Date: 02/09/2022

Relevance: GS-3: Conservation, Environmental Pollution and Degradation, Environmental Impact Assessment.

Key Phrases: Intergovernmental Panel on Climate Change, Environmental Performance Index, Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974, Quantum of penalty, decriminalization.

Why in News?

• India is one of the most vulnerable countries, which according to the Intergovernmental Panel on Climate Change's report, is set to be exposed not just to natural disasters but also economic shocks. However, its performance in mitigating an awaiting crisis is not up to the mark.
• Among 180 countries, it has been ranked at the bottom for its environmental performance in the 2022 Environmental Performance Index.

Proposed amendments to Environment Protection Act:

• The recent amendment proposed by the Union Environment ministry seeks to decriminalize the existing statutory framework governing the environment.
• The Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981, and the Water (Prevention and Control of Pollution) Act, 1974, in a move to "weed out fear of imprisonment for simple violations" will no longer make a violator criminally liable as per the proposal.
• Instead, financial penalties for non-compliance have been imposed for a majority of offences categorized as 'simple'.
• Serious environmental crimes that cause grave injury or death would invite imprisonment under the Indian Penal Code.
• These penalties would be decided by an ‘adjudication officer’ and transferred to an ‘Environment Protection Fund’.
• The quantum of potential fines has been raised from beyond one lakh rupees to as much as five crore rupees.

Concerns over the amendments:

• Blow to Current provisions:
  • Under the pretence of simple violations, various provisions of the present Act which seek to prevent environmental hazards will suffer a blow.
    • For instance, Section 10(1) of the EPA grants a right to enter any place to persons authorized under the Act for performance of functions, determination of compliance with the Act, and examination of offences already committed or "about to be committed".
  • Such a provision enabled the prevention of the commission of an environmental offence.
  • Sub-clause 2 gives teeth to it by making "every person carrying on any industry, operations or process of handling any hazardous substance bound to render assistance" to persons performing functions under subsection 1.
  • Any failure to render assistance or willful delay and obstruction of the same is categorized as an offence punishable with imprisonment and a fine.
• Dilution of the precautionary principle:
  • The threat of imprisonment reflected the law's robust approach to effectively implementing the precautionary principle.
  • This was in furtherance of the spirit of the Act, which has been enacted for "the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants, and property".
  • The proposed changes in the Act tend to dilute this by substituting a monetary fine in place of criminal liability.
  • If the proposed changes are adopted, a violator can easily continue to commit a crime without fear of any obligatory surveillance of the state machinery.
  • A violator can opt for paying a sum of money to keep his usual business unaffected, even if it can lead to a possible environmental hazard at a later point in time.
  • The scope for preventing environmental offences through the timely intervention of the designated authority is negligible.
• Quantum of penalty:
  • The quantum of penalty is to be decided by an adjudication officer at his discretion, which raises even further apprehensions about arbitrariness.
• Poor reflection on sustainable development:
  • This shift in the nature of liability likely to be imposed on violators at a time of serious climate change actions taking place globally reflects poorly on the efforts taken towards implementing a regime of sustainable development.
• Profit maximisation vs penalty:
  • If environmental crimes are reduced to be compensated by mere monetary terms, it only propagates a 'pollute and pay' regime.
  • The states must not fall into this trap of putting a price tag on the environment because the sole reason is that big corporations will find this way more convenient. They will have a greater incentive to pollute first and then pay later.
  • The profit-maximizing ethics of such companies come first and foremost, while the interest of the environment and human society is overlooked.
  • If the profit earned offsets the penalty to be paid, the violators would have very less reason not to pollute.
  • Therefore, it is not unlikely that the proposed changes in the law would be a blessing in disguise for such enterprises.

Way forward:

• The existing argument against criminal liability is that the procedure of filing a complaint is cumbersome, leading to lesser convictions.
• However, this can be rectified by making the procedure simpler and speedier. Rather than being governed by the technicalities of the Code of Criminal Procedure, a separate procedure can be formulated for tackling the cases of environmental crimes.
• Financial Penalties are a good step towards making a polluter accountable for the harm caused by his undertakings, however, they should be employed when the damage has already been caused without there being any scope for its avoidance.
• In situations where the law can prevent the commission of an offence, it shouldn't let the violator consciously and deliberately buy his way out.
• The two principles, namely the precautionary principle and the polluters pay principle, constitute sustainable development doctrine; each must be employed at the right juncture.
• Big corporations and industries should not be entitled to a 'right to pollute' because they can afford to do so.
• The environmental damage of any degree- simple or grave cannot be overlooked and neglected.
• All stakeholders need to start acting affirmatively; however, the role of the law and the state is paramount.
• The law can become an essential instrument in shaping the social norm around the protection of the environment for today and tomorrow; therefore, it needs to deal with perpetrators without leniency.

Source: Live-Law

Mains Questions:

Q. How can the recent proposal to "decriminalize" the existing provisions of the Environment Protection Act 1986 dilute its effectiveness? Critically analyse.