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ENVIRONMENTAL CRIMES AND PROTECTION UNDER LAWS IN INDIA BY: THANMAI SREE THATHA
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ENVIRONMENTAL CRIMES AND PROTECTION
UNDER LAWS IN INDIA
AUTHORED
BY: THANMAI SREE THATHA
CHAPTER I
INTRODUCTION
Since there is no agreed-upon meaning
for the term "Environmental Crimes," it is frequently construed
according to its broadest possible application. Such a concept may have
originated as a result of the damaging actions or inactions that result in
environmental law violations. "An unlawful act or omission that breaches
the law and is therefore subject to criminal prosecution and criminal
consequence" is what Y. Situ and D. Emmons define as an environmental
crime. The United Nations Crime and Justice Research Institute states that
ecological crimes "include a wide range of illicit activities, such as
illegal wildlife trade, smuggling of ozone-depleting substances, illicit trade
of hazardous waste, illegal, unregulated, and unethical behaviour," and
unreported fishing, as well as illegal logging and timber trade.
“An act or omission must”:
a) Cause Direct/Indirect Environmental
Damage; And B) Be Prohibited By Law
In order to be termed
"Environmental Crime."
Even though they are objective, these
interpretive definitions are not enough by themselves. There are a few issues
with the proposed selection of reports that can be seen: First, the lack of an
agreed-upon definition makes it difficult to agree on what constitutes an
environmental crime. Second, there is no clear list of the kinds of activities
that would fall under the definition. Third, there are jurisdictional and
geographic restrictions; what is illegal in one country might not be illegal in
another.
Environmental crime is on the rise
and jeopardising all ecosystems, including flora, fauna, and wildlife, as well
as human health, sustainable livelihoods, and even government revenue sources.
The idea of protecting the environment is as old as India itself.[1]
Environmental crimes and green-collar crimes are often used interchangeably.
Environmental crimes are those that break the laws intended to safeguard the
environment and public health from the dangers of environmental pollution.[2]
Environmental crimes include a wide range of corporate crimes in the forestry
industry, as well as illicit mining, fishing, trafficking in hazardous waste,
and unnatural resource exploitation.[3]
Environmental crime, or "green crime," is a type of organised crime
(nature). This phrase can relate to an actual crime, meaning that the act is
against the law of the nation, or a moral crime that might not be against the
law.[4]
Green Collar Crimes are classified as part of the global organised criminal
activities and are the fourth-largest category of organised crime worldwide.[5]
Green collar crimes vary widely in their interpretation; there is no single
term for them. According to the United Nations Crime and Justice Research
Institute, illegal activities that are considered environmental crimes include
smuggling of ozone-depleting substances, illegal trade in hazardous waste,
illegal, unreported fishing, illegal logging, and trade in timber, among other
illegal activities.[6] Any
criminal behaviour affecting the environment or eco system can be classified as
"Environmental Crime," to put it succinctly. Environmental laws
control and ensure the effectiveness of environmental protection organisations.[7]
Laws pertaining to the environment are referred to as environment
jurisprudence. Its greatest accomplishment is the formulation of a shift in
ethics and the acknowledgement of the dual accountability of the person and the
government with regard to the natural environment.[8]
Environmental crimes should be addressed seriously since they have the
potential to endanger national security and sustainable development, according
to the United Nations.[9]
STATEMENT OF PROBLEMS
The statement of the problem in this
research paper is to understand the relationship between the environment and
the law which governs the safety of the environment. This paper widely explores
how Indian laws provide protection against environmental crimes.
OBJECTIVES OF THE STUDY
1. To examine environmental crimes with
a strong emphasis on law.
2. To analyse the relationship between
law and the environment.
3. To find human activities that harm
the Environment.
4. To understand the legislative
measures taken to preserve and safeguard the human environment.
5. To critically analyse the legal
framework under other laws for environmental protection.
HYPOTHESIS
This research paper focuses on
environmental crimes with a strong emphasis on law in order to better
understand the relationship between law and the environment, particularly when
environmental harm is produced by human activities that are similar to self-harm.
Environmental crimes are among the most lucrative types of international
criminal activities, according to several experts. The prevalence of
environmental crimes calls for increased measures to prevent them. The one of
the most important worldwide issues of the twenty-first century is
environmental protection. Many people have found comfort as a result of
economic and technological improvement, yet there are many ways in which they
are detrimental to our ecosystem. Thus, this paper explores the ongoing
environmental crimes and protection provided under the Indian laws for the
same.
RESEARCH QUESTIONS
1. What are environmental crimes and its
emphasis on law?
2. What is the relationship between law
and environment?
3. How do human activities effect the
environment?
4. Whether legislative measures taken to
preserve and safeguard the human environment are effective?
5. What are the legal frameworks under other laws
for environmental protection?
RESEARCH METHODOLOGY
The methodology used for this paper
is non-doctrinal research, also
known as social-legal research, which is research that employs methods
taken from other disciplines to generate empirical data that answers research
questions. It can be a problem, policy, or a reform of the existing law. Non-doctrinal research takes a
multi-disciplinary approach towards legal research. It employs methods and
information available from other disciplines to make a comprehensive approach
towards law. The methodology adopted is that of empirical research, i.e.
different modes of experimentation and observation.
SCOPE OF THE STUDY
This paper talks about different laws
related to environment, its protection and the legislative measures taken
nationally to safeguard the environment for a healthy future and safe future.
It also talks the legal framework under other laws, the judicial approach, and
guiding principles for environmental protection.
LIMITATIONS OF THE STUDY
This paper doesn’t include international
legislations and international laws related to safeguarding environment. It
doesn’t talk about penalties and criminalization of environmental pollution in
international point of view, it only talks about the Indian laws protecting and
penalizing environmental pollution.
NATURE OF THE OFFENCES
Environmental offences are not all
the same. They have been acknowledged as a class unto themselves, possessing a
wide host of Independent traits. Most environmental infractions that are
committed by a person, group, or institution are of a regulatory character.
Both criminal penalties and administrative proceedings are used to enforce
them. They differ from conventional crimes in a number of ways. They might not
meet all the criteria for committing a crime. The following components make up
a typical crime:
·
Certain
external consequences (harm)
·
which
are legally forbidden
·
conduct:
mens rea
·
a
causal' relationship between the legally forbidden harms and the voluntary
misconduct and
·
punishment
Some of the aforementioned principles
have been violated or altered in cases of environmental crimes. As regulatory
offences, environmental offences are less clearly defined than other offences.
The cause-and-effect relationship is also not well suited to environmental
contamination. It is incredibly challenging for legislators to predict what the
true impact will be, when it will actually happen, who will be the victim, and
what the "damage" will actually look like. Multiple injuries to
several victims, both people and non-human things, may result from a single
environmental breach. The injury could not manifest right away but still have
an effect.
TYPES OF GREEN COLLAR CRIMES
Green Collar Crimes are those crimes
which are committed against the Environment and wildlife.[10]
Environmental crimes include air pollution, water pollution, deforestation,
species declination of species and hazardous waste dumping.[11]
The acts damaging the environment and wildlife are called as green collar
crimes[12]
and they include:
·
Poaching
·
Illegal
trade of wildlife
·
Wild
life illegal trade
·
Unreported
fishing
·
Illegal
logging
·
Air
Pollution
·
Water
Pollution
·
Noise
Pollution
·
Environment
Pollution
·
Illegal
mining
·
Hazardous
waste dumping
·
E-Waste
dumping
Every human being is responsible for
maintaining a healthy environment, and even if they are unable to decrease
pollution, they should at the very least refrain from doing so. A healthy
environment is necessary to maintain ecological equilibrium. People don't take
responsibility for their actions and believe that the state is solely
responsible for them. They are also too busy trying to make ends meet by
working for a living, and there is no leadership to raise awareness of the
problems facing ordinary people. The problem of green collar crimes[13]
has not been addressed by Indian environmental law. Due to technology
advancements, where trading is now conducted online rather than offline, there
is an increase in wild animal trafficking and other associated crimes.[14]
According to a survey conducted in
2017, there had been a huge increase in incidents in India against the
environment and wildlife, which had been almost 790% from that in 2016. These
crimes are on the rise. Despite indicating that fewer crimes were committed in
2016 compared to 2015, the NCRB report showed an increase in some other types
of environmental crimes. According to a 2021 media estimate, there are
currently over 50,000 environmental cases going to trial. Prior to now, the
government has made numerous measures to encourage the reporting of instances
due to the increased public awareness of environmental crimes and animals. With
adequate law enforcement, this has also caused a surge in the activist movement
across the nation to introduce animal rights to India. This movement aims to
speak for those who cannot speak for themselves—nature and the environment in
which we live. To achieve good results, however, much work must be done in the
framing and implementation phases. Both positive and negative repercussions of
the current laws point to the need for new laws to be passed.
CHAPTER II
ENVIRONMENTAL POLLUTION
Despite being four to five decades
old, environmental criminal law in India has not yet gained traction in the
legal community or in academia. If we pay attention, trial court decisions
seldom make it to the High Court or the Supreme Court, which means that these
courts are rarely given the chance to comment on any legal issue that may
otherwise have led to the development of environmental criminal law
jurisprudence.[15] The
Supreme Court has created environmental law precedent while merely using its
civil jurisdiction. Environmental criminal law encompasses both procedural and
penal law, and it deals with acts that are defined as crimes under any
environmental law laws. Environmental crime is defined as "crimes that
encompass a broad list of illicit activities, including illegal trade in
wildlife, smuggling of ozone-depleting substances, illicit trade of hazardous
waste, illegal unregulated and unreported fishing, and illegal logging and
trade in timber"[16]
by United Nations InterRegional Crime & Justice Research Institute, a
leading organisation working in the field of environmental crime. These
offences not only degrade the quality of life and damage the ecological balance,
but they also raise concerns about how the "rule of law" is actually
applied in each state.
There is another aspect to the
aforementioned fact, namely, what will constitute criminal liability for a
person who violates a victim's "right to life" who is either
speechless, like an animal, or unknown, or a secondary victim, or a victim who
lacks a face but still lacks "right to life," like water bodies or
glaciers? In terms of environmental crime, it becomes challenging to identify a
victim in real time, particularly given the fact that sometimes it can take
years before an act's consequences become apparent, leading to a form of
intergenerational victimisation. One illustration of such a crime is breaking
the law about air pollution. Before we could understand the health risks of the
dirty air that factories generate, it took years. Even though air pollution
claims the lives of thousands of people every year[17],
environmental crime is frequently seen as a victimless crime. Since they are
seen as "victimless" and low on the priority list, these crimes
frequently fail to elicit the necessary response from authorities.[18]
In light of this, this research investigates how much consideration Indian law
enforcement agencies give to environmental offences. The groundwork for
environmental criminal law jurisprudence in India is also laid forth; only
wildlife offences are considered in this regard.
When a wildlife offence is committed,
the victim is rendered voiceless and cannot be defended unless an animal lover
takes up the case. Such crimes as the illegal trade in birds and animals
frequently involve international organised gangs. An overview of these cases
published on the website of the Wild Life Crime Control Bureau, also known as
the WCCB, reveals that individuals from Bangladesh and Myanmar were heavily
involved in the cross-border smuggling of animals and their body parts. Huge
financial gain and low likelihood of being found out and jailed are the main
incentives for potential offenders to commit such crimes.
Several government and non-government
organisations, including WCCB, EIA, and UNEP (United Nations Environment
Programme), have been working in the area of environmental criminal law. Other
organisations, such as WTI (Wildlife Trust of India), PETA (People for Ethical
Treatment of Animals), and WWF (World Wide Fund), have been working to protect
and conserve wildlife, which is work that is more civil in "nature."
Although these two groups of agencies may employ various strategies, their
shared goal—ensuring the delivery of environmental justice for all—remains the
same. "The pursuit of equal justice and equal protection under the law for
all environmental statutes and regulations without discrimination based on
race, ethnicity, and/or socioeconomic status"[19]
is how environmental justice is defined. Regarding the creation, adoption, and
enforcement of environmental laws, regulations, and policies[20],
it is regarded as "fair treatment and meaningful involvement of all people
regardless of race, colour, national origin, or income."
Around the world, environmental
contamination is a grave problem. Water, air, soil, thermal, food, and other
forms of pollution are all included. The unprecedented expansion of India's
industry is the single biggest cause of environmental pollution.
CHAPTER III
LEGISLATIVE MEASURES
Perhaps the first significant
international effort to preserve and safeguard the human environment was the
Stockholm Declaration of 1972. As a result of this Declaration, the States were
obligated to adopt measures to safeguard and enhance the environment. As a
result, the Indian Parliament added two Articles, 48A and 51A, to the Indian
Constitution in 1976. Article 48A of the Constitution correctly requires the
State to work to conserve and promote the environment as well as preserve the
nation's forests and animals. Similar to this, Article 51A's clause (g)
requires all Indian citizens to have compassion for all living things and to
safeguard and improve the natural environment, including forests, lakes,
rivers, and animals. Articles 48A and 51A (g) together seem to have the effect
of placing a constitutional duty on both the "State" and the
"people" to preserve, perceive, protect, and enhance the environment.
Every generation has a responsibility to best utilise and preserve the nation's
natural resources for all following generations.[21]
There are many laws on the subject,
in addition to the constitutional mandate to preserve and improve the
environment. However, for our purposes, the Water (Prevention and Control of
Pollution) Act of 1974, the Water (Prevention and Control of Pollution) Cess
Act of 1977, the Air (Prevention and Control of Pollution) Act of 1981, the
Environment (Protection) Act of 1986, the Public Liability Insurance Act of
1991, and the National Environment Tribunal A are more pertinent laws.
The Water Act establishes measures
for preventing and controlling water pollution as well as preserving or
restoring the water's purity. The Act forbids the introduction of any noxious,
toxic, or contaminating material into any stream or well. The Act stipulates
the establishment of the State Pollution Control Board and the Central
Pollution Control Board. Before dumping any trade effluent or sewage into water
bodies, new industries must first acquire the Boards' prior consent. Nobody may
utilise a new or modified outlet for the discharge of sewage or trade effluent
into a stream, well, sewer, or on land without the prior authorization of the
Boards. The Supreme Court ruled in the Ganga Water Pollution case[22]
that the tanneries' financial capability should be disregarded while compelling
them to build basic treatment units. The State Pollution Control Board-approved
primary treatment plants must be set up before these tanneries can be operated.
The purpose of the Air Act is to
reduce, control, and prevent air pollution. The primary causes of air pollution
include factories, vehicles, house fires, etc. The effects of air pollution on
the heart, lungs, and blood's haemoglobin are negative. According to the
definition of an air pollutant in the Air Act, it is any "solid, liquid,
or gaseous substance present in the atmosphere in such concentration as may be
or tend to be harmful to humans or other living creatures or plants, or to
property or environment." This definition includes noise. The Act states
that no industrial plant may be established or run in an area subject to air
pollution management without the State Board's prior approval. In Delhi,
the public transport system including buses and taxies are operating on a
single fuel CNG mode on the directions given by the Supreme Court.[23]
The Environment (Protection) Act of
1986 was passed to establish provisions for environmental protection,
enhancement of environmental quality, and prevention, control, and mitigation
of environmental contamination. The Bhopal Gas Tragedy served as a primary
impetus for the creation of the Act. The definition of "environment"
includes water, air, and land as well as the relationships that occur between
these elements and with people, other living things, plants, microorganisms,
and property. The term is broad enough to cover all living things, including
plants, microorganisms, and their interactions with the environment (land,
water, and air).
The Public Liability Insurance Act,
1991 was passed by the Parliament to establish public liability insurance in
order to provide timely assistance to anyone impacted by accidents that occur
when handling any hazardous chemical and for problems related thereto. The Act
requires facilities handling any hazardous product to have public liability
insurance in order to offer workers and victims of accidents with at least some
redress. Such insurance will be founded on the idea of "no fault"
responsibility because it only covers small-scale relief.
To establish strict culpability for
damages resulting from any accident occurring when handling any hazardous
substance, the National Environment Tribunal Act, 1995 was passed. The Act
calls for the creation of a National Environment Tribunal to handle cases resulting
from such accidents in an efficient and timely manner. It makes business owners
responsible for paying damages in the event that an accident results in a
person's death, serious injury, or damage to property or the environment. The
mishap had to happen while handling a dangerous substance. In addition, a
claimant may ask the Tribunal for the remedy specified in the Public Liability
Insurance Act of 1991.
The Environment (Protection) Act of
1986 places restrictions on the areas in which certain industries, operations,
or processes may be conducted or may be conducted with certain safeguards. To
that end, the National Environment Appellate Authority Act of 1997 was passed
to establish a National Environment Appellate Authority to hear appeals. No
Civil Court or other authority will have the authority to hear an appeal on
matters where the Authority is so enabled by the Act after the Authority is
established. It is clear that the goal of this Act was to deliver prompt
justice in environmental cases.
In order to ensure the protection of
wild animals, birds, and plants, the Wild Life (Protection) Act, 1972, was
passed. According to the schedules, the Act forbids hunting of the animals and
birds listed. The Act forbids the removal of any designated plant from any
forest, including by picking, uprooting, harming, destroying, etc. The State
Wildlife Advisory Board is mandated by the Act to provide advice to the State
Government about the formulation of policies for the protection and
conservation of wildlife and designated plants, as well as the choice of places
to be designated as sanctuaries, national parks, etc. A Chief Wildlife Warden,
along with other Wardens and their staff, and a Director of Wildlife
Preservation with Assistant Directors, oversee the administration of the Act.
The Forest (Conservation) Act of 1986
was created with the intention of halting forest deforestation. According to
the Act, no forest destruction or use of forest land for non-forest uses is
allowed without prior Central Government clearance. Reforestation is a
component of forest conservation, in addition to the preservation and
protection of already-existing forests. The diminishing woodlands should be
replaced by reforestation. It is an ongoing, integral process.[24]
The Act's admirable goal must be preserved, and it must be properly enforced
for the benefit of the general public.
CHAPTER IV
LEGAL FRAMEWORK UNDER OTHER LAWS
1. Environment Protection under Common
Laws
In addition, the common law remedies
provide environmental preservation. The Code of Civil Procedure and Specific
Relief Act give courts the authority to impose both interim and permanent
injunctions for the purpose of reducing and regulating pollution. The following
are a few of the treatments:
·
Nuisance
This relates to unlawful interference
with one's enjoyment of land and any resulting rights, which, depending on the
parties involved, may be categorised as either a private or a public nuisance.
However, the 1973 Criminal Procedure Code's Section 91 is the only provision
that addresses public disturbance (CrPC). It requires bringing a lawsuit in
order to get a temporary restraining order or other remedies that is likely to
annoy the public. A magistrate may also take necessary action by restricting
someone committing a public disturbance under Section 133 of the CrPC. The
Punjab and Haryana Court noted in the case of Ramlal v. Mustafabad Oil and Oil
Ginning Factory (1968) that noise from a legal operation that is beyond the
required threshold is not a defence against being held liable for public
nuisance. Public annoyance is covered under the Indian Penal Code, 1860, which
will be examined later.
·
Trespass
There are two main elements that must
be proven in order to prove trespass, which is an illegal intrusion on one's
possession of the property. One of these is directly invading or interfering
with another person's property.
·
Negligence
By demonstrating a direct link
between the negligence and the harm caused, a negligence action may be
launched. The respondent must also demonstrate that reasonable measures were
made to prevent the public nuisance as required by law. The Naresh Dutt Tyagi
v. State of Uttar Pradesh (1993) case, which involved blatant carelessness,
provides a better explanation. Here, three toddlers and a foetus in a pregnant
mother died as a result of fumes from pesticides that escaped into the area
through ventilators.
·
Strict
Liability and Absolute Liability
The Rylands v. Fletcher (1868) case
established this principle by holding that anyone who brings something onto
their property for personal use, gathers it there, and keeps it there should do
so at their own risk; if it escapes and causes trouble, they will be presumed
to be responsible for all damage that results from its escape. In the 1986 oil
gas leak case M C Mehta v. Union of India, which established strict liability
and expanded it into absolute liability taking into account the seriousness of
the damage inflicted, this idea was also found in the Indian legal system.
Strict responsibility is not applicable in cases involving acts of God,
plaintiff negligence, acts by third parties, actions taken with the plaintiff's
express or implicit consent, and situations in which a defendant uses land
naturally.
However, the M. C. Mehta decision,
which established the strict liability rule and held that obligation would
attach to the defendant for the harm inflicted without taking into account the
strict liability rule's limitations, also gave rise to the idea of absolute
liability. According to this rule, anyone who engages in an activity that is
inherently risky and causes harm as a result of an accident that occurred while
they were doing it shall be held entirely responsible.
2. Environment Protection under Penal
Laws
·
Indian
Penal Code
The Indian Penal Code, 1860, and the Criminal
Procedure Code, 1973, both contain a number of penal provisions. The IPC
addresses offences involving public health and safety under Chapter XIV. First
off, Section 268 designates environmental offences as public nuisances, and
Section 290 punishes the offence by imposing a fine of up to Rs 200. Therefore,
those who act or fail to act in a way that causes harm to others through
environmental contamination may be prosecuted. It was determined, as it was in
the case of K. Ramakrishnan v. the State of Kerala (1999) that smoking in
public places produces public annoyance and is therefore unlawful under IPC.
Again, the Supreme Court ruled in Murli S. Deora v. Union of India (2001) that
smoking in public places violates those who choose not to smoke's basic right
under Article 21.
Water pollution is prohibited by
Section 277, which carries a penalty of up to three months in prison, a fine of
up to Rs. 500, or both. The phrase "public spring" or
"reservoir" is used in the clause, but the courts have given it a
very narrow construction that excludes rushing water from rivers, streams, and
canals. Similar to this, Section 278 imposes a fine of up to Rs 500 on anyone
who voluntarily degrades the environment by making it unhealthy for anyone's
health in a general home, while conducting business in the neighbourhood, or
while passing by on a public pathway. In addition to this, IPC Sections 426,
430, 431, and 432 punish any pollution brought on by mischief.
·
Criminal
Procedure Code
Similar preventive and mitigating
methods are offered for public nuisance cases involving water, air, soil, and
unsanitary/unhygienic circumstances under Chapter X of the Indian Criminal
Procedure Code of 1973. The remedy for environmental pollution in general is
provided under Section 133, which gives a District Magistrate and
Sub-Divisional Magistrate the authority to put an end to the annoyance. Any
order issued in accordance with this clause may not be challenged in a civil
court. The court gave a fairly broad definition of what constitutes a nuisance
in the case of Govind Singh v. Shanti Sarup (1978), including the construction
of structures, the conduct of occupations and trades, and the imprisonment or
disposal of any harmful animals. This clause cannot be invoked in a private
dispute; instead, there must be an immediate threat to the public good.
Additionally, the penalties in other environmental statutes and laws are not
applicable to this clause.
CHAPTER V
JUDICIAL APPROACH
The fundamental law of the land
recognises a person's right to a pollution-free environment. An essential right
to life and personal freedom is guaranteed under Article 21 of the Indian
Constitution. The right to a healthy environment has been defined by the
Supreme Court to include the rights to life and personal liberty.[25]
The Court has determined through its numerous rulings that the mandate of the
right to life encompasses the right to a clean environment, access to safe
drinking water, and a pollution-free environment.
In the Taj Mahal case[26],
the Supreme Court gave instructions that companies in Taj Trapezium (TTZ)
relying on coal and coke that were harming Taj should either switch to natural
gas or be transferred outside TTZ. Once more, the Supreme Court commanded the
Forest Department to preserve the vegetation it had planted around Taj.[27]
In the Dehradun Valley case[28],
careless and risky limestone quarrying in the Mussorie Hill range of the
Himalaya caused havoc with the hydrological system of the valley by using mines
to blast out the hills with dynamite and harvest limestone from thousands of
acres. The Supreme Court mandated that the hills' limestone quarrying be shut
down.
The smoking of tobacco in public
places was outlawed in India in 2001 by the Supreme Court.[29]
Smoking is bad for smokers, but it's also bad for non-smokers who have to
breathe secondhand smoke. In India, smoking tobacco, including cigarettes and
bidis, results in more than 3 million deaths yearly. Smoking causes lung cancer
in 1 lakh people in India each year. Indeed, 95% of people who have lung cancer
pass away. Because of this, the Supreme Court's decision has enormous social
importance.
In Almitra H.Patel v. Union of India[30],
the Supreme Court reaffirmed the conclusions drawn in Wadehra's case[31]. The
capital of India and oldest city, Delhi, is one of the most polluted places on
earth. Residents of Delhi are unable to live in a clean and healthy environment
thanks to the failure of the agencies in charge of pollution control and
environmental protection. The court ordered the government to act quickly to
reduce pollution and safeguard the environment.
In the Sri Ram Food and Fertilizer
case[32], numerous
people were impacted by a significant Oileum Gas leak, including both the
general public and workers. The Supreme Court ruled that an enterprise is
strictly and absolutely liable to compensate all those who are affected by an
accident if it engages in a hazardous or inherently dangerous activity and
causes harm to anyone as a result of an accident during the operation of such a
hazardous or inherently dangerous activity that results in the escape of toxic
gas. This liability is not subject to any exceptions.
In Subba Rao v. State of Himachal
Pradesh[33],
the Supreme Court mandated the closure of a bone factory that was aggravating
people's lives and contaminating the environment with its offensive odour. The
public's health cannot be compromised for business purposes. The Supreme Court
ordered a two-kilometer radius around the tourist resorts of Badkhal and Suraj
Kund to be free of mining activity in order to protect the environment and
reduce pollution.[34] In
Municipal Council, Ratlam v. Vardhichand & Others[35],
the Supreme Court ruled that the pitiful slum-dwellers are forced to relieve
themselves in the streets, first covertly for a while and then openly after
that, because under the pressure of nature, modesty becomes a luxury and
dignity a difficult art. A responsible municipal council established to protect
the public's health cannot avoid its responsibility by claiming financial
incapacity.
In the case of Indian Council for
Environmental-Legal Action v. Union of India[36],
the court applied the polluters pay principle to rule that even when someone
takes reasonable safeguards at the time of doing an activity, they are
nevertheless responsible for any losses they may cause to others. The court
recommended the creation of environmental courts to make sure that
environmental issues were continuously and appropriately considered in
accordance with the necessity of the hour.
CHAPTER VI
GUIDING PRINCIPLES
India's whole environmental legal
system is built on the following four guiding concepts. These include public
trust doctrine, polluter pays, precautionary principle, and sustainable
development.
·
Sustainable
Development
This idea strives to meet peoples'
immediate needs while preserving future generations' access to the same
resources. The Vellore Citizens' Welfare Forum v. Union of India decision from
1996 can be used to summarise the Indian Supreme Court's definition of the
principle; however, a critical analysis of the Narmada judgement from 1999
demonstrates how the Supreme Court "instrumentally harnessed the inherent
vagueness of the principle."
·
Polluter
Pays
It merely holds the polluter
accountable for any environmental harm they may have caused. In addition to
compensating the victims of the pollution, the polluter must also pay to
restore any environmental degradation already done. The National Environmental
Policy of 2006 noted the necessity to abandon the criminal penalty system and
establish a strict civil responsibility system based on the polluter pays
concept because of the extensive usage of this principle by the courts. The
inadequacy of the current legal standards and their application, however, has
been adequately demonstrated by the way in which times have changed.
The Supreme Court has put this theory
into practise by breaking the topic down into five questions. These include who
is the polluter, how and when the principle is used, how to calculate the
damage and receive compensation, what the polluter must pay, and finally, what
the principle's limitations are. However, courts' methods for putting this idea
into practise have been inconsistent.
·
Precautionary
Principle
Despite the lack of any scientific
assurance, this principle encourages the execution of preventive steps in
situations that could pose a major threat or result in irreparable harm. The
Vellore ruling's application of the principle, however, conflicts with how the
Apex Court defined it. The Court's treatment of the principle lacks clarity and
blurs the distinctions between precaution and prevention, two separate legal
principles. It can be useful in reaching environmentally friendly court
decisions, but it is not encouraging for the emergence of a distinct body of
law.
·
Public
Trust Doctrine
The concept that no one single person
owns the natural resources and that the government and regulatory authorities
must act as trustees and hold the resources for the free and unrestricted use
of these resources by the general public was first applied in the environmental
law of India in the case of M.C. Mehta vs. Kamal Nath & Ors, 1996. It is,
however, somewhat difficult to understand how the theory could make decisions
on public trust properties more predictable after it has been used. It is
necessary to make the theory more applicable and consider how it may better
preserve natural resources held in trust.
CHAPTER VII
CONCLUSION AND SUGGESTIONS
The urgent need to criminalise environmental
crimes has been discussed throughout the entire text, yet it still needs a
separate heading for clarity. The current state of affairs effectively
demonstrates the insufficiency of the institutional framework of sanctions that
is in place, which has shown to be less effective as a deterrent. Additionally,
academics have argued that where there is a significant damage on the
environment, administrative fines would be insufficient; in these cases,
punitive provisions are used. While there are many issues with the current
laws, a few of them include: having less than necessary 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, the prevalence of resistance to change/attitudinal problems, a
general lack of financial resources, giving emphasis to only specific types of
pollution, lack of an independent regulators. At the very least, having a
criminal statute in existence would make individuals fear breaking
environmental laws and their associated prohibitions. A step in the right
direction would be to base these fines on the actual harm done rather than the
quantity of sections broken. They may issue light fines or penalties or severe
fines and criminal consequences, depending on the severity. It might have its
own challenges, including figuring out the threshold for criminalising conduct,
but those can be better handled by the wisdom of the politicians.
However, there are three basic models
that can be used to identify such infractions. These are the significant
environmental contamination model, the model of concrete endangerment, and the
model of abstract endangerment. In all these models, there are 2 main issues
that are discussed: whether criminalization occurs as a result of legal
violations or whether it should occur because legal violations have a
significant negative impact on the general public. Criminal responsibility may
develop even if a provision is broken inadvertently and not just when serious
harm is done. Based on Michael M. O'Hear's model of "minimal
culpability," this was created.
The notion that should be kept in
mind, though, is that the clause should be written in a way that would either
directly or indirectly have a deterrent effect. Clear parameters for the
crime's punishment would also be advantageous. In order to expose the impact of
their crimes and receive lighter penalties, the organisation might develop a
form of self-policing process. Another thing to keep in mind is that having
harsh penalties and punishments would force the organisation to use expensive
preventative measures, which would automatically increase their operating costs
and, ultimately, the price of their products for consumers. This does not seem
like a wise course of action.
As a result, it has been noted that
there are far too many laws in place that make an effort to address
environmental difficulties. However, this has only increased their
implementation's ambiguity and difficulties. What we require is a solid
integrated system that would offer a comprehensive united strategy and
productive outcomes. Despite all the set guidelines, the judicial
implementation processes have had varying degrees of success. In addition to
complicated external issues, entrenched internal flaws also play a role in the
implementation process, such as the courts' inconsistent use of implementation
procedures, the necessity for stronger legal justification in their orders, and
their poor regulatory framework integration. Criminal culpability can be
introduced to effectively handle all of these problems, saving the court's time
while also having a deterrent effect. It is time for the nation to enact harsh
criminal penalties that anyone who violate the laws about environmental
degradation would have to bear.
Criminal penalties for environmental
infractions have been shown to be ineffective. Environmental laws take into
account the deterrent effect of punishing offenders. The complexity of prosecuting
such offenders and the flaws in the definitions of environmental offences have
prompted the pollution boards to focus on prevention rather than prosecution.
But the danger of penalty has diminished due to weak enforcement. Although
there has been a noticeable increase in the penalties, simply increasing the
severity of the punishment will not produce the desired results. The laws that
mandate coercive punishment are not consistently or firmly enforced. Since
there is no longer a perceived threat, criminal activity tends to grow.
However, criminal courts have
traditionally marshalled scientific evidence in other criminal offences. It is
true that the courts find it challenging to deal effectively with the
scientifically complicated issues involved in environmental laws. The courts
must have the will to carry out the genuine intents embodied in environmental
legislation in order to promote constitutional principles through the practise
of criminal sterilisation. The criminal penalties included in environmental
laws have drawn criticism.
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Article Information
ENVIRONMENTAL CRIMES AND PROTECTION UNDER LAWS IN INDIA BY: THANMAI SREE THATHA
Authors: THANMAI SREE THATHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/28
- Issue 7
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