December 5, 2020

A Critique on Criminal Law Provisions on Environment Protection

Environment pollution is an incurable disease. It can only be prevented.

– Barry Commoner

INTRODUCTION

The peaceful coexistence of people along with the nature ie Environment is crucial for the harmonious development of a nation. Healthy environment is a phenomenal for human existence. Over the years the nature is being polluted vastly due to the development of technology. Every year December 2 is considered as national pollution control day to avoid pollution control by creating awareness as a memory of the one’s who died due to the Bhopal GasLeak tragedy. Among the plethora of legislations available the common law remedies can be considered as traditionally followed one. They strive hard to curb the environment pollution.

Such protection under civil laws can be claimed through various doctrines. There are many constitutional articles such as Article 48A, 51A(g) which emphasis on environment Al safeguards. The National Green Tribunal Act, 2010 was established in the year 2010for effective and expeditious disposal of cases relating to environment protection and forest conservation and other legal rights related to environment. However, this tribunal shall not be bound by the procedure laid down in the code of civil procedure,1908 but guided by the principles of Natural Justice and various other Acts. Apart from all the Writs that could be filed there are certain offences which will be dealt by the criminal laws. These common law remedies provide wide range of protection to the Civil Rights. They protect the person and their property. Nevertheless they provide common law remedies incidentally for the protection of environment.

Such as issuance of temporary or permanent injunctions under the Code of Civil Procedure and the Specific Relief Act for controlling and abating pollution. The Criminal Provisions include imposing Criminal Liability on polluters through the provisions of The Indian Penal Code, 1860. The Right of a person to pollution free environment is a part of basic jurisdiction of the land. The Constitution of India guarantees a fundamental right to life and personal life under article 21. The right to environment include the right to wholesome environment said the Supreme Court.

The very first attempt to conserve and protect the human environment at the international level was done in the year 1972 through the Stockholm Declaration. The status were required to adopt legislative measures to protect and improve the environment as a consequence of the Stockholm Declaration. The concept of nuisance can be dealt under both the laws. There are two kinds of nuisance under common law, namely, the public and private. A public nuisance is an unreasonable interference with a right common to general public. Whereas on the other hand the private nuisance is a sustainable and unreasonable interference with the use and enjoyment of land.

REMEDIES

PROVISIONS UNDER THE INDIAN PENAL CODE,1860.

The Union Carbide Corporation v. Union of Indian also known as Bhopal Leak[1] case brought awareness to the hazards of development of special laws for the environment protection. Thus, in the year 1986 Environment Protection came into force. In the Indian Penal Code, 1860, under Chapter IV the environment protection concept is been dealt with offences relating to public health, safety, decency, convenience morals under sections such as 268, 269, 270, 279 280,287,288,290,291 and 294.

The Indian Penal Code under section 268 defines Public Nuisance.

The essential ingredients of sections 268 are:

  • Commencing act or an illegal omission.
  • Such act or illegal omission must cause any “ common injury” damage or annoyance to the public etc. And that must necessarily cause injury.
  • The Indian Penal Code under section 290 defines punishment for Public Nuisance.
  • In this section the punishments for public nuisance includes pollution cases also, in cases not otherwise provided for.
  • The offenders will be punished with fine which may extend to 200rupees.

The Kerala High Court in the case K.Ramakrishnan v. State of Kerala[2] held that smoking, in any form in public place is a public nuisance and cases can be filed under section 290 of the Indian Penal Code as it is in violation of article 21 of the Constitution of India ie “Right to Life”.

The Indian Penal Code under section 277 defines Water Pollution.

In the Nano Rao Case, the accused and 9 others were charged under section 277 of the Indian Penal Code with the offence of foaling water of the river and rendering it unfit for drinking by steeping therein aloe plants with a view to existing fibers there from. In this case river was not considered as public spring under section 277 bit however under section 290 it was a case of nuisance.

The Indian Penal Code under section 278 defines :

According to the section 278 of the Act whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to health of the person is general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees.

The Indian Penal Code under section 284 provides punishment for negligent conduct and section 285 with respect to poisonous substances and negligent conduct with respect to firee or combustible matter respectively. The punishments and fine we’re enhanced eventually.

The Indian Penal Code under section 286 provides punishment for negligent conduct with respect to explosive substances.

The Indian Penal Code under section 425 – water pollution can be punished for mischief.

If the act causes wrongful loss or damage to public or to any person or if his act causes water pollution could be brought under section 511 of the Act.

The Indian Penal Code under section 440 deals with mischief caused by killing maiming animals and cattle.

Nuisance is defined in very liberal terms and includes construction of structure, disposal of substances, conduct of trade or occupation. For disobedience of orders, the court can impose penalty as per section 188 of the Indian Penal Code, 1860. The punishment is provided for a Mac period of 6 months and fine which may be extended to 1 thousand rupees.

PROVISIONS UNDER CRIMINAL PROCEDURE CODE ACT, 1973.

The Provisions under the Code of Criminal Procedure, 1973 in it’s Chapter X provides for public nuisance cases including insanitary conditions, Air, Water and Noise pollution. Under sections such as 133, 144.

Under section 133 of the Criminal Procedure Code

Section 133 provides that a District Magistrate or Subordinate Magistrate or any other Executive Magistrate especially empowered on this behalf by the State Government can make a conditional order to remove such nuisance, and if the nuisance maker objects to do so, the order will be made absolute etc.

This section provides a speedy and summary remedy incase of urgency where damages to public interest or public health etc is concerned.

There are various conditions precedent in order to make an application before section 133 of the Criminal Procedure Code.

1. The Magistrate must be satisfied that it is a public nuisance vast number of people need to be affect.

2. The dispute among the said public need to be same.

3. It should be a great emergency of imminent danger to the public interest.

The judiciary has arrived hard to interpret the provisions to provide a speedy and simple remedy for the environmental pollution issues. By invoking the Criminal Procedure Code and other relevant Criminal provisions better environmental governance can be gained.

The High Court of Madhya Pradesh appreciating the provisions in Shaukant Case[3]

observed that section 133 of the CrPc provided, a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned.

Section 144 of the Criminal Procedure Code

As per section 144 an Executive Magistrate is conferred with powers to deal with emergent situation by imposing restrictions on the personal liberty of individuals, whether in a specific locality or in a town itself.

Where the situation has the potential to cause unrest or danger to peace and tranquility in such an area, due to certain dispute.

The section 144 of CrPc is best for avoiding public nuisance and protecting the environment. Provisions under Indian Penal Code and The Criminal Procedure Code have been interpreted himself by the Indian Judiciary for environment protection.

CONCLUSION:

The above paper sums up the environment related issues and the provisional which deal with the same in both civil and criminal aspects. This paper covers majorly on the criminal aspects. The environment pollution cannot be curbed completely. It can only be prevented eventually using the provisions. The need to given more awareness regarding the after effects of such pollution in depth. Also the punishments provide so that the people do not commit such crimes.

References

[1] 1990 AIR 273, 1989(2)SCC 540

[2] CEGB (1981) 3 WLR 967

[3] Shaukant Hussain and Anr V. Sheodayal Saksaina

Author Details: Roshini R

The views of the author are personal only. (if any)

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