New Delhi: Criminal liability for certain offenses under environmental protection laws can be replaced with financial punishment, the central government has proposed in consultation papers issued last week.
These proposals seek to decriminalize violation of certain provisions in the Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981. .
Experts say that criminal liability has not been effective in preventing violations under these three laws, but that more clarity is needed to finalize the proposed changes.
Proposed changes include creating money from penalties collected from violators to reduce environmental damage. This fine can go up to Rs 5 crore.
The changes are being proposed “based on inputs received from various stakeholders” and “to allay the fear of imprisonment for simple violations”, the Union Ministry of Environment, Forest and Climate Change said in a note issued on Friday.
according to National Crime Records Bureau (NCRB)In 2020, 992 cases were registered under the Environment (Protection) Act and 588 under the Air and Water Act.
Speaking to ThePrint, Ritwik Dutta, lawyer and founder of Legal Initiative for Forest and Environment, a Delhi-based advocacy group, said, “It is extremely difficult to prosecute a criminal under these laws, as it involves complaining to a judicial magistrate, Which is a trial, after which a decision will be announced. In practice, those who are suffering because of pollution want its source removed, the resource restored, and compensation for any damage that has been done. It is not necessary that efforts should be made to arrest the polluter.”
“These Acts need reform, and moving away from criminal liability and introducing civil remedies is a step in the right direction.”
The Ministry will accept public feedback on the consultation papers by July 21.
What are the proposed changes
Environment (Protection) Act, 1986 (EPA) provides the primary framework for the study, planning and implementation of long-term environmental protection needs. It provides a system for responding to environmental hazards.
Under the current framework, the EPA provides for imprisonment of up to five years, in addition to a fine of up to Rs 1 lakh, or both. As per the proposed changes, any person not complying with the Act will be liable to pay a minimum of Rs 5 lakh, which may extend to Rs 5 crore.
The government proposes to appoint an adjudicating officer who will enforce these punishments, the proceeds of which will be sent to an ‘Environmental Protection Fund’ set up for the purpose.
The consultation paper said that any non-compliance with the EPA would attract financial penalties, with “grave violations causing grievous hurt or loss of life,” resulting in criminal charges under the Indian Penal Code.
Similarly, the government proposes to create an Air and Water Pollution Prevention Fund from the penalties imposed for violations of the Air and Water Acts respectively.
Currently, violations of these laws can result in up to six years in prison. The proposed changes to the Air Act include empowering the central government to exempt certain categories of industries, which are “green or non-polluting”, from violating prior consent from a state board to set up their units. However, if this exemption is not sought, the violators will be criminally liable under section 21 of the Act, states the consultation paper.
Since water is in the Concurrent List of the Constitution – areas over which states and the central government have jurisdiction – the consultation paper states that the proposed amendments will come into force only after two states pass a resolution, for Parliament to consider. That’s ‘strong’.
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Will the punishment work?
Dutta is optimistic that abdication of criminal liability will make it easier to control violations under these laws, but not all legal experts are convinced.
Environmental lawyer and researcher Krutika Dinesh said, “I agree that criminal liability has not worked, but what penalties will be imposed? The proposed changes run the risk of reinforcing the notion that these harms – whether related to the environment or health – can be compensated with money.”
Dinesh said the proposed amendments do not adequately explain how the money will be used, or the rationale behind the revised penalty figures. “With funding, efforts must be made to understand and get to the cause of environmental damage and address it.”
Akshat Jain is a student of National Law University, Delhi and intern at ThePrint
(Edited by Tony Rae)
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