Decriminalisation Of Environmental Offence: Rethink About The Binary Approach

For instance, the Jan Vishwas(Amendment of Provisions) Act, 2023 (“Jan Vishwas Act”), was passed in the 2023 Monsoon Session of the Parliament. The Jan Vishwas Act amended 42 pieces of legislation to decriminalise offences to promote ease of doing business. The Act also amended The Indian Forest Act, 1927 (“IFA”); the Environmental Protection Act, 1984 (“EPA”); Air (Prevention and Control of Pollution) Act, 1981 (“Air Act”); and the Public Liability Insurance Act, 1991 (“PLI”), which related to environmental offences.

The passage of the Water Bill is the culmination of a two-year exercise by the Ministry of Environment, Forest and Climate Change (“MoEFCC”) on decriminalising environmental offences. In 2022, MoEFCC released a consultationpaper seeking comments on the proposed criminalisation of four key environmental legislations. The consultation paper included the EPA, Air Act, Water Act and PLI. Three of these legislations are already decriminalised through the Jan Vishwas Act.[i] Water Act wasn't brought within the ambit of the Jan Vishwas Act. This is relevant because the Jan Vishwas Act was also referred to the Joint Parliamentary Committee for detailed comments, wherein the Committee gave observations on all 42 legislations. One of the reasons for non-inclusion could be that no state has passed a resolution under  Article 252 of the Constitution.

Proposed changes in the old draft of the Water Act

The changes proposed in the Consultation Paper by the MoEFCC were reflected in the changes made in EPA, Air Act and PLI under the Jan Vishwas Act. The proposed changes vide Water Bill 2024 are:

1. Overcentralisation of power: The changes made to the sections concerning the functioning of the State Pollution Control Board now vests considerable powers like nominating a chairperson to the SPCB (s. 4(2)) and determination of terms and conditions of functioning of SPCB (s. 5(9)) now rests with the central government. Similarly, proviso to s. 25(1) is amended to provide for seeking SPCB's permission within 3 months by people who set industries before the 1988 Water Act amendment. The Water Act 2024 provides that the central government and CPCB will have the final say regarding industries exempted under s. 25. In the Consultation Paper 2022, it provided that central government-designated “Green/non-polluting industries” will be exempted from seeking approval u/s 25. In 2016, CPCB developed a methodology for classifying industrial and other polluting activities into Red, Orange, Green and White to facilitate uniformity and objectivity in environmental mechanisms. The categorisation depends on the Pollution Index (“PI”), which comprises scores of three pollutant groups, i.e. air pollution, water pollution and hazardous waste. This categorisation is based on the principle of “precautionary principle”. In 2023, the CPCB released a draft modification to this categorisation for public consultation.

Adopting this categorisation, as suggested in the consultation paper, would have ensured objectivity, as SPCBs have an equal role in categorising such industries. Currently, the overarching power of the CPCB without any guiding principles for exemption u/s 25 is a cause of concern.

Water Act 2024 also adds s. 27A that provides overarching power to the central government to issue guidelines to determine factors on which SPCBs will have to grant, refuse, or cancel consent.

2. Substantial reduction of monetary penalty: The Water Act 2024 provisions that either retain penalty provision or substitute imprisonment with the monetary penalty have a miniscule impact in terms of preventing violation. This is substantially less than what was even proposed in the consultation paper. For instance, the Water Act 2024 amended the s. 41, 42 and 43 to provide a penalty of Rs 10,000 to Rs 15 lakhs and Rs 10,000 per day for continuing offences. This is a stark departure from the penalty proposed in the consultation paper wherein the limit was Rs 1 lakh to Rs 1 or 2 Crores, which was extendible up to Rs 5 crores in case of continuing offences. This is a reduction of almost 90% in the minimum penalty. In a research note published by one of the authors published on comparative analysis of the penalties, it was observed that these penalties were substantially low when compared to penalties imposed on corporations under the Insolvency Bankruptcy Code or the Securities and Exchange Board of India Act, 1992. With the further reduction in the amount, the penalty structure has, in effect, lost any deterrence for corporations. This penalty reduction was also executed in other environmental legislation vide the Jan Vishwas Act.
3. Harmonisation of relief: The Water Act 224 inserts new section 45B wherein the sub-section (3) emphasises that “The amount of penalty imposed under the provisions of sections 41, 41A, 42, 43, 44, 45A and 48, shall be in addition to the liability to pay relief or compensation under section 15 read with section 17 of the National Green Tribunal Act, 2010”. Although there is an attempt to introduce this precaution under the law, the minimal amount of penalty envisaged wouldn't deter corporations from performing dangerous activities.

It is acknowledged that one of the reasons for committing environmental crimes is deriving high probability with little chance of being caught or convicted. On the one hand, where there is a recognition of the necessity to implement stricter sanctions and punishments, we are drifting towards the binary idea of punishment and no punishment.

Moving beyond the binary concept of punishment

In response to the consultation paper, the Vidhi Centre for Legal Policy prepared a detailed commentary on the idea of decriminalisation of environmental legislation. A three-tiered model of factors must be assessed for arriving at the final penalty amount to be imposed - (i) Fixed/based penalty; (ii) Removal of unlawful gains derived by committing the offence, and (iii) Damage to the environment.

However, this environment legislation fails to resolve a fundamental enquiry even before applying this comprehensive metric to calculate an effective penalty. As per the stated statement of object and reasons, the MoEFCC does not offer parameters for defining a 'simple' offence. Even if a reasonable test is used to distinguish 'simple, accidental breach' from 'intentional and gross violations of regulations, we find a concern.

The extensive replacement of 'imprisonment' prescriptions with monetary fines is a regressive step. For corporations that wilfully contravene the provisions of this Act or regulations imposed thereunder, imprisonment offers adequate deterrence. Additionally, this form of punishment can reasonably discriminate between innocent violators and ill- reckless offenders. However, the Water Act 2024 dilutes the importance of this distinction. Instead, it remains confined to the binary of monetary punishment and no punishment by regulating fines in an insignificant manner.

The 2022 consultation paper by the MoEFCC recognized 'restorative environmental justice' as the primary objective of imposing penalties. However, the significant reduction of penalties vide the Jan Vishwas Act and Water Act 2024 don't align with this stated objective., The 2022 consultation paper extensively employed a proviso in multiple sections under Chapter VII of the Water Act 2024, prescribing that an imposed penalty can be increased to match the extent of ecological damage human loss caused by non-compliance if its inadequacy to indemnify such harm is proved. However, the Water Act 2024 does not inject legislative life into these progressive provisions. Instead, it unreasonable extends beyond its scope of ensuring 'ease of business'. From an eco-centric lens, we need punitive and preventive policies to protect the environment. Ease of living and doing business is not antithetical to ecosystem conservation However, this Act produces a conducive framework for polluters to flout environment regulations without an effective deterrence mechanism frequently. This was not envisaged in 2022 and needs a re-consideration

Shashank Pandey is a Research Fellow at the Vidhi Centre for Legal Policy. Vinayak Swaroop is a 2nd year law student at NLSIU currently interning at Vidhi Centre for Legal Policy. Views are personal.