This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article enumerates the various legislations, principles, and their deficiency in dealing with environmental issues. Further, the article also attempts to answer why the criminalization of environmental crimes can be helpful in efficiently dealing with the existing issues.
Environmental crimes are widely recognized as among some of the most profitable forms of transnational criminal activity. Environmental crimes are on a rise and so should be the efforts in preventing them. Even functional criminal law aims to deter and generally prevent such activities. There are various reasons as to why the existing laws have not been effective successfully in deterring the environmental crime rate. There are a variety of problems faced by those who are given the task to apply these laws. There are various loopholes in the dual role vested in the authorities who are advisers as well the executors of these laws. Furthermore, there are issues faced by the prosecutors and the police in investigating the competency and the responsibility of the accused. These concerns seek clarity on the underlying causes of these fundamental issues.
Thus this article explores whether criminal law can help in the protection of our environment by functioning as a means of monitoring and controlling the hazardous activities which directly/indirectly have an impact on the environment. It focuses on how impactful are the regulatory aspects of law, the likelihood of sanctions and punishment, and their severity in actually deterring such activities.
These laws address the regulatory network, the general principles which they abide by, and the customary laws that describe the impact of human activities on the environment. These laws mainly work on the idea of environmental pollution as the centre of all implementation. They recognise our natural resources, their scarcity, the need to preserve them for future generations, and in general work for environmental impact assessment.
For India, our environmental laws majorly focus on areas involving air pollution and quality, water pollution and quality, sustainable development, waste management, precautionary and preventive measures, contaminant cleanup, safety in dumping, and dealing with chemical elements dumping, and public trust. However, their implementation entails far more complex issues having an interplay of social, political, and economic factors in addressing the serious environmental repercussions. All these environmental rights and principles have been behind the development of environmental jurisprudence and judicial adjudication in the country. This existing framework is invoked in imparting the role of the various public and private enterprises and determining their constitutional, statutory and common law application and performance.
In the backdrop of the country’s struggles to respond to the ever-increasing deterioration of environmental quality, what is required is a conceptual clarity about the laws, the gaps, their enforcement, and the hurdles and limitations they face which are significant for the improvement of the country’s environmental governance.
Types of environmental crimes
These crimes are considered under the organized criminal activities all around the world. Environmental crimes which are also known as green-collar crimes constitute the fourth largest crime in the above-mentioned list. These crimes are fundamentally driven by the aim of gaining material and financial benefits. Crimes under this heading as listed by the United Nations Interregional Crime and Justice Research Institution are as follows:
- Illegal trade of wildlife.
- Trade of unregulated and illegal products, for financial and material gains- for example, trade of timber, ivory, rhino horns, or even sandalwood.
- Unreported fishing.
- Illegal logging.
Other non-exhaustive lists of environmental crimes include littering, waste disposal, oil spills, dumping into water bodies, wetlands destruction, improper handling of pesticides, burning wastage, improper removal of asbestos, smuggling chemicals, etc. Further, they can also be classified as per the nature of these crimes, such as cognizable, non-cognizable, compoundable, non-compoundable, bailable, and non-bailable.
These crimes are on the rise, according to a survey done in 2017, in India, there had been a humongous jump of cases in India against the environment and wildlife, which has been around 790% from that in 2016. The NCRB report of 2016, though claiming a decrease in the number of crimes from 2015, nevertheless had depicted an increase in certain other areas of environmental crimes. A 2021 media report shows that over 50,000 environment-related cases have their trial pending.
Previously, many steps had been taken up by the government to increase the reporting of cases with the rise in awareness of environmental crimes and wildlife. This has also led to a rise in the activist movement all over the country to bring animal rights in India, with proper law enforcement, there has been a rise in the movement which is meant to be the voice for the voiceless, that is the nature, the environment in which we live. However, a lot needs to be done in the framing and the execution part to get effective results. The existing laws have had both positive and negative effects which hint towards the requirements of legislating new laws.
Crime against the environment entails violation and disobedience of the pre-existing statutes and laws that aim to protect the ecological balance of nature. The quest of the rich, richer and richest in the name of development and ever-increasing capitalistic idealism of the society has conveniently managed to reach this harrowing state of hazardous waste. There is a myriad of legislation that has been introduced by the legislature and the government for environmental protection.
To name a few include Water (Prevention and Control of Pollution) Act of 1974, Environment (Protection) Act of 1986 (enacted in the aftermath of Bhopal Gas tragedy), Water (Prevention and Control of Pollution) Cess Act of 1977, Air (Prevention and Control of Pollution) Act of 1981, etc. Despite having this wide legal landscape with a broad spectrum of legislations, there are umpteen gaps and lacunas in impactful enforcement of these penalties and punishments against environmental crimes. For instance, India is a member signatory of five major international conventions related to wildlife protection, still, there are many instances where illegal trade of endangered animals has taken place between our surrounding countries. All of these are towards one thing: institutional failure and legislative inadequacy and therefore despite having so many enforcing provisions, the penal sanction have proved to be inefficient.
Constitution and judicial intervention
Under the head of fundamental duties and the directive principle of state policy (DPSP), India works towards its national commitment to furthering the cause of environmental protection. These articles have been a guiding force for the country to ensure a wholesome environment for its people. All such enactments, legislations, and their enforcement are a result of many public interest litigations based on judicially settled principle under Article 21 of the Indian Constitution which recognizes the fundamental substantive right to a healthy and pollution-free environment. Further, it was the 42nd amendment that introduced the word environment in the Indian Constitution along with Article 48A of DPSP and Article 51A under fundamental duties.
In the case of Rural Litigation and Entitlement Kendra v. the State of UP, (1985) stated that it is not only the duty of the state but also of its citizens to protect the environment under Article 51A(g). Further, the case of L. K. Koolwal v. the State of Rajasthan and Ors (1988) recognized the scope of Article 51-A and explained the creation of a right in the favour of the citizen to move to the court for the enforcement of this article. It was said that where there is a right, there is a duty in the case of M.C.Mehta v. the State of Orissa, (1992) implying that it is the life of the citizen which gets affected by unhealthy living conditions and the environment, and therefore they also must do their duty to support and make sure that the state fulfills its obligation towards the protection of their right. Finally, under AIIMS Students’ Union v. AIIMS and Ors, (2001) the Apex Court stated that states cannot run from their obligation to give effect to fundamental duties and DPSP and that interpretation of provisions are significantly guided by these duties though they are not enforceable.
Approach and exercise of procedural rights
By this judicial activism, most orders were being issued specifically to the requirements of implementation to not only deal with the case in question but also for future enforcement and application by setting new guidelines and practices in place. The approach of the courts has been predominantly anthropocentric in nature and occasional acknowledgement of the rights of the environment. Though this has not exactly yielded fortunate results in all the cases, yet provided the courts with some flexibility in adapting their orders on a case-to-case basis.
Further, so far as procedural rights are concerned, which are the right to information, the right to public participation, and the right to access to justice. There have been certain loopholes and limitations in exercising them specifically about the laws in Environment (Protection) Act 1986, the EIA Notification 2006, the Right to Information Act 2005, the Forest Rights Act 2006, and the National Green Tribunal Act 2010, and though these legislations provide enough statutory expression, they are not realized up to satisfaction as often these rights are denied.
Prominent principles guiding the Indian courts
India’s entire environmental jurisprudence has been based on major four principles. These include sustainable development, the polluter pays principle, the precautionary principle, and the public trust doctrine.
This concept aims in fulfilling the current needs of the people without diminishing the access of the future generation to similar resources. To distill the Indian Supreme Court’s definition of the principle one can refer to the judgment in Vellore Citizens’ Welfare Forum vs. Union of India, 1996, however upon a critical examination of the Narmada judgment (1999), it reveals how the Supreme Court has “instrumentally harnessed the inherent vagueness of the principle.”
Polluter pays principle
It simply holds the polluter liable for the damage caused to the environment. The polluter not only has to compensate the victims of the pollution but also to compensate for restoring the environmental degradation that has already been caused. This principle has been used by the courts extensively, due to which the need to move away from the criminal penalty mechanism and adopt a stringent civil liability mechanism based on the polluter pays principle has been indicated earlier by the National Environmental Policy, 2006. However, times have changed and given sufficient proof of the inadequacy of the existing criteria of laws and their application.
The Supreme Court has operationalized this principle by classifying the subject into five questions. These are who is the polluter, how and when is the application of the principle triggered, how to assess the loss and determine the compensation, what does the polluter pay, and finally, what are the limits of the principle. However, courts have been contradictory in their approach to the implementation of this principle.
This principle, as its name suggests, promotes the implementation of preventive measures in situations that could cause serious threat or irreversible damage despite the absence of any scientific certainty. However, the application of the principle in the Vellore judgment is at odds with the Apex Court’s definition of the principle. There is a lack of clarity in the Court’s engagement with the principle and the blurring of lines between two distinct legal principles – precaution and prevention. It can be helpful in arriving at environmentally favourable judicial outcomes, but it does not bode well for the development of a clear line of jurisprudence.
Public trust doctrine
First applied in the environmental law of India in the case of M.C. Mehta vs Kamal Nath & Ors, 1996, it promotes the idea that no one single person owns the natural resources and it is upon the government and the regulatory authorities to act as a trustee and hold the resources for free and unobstructed use of these resources by the general public. However, following the application of it, it seems rather difficult to identify how the doctrine could lend predictability to decision-making regarding public trust properties. The doctrine needs to be made more relevant, and figure out ways in which it may afford greater protection to natural resources held in trust.
Environment protection under the common law
The common law remedies incidentally provide for the protection of the environment. Courts are also empowered to issue temporary and permanent injunctions under the Code of Civil Procedure and Specific Relief Act for controlling and abating pollution. Some of the remedies are as follows:
This relates to illegal interference of one’s enjoyment of land and any right arising from it which can be classified under private or a public nuisance depending upon the affected individuals. However public nuisance is exclusively dealt with under Section 91 of the Criminal Procedure Code, 1973 (CrPC). It prescribes filing of a suit to claim relief or interim injunction that is likely to cause a public nuisance. CrPC also empowers a magistrate under Section 133 to take appropriate action by restraining any person carrying out an act of public nuisance. In the case of Ramlal v. Mustafabad Oil and Oil Ginning Factory (1968), the Punjab and Haryana Court observed that noise arising from a legal activity that is above the necessary threshold is no defence from attracting the liability of public nuisance. The Indian Penal Code, 1860 also deals with public nuisance which will be discussed later.
To establish trespass which is an unlawful interference with one’s possession of the property, two primary ingredients need to be established. These include making an intentional invasion/interference in another’s property which is direct.
Action under negligence can be brought by establishing a direct nexus/connection between the negligence and the damage caused. It also requires the respondent to prove that reasonably sufficient care was taken to avoid such public nuisance as required by the law. It is better explained in the case of Naresh Dutt Tyagi v. State of Uttar Pradesh (1993), which was a clear-cut case of negligence. Herein the fumes released from the leaked pesticides to the nearby area through ventilators resulted in the death of three children and a fetus in a pregnant woman.
Strict liability and absolute liability
This principle has been brought forth by the case of Rylands v. Fletcher (1868) wherein a person for his purposes, brings on his land and collects and keeps there anything likely to cause mischief should be kept by such person at his danger and if it escapes and causes mischief, then such person will be prima facie liable for all the damage which is the natural consequence of its escape. This principle has also been found in the Indian judicial setting in the case of M C Mehta v. Union of India (oleum gas leak case 1986) which recognized strict liability and extended it into absolute liability considering the severity of the damage caused. Exceptions to strict liability include an act of god, plaintiff’s fault, an act committed by a third party, any act committed after acquiring express or implied consent of the plaintiff, or when a defendant makes natural use of land.
Whereas the concept of absolute liability also evolved from the above-mentioned M C Mehta case which rose on the rule of strict liability and stated that the liability would fall on the defendant for the damage caused without any consideration to the exceptions of the strict liability rule. This rule states that if any person is engaged in an inherently dangerous hazardous activity and any harm is caused based on an accident for carrying out such activity, they will be held absolutely liable.
Environment protection under the penal/criminal law
Indian Penal Code, 1860
There are also quite a few penal provisions under the Indian Penal Code, 1860, and the Criminal Procedure Code, 1973. Chapter XIV of the IPC lists down offences pertaining to public health and safety. To start with, Section 268 classifies environmental crimes as a public nuisance and Section 290 penalizes the offence causing a public nuisance with a fine extending up to Rs 200. Thus those who act or omit causing injury to others by environmental pollution, then they can be subjected to prosecution. Like in the case of K Ramakrishnan v. the State of Kerala (1999), it was held that smoking in public places causes public nuisance and is therefore punishable under IPC. Again, in Murli S. Deora v. Union of India (2001), the Supreme Court held that smoking in a public place is a violation of the fundamental right of those who don’t smoke under Article 21.
Section 277 is applied for preventing water pollution and imposes imprisonment up to three months or a fine up to Rs 500 or both. The section uses terms such as public spring or reservoir whose interpretation by the courts has been quite restrictive as it does not include running water of rivers, streams, and canals. Similarly, under Section 278, a fine up to Rs 500 is imposed on anyone who voluntarily spoils the surrounding by making it harmful for anyone’s health in general dwelling, or carrying a business in the neighbourhood, or passing along the way of the public. Besides these, Sections 426, 430, 431, and 432 of IPC penalizes any pollution caused by mischief.
Criminal Procedure Code, 1973
Similarly, under the Indian Criminal Procedure Code of 1973, under its Chapter X, “Maintenance of public order and tranquility, provides preventive and mitigating measures for public nuisance cases pertaining to water, air, soil, and unsanitary/unhygienic conditions.
Section 133 provides for the remedy to environmental pollution in general by empowering a District Magistrate and Sub-Divisional Magistrate to stop the nuisance. Any order made under this provision shall not be questioned in any civil court. The term nuisance as defined in the case of Govind Singh v. Shanti Sarup (1978), the court took a very liberal interpretation and included the disposal of substances, the construction of structures, the conduct of occupation, and trade, and confinement or disposal of any dangerous animal into its meaning. However, a private dispute cannot invoke this section and it should be a case of imminent danger affecting the public interest. Further, this section is also independent of sanctions in other environmental laws and statutes.
There are certain other penal provisions primarily in two environmental legislations which are The Water (Prevention and Control of Pollution) Act, 1974, and Environment (Protection) Act, 1986. Section 47 of the Water Act makes a person vicariously liable for an offense committed by a company with that person being in charge of the business of the company. And another is Section 16 which of the Environment Act which is pari materia (similar) to Section 47 of the Water Act.
Still, once these sections were regarded to be the saviour and the guardian against environmental crimes but today these have been found to be highly inadequate since the violation of these sections attracts a meagre amount of penalty which in most cases would deter the prosecution from initiating any proceedings.
Need and way forward
Though the entire article so far has been in ways speaking of the dire need of criminalizing environmental crimes, it still needs a separate heading for better understanding. The current state of affairs very well reflects the inadequacy of the existing institutional framework of sanctions which have proved to be not as strong a deterrence. Scholars have also claimed that administrative sanctions would be inadequate where the impact on the environment is large, and therefore this is where penalizing provisions come into work. While there are various issues with the existing laws some of which are: having less than required regulatory/ enforcing manpower in regulatory agencies compared to the ever-increasing number of industries, the lack of adequate technical knowledge/skills required for enforcement of regulations, resistance to change/attitudinal problems prevalent, lack of financial resources in general, giving importance to only specific types of pollution, lack of an independent regulatory mechanism for environmental governance, etc, an integrated approach would be to introduce holistic legislation as well a criminal approach which would automatically solve most of the issues.
Criminalizing environmental crimes would also allow the court to question the moral culpability of the accused. Otherwise, we are just simply undermining the indirect effects of having capitalistic costs at the cost of harming an entire community of civilians. So far the Indian courts and the green tribunals work on few prominent principles for imposing penalties and liabilities however there is no concrete law in place to determine the amount of penalty. Nor do Indian authorities maintain any reliable source of data on the penalties collected by the courts. Comparing it with the USA, their monetary penalties amounted to only $74,715, compared to $253,437 imposed for antitrust and $141,351 for other crimes. These right waypoints out the fact that even though huge organizations are made to pay for environmental violations, they merely treat them as business costs. It does not necessarily stop them from making further such harmful citizens, proving these monetary and administrative sanctions to not be insufficient.
Criminalizing specific environmental crimes would efficiently serve the purpose. The basis of this statement relies on the data from the USA which has been a pioneer in this field. They started criminalizing environmental crimes during the 1980s and the results, according to a scholar, were ‘concrete’. It was also claimed by the US Department of Justice that the department recorded environmental criminal indictments against 911 corporations and individuals, and 686 guilty pleas and convictions have been entered. A total of $212,408,903 in criminal penalties had been assessed. More than 388 years of imprisonment have been imposed of which nearly 191 years account for actual confinement.
Having a criminal law in place would at the very least instill a fear in the minds of people to take the environmental laws and their prohibitions seriously. A way forward in this direction would be to have such sanctions based on the actual damage caused rather than the number of sections violated. Based upon the severity they can impose simple fines or penalties or rigorous penalties and criminal sanctions. It might have its own difficulties such as determining the stage which attracts criminalizing the actions but that can be better dealt with by the wisdom of the lawmakers.
However, one can refer to three main models which would pave a path for determining such violations. These are the model of abstract endangerment, model of concrete endangerment, and model of serious environmental pollution. There are 2 major subjects dealt with in all these models, whether the criminalization takes place due to violation of the law or should it be done because violating the law largely impacts the public at large. Criminal liability could simply arise from violating a provision and not just when substantial harm is caused. This is based on the model of ‘minimum culpability’ as is proposed by Michael M. O’Hear.
However, that idea that should really be kept in mind is that the provision should be enacted in such a way that would directly/indirectly create a deterrent value. Having clear guidelines on the sentencing of the crime would also prove beneficial. The organization could have a sort of self-policing mechanism to disclose the effect of their violations for reduced penalties. Another thing to keep in mind is having high penalties and punishment would also make the organization turn to high-cost remedies to prevent such violations which in turn would automatically raise their business costs and therefore the cost of the products for the consumers, which does not seem to be a wise way out.
Thus, it has been observed that there are far too many legislations in place that attempt to deal with environmental issues. However, this has only led to more ambiguity and difficulty in their implementation. What we need is a strong integrated system that would provide a holistic unified approach and effective results. With all the established principles, the judicial implementation mechanisms have witnessed mixed success. Apart from complex external factors, certain institutionalized internal weaknesses affect the implementation process like how the courts have been inconsistent while deploying implementation mechanisms and that their orders require more robust legal reasoning and they need to integrate better with the existing regulatory framework. All these issues can be efficiently addressed by introducing criminal liability that would not only save the court’s time but also create a deterrent value. It is time for the country to introduce serious criminal implications that would be faced by people upon violation of the laws as far as environmental degradation is concerned.
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