August 3, 2021

Environmental Violations, Penalties and Challenges of Convictions

Environmental law

Introduction

You must have heard the terms like Ishavasysm[1], Pancha Mahabhutas[2],Zodh[3] and most important ofall Dharti Mata, Mother Nature. These terms from our day to day life show us the importance and austerity of nature in an individual’s life. Environment has been an essential part of human’s life. Infact, it is a necessity. But still the cases of environment abuse are rampant. To curb the said problem our law makers incorporated ‘n’ number of laws in both constitution and by the way of legislations. But ask yourself; Is there no abuse of environment these days? The answer would most probably be—Yes! Or maybe—Yes!(emphasis added).

So, why is so? Why in spite of the regular efforts of our law makers, even after the presence of a varied amount of punishment and fine associated, we are still struggling to protect our environment?

In this article we would give the reader a broad idea of what act can constitute a violation of environmental law and invite a subsequent penalty and we would also try and figure out as to what are the possible causes of the same.       

Environmental Laws

There is plethora of laws specifically governing an individual’s conduct connected to environment. Some then are:

  1. Wild Life (Protection) Act 1972.
  2. Water (Prevention and Control of Pollution) Act 1974 (Water Act)
  3. Forest (Conservation) Act 1980.
  4. Air (Prevention and Control of Pollution) Act 1981 (Air Act)
  5. Environment (Protection) Act 1986 (EP Act).
  6. Biological Diversity Act 2002.
  7. Air (Prevention and Control of Pollution) (Union Territories) Rules, 1983
  8. Water (Prevention and Control of Pollution) Cess Rules, 1978
  9. Ganga Action Plan, 1986
  10. Indian Forest Act, 1927
  11. National Forest Policy, 1988
  12. Batteries (Management and Handling) Rules, 2001
  13. Recycled Plastics, Plastics Manufacture and Usage Rules, 1999
  14. Hazardous Wastes (Management and Handling) Amendment Rules, 2003
  15. Construction and Demolition Waste Management Rules, 2016

Along with legislation, Indian Constitution also provides specific provision environmental protection. Art.21, Art.48 (a), Art.51 (a) (g) and many more.

This long list of provisions would have definitely given you a ‘sense of confidence’, making you think “Ok! We are very much aware and as a result active.” But as you would read through this article this confidence of yours would gradually shed away. (So, stay tuned!)

Sensitizing

  1. India generates 9.46 million tones of plastic waste annually, of which 40 per cent remains uncollected and 43 per cent is used for packaging, most of which is single use[4].
  2. A WaterAid report in 2016 ranked India among the worst countries in the world for the number of people without safe water. An estimated 76 million people in India have no access to a safe water supply, and the situation is only getting more serious.[5]
  3. Nearly 30% of its land area, as much as the area of Rajasthan, Madhya Pradesh and Maharashtra put together, has been degraded through deforestation, over-cultivation, soil erosion and depletion of wetlands. This land loss is not only whittling away India’s gross domestic product by 2.5% every year and affecting its crop yield, but also exacerbating climate change[6].
  4. As far as general public is considered the thoughts are- ‘If only I save water and others use it haphazardly even then my future generation will not get water. So what’s the point in saving water’, ‘Its not a real issue’[7].

Violations & Penalties

Given below are some prime legislations guiding there distinct fields of operation-

Constitutional Provisions

Art. 21 of the constitution provides for the right to life and personal liberty. Supreme Court expanded the scope this article in cases like Subhansh Kumar v. State of Bihar[8], M.C. Mehta v. Union of India[9] and granted the right to a clean environment. Art. 48(a) of the constitution provides for ‘protection and improvement of environment and safeguarding of forests and wildlife’. Alongside Art. 51(a)(g) of the constitution places a duty on the citizens of India to protect and improve the natural and have compassion for all living creatures.

 Although these articles are very authoritative but the latter two are not justifiable and are meant to be taken care of during the formation of legislations whatsoever. 

The Environment (Protection) Act, 1986

This act gives immense power to the centre in the matter concerned. Any intervention with the performance of duty, by the person empowered by central government, would invite an offence under this the sec. 10(2) and 10(3) of the act. The act also makes any non-compliance with any provision of the act punishable with imprisonment extending to five years or with fine extending to one lakh rupees or both. According to the Sec. 15 of the act for non-compliance after the conviction additional fine of five thousand per day is to be charged. In case the contravention after conviction extends to one year the offender would be punished with imprisonment which may extend to seven years. 

For the offences committed by a company or government department this act makes every person directly in charge or in some way or the other responsible for such offence liable. However the sec. 16 and 17 of the act protects those without whose knowledge the offence is committed.

The Air (Prevention and control of Pollution) Act, 1981

This act provides for the establishment of Central and State Board of the Prevention and control of Air Pollution through sec. 3 and 4 respectively. These boards aim at improving the quality of air and prevent, control or abate the air pollution and allow them to frame more rules as and when required at the different levels of system. The sec. 28(1) of the act makes non-compliance with s.21, s.22 and directions issued under s.31A punishable with imprisonment of not less than one year and six month which might extend to six years with fine. For continuation of the act after conviction sec. 28(1) of the act punishes the offender with five thousand rupees per day. According to sec. 28(2), in case the act continues beyond one year after the conviction the offender would be punished with imprisonment of two year which may extend to seven years with fine. Where S.21 makes it mandatory to get respective state board’s permission before establishment of industrial plants and further to install, update, maintain control equipment specified by State Board. S. 22 of the act makes it punishable to exceed the standards of discharge of Air pollutants an offence under the act. And s.31A makes compliance to the directions of Central Government in this regards mandatory.

Water (Prevention and Control of Pollution) Act, 1974

Section20 (2) of this act gives State board the power to issue directions to any person, who it opinion is extracting substantial amount of water or discharging effluents. Whereas sub-section 3 for the same purpose allows the board to ask for information regarding any establishment. Failure for the non-compliance to these sections can invite rules given in sec. 41(1) i.e. imprisonment which may extend to three months or fine which may extend to ten thousand rupees or with both.

According to sec. 32(1)(c) of this act, the State Board has the power to issue an order to restrain or prohibit a person which the board thinks is polluting water anywhere and there is a need of strict and immediate action. Under Sec. 33(2), the board can approach the court to issue restrain for an action that the board thinks is likely to after pollute water and the court may then issue any order as it may deem fit.  Any non-compliance to these sections can result in imprisonment not less than one year and six months which may extend to six years and fine. Continued non-compliance after conviction would invite fine of five thousand rupees per day as per sec. 41(2). The act through its sec.41(3) also provides for imprisonment of two years which may extend to seven years in case of failure of compliance for one year.

National Green Tribunal Act, 2010

This act contains comparatively higher penalty as compared to the other environment related legislations. The Sec. 26(1) makes a person liable to pay a fine of upto ten crore rupees or imprisonment for a term of three years. In case this failure continues even after the conviction the fine of twenty-five crore rupees would be charged and this continues a fine of one lakh rupess per day would be charged as per sec. 26(1).

The strict act of legislature to setup the fines and punishments very high is commendable. However, NGT has its own functional flaws and obstacle (talked later on in this article) which limits its functioning.

Indian Penal Code

IPC also have a significant number of provisions dealing with environmental pollutions which also makes the act specified therein offences punishable with given punishment. Chapter XIV of IPC titled ‘Offences affecting the Public Health, Safety, Convenience, Decency and Morals’ lays down a good number of provisions regarding environmental abuse.  One such provision is Sec. 268 and it makes illegal omissions causing injury, danger or annoyance to the public an offence termed ‘Public Nuisance’. Acts defined as public nuisance are punishable with fine which may extend to two hundred rupees as per sec. 290 of the code. For an individual who repeats the acts even after injunction a simple punishment which may extend to six months or fine or both is given under sec. 291 of the code. Other than this sec. 269 of the code makes the negligent acts likely to spread infection or disease dangerous to life punishable with imprisonment which may extend to six months or with fine or both. Similarly, sec. 270 of the code makes the malignant act likely to spread infection of disease dangerous to life punishable to imprisonment which may be extended to two years or with fine or both. Furthermore, sec. 278 of the code makes the voluntary acts of making atmosphere noxious to health an offence punishable with fine which may extend to five hundred rupees.

We would have to agree that the punishments given in the code are obsolete and meager to meet the objectives.

Challenges

Over burdening the court- Many legislations allows the concerned body to approach court in case of prospective or ongoing abuse of environment to issue an injunction. This is done because of the inherent value of a court’s decree. But these days authorities have started abusing this option as it is comparatively easy for them to move to court and get an order but this has a really devastating effect on the efficiency of the courts. For our courts, notorious for having backlog of cases such practice only makes the situation worse.

Over 21,000 environment related cases due to poor implementation of judicial order which in itself is another problem. The orders are issue but we lack in follow-ups[10].

Not even this, the courts sometimes finds it difficult to identify the polluter e.g. The National Green Tribunal passed an order stating whosoever pollutes Yamuna River would be liable to pay fifty thousand rupees[11]. However, the implementation of this order is not possible as there is huge number of people directly or indirectly doing so.

Keeping up with Economic Growth- India being a developing country, it is important to pay attention to its economic growth which many a times comes at a cost of environment. Continuous need of infrastructure, good roads, connectivity, and settlement often lead to the exploitation of environment.

No Independent Regulatory body- There are a good number of boards established under different acts for different purposes but no independent regulatory body to take control[12]. The presence of different boards at different levels gives rise to dual chain of command that in turn lead to confusion. The Ministry of Environment Forest and Climate Change (MoEF) is responsible for the functioning of these boards which also sometimes results in excessive interference from governments resulting in inefficiency. Unavailability of funds and properly trained & sensitized staff is also a problem faced by the vigilant bodies. Specially the employees working in SPCBs (State Pollution Control Boards) barely gain any technical expertise in the working of SPCBs where paperwork, litigation and an acute shortage of staff exacerbates the situation[13].

Lack of awareness & will-

Its very common for us to spot people outrightly denying the existence of the environment related problems. There is a need of a efforts to sensitize people towards environment. The people should be taught small habits that can help cure our environment say not using plastic bags, habit of using dustbins etc.  One would have to consider that the biases of the people and the notion that ‘Nobody is initiating so why should I’ needs to be countered.

Our country also lacks the political will to cure environment. The political agendas are normally focused towards issues other than these. Even if the issue is incorporated it is not a priority. We would have to understand that the issue of environment is of outmost importance to us and we should act accordingly.

Conclusion

The legislations governing environment related acts of an individual are increasing day by day but what we lack in is implementation and will to act. Proper implementation of the existing laws can solve half of our problem and the other can be solved through sensitization of not only people associated with the environment authorities but of the general public as well.

The people of the nation have been entrusted with the duty to protect the environment and nurture it from the very inception of our nation via Constitution of India. Considering this we have taken and are taking wide steps to thrive. But the problem is the same as it was decades back. Some of it can be attributed to authorities’ carelessness and the other to our sleeping with eyes wide open. Knowing how important the environment is for us we take it for granted even though the environment keeps on giving reminders say earthquakes, tsunamis and what not. It’s high time to accept that the environmental issues are real and it would take a collective effort to be cured.


[1] Divinity is omnipresent and takes infinite forms.

[2] The five great elements i.e. space, air, fire, water, and earth.

[3] A term used in Islam meaning living lightly earth.

[4] ‘India generates 9.46 mn tones of plastic waste annually’ (BusinessLine, 30 August 2019)< https://www.google.com/amp/s/www.thehindubusinessline.com/news/science/india-generates-946-mn-tonnes-of-plastic-waste-annually/article29299108.ece/amp/> accessed on September 10, 2020

[5] Sapttarshi Dutta,’76 millions don’t have safe drinking water: India’s loaming Water crisis’ (Swachhindia.ndtv, 22 September 2017)< https://www.google.com/amp/s/swachhindia.ndtv.com/76-million-dont-have-safe-drinking-water-indias-looming-water-crisis-5606/amp/> accessed on September 10, 2020

[6] Bhasker Tripathi, ‘As India hosts desertification meet, 30% of its land is already degraded’ (Businessstandard, 2 September 2019)< https://www.google.com/amp/s/wap.business-standard.com/article-amp/current-affairs/as-india-hosts-desertification-meet-30-of-its-land-is-already-degraded-119090200088_1.html> accessed on September 10, 2020

[7] ‘Are we really running out of water?’(26 July 2019)<https://m.youtube.com/watch?v=FJsbF1Y41BA>accessed 3 October 2020

[8]  1991 AIR 420

[9]  (1991) 2 SCC 137

[10]  Kiran Pandey, ‘This Un report shows green laws remain in books’ (DownToEarth, 31 January 2019)< https://www.google.com/amp/s/www.downtoearth.org.in/news/mining/amp/this-un-report-shows-green-laws-remain-in-books-63039> accessed on September 10, 2020

[11] Shreya Jha, ‘The ‘Polluter Pays’ principle: challenges to the NGT in securing the environmental justice’ (Lexlife India, September 2019)< https://www.google.com/amp/s/lexlife.in/2019/09/12/the-polluter-pays-principle-challenges-to-the-ngt-in-securing-environmental-justice/amp/> accessed on September 10, 2020

[12] Yash Dahiya, ‘Poor implementation of Environmental Laws in India’ (ipleaders)< https://blog.ipleaders.in/poor-implementation-environmental-laws/amp/#_ftn4> accessed on September 10, 2020

[13] Hardik Siroha, ‘Crises plaguing state pollution control boards’ (DownToEarth, 16 March 2020)< https://www.google.com/amp/s/www.downtoearth.org.in/blog/governance/amp/crises-plaguing-state-pollution-control-boards-69780> accessed on September 10, 2020


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This article has been written by Tanisha Singh, a student pursuing B.A. LL.B. at Dr. Ram Manohar Lohia National Law University, Lucknow.

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