by the Centre for Science and Environment found that Indian courts took between 9-33 years to clear a backlog of cases for environmental violations.
Beginning 2018, close to 45,000 cases were pending for trial and another 35,000 cases were added in that year. More than 90% of the cases were pending for trial in five of the seven environment laws.
Ritwick Dutta, lawyer and founder of the Legal Initiative for Forest and Environment, said that myriad challenges dogged the process of bringing violators to book. For instance, to flag pollution from an industrial unit would mean filing a complaint with the court of the concerned district magistrate, or furnishing evidence to the CPCB which would again have to approach the same institution. This would then box the crime in the category of ‘criminal complaints’ that would have to follow a set procedure and was extremely time-consuming. In most cases, it was practically impossible to hold a specific individual in an organisation responsible for a specific crime given the burden of proof required. No top executive in India, said Dutta, had gone to jail for an environmental crime. This was different from cases of crimes such as poaching, or stealing forest produce, where there was always a definite offender who could be apprehended and dealt with by the police. The new amendments, thus, potentially made a certain category of crimes ‘civil crimes’ making it easier to hold organisations accountable.
Environmentalist Vikrant Tongad said that the existing clause of imprisonment was to deter violators and not to imprison them. The proposed penalties were too meagre and the amendments opened up avenues for “large scale corruption” as the ‘Adjudication Officers’ could be “arbitrary” in their decision-making.
