QUASI-DECRIMINALISATION IN ENVIRONMENTAL LAWS IN INDIA: AN EVALUATION
– Prof. (Dr.) Sairam Bhat* & Jaibatruka Mohanta**
Introduction
The Parliament of India recently enacted the Jan Vishwas (Amendment of Provisions) Act, 2023 (Amendment).[1] It received the President’s assent on August 11, 2023,[2]and aims at decriminalizing and rationalizing violations to further enhance trust-based governance and for ease of living and doing business. This one legislation has proposed changes to 42 Central Acts governing various issues including that of environment. This Act has sought to bring amendments environmental legislations like the Indian Forest Act, 1927 (IFA), the Environment (Protection) Act, 1986 (EPA), the Air (Prevention and Control of Pollution) Act, 1981 (Air Act), and the Public Liability Insurance Act, 1991 (PLI). Earlier the Parliament of India enacted the Biodiversity [Amendment] Act 2023 [herein referred to as ‘said Acts’], which too attempted to decriminalise biodiversity related offences. However, it is crucial to note that decriminalisation is not absolute, the Act does provide for imprisonment upto three years, in case of default to pay the penalties[3] or if one delays in payment of the penalties. [4]
Decriminalization is not new in Bharat, either legislatively or through the intervention of the Judiciary.[5] The authors in this article will briefly evaluate the changes that have been brought to specific Environment legislations.
The Changes
The intention of the legislature is clearly to eliminate those clauses that stipulates imprisonment as a punishment for disobeying certain provisions of these, ‘said Acts’. For instance, earlier violations of the Environment Protection Act, 1986, attracts fines of up to Rs 1 lakh, or up to five years in prison, or both. Also, the maximum sentence for an offence was seven years in prison if it goes unpunished for more than a year following a conviction. The Jan Vishwas Act, however, suggests limiting punishments to penalties alone, which will be approved by an Adjudicating Officer, chosen by the government.
So, a common thread that runs within these Amendments, especially to the determining of penalties and fine, is the new office of the Adjudicating officer.[6] The Government may appoint an officer not below the rank of a Joint Secretary to the Government to be the Adjudicating officer. The Officer will hold an inquiry and impose penalty in the manner prescribed. The inquiry with the Adjudicating Officer shall provide reasonable opportunity of being heard, may require such person to produce any record and may call upon any person to appear before him/her. The said Acts amendment states that the adjudicating officer will base the penalty amount on elements such as, population impacted, frequency and duration of such contravention or undue gain derived from noncompliance and such other factor as may be prescribed. Such penalty imposed under the EPA shall be in addition to the Liability to pay relief or compensation[7] under sec. 15 read with sec. 17 of the NGT Act.[8] All such penalty or additional penalties imposed under Sec. 14 and sec. 15 of the EPA shall be credited to the Environmental Protection Fund established under sec. 16.[9] The expenses associated with assessing the losses that the ecosystem and biodiversity would have sustained or mitigating those losses, such as through restoration efforts. The same has been provided for the Air Act as well.[10]
As regards the Indian Forest Act 1927, the proposed revisions have sought to quasi-decriminalize minor violations of law. Acts such as carrying timber into and out of the forest, trespassing by cattle, feeling a tree, felling or damaging a tree, kindling of fire in a forest, or carrying fire in a forest area. These acts have been decriminalized from the provision of imprisonment for six months to only a fine that may range from 500 to extend to Rs. 5,000/- in addition to the compensation to be determined by the Forest Officer under sec. 68.[11]
The Jan Vishwas Act also amends the Public Liability Insurance Act, 1991. In addition to taking out insurance policy of not less than the paid-up capital[12] of the industry, responsibility is fixed on Owners of such companies engaging in Hazardous substances to reimburse such amount and provide relief in case of death due to fatal accident, medical expenses incurred, loss of wages due to partial disability, injury and other sickness and damage or loss to private property. Owners of public or private property may make an application to the Collector for restoration of the said property. If the damage is caused to the environment, then such application shall be made by CPCB or SPCB and the Environmental Relief Fund may be allocated for the said purpose. Here too, for contravention of the provision of the PIL is penalty equal to the annual or twice the annual premium on the insurance policy.[13] The PIL Act also provides for the role of the Adjudicating Officer.[14] The District Magistrate or the rank of Director to Government of India, of any officer not below the rank of the Joint Secretary may be designated as Adjudicating officer to hold inquiry and impose penalty under the PLI Act.[15]
Similarly, the substantive amendments to the Biodiversity Act 2002, also quasi-decriminalizes any contravention of the said law. Sec. 55 of the amendment Act now imposes a penalty of one lakh, which may extend to 50 lakhs and where the damage exceeds the penalty, the penalty can commensurate the actual damage. The said penalty shall be decided by the Adjudicating office and appeal to the NGT may be preferred within a period of 60 days.
Another crucial modification sought by the Amendments are the establishment of dedicated funds under each Act to hold the compensation that offenders must pay. An “Air Pollution Remediation Fund,” an “Environmental Protection Fund” under the Environment Act, as well as a “Water Pollution Remediation Fund,” are all proposed by the amendment. The affected parties, including the environment, will get these payments from the government.[16]
Whether the changes will have any implication on existing cases of VIOLATION?
It is significant to note that these new changes to the Air Act, EPA, Forest and Biodiversity Act will pose many issues about its retrospective application, especially to those cases where the sentencing has not yet been declared by the Courts. There are several existing criminal litigations wherein, individuals, Companies and Government Departmental Heads are under criminal processes in trial courts for a series of environmental violations. The Forest Act allows for compounding and the Judiciary have the same power inherent in them. Further, the courts will lean in favour of those alleged to have contravened environmental legislation with lesser criminal intent to impose penalties instead of imprisonment. This is not a new, the Court generally shall lean in favour of the accused, whenever the changes to the laws are deemed to be beneficial to the accused. In the landmark case The Supreme Court in T. Barai v. Henry Ah Hoe,[17] opined that that since amendments were beneficial to the accused persons, it could be applied with respect to earlier cases as well which are pending in the Court, observing thus:
It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense.
The same principle was followed by the Court in Ratan Law v. State of Punjab,[18] where in the Court held that any legislation could be operated in a retrospective manner for the benefit of that person to reduce the punishment. Hence, any form of ex-post facto law which is required for the benefit of the accused is not prohibited from being introduced retrospectively under Article 20(1) of the Indian Constitution. In addition, the Delhi High Court in State (NCT of Delhi) v. Satish Kumar,[19] relying on the decisions of the Supreme Court in Dayal Singh v. State of Rajasthan[20] and Nemi Chand v. State of Rajasthan[21] has clarified that though no accused can be convicted for an ex-post facto law, however, the benefit of a reduced punishment can be granted to the accused. Thus, the Courts will grant leniency of imposing ‘only penalty’ to environmental violations in ongoing litigation under the ‘said Acts..
In pursuance to the above – it is positive that penalties have been increased, however, even the extra sums received by the government should be effectively utilised, to cover the losses to both to people and the environment. It is not clear whether the NGT will continue to impose, it own creation, of environmental compensation, despite the penalties imposed by the Adjudicating officers under these statutes. Moreover, the issue of Environmental compensation imposed by the NGT is still under scrutiny as to the method of calculation and the pecuniary jurisdiction of the tribunal to do so. Lastly, the NGT as an appellate body will have to examine whether it can enhance the penalties into environmental compensation. This will result in unnecessary judicial and adjudicatory contradictions.
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* Sairam Bhat, Professor of Law & Coordinator, CEERA-NLSIU.
** Jaibatruka Mohanta, Research Fellow, CEERA-NLSIU
[1] Jan Vishwas (Amendment of Provisions) Act, 2023, Act No.18, Acts of Parliament, 2023 (India).
[2] See the preamble to the Jan Vishwas Act.
[3] Sec. 15E, Amended EPA.
[4] Any person who fails to pay the penalty within 90 days, shall be liable for imprisonment upto to three years and a fine twice the amount of penalty or both.
[5] Supreme Court decriminalized homosexuality vis-a-vis Sec 377 Indian Penal Code 1860, case-Navtej Singh Johar v Union of Indian SC INCS 790 2018. Some other examples of decriminalization can be related to aspects such as Abortion, Euthanasia, Sec. 497 IPC relating to Adultery, gambling and other such acts.
[6] Sec. 15 C added to the EPA through this Jan Vishwas Act 2023.
[7] See sec. 15 C of the Amendment Act to EPA.
[8] Appeal from the order of the Adjudicating Officer is with the NGT. See. Sec. 15 D of the amendment Act to EPA. The Appeal shall be made within 60 days of the order. Appeal can be admitted only after 10% of the amount of penalty imposed by the Adjudicating office er has been deposited before the NGT.
[9] Environmental Protection Fund will receive penalty from the Air Act and Environmental Protection Act. The funds may be utilized to promotion of awareness, education, research or for achieving the objects of the legislations. 75% of this fund shall be allocated to the State Governments.
[10] Jan Vishwas (Amendment of Provisions) Act, 2023, Act No.18, Acts of Parliament, 2023 (India).
[11] §26, India Forest Act, 1927, (Jan Vishwas (Amendment of Provisions) Act, 2023, Act No.18, Acts of Parliament, 2023 (India).
[12] Paid up capital shall include the market value of all assets and stocks of the undertaking on the date of the contract of Insurance.
[13] Sec. 14 of the PIL Amendment Act, through the Jan Vishwas Act.
[14] Appeal from the Adjudicating Officer is to the NGT within 60 days by depositing 10% of the penalty imposed.
[15] Sec. 15 A of the PIL Act.
[16] Section 39(C) of the Air (Prevention and Control of Pollution) Act, 1981.
[17] T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177.
[18] Ratan Lal v. State of Punaj, (1964), 1965 AIR 444, 1964 SCR (7) 676.
[19] State (NCT of Delhi) v. Satish Kumar,[19] 2018 SCC OnLine Del 11453.
[20] Dayal Singh v. State of Rajasthan, (2004) 5 SCC 721.
[21] Nemi Chand vs. State of Rajasthan (10.03.2016 – SC) : MANU/SC/0506/2016.
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