This article is written by Diksha Trivedi, a student of Nirma University.
After months of consultations among intellectuals of state governments and the Prime Minister’s Office (PMO), Indian Environment Ministry has issued a draft bill to amend the Environment (Protection) Act, 1986 and the National Green Tribunal Act, 2010, scaling up monetary sanction for absolving substantial damage to environment, termed as Environment Laws (Amendment) Act, 2015. The bill is the major move made by Prakash Javadekar heading ministry to ratifying violation of environmental laws. This bill is against the soft look of ministry showered upon industrial sector, giving green norms to follow up while handling clearances. The government is purporting an omnibus law to regulate the environment and govern environment protection is expected to be tabled in Parliament’s winter session. The penalties are most focused part of the Environment Laws (Amendment) Bill, 2015, which the ministry has published online, inviting suggestions and objections over the next 15 days.
The proposed amendments provide for an effective deterrent penal provisions and concept of monetary penalty for violation and contraventions and ensuring compliance to environmental norms. The amount collected as penalty could be used for remediation and reclamation of polluted sites and improvement of environment.
- In hard line with violators, on Friday the environment ministry proposed stiff penalties for substantial environment damage, a minimum fine of 5 crore in a radius of 5-10km radius counting from outer perimeter of a project, extending to Rs.10 crore and in the case of continuing damage, entail an addition of Rs.50 lakh per day and imprisonment of seven years.
- In cases where the damage goes beyond a 10 km radius from the project site,15 crore, counting with Rs.75 lakh per day if substantial environmental damage. The fine can go up toRs.20 crore and the imprisonment can even extend to a life term in case of serious violations.
- The fine for a minor violation is in the range of1,000-10,000, with an additional penalty of Rs.5,000 for every day that the violation continues after its detection. A minor violation is an act of omission or commission by a person causing environmental damage due to failure of compliance with green laws.
- Any violation which can neither be termed minor nor substantial will be construed as non-substantial damage. In the case of non-substantial damage, the violator will have to cough up1 lakh, extendable to Rs.5 crore, and pay an additional penalty of Rs.1 lakh per day of continued damage.
The draft defines substantial damage to the environment caused by direct violation and omission of statutory environmental laws resulting in adversely affecting the environment. The factors taken into account for deciding on penalties are repetitive nature of damage, quantum of damage caused, unfair advantage, disproportionate gain, and counting the extent of injury caused to the ecosystem including public, living organism or to property and health.
Gaps in Draft Environment Laws (Amendment) Bill, 2015:
- Bill focuses on environment protection but on hazardous substance as a source of environment pollution and no provision are there for the control of environment ills like deforestation, noise pollution, slum congestion in the Bill.
- Environment pollutants like solid, liquid and gaseous substances were only included as the pollutants and substances like heat which causes thermal pollution, nuclear radiation and noise pollution are absent.
- Bills include certain unclear terminologies like offences marked as minor violation, non-substantial damage and substantial damage. Categorical division of the damage as minor violations, substantial damage and non-substantial damage is highly condemned. As there is no defined prospective as to what degree of damage will categorically ascertain them. As factually any biological, chemical and physical act is sufficient enough to cause damage to the environment.
- Constitution of the adjudicating authority is also very unclear. It seems like an additional layer to National Green Tribunal and there is no reason as to why it has been created? And obviously the appointment procedure is also undefined. Whether the adjudicating authority is separated from the Government. There are certain like questions which are unanswered.
- No provision talks about the measures for mitigating the damage done already by the company that seems after paying required fine, the polluted soil, lake, river will remain as they are. There must be a provision for creating responsibility on the pollution creators for cleaning polluted body.
- There is no provision for any public account or committee supervising the amount collected by means of penalty that will be used by the government for the protection and improvement of environment.
- A major drawback is official bodies are excluded from the ambit of punishment or penalty if they fail to perform the duty if environmental pollution continues to happen within their jurisdiction.
- The penalty can’t be a fixed cap amount rather it should depend upon the intensity of damage caused by the pollutant. There is also no robust calculation amount put forth by ministry for deciding the amount of penalty. This creates a doubt, how MOEFCC decided the fixed penalty amount for violations of environment laws is highly unconvincing.
- There should be a third party or agency which can handle the responsibility of inspection, filling grievances by affected citizens, monitoring industries and auditing large-scale industries on a regular basis.
- Provisions under this Act geared towards penalty in case of environmental damage. But making certain set rules of technology used should also be provided to which companies should strictly adhere to.
- Instead of implementing a fine regime and imprisonment which many corporate companies and industries can take advantage of a provision can be made for shutting down the company/industry temporarily, till set standards are complied with.
- For greater transparency, quarterly or annual report on environmental norms followed mandatorily is put on company’s website. Keeping track of company’s standards and false reports, especially during surprise visit will become easy
- Each state should carry out public consultation to know people’s views regarding the proposed bill.
The T S R Subramanian Committee, which submitted its report in November 2014, looked at what troubles India’s environmental legislative ecosystem, and suggested that the Centre disencumber the mess of environmental regulation by bestowing a single umbrella law to subsume the various statutes governing this area. The Environmental Laws (Amendment) Bill, 2015 is an act in the same direction. Given that it would amount to a major inspection and repair of current ecological laws, the prime minister’s office is justly to invite suggestion and recommendation from the public. However, the point to remember is that research into optimum environmental governance follows that the stricter the liabilities drive upon polluters, the more inducement will be there to avoid them. The important fact to note is that effective pollution-control requires periodic inspections and approves which act as discouragements and encourage compliance. This bill has certain good features but not ultimate to prevent all the causes responsible of environmental damages. These loopholes are escaping ways for the pollutant and will hamper the picture of healthy environment. Like the proposed law do not address wildlife protection, forest ecology and its conservation. The government in this bill brought up new rules and order but did not look upon updating of the existing law. Laws catering to the protection need of environment, air and water were being legislated for past 12 years separately, now by new provision government tried to amalgamate all the laws into single legislation in accordance with the recommendation drawn by the Subramanian Committee. And to check the feasibility of the new provision is on the comments of the public within 15 days of its publishment in the website of ministry for regulating the environment. This would obviously create a picture of transparent government and once again an act to prove that we are part of democratic reform but ultimately the thread will always be in hand of the government.