Arshad Shaikh studies the impact of the proposed changes in the environmental protection laws. In a bid to make the laws more effective, the approach is to reduce the intensity of punitive provisions and increase monetary penalties. The amendments were prompted by the fact that very few convictions took place over environment related violations and decriminalising existing penal provisions would remove the fear of imprisonment for simple violations. The challenge of protecting the environment is so fundamental and critical for our survival that any laxity shown may lead to disastrous consequences. The government has invited comments on the proposed amendments. Hopefully, there won’t be any compromise when it comes to protecting the environment.
Recently, the Ministry of Environment, Forest and Climate Change announced some proposed changes in its laws. The overarching theme of the proposed amendments seeks to levy more monetary fines and reduce the quantum of incarceration for environmental violations.
The Environment Protection Act (EPA) 1986, last amended in 1991, is the bulwark of the state against acts that damage the environment. The EPA states that violators are punishable with imprisonment up to five years or can be fined up to `1 lakh or both. If the violations continue, an additional fine of up to `5,000 a day can be levied until the time the contravention of the law continues even after the conviction. There is also a provision for jail terms extendable to 7 years.
The government has come up with some major changes to the EPA. The clause that mandates imprisonment is to be replaced with another clause that demands mere monetary fine. However, one must note and appreciate that the proposed fines, that substitute imprisonment are five to five hundred times more than the amount currently being levied. In case of violations under the amended EPA, monetary penalties can be extended from `5 lakh to up to `5 crores.
Serious violations leading to serious injury or death shall still be adjudicated under the provision of the IPC 1860 along with Section 24 of the EPA. The deletion of prison terms shall also apply to the Air Act (dealing with air pollution) and the Water Act (dealing with water pollution). Any recurrence of the violation may lead to a monetary fine that would be corresponding to the damage caused. If the defaulter did not pay the original and additional fine, it would lead to a jail sentence.
An ‘adjudication officer’ shall be appointed who would arbitrate on the amount of penalty to be charged based on environmental violations such as reports not being submitted or information not provided when demanded. The funds that would be generated through these monetary fines would be accumulated in an ‘Environmental Protection Fund’, the proceeds of which would be remitted to the affected as compensation.
Environment protection is serious business. The latest Intergovernmental Panel on Climate Change (IPCC) report conclusively warns us that the space to avert an ecological calamity is shrinking fast and that things are far worse than we ever thought. Hence any changes that a government wants to bring out in laws that protect the environment must be well thought out and based on authentic scientific reports, studies and projections, not just the whims and pressures of market forces. Any laxity and leniency displayed in this regard may lead to cataclysmic consequences.
RATIONALE BEHIND THE PROPOSED CHANGES
The government says that it has received suggestions to decriminalise the existing clauses of the EPA so that the “fear of imprisonment for simple violations” is removed. The ‘decriminalisation’ is being justified through the result of a study conducted by the Centre for Science and Environment (CSE).
The study was done on the cases in the various courts of India for those caught on the wrong side of the EPA and it concluded that it would take Indian courts between 9 to 33 years to clear the backlog of pending cases related to the environment. From 2018 onwards, about 45,000 cases were pending trial, while another 35,000 cases were added the same year. Another validation was received for the amendments through a study funded by the NITI Aayog.
The findings of this study concluded that from 2018 to 2021, the country lost around `23,500 crores of income due to five adverse judgements passed by the Supreme Court of India and the National Green Tribunal. It was estimated that the government lost `8,000 crore worth of revenue, industry lost `15,000 crores, and workers suffered about `500 crore of income.
The judgments resulted in a loss of around 16,000 jobs and affected 75,000 people in all. The NITI-Aayog backed study also found out that the conviction rate for environmental violations is very low. Interestingly, the report suggested that the judiciary should be empowered sufficiently to balance the economic growth of the country along with protecting its ecology. Thus, the long pendency and low conviction rate for environment violators led to the inference that the current laws were not having sufficient deterrence.
THE NEED FOR CAUTION
One of the key perceptions that the current government is keen to establish about itself is that it is business-friendly and pushes for high-speed economic growth. It is going all out to improve its score on its ‘ease of doing business’ ranking.
However, one should not forget that any negligence in controlling ecological degradation extracts a far greater price from our people and does irreparable damage to our economy. As a responsible nation aspiring for a permanent seat in the UN Security Council, we must demonstrate far greater sensitivity to climate change than we currently profess and practise.
Undoubtedly, the new proposal will help industry to avoid expensive and time-consuming litigation but this change is bound to benefit the big players. Critics point out that the scheme of relying on monetary fines for deterrence could become ineffective if the penalties levied appear too small. It may also open the floodgates for corruption as the ‘adjudication officer’ has been invested with extraordinary discretionary powers to decide the quantum of fine.
Currently, India needs to be doubly precautious when it comes to saving the environment. Data shows that 63 of the world’s 100 most air-polluted cities were from India. An international study claimed that most Indians lived in places where the “annual average particulate pollution level” exceeded the safe limit prescribed by the WHO. Due to damage to the environment, the average life expectancy has been reduced by five years for all Indians.
A study published by The Lancet showed that 2.3 million premature deaths took place in India in 2019 due to elevated pollution levels. This number was the highest in the world. Sixteen lakh deaths were caused by air pollution while five lakh died because of water pollution. The total cost of environmental degradation in India every year was $80 billion or nearly 5.7% of its GDP with outdoor air pollution contributing the largest share. This data is from a 2013 World Bank study. We can imagine the cost we are paying today for neglecting the environment.
The UN Secretary General, Antonio Guterres said recently: “We cannot delay ambitious climate action. The battle to keep the 1.5 degree goal alive will be won or lost this decade. While achieving this goal requires a reduction in global emissions of 45 per cent below 2010 levels by 2030, current pledges would result in a 14 per cent increase in emissions by that date. This is collective suicide. We must change course. Ending the global addiction to fossil fuels through a renewable energy revolution is priority number one.”
Will the proposed amendments in our laws help in our pledge or jeopardise it? The stakes are too high to leave it to chance.