By Akshara Sharma, Advocate
Draft Environment Laws (Amendment) Bill, 2015 was published by the Ministry of Environment, Forest and Climate Change (MoEFCC) on 7th October 2015. The Ministry has proposed the amendment to the Environment (Protection) Act, 1986 and National Green Tribunal Act, 2010.
The proposed amendments are being introduced with the objective to introduce penal provisions in the form of monetary penalties for any violations or non-compliance of the provisions of the Environment (Protection) Act, 1986 and National Green Tribunal Act, 2010.
Types of Violations
The proposed bill further suggests changes wherein the violations are characterized into:
- Minor
- Non-substantial
- Substantial
A non-substantial damage is one which is neither a minor violation nor a substantial damage.
A minor violation is defined as damage to the environment, which is neither substantial nor non-substantial. A substantial damage is one where damage is caused to the environment, which is likely to be adversely affected. Damages may be due to direct violation, negligence, omission or any act, project or operation which adversely affects the environment.
Penalty for causing damages
The bill proposes to impose the following penalty for the damages caused to the environment:
- For substantial damage caused to the environment, a minimum damage of rupees five crores is prescribed. The penalty imposed for any substantial damage would be to a maximum of rupees fifteen crores, depending on the area up to which such damage is caused. The bill also prescribes an additional penalty in cases where the damage continues.
- For any sort of minor violation, the bill proposes to impose a penalty of rupees one thousand with a maximum penalty of rupees ten thousand rupees with an additional penalty for continuing violations.
- For any non-substantial damages, the proposed amendment provides a penalty of rupees one lakh to rupees five crores, with a provision for additional penalty in cases of continuing violations.
Adjudicating Authority
The bill envisages establishment of two-member adjudicating authority to adjudicate and impose penalty on any matter relating to environmental violation. The members so appointed are required to possess a degree in law and either have to be presently or in the past be a District Judge or qualified to be one. Otherwise the member has to be at least or equivalent to the Director level in the Central Government or Joint Secretary level under the State Government.
Factors to be considered by Adjudicating Authority while adjudicating quantum of penalty
- The amount of damage caused to the environment.
- The amount of gain or advantage as a result of damage caused.
- The repetitive nature of the damage.
- The continuance of default.
- The extent of injury caused or likely to be caused to public or other living creatures.
Punishment — substantial damage or failure to pay penalty
As per the bill where a defaulter fails to pay the penalty imposed for environmental violation, in cases of substantial damage, the violator shall be punished with imprisonment for a term not less than seven years but may be extended up to life and a fine not less than 10 crores. The government has taken note of imposing heavy penalty on repetitive violations of environmental laws.
Overlooked Concerns
The bill divides environmental violations under three heads i.e. minor, substantial and non-substantial. There is arbitrary classification of violations, where the proposed amendment fails to explicitly define as to what degree of violation may constitute one such type of violation.
Bill does not provide any provision for the control of environmental ills like deforestation, noise pollution, slum congestion in the Bill.
Environmental pollutants like solid, liquid and gaseous substances were included as the pollutants and substances like heat which causes thermal pollution, nuclear radiation and noise pollution are absent.
An additional bureaucratic layer has been created by the constitution of the adjudicating authority under the bill. Who would constitute the adjudicating authority is also very unclear and there is no rationale as to why it has been created.
No provision talks about the measures for mitigating the damage done already by the polluter. It seems that after paying the required fine, the polluted soil, lake, river will remain as they are. There must be a provision for creating responsibility on the polluter for cleaning polluted body.
How effective the proposed amendments will help in curbing the pollution discharge in the environment can be analysed in the years to come.