The Ministry of Environment, Forests and Climate Change has prepared an amendment to the Environment Protection Act, 1986 to impose fines of up to Rs 1 crore on polluters without going through a lengthy judicial process prescribed in the law at present.
Currently, the maximum fine that can be imposed on a polluting industry or other entities is Rs 1 lakh along with a jail sentence of up to five years. This, too, requires the government agencies to first file a complaint with a magistrate at the district level and secure a favourable order against the polluter.
In 2016, the government had informed the Supreme Court that it had not been able to jail any polluter for several years under these provisions and a maximum fine of Rs 25,000 had been imposed in a few cases.
“At present, the only powers upon which we can act swiftly is to shut down a polluting industry or an operation of a part of the industry temporarily,” said a senior official involved in drafting the amendment. “This too is done after giving due notice to the alleged polluter to give a reason why such action should not be taken. Shutting down industries does not help. We need to put a clear fiscal disincentive for polluters and also collect funds to remediate any damage done to the environment.”
The amendment has been finalised and is likely to go for the Cabinet’s approval soon.
From criminal to civil offence
In order to be on legally safe grounds, the proposed amendment to the environment law will refer to the sum charged from a polluter as the collection of costs for fixing the damage done to the environment rather than call it a fine or penalty, which presumes the party has been found guilty and is liable for criminal prosecution.
Currently, a violation of the Environment Protection Act is treated as a criminal offence. Section 15 (1) reads:
“Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.”
The plan is to amend this and other provisions of the law to make pollution a civil offence for which the government can then demand costs from the polluters without going to the courts.
“The amendment to the law will set up an expert panel which will look at cases of pollution and calculate the cost of remediation,” said the senior official. “A designated officer would then be the final authority to decide the cost that needs to be recovered from the polluting entity. The polluter would, following the principle of natural justice, consequently get the opportunity to also defend its case before the decision is taken.”
Another senior official said the need for powers to swiftly impose costs on polluters emerged out of a meeting that Prime Minister Narendra Modi took on the cleaning of the river Ganga.
“He asked why work had not progressed as fast as expected,” the officer said. “Officials told him that the lack of power to impose fines was an impediment and that the law needed to provide a graded response to pollution – all polluting industries could not be just ordered closed.”
“We were instructed to bring in the changes to the law urgently,” he added. “It is not possible that for everything regarding pollution everyone ends up in the courts.”
Avoiding the judicial route
Initially, the government toyed with the idea of moving even faster through the ordinance route, but that idea was dropped to ensure a buy-in cutting across the political spectrum.
This move comes after an earlier aborted attempt to comprehensively amend the Environment Protection Act as well as the National Green Tribunal Act, 2010. This plan was based on a report and draft prepared by legal consultancy firms hired for the purpose.
“The manner in which this fine imposition was suggested then was too cumbersome and would have meant creating another layer of bureaucracy within the Union environment ministry and also at the state level,” the second official told Scroll.in. “We have revised that draft and will use existing powers to create space for a lean method to impose these costs.”
The government does have powers under the National Green Tribunal Act to take polluting industries or those violating the Environment Protection Act to the National Green Tribunal, and ask for damages as well. But except for a couple of cases where state governments did so, the executive has remained reluctant to use the judicial route.
Since the promulgation of the National Green Tribunal Act, there has been a view in the government that judicial remedies should not be the first resort for all violations of green laws. The example of administrative tribunals and reviews such as in the case of income tax administration has been often cited.
It could not be confirmed how the proposed amendments to the Environment Protection Act will sit with the existing role of the National Green Tribunal, and if the latter would consequently become the second level of intervention for green violations that cause pollution rather than the first.