LIABILITIES UNDER ENVIRONMENTAL PROTECTION ACT

LIABILITIES UNDER ENVIRONMENTAL PROTECTION ACT

 

WRITTEN BY : ARJIM JAIN

3^RD YEAR, B.A.LL.B

NATIONAL LAW UNIVERSITY, ODISHA

 

EDITED BY : MUSKAN PRASAD

4^TH YEAR, B.A.LL.B(HONS)

AMITY LAW SCHOOL, NOIDA

  

Introduction

In India, the judiciary and legislature have made significant efforts to establish strong environmental laws and jurisprudence. National legislatures have enacted and continually amended environmental laws to address changing conditions. Although some environmental legislation existed before India's independence, it was after the “Stockholm Declaration” that the country began to focus on environmental laws more comprehensively.[1]

The establishment of the “National Council for Environmental Policy and Planning” in 1972 marked a significant step, which later evolved into the “Ministry of Environment and Forests (MoEF).”[2] The Parliament passed various acts, including the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Wildlife (Protection) Act, 1972, Environment protection act, 1986 (hereinafter referred as “the act”), all aimed at protecting and improving the environment in accordance with the Stockholm Conference's goals.

This legislation establishes provisions for both civil and criminal liabilities to enforce compliance and accountability. Understanding the civil and criminal liabilities under the Environment Protection Act is vital to comprehending the consequences individuals and entities face for violations of environmental laws. This article will provide an overview of the civil and criminal liabilities that can arise under this Act, shedding light on the legal repercussions individuals and organizations may encounter when breaching environmental regulations. By examining these liabilities, we can gain insight into the measures taken by the Indian legal system to protect and preserve the environment, thereby fostering a culture of environmental responsibility and sustainable practices.

Understanding the Environment Protection Act

The Act was enacted with several key objectives. Firstly, it aimed to implement the decisions made during the “United Nations Conference on the Human Environment” held in Stockholm in 1972. Secondly, the act sought to establish a governmental authority responsible for environmental protection. It also aimed to coordinate the efforts of various regulatory agencies operating under existing laws. Another important objective was the enactment of comprehensive laws for environmental protection, particularly in areas facing severe environmental hazards. Moreover, the act recognized sustainable development as a primary goal, aligning with the broader objectives of environmental protection.

The Central Government is vested with significant powers under the Environmental Protection Act. It has the authority to undertake necessary measures to protect and enhance the quality of the environment in coordination with the State Governments.[3] This includes planning and implementing nationwide programs to prevent, control, and reduce environmental pollution. Further, it is also responsible for setting standards for environmental quality, emission or discharge of pollutants, and regulating the location of industries or processes.[4] They have the power to appoint officers, issue directives for the closure or regulation of industries, and restrict the supply of services like electricity or water. [5]

The Central Government can establish environmental laboratories,[6] appoint Government Analysts for sample analysis,[7] and impose penalties for non-compliance or contravention of the Act.[8] Courts can only take cognizance of offenses under this Act through complaints filed by the Central Government or authorized authorities, or after a 60-day notice has been given to the concerned authorities.[9]

Liabilities under the Act

The provision of the Act in India outlines the penalties for non-compliance or contravention of the Act, as well as its associated rules, orders, or directions. According to this provision, individuals or entities who fail to adhere to the Act's provisions may face imprisonment for a maximum term of five years and a fine of up to one lakh rupees.[10] The court has the discretion to impose either imprisonment or a fine, or both, depending on the gravity of the offense. If the failure or contravention continues beyond the initial conviction, an additional fine of up to five thousand rupees per day may be levied.[11] Moreover, if the violation persists for over a year from the date of conviction, the offender may face imprisonment for a maximum term of seven years.[12]

These penalties aim to deter non-compliance and ensure accountability in protecting the environment and upholding environmental laws in India. In cases involving companies or government departments, individuals in charge are presumed guilty unless proven otherwise.[13] These provisions ensure that environmental protection is enforced effectively, holding responsible parties accountable and promoting a cleaner and healthier environment for all.

The Environment Ministry has put forth a proposal to amend the Environment Protection Act by replacing the provision of imprisoning offenders with a clause that imposes fines instead, except in cases of severe violations causing injury or loss of life.[14] The proposed fines are significantly higher than the current ones, ranging from 5 to 500 times the existing amounts. The Ministry justifies these amendments by stating that they aim to eliminate the fear of imprisonment for minor violations.[15]

The Indian judiciary has played a crucial role in shaping environmental policy and legislation. The landmark case of MC Mehta v. Union of India laid the foundation for environmental jurisprudence in India.[16] The Supreme Court rectified the mistakes made in the Bhopal gas tragedy case and emphasized the need for a balance between environmental and economic imperatives for the greater welfare of the people. The judiciary has consistently implemented principles of environmental law, contributing to the development of an Indian jurisprudence that aids legislators in formulating environmental statutes suitable for Indian conditions.

In cases like People United for Better Living in Calcutta v. State of West Bengal,[17] the High Court highlighted the importance of sustainable development, emphasizing the need to strike a balance between economic growth and environmental preservation in a country like India. Despite the judiciary's diligent efforts, criminal prosecutions related to environmental offenses remain challenging, resulting in a low conviction rate.

The case of a person being sentenced to imprisonment for polluting the Yamuna River highlights the rarity of convictions for environmental offenses in India.[18] The judgment draws attention to the ineffectiveness of current pollution regulations and the lack of deterrence for polluters.

Fines are often preferred by courts over imprisonment in environmental cases due to various reasons. Firstly, fines serve as a deterrent and punitive measure, imposing a financial burden on the offender. This approach aims to discourage future violations by hitting offenders in their pockets. Moreover, fines can be adjusted based on the severity of the offense, allowing for a more proportionate response. Additionally, fines provide an opportunity for restitution or compensation to the affected parties or broader society, as seen in the case where the appellant was directed to pay the Prime Minister's Relief Fund.[19]

Furthermore, opting for fines instead of imprisonment helps alleviate the burden on an already overburdened judicial system, where environmental violation cases often experience significant delays. By imposing fines, courts can expedite the resolution of cases and prioritize their caseload more effectively. Overall, fines offer a practical and effective alternative to imprisonment in environmental cases, promoting both deterrence and the efficient administration of justice.

Constitutional aspect

In 1976, the term “environment” was introduced in the Indian constitution through the 42nd Amendment.[20] Article 48(A) of the constitution mandates the state to “protect and improve the environment, as well as safeguard forests and wildlife.”[21] Article 51A(g) also imposes a duty on every citizen to “protect and improve the natural environment” and show compassion for living creatures.[22] Although there is no specific article on the environment in the section of the constitution relating to fundamental rights, the Supreme Court has expanded the interpretation of Article 21, which guarantees the right to life and personal liberty, to include the right to a clean and decent environment.[23]

Constitutional provisions such as Articles 14, 19, and 21 have been invoked to protect the “right to equality, freedom of expression, and the right to a clean environment.”[24] These constitutional provisions work in conjunction with the “directive principles of state policy” to ensure environmental protection in India. The judiciary has recognized the importance of preserving open spaces, parks, and playgrounds for the public and has used Article 14 to prevent arbitrary actions by the state.[25] Overall, Article 21, in combination with other constitutional provisions, establishes the right to a pollution-free environment as a fundamental right in India.

Conclusion

In conclusion, India has made significant progress in establishing strong environmental laws and jurisprudence to protect and preserve the environment. The Act, enacted to implement the decisions made during the Stockholm Conference, plays a crucial role in regulating environmental protection in the country. The Act establishes civil and criminal liabilities for non-compliance or contravention of its provisions, including imprisonment and fines.

The Indian judiciary has been instrumental in shaping environmental policy and legislation through landmark cases, emphasizing the need for a balance between environmental and economic imperatives. However, criminal prosecutions for environmental offenses still face challenges, resulting in a low conviction rate. To address this issue, the Ministry of Environment has proposed amendments to the Act, focusing on imposing fines rather than imprisonment for minor violations. Fines serve as a deterrent and punitive measure, imposing financial burdens on offenders and discouraging future violations. They can also be adjusted based on the severity of the offense, ensuring proportionate responses.

Furthermore, fines provide an opportunity for restitution or compensation to affected parties or broader society. Opting for fines over imprisonment helps alleviate the burden on the judicial system, promoting the efficient administration of justice.

The constitutional aspect of environmental protection in India is supported by provisions in the Indian constitution, such as Articles 48(A) and 51A(g), which mandate the protection and improvement of the environment. The judiciary has expanded the interpretation of Article 21, guaranteeing the right to life and personal liberty, to include the right to a clean and decent environment. This recognition establishes the right to a pollution-free environment as a fundamental right in India.

Overall, through the enactment of strong environmental laws, the efforts of the judiciary, and the recognition of environmental protection as a fundamental right, India is fostering a culture of environmental responsibility and sustainable practices. By enforcing compliance and accountability through civil and criminal liabilities, the country is working towards a cleaner and healthier environment for present and future generations.

REFERENCES

1.     NR Krishnan, Only One Earth: Stockholm revisited, June 03, 2022, available at <https://www.thehindubusinessline.com/opinion/only-one-earth-stockholm-revisited/article65491410.ece> (last accessed on June 1, 2023)

2.     CII Blog, India’s Sustainable Development Framework, Sep 03, 2021, available at <https://www.ciiblog.in/indias-sustainable-development-framework/#:~:text=The%20National%20Council%20for%20Environmental,under%20its%20purview%20in%202014> (last accessed on June 1, 2023)

3.     Shibani Ghosh, When the Court Convicted a Person for Polluting the Environment, Jan 03, 2018, available at <https://thewire.in/environment/court-convicted-person-polluting-environment> (last accessed on June 1, 2023). [1]

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[1] NR Krishnan, Only One Earth: Stockholm revisited, June 03, 2022 available at <https://www.thehindubusinessline.com/opinion/only-one-earth-stockholm-revisited/article65491410.ece> (last accessed on June 1, 2023)

[2] CII Blog, India’s Sustainable Development Framework, Sep 03, 2021 available at <https://www.ciiblog.in/indias-sustainable-development-framework/#:~:text=The%20National%20Council%20for%20Environmental,under%20its%20purview%20in%202014> (last accessed on June 1, 2023)

[3] The Environment (Protection) Act, 1986, Sec 3(1).

[4] Ibid, Sec 3(2).

[5] Ibid, Sec 4.

[6] Ibid, Sec 12.

[7] Ibid, Sec 13.

[8] Ibid, Sec 15.

[9] Ibid, Sec 19.

[10] Ibid, Sec 15(1).

[11] Ibid.

[12] Ibid, Sec 15(2).

[13] Ibid, Sec 16(1).

[14] Jacob Koshy, Environment Ministry proposes more fines, less imprisonment for violations,
 July 05, 2022 available at <https://www.thehindu.com/news/national/environment-ministry-proposes-more-fines-less-imprisonment-for-violations/article65603509.ece> (last accessed on June 1, 2023).

[15] Ibid.

[16] MC Mehta v. Union of India 1987 AIR 1086.

[17] People United for Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal 215.

[18] Shibani Ghosh, When the Court Convicted a Person for Polluting the Environment, Jan 03, 2018 available at <https://thewire.in/environment/court-convicted-person-polluting-environment> (last accessed on June 1, 2023).

[19] Ibid.

[20] The Constitution of India 1950, 42^nd Amendment, 1976.

[21] Ibid, Article 48(A).

[22] Ibid, Article 51A(g).

[23] Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors., 1985 AIR 652.

[24] Municipal Council, Ratlam v. Shri Vardhichand & Ors., 1980 AIR 1622.

[25] Ibid.