The harrowing state of hazardous waste stemming out of different sources in the economy and the callous attitude of the perpetrators towards the same has led to a huge ecological imbalance. Can Environmental Criminal law be a solution to the same?
In a recent order, the National Green Tribunal directed the Central Pollution Control Board to form guidelines with respect to disposal of cigarette and bidi butts. While this article would not go into whether the toxic waste is harmful to the environment or not, it is important to look whether, if such guidelines are formed, the penalties mentioned therein would deter the respective players (corporates and individuals) from flouting the guidelines, as civil liabilities against perpetrators clearly aren’t doing the job, as is evident from the NCRB report of 2016 which, although claimed a decrease in the number of crimes from 2015, but nevertheless had an increase in certain other aspects of environmental crimes.
It is, in this particular regard, that the need and option of environmental criminal law arises.
EXISTING FRAMEWORK AND LACUNAE
Environmental crime is the violation and contravention of pre-existing statutes that are meant to protect the ecological balance of the nature. It is of no surprise that day-by-day, crimes against the environment are increasing due to the capitalistic society’s never ending quest for profits and apparent ‘development’.
There is a rainbow of legislations which have been enacted by the Indian government in the field of environmental protection. Some of the most important are Water (Prevention and Control of Pollution) Act of 1974, which was amended in 1988, Environment (Protection) Act of 1986, which was enacted as an after-effect of the Bhopal Gas tragedy, Water (Prevention and Control of Pollution) Cess Act of 1977, which was originally enacted as an authorization for the levy of cess for abstraction of water and subsequently amended in 1991. In fact, Environmental crime has also been, time and again, classified into the broad spectrum of Public Nuisance. Public Nuisance has been covered under the head of Nuisance, which is in turn, extrapolated in Section 268 of the Indian Penal Code, 1860. Section 277 and 278 of the Indian Penal Code, 1860 talk about punishment with respect to pollution of water and atmosphere respectively. Similarly, The Indian Criminal Procedure Code of 1973, under its Chapter X, section 133 provides for the remedy to environmental pollution in general.
Notwithstanding the broad spectrum of legislations that our nation has with regards to environmental protection, there are still crevices and gaps in the enforcement of the sanctions and punishment to be meted out against environmental crimes. For instance, there have been a lot of loopholes in the implementation of the Wildlife Protection Act, 2006. In spite of India being a party to five major international conventions related to wildlife conventions, there have been a legion of instances of illegal trade of endangered animals to our neighboring countries due to our porous borders. Although, it is the collective fault of the institutional framework and the legislative incompetency, it is of no surprise that the inadequate enforcement of the penalizing provisions have contributed to the same. Scholars have also claimed that administrative sanctions would be inadequate where the impact on the environment is large, and therefore this is where penalizing provisions come into work. For instance, Section 268 of the Indian Penal Code, 1860, which defines Public Nuisance was hailed as a savior, guardian and protector against environmental crimes, but the violation of the section attracted a penalty of only Rs. 200, which, in all probability, would prevent the prosecutor from initiating proceedings, whether civil or criminal, against the perpetrator. Exaggerating the problem is the fact that it is extremely difficult, if not outright impossible, for the plaintiff to establish a causal link between the harm that is caused to the plaintiff and the perpetrator’s wrong-doing, which again, combined with the low punishment meted out, prevents the plaintiff from initiating legal proceedings against the wrong-doers.
CRIMINALISING PROVISIONS AGAINST ENVIRONMENTAL CRIMES AND THEIR UTILITY
In this section, the researcher would, for the purpose of establishing the utility of including penalizing provisions against environmental crimes and their drawbacks, take the example of The United States of America as a pioneer in this field. The USA started criminalizing environmental crimes during the 1980s and the results, according to a scholar, were ‘concrete’. The US Department of Justice claimed that the department “recorded environmental criminal indictments against 911 corporations and individuals, and 686 guilty pleas and convictions have been entered. A total of $212,408,903 in criminal penalties had been assessed. More than 388 years of imprisonment have been imposed of which nearly 191 years account for actual confinement.”
In fact, the current institutional framework of sanctions against environmental crime have, time and again, not proved as strong a deterrence. The mindset that common-law crimes have a greater standing than environmental crimes and hence criminalizing environmental crimes would lead to giving leeway to criminal law to dominate fields of administrative law is logically baseless. Quoting Kathleen F. Brickey from her book ‘Corporate and White Collar Crime: Cases and Materials’, she says that “Public ranked, knowingly polluting a city’s water supply as more serious than heroin smuggling, if the pollution caused twenty people to become ill but not sick enough to require medical treatment.”
The moral culpability of the wrong-doer is also taken into account when the question of criminalizing environmental crime arises. It is usually the colloquial opinion that “the moral content of the proscribed conduct is not as well established as it is for common law crime…”. But, the above-mentioned is based on the premise that making profits by violating environmental law provisions or harming the environment does not require the mens rea that is required to commit common-law crimes like murder and robbery, which is of doubtful veracity. It would be preposterous to say that a direct intention to incapacitate or murder someone has a greater legal penalizing standing than indirectly harming an entire community of civilians for capitalistic gains.
There have also been arguments in the past about the penalties that the defaulting companies have had to pay and whether these penalties have really acted as a deterrent. Due to unavailability of reliable data on penalties collected by Indian authorities for environmental crimes, the researcher will take the data available for USA. To put environmental crimes’ monetary penalties into perspective, they were compared to penalties that were sanctioned to other organizational crimes. “The average fine levied against firms sentenced in 1988 for environmental crimes was $74,715, compared to $253,437 for antitrust and $141,351 for other crimes.” Furthering this problem is the fact that big-revenue organizations, which constitute as a major source of revenue in penalties from environmental violations view these violations merely as a cost of the business. These companies set off these violations through the excess profits these companies earned through previously undetected violations or pass this off to the consumers in small amounts. This proves the point that monetary and administrative sanctions are not enough to preclude these companies from committing environmental crimes. In fact, if criminalizing provisions are included, businesses might have the fear of suffering from the fear of social stigma from the hoi polloi, which will also deter other businesses from doing the same.
THE WAY FORWARD
Having established the utility of criminalizing provisions for environmental crimes, the researcher in this section would like to address the question of ‘how’ can the above-mentioned provisions be included.
In all obvious probabilities, there would be concerns over criminal sanctions against individuals and organizations violating environmental law provisions, even if it does not take a substantial toll on the environment. Keeping this in mind, it is imperative that criminal sanctions against the individuals or the corporations be based on the actual harm it has on the environment and not simply on sections of environmental laws violated. To then prevent environmental laws from relegating to a secondary place, violation of the codes can attract simple fines or penalties and substantive impact on the environment can attract penalties and criminal sanctions, too.
However, it is pertinent to mention the dilemma that would arise while criminalizing environmental law violations. The dilemma pertains to the stage at which a violation must be criminalized. Whether it is the stage where the damage has just begun, or whether the damage to the environment is actual and visible, or at any other stage. There are broadly three models that come in handy while looking at such violations: model of abstract endangerment, model of concrete endangerment, and model of serious environmental pollution. All of these models come with their own sets of advantages and disadvantages, however, they all raise, broadly, the same question: whether a violation of any environmental law provision should be criminalized because it violated the law (administrative law component), or because violating the law would mean damage to the public at large (anthropocentric component).
The above-mentioned, however, would pose another problem as to establishing a causal link between the actions of the defendant and environmental harm it caused. Therefore, the model of ‘minimum culpability’ as is proposed by Michael M. O’Hear can and should be followed. The model states that the “moral blameworthiness of the defendant’s conduct (if any) would flow chiefly from the fact that an environmental regulation was violated, and not from other sorts of harms that would be recognized as substantial concerns outside the regulatory framework.” He also says that there need not be any substantial harm to give rise to any criminal liability. This would lead us to the ‘abstract endangerment’ model of criminalization of environmental crimes, where a person can be punished for violating the rule or law even if there has been no apparent public damage. This would eliminate the need to prove a causal effect of violator to the damages he/she might have caused. But, it must be kept in mind that the laws that are being formulated, or have been formulated, are such that they must not be distant from an effect on humankind: meaning, that a provision in any environmental law statute must, directly or indirectly, lead towards the fact that the violation of the same would lead to some form of environmental or public damage.
Keeping the above-mentioned in mind, it is also imperative to note that if the responsibility of bringing these violations into the public is put only on the authorities, it would be an arduous task for them. What the researcher proposes is a ‘self-policing’ mechanism, that incentivizes the violators to disclose these violations in turn for reduced penalties. This has time and again been effective in many institutions and the same could be done for environmental law violations as well.
There also should be clear guidelines as to the sentencing for the crimes. It is imperative to keep in mind that the goal of criminalizing sanctions against violations of environmental laws is deterrence. If high-cost and punishment is meted out to every environmental crime, individuals and organizations would resort to high-cost remedies to prevent effluent waste from poisoning the natural resources, which would in turn lead to high-cost products for the consumers, which would not be profitable for the individual or the organizations.
It is high time that India pursue the criminalization of environmental crimes as there has been an all-time high demand of ecologically sensitive materials, which, if procured legally, would not be economically viable for the Indian junta. Pursuant to this reason, certain cohorts try to procure these materials through illegal poaching and logging which negatively affect the balance of the environment and have to be kept in check. Criminalization tackles all the above-mentioned limitations with an approach which has proved to be quite effective for other jurisdictions and there is high probability that it would follow suit in India, too. This would also lead to the conception of some form of Environmental Justice. Environmental Justice has been defined as “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to development, implementation, and enforcement of environmental laws, regulations and policies.” This would lead to a sense of just and equitable distribution between people irrespective of their income, caste, creed, gender etc. ultimately bridging the gap between the two halves of the society.
ABOUT THE AUTHOR
Anmol is a third year B.A. LL.B. (Hons.) student at NLSIU, Bangalore. He likes to read up on contemporary legal issues, which are usually not specific to any one field of law. He can be reached at firstname.lastname@example.org.