A discussion note by Leo F. Saldanha, ESG
From the early 1970s, when India’s environmental jurisprudence took first steps with the enactment of Wildlife Act, 1972 and Water Act, 1974, environmental protection and the safeguarding of associated human rights have been prioritised over industrial and infrastructure development, and economic considerations. Statutory support was extended to ensure environmental violation was punished as a crime. In all subsequent laws, India built an environmental jurisprudence based on criminal jurisprudence. The intent was to ensure there would not be any laxity in matters environmental, be it by the public, corporates or regulatory agencies.
This long held tradition is now sought to be fundamentally transformed by the Union Ministry of Environment, Forests and Climate Change which proposes changes to the essential characteristic of India’s environmental jurisprudence. Bills proposing comprehensive amendments which if passed would decriminalise several environmental violations have been issued on 1st July 2022 for public comments which are due by 21st July 2022. The laws to be amended are: Environment Protection Act, 1986, and also the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Public Liability Insurance Act, 1991.
Laying a strong foundation for environmental jurisprudence:
A major foundation for the prevailing environmental jurisprudence was laid by the recommendations of the 1980 N D Tiwari Committee which fore-staged environmental protection considerations as superior to economic imperatives. Various Supreme Court rulings have also promoted this jurisprudence. The passage of the Forest Conservation Act (1981) and India’s enthusiastic participation in the Brundtland Commission on Sustainable Development (1984) set the stage for the enactment of Environment Protection Act, 1986 (EP Act) as an umbrella law. Unhesitant, the Indian Parliament considered it essential to promoting environmental protection and conservation objectives based on effective regulation backed by criminal jurisprudence. The horrific corporate crime of a deathly gas leak from Union Carbide factory in Bhopal in the early hours of 2nd December 1984 killing thousands in their sleep and injuring hundreds of thousands more for life, had only reminded the nation of the critical importance of taking environmental regulation seriously.
Following the enactment of the EP Act, in the run up to UN Conference on Environment and Development, 1992 at Rio de Janeiro, several environmental rules and regulations were issued by the newly formed Ministry of Environment and Forests, including those to tackle transboundary movement of hazardous waste, regulated GMOs, etc. In each and every one of them, graded criminal punishment was instituted to mitigate environmental violations along with civil liabilities. In conformance with the ratification of 1992 Rio Declaration and Convention on Biological Diversity, India’s environmental governance regime was further fortified with the 1994 Environment Impact Assessment Notification (which for the first time acknowledge the due role of direct public participation in environmental decision making) and enactment of Biological Diversity Act, 2002 (which provided statutory protection to India’s bioresources and associated traditional knowledge instituting fear of criminal action against violators, particularly those involved in biopiracy and bio-loot, be they small time poachers or mega corporations from India and abroad).
In the post liberalisation period, unprecedented industrialisation, expansion of mining, infrastructure development and urbanisation resulted. Hundreds of thousands of communities were impacted by this mega transformation. The importance of administrative and regulatory accountability was underlined with the enactment of Right to Information Act, 2005, and soon after by the historic recognition of the rights of adivasis and other forest dwelling/dependent communities by the enactment of Forest Rights Act, 2006. These reforms brought hope of bolstering environmental protection and advancement of human rights, even as there was nation-wide demands for ensuring appropriate budgetary support for environmental protection and strengthening regulatory systems and deep into local governments.
Weakening Environmental Regulation post liberalisation:
Barring exhortations of the critical importance of environmental protection in securing ecological and economic security of the country, very little had been achieved in terms of protecting India’s rivers, forests, coastal commons, biodiversity, wetlands, etc. Struggles of hundreds of communities insisting on the implementation of environmental laws in its letter and spirit resulted and this gave rise to a new environmental consciousness. Environmental crimes came to be systematically documented, as in the case of the MoEF Suno organised by Campaign for Environmental Justice, which demanded the Union Government step back from formalising dilutions proposed to the EIA Notification. These demands were ignored and the Ministry went on to comprehensively amend the notification and replace it with the prevailing EIA Notification 2006, which created a complex parastatal machinery that failed to address the key issues and concerns of environmental regulation – and which has been systematically diluted with further amendments which have confounded even the judiciary. These dilutions followed a schema proposed in the pro-business Govindarajan Committee on Investment Reform (2002) which identified environmental regulatory systems as “bottlenecks” to India’s economic growth.
Alongside, the National Environmental Policy 2006 was adopted without much public debate and legislative scrutiny. This policy initiated a movement away from well settled goals and principles of India’s environmental jurisprudence – that of the country being pro-environment and pro human rights, to accommodating a pro-corporate agenda, especially with growing pressure from international investors and financial institutions. This was sought to be done by moving India’s environmental jurisprudence away from criminal jurisprudence. The following are excerpts from the policy:
p. 13: “The present environmental redressal mechanism is predominantly based on doctrines of criminal liability, which have not proved sufficiently effective, and need to be supplemented.
Civil liability for environmental damage would deter environmentally harmful actions, and compensate the victims of environmental damage. Conceptually, the principle of legal liability may be viewed as an embodiment in legal doctrine of the “polluter pays” approach, itself deriving from the principle of economic efficiency. “
p. 17: “Civil law, on the other hand, offers flexibility, and its sanctions can be more effectively tailored to particular situations. The evidentiary burdens of civil proceedings are less daunting than those of criminal law. It also allows for preventive policing through orders and injunctions.
Accordingly, a judicious mix of civil and criminal processes and sanctions will be employed in the legal regime for enforcement, through a review of the existing legislation. Civil liability law, civil sanctions, and processes, would govern most situations of non-compliance. Criminal processes and sanctions would be available for serious, and potentially provable, infringements of environmental law, and their initiation would be vested in responsible authorities. Recourse may also be had to the relevant provisions in the Indian Penal Code, and the Criminal Procedure Code. Both civil and criminal penalties would be graded according to the severity of the infraction.”
In a broad sense, inefficiencies of the criminal law system was held out as a basis of shifting towards civil law in tackling environmental degradation and pollution. However, this shift was not given effect to in subsequent years. On the contrary, during the term of Jairam Ramesh as Environment Minister of India, substantial progress was achieved in fore-staging environmental decision making as core to public administration. This did not go well with the industries and commerce sectors who found environmental regulations suffocating industrial and infrastructure development and production of wealth from mining and exploitation of other natural resources.
The shift to Principle of Utmost Good Faith:
Over the past 7 years, it is widely noted that India’s environmental jurisprudence directed by statutory mandate has witnessed substantial weakening. Prime Minister Narendra Modi’s first major policy decision, setting up the TSR Subramanian Committee to propose changes to all environmental laws, were widely critiqued as pro-business and anti-environment, as it relied on the Principle of Utmost Good Faith in industrialist, miners, infrastructure developers to safeguard environment and human rights. The recommendations were kept in abeyance due to massive public protests. This was followed by the Environmental Laws Amendment Bill, 2015 which again was held back due to nationwide protests. Thereafter was the attempt to dilute forest laws with the Draft National Forest Policy, 2018. Which too met with massive public resistance. The Parliamentary Committee on Environment and Forests even recommended the policy be shelved and to ensure that any change in forest laws was undertaken with due coordination with Ministry of Tribal Affairs in accordance with the Allocation of Business Rules. Yet, attempts are on to weaken the Forest (Conservation) Act, 1981 and Forest Rights Act, 2006. And then, there has been the comprehensive dilution of EIA Notification, which once more was pushed back by public pressure.
Reversing a bleak prognosis:
India’s environmental jurisprudence has been torn between the competing demands of prioritising environmental protection and securing economic progress. While there are several judgements that speak to the need for balancing development with environmental priorities, it is not necessarily an exercise that can be easily rationalised. There is overwhelming evidence in the pollution flowing in every river and lake across the country, in the extensive degradation across the Western Ghats and the Himalayas – resulting in catastrophic impacts on human settlements, in the breakdown of our cities every time it rains or when there is an unrelenting heat wave, and in commons that are extensively encroached, diverted and polluted, that the state of India’s environment is precariously hinged. The damaging consequences of such extensive degradation are irreversible and will seriously impede the country’s socio-economic progress.
In such a scenario, it is important that the protection and conservation of India’s natural resources, environment, forests and biodiversity, and of the commons, is considered critical to advancing ecological, socio-economic and public health securities in an inter-generational perspective. Besides, considering the massive impacts of climate change being suffered already, there is a critical need for moving beyond the principle of sustainable development to one of ecocentrism. For, in the end, it is not possible to achieve anything closely resembling human progress and stability in an unstable planetary condition.
It is also a matter of deep concern, especially in upholding the federal system of decision making, that the review of the draft Bills are not rushed through without deep debate and consideration by every Legislature across India, by Local Governments, environmental regulatory authorities, and crucially the public at large. It must be noted with grave concern that the notice inviting comments on the proposed amendments was put out on the Ministry’s website on 1st July 2022 in English, and has not been made available in any of the Scheduled languages. Alarmingly, the commenting period ends on 21st July 2022. Such a rush to fundamentally amend fundamental environmental protection and pollution control laws is unprecedented..
Deep and due consideration of such realities is an essential prerequisite to reviewing and weighing the latest proposal to amend major environmental laws of India and turn their key enforcement provisions from criminal jurisprudence to civil law.