Proposed decriminalisation of green laws must ensure better enforcement, experts say

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India’s proposed move to decriminalise a set of environment laws needs to be accompanied by mechanisms to ensure more effective enforcement so that egregious acts do not go unpunished, experts said.

The Union government proposes to amend three key laws to do away with imprisonment as a penalty and increase monetary fines instead for violations.

The government said the objective of amending the Environment Protection Act, 1986, the Water Act (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981, was to “weed out fear of imprisonment for simple violations”.

Experts, however, said when the need for environmental safeguards is more pronounced than ever, these proposed amendments lack an effective enforcement mechanism.

The proposed amendments envision raising monetary fines for violations to the range of Rs 5 lakh to Rs 5 crore. In case of continued violations even after one year from conviction, an elevated fine on a per-day basis may be imposed instead of both a fine and imprisonment. The fines collected under these laws will be disbursed among the affected parties, it is proposed.

The proposal sparked a debate on the effectiveness of imprisonment and penalties as deterrents against environmental violations. However, according to Kanchi Kohli, senior researcher at the Centre for Public Policy, there is a bigger question that needs to be discussed.

Effective deterrence

“The debate now is whether criminal penalties have a higher deterrent effect whereas the debate should be about what kind of enforcement will encourage companies to comply with the laws and will deter against violations and non-compliance,” Kohli told Moneycontrol.

Criminal offences under environment laws have been difficult to prove, and penalties, both criminal and civil, are almost always challenged in court. Securing convictions and enforcing penalties are a roadblock in environmental cases. In a situation like this, it becomes imperative to have a mechanism that ensures proper enforcement of the law to create deterrence.

Currently, most criminal cases under the three laws remain pending for long durations, adding to the case pendency faced by the judicial system and preventing the issue from reaching a logical end. Moreover, criminal charges pressed for environmental law violations are often sought to be quashed under the criminal procedure code, said Vanita Bhargava, a partner at Khaitan & Co. who specialises in environmental law.

Penalties and fines are also challenged in many instances, said Kohli, highlighting the need for an enforcement mechanism.

Companies do not want to be seen breaching environment laws and so challenge penalties levied on them. Effectively, it is the harm to their reputation that may act as a deterrent for companies, Kohli explained.

The need of the hour, according to Kohli, is for a procedure to be developed for proper enforcement and determination of aspects such as implementing the law and establishing liability in cases of accidents and non-compliance. This is an aspect that is lacking in the law, both present and proposed.

Need for balance

The proposal to amend environmental laws comes after the government’s move to decriminalise commercial laws such as the Companies Act. Decriminalising environmental laws may be viewed as another step in the direction of pushing the ease of doing business.

While removal of criminality from the law is in line with the government’s objectives of doing away with the fear of imprisonment for small offences, it may prove to be a dilution for graver violations and egregious breaches, said Bhargava.

“There is perhaps a need for exceptions to be carved out wherein the Environment Protection Act decriminalises smaller offences but the serious offences that cause irreparable damage to the environment or cause loss of life invite criminal action also,” she said.

There is enough environmental law jurisprudence to know that certain severe categories of cases should invite criminal action, but what should be kept in mind is that people not involved in daily operations of violator companies are not harassed, Bhargava added.

The Environment Protection Act was introduced after the 1984 Bhopal gas leak and it brought in principles such as vicarious liability (holding a person or entity responsible for damages or harm caused by someone else), Bhargava said. Before this law, people in key decision-making positions could not be brought to book despite provisions on negligence under both criminal and civil laws.

“These provisions (Environment Protection Act) were brought in for a deterrent factor, so decriminalising this law may be considered as a regression so far as those serious cases are concerned,” Bhargava said.

If the amendment comes into force, provisions under the Indian Penal Code can be invoked against violators for criminal negligence and other criminal offences.

Two-way process

Environment is a public issue involving many stakeholders and when safeguard norms are breached, it affects all stakeholders. However, the laws in their present form as well as the proposed amendments make the issue a two-way process between the government and the companies, Kohli pointed out.

The people who suffer the impact of environment law breaches need to be involved as parties in these procedures, Kohli added.

“These amendments are clearly very partisan… If you see these amendments from the perspective of the people affected, they want changes but they want to be a party to the process,” she said.

The proposed amendments make way for higher fines to be collected and disbursed as compensation to stakeholders who are left out of all processes, but do nothing to provide for a robust mechanism to enforce these penalties, leading to the question of whether monetary fines alone make for strong deterrence.