COMMENTARY

A Half-baked Attempt at
Revamping Environmental Law
Deva Prasad M

The Environment Laws

(Amendment) Bill, 2015 is a major
policy attempt to make structural
changes in environmental
governance. But the bill fails in
bringing any change to the
institutional mechanism for
enforcement of the law. Moreover,
the bill attempts to introduce a
monetary penalty for
environmental damages, which is
not in consonance with the
well-established polluter
pays principle.

he central government in India

has made serious attempts to make
structural changes in environmental governance and address a long-felt
need. The Environment Laws (Amendment) Bill, 2015 (henceforth, the bill) is
a major policy attempt in this regard.
The bill attempts to introduce a monetary penalty for environmental damages
caused. In this regard, it proposes amendments to the Environment (Protection)
Act, 1986 (henceforth, the act) and the
National Green Tribunal Act, 2010. Introducing a monetary penalty for environmental damages could be considered
a measure towards the strengthening of
the civil liability legal framework.

mens rea (intention) standard is usually

provided as the reason for the failure of
the criminal penalty mechanism. Further,
the absence of separate environmental
courts at the district and state levels is
also perceived as a reason for the lack of
enforcement of the criminal penal provisions under the act.
The need to revamp the civil penalty
legal framework for pollution is well
accepted. This is evident with its acceptance in the National Environment Policy,
2006 (henceforth, the policy). The policy
clearly identifies and indicates the need
to move away from the criminal penalty
mechanism existing in the environmental
legal framework in India and towards a
stringent civil liability mechanismbased
on the polluter pays principle. The
policy states,
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 (Ministry of
Environment and Forests 2006: 13).

Civil Liability Legal Framework

Deva Prasad M (mdevaprasad@nls.ac.in)

teaches law at the National Law School of India
University, Bengaluru.

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In the present format, the act does not

provide a comprehensive civil liability
mechanism. Section 14 of the act provides
that any case contravening this legislation
would be punishable with imprisonment
for a term, which may extend to five years.
The civil monetary penalty mentioned
in the act is a maximum of `1 lakh.
The main contravention envisaged in
the legislation relates to discharging of
effluents and environmental pollutants in
excess of the standards stipulated. Further,
the industry has to adhere to stipulated
norms regarding the hazardous substance.
The central government has sweeping
powers under the act to make rules,
appoint authorities and lay down standards for the quality of the environment.
The Bhopal gas tragedy acted as a trigger point for the act to be enacted. Thus,
the act is as an overarching legislation for
environment protection in India.
The present criminal penalty mechanism and the maximum fine of `1 lakh
provided for in Section 14 of the act has
proven to be ineffective as a deterrent
for controlling environmental pollution.
The lack of prosecution due to the higher
threshold of evidence requirement and

What Does the Bill Envisage?

The bill envisages that substantial damage caused to the environment would
lead to a monetary penalty of `5 crore,
which may extend to `10 crore in the
case of continuing damage. In the case
of substantial damage caused to the
environment, having an impact beyond
5 km and within 10 km radius from the
project area, the monetary penalty is `10
crore, which may extend to `15 crore in
the case of continuing damage. In the
case of substantial damage caused to the
environment beyond the 10 km radius of
the project area, the monetary penalty is
`15 crore, which may extend to `25 crore
where there is continuing damage. The
bill also envisages monetary penalty for
non-substantial damages and minor
damages to the environment.
Moreover, an adjudicatory body is also
envisaged for the purpose of determining
the damage caused to the environment.
Section 14E of the bill provides parameters

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Economic & Political Weekly

COMMENTARY

which could be used by the adjudicating

body for the purpose of determining the
monetary penalty:
(i) amount of damage caused to environment;
(ii) the amount of disproportionate gain
or unfair advantage, wherever quantifiable, made as result of damage;
(iii) the repetitive nature of the damage;
(iv) the continuance of default; and
(v) the extent of injury caused or likely
to be caused to the public or other living
creatures or plants and microorganisms
or property or public health.
The National Green Tribunal would
entertain appeals from the adjudicatory
body envisaged under the bill.
Monetary Liability
Though the bill could be considered as a
step in the direction of creating a strong
civil liability mechanism for environmental damage, it fails in revamping the
environmental law in an effective manner.
This is because the Environment Law
Bill caps the monetary liability attributed
to environmental damages in India. The
maximum liability of `25 crore envisaged
might not fulfil the requirement of the
polluter pays principle. The polluter pays
principle requires the polluter to pay for
the environmental damages caused and
for the restoration of the environment to
its prior condition. The principle also requires the polluter to compensate for the
harm that is being caused to human life.
The principle has got widespread acceptance in environmental governance in
India by way of Supreme Court judgments
such as Vellore Citizens Welfare Forum v
Union of India and Others (1996).
In this context, the capping of monetary liability and a lack of clear guidelines regarding the monetary liability for
restoration of environment to prior standards and harm caused to human life are
serious deficiencies in the present draft
of the bill. Non-compliance with the
polluter pays principle would lead to a lack
of proper standards of care in regard to
environment protection and prevention
of pollution.
The definition of substantial damage
in the present bill includes environmental damage due to handling of hazardous substances. Thus, the monetary
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liability for substantial environmental

damages caused by hazardous substances would be capped at a maximum of
`25 crore. Capping the liability for environmental damages caused due to activities involving hazardous substances is
a dangerous trend.
The absolute liability principle evolved
by the Supreme Court in the M C Mehta
and Another v Union of India and Others
(1987) (oleum gas leakage case) is completely discarded by the civil liability
framework provided for in the bill. The
principle evolved in the M C Mehta case,
applicable in situations involving environmental damages caused due to hazardous substances, places the industrial
entity causing the damage as being
absolutely liable based on the magnitude
of adverse impact. By capping the monetary civil liability, the bill provides an
escape route for industrial units handling
hazardous substances from absolute liability based on the magnitude and extent
of damage caused.
Apart from these lacunae, the attempt of the bill to create an adjudicatory body is leading to the fragmenting
of the existing dispute settlement mechanism under the National Green Tribunal. An additional quasi-judicial adjudicatory body under the bill will undermine the original jurisdiction of the
National Green Tribunal. Regarding the
implementation crisis of environmental law in India, it is far more important
to have an independent environmental
regulatory body than fragmenting the
existing dispute resolution process.
Need for a Regulatory Body
A major step needed for effective environmental law in India and implanting
the civil liability legal regime is setting
up of an independent regulatory body
for environment protection. The independent regulatory body should be enabled to function without political interferences and arbitrariness. The existing
pollution control bodies could be made
part of the independent regulatory
body. The pertinent functions of implementing pollution control and imposing
monetary penalty have to be played by
the independent regulatory body. A lack
of effective technical expertise to deal

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with increasing complexities attached

with environmental law and pollution
control also points towards the need for
an independent environment regulator
in India.
A discussion paper released by the
Ministry of Environment and Forests
(2009) has proposed a National Environment Protection Authority, which would
act as an independent body in the environmental governance field for regulation,
monitoring and enforcement. It is high
time such a body is brought into existence.
Failure of the Bill
Based on the above discussion, it can be
reinforced that the bill cannot bring about
a comprehensive change in the monitoring and enforcement of environmental
law in India to curb the challenge of pollution. As identified earlier, introducing
a monetary penalty provision is not in
consonance with the well-established
polluter pays principle. Moreover, the
bill fails in bringing any structural
change to the institutional mechanism
for enforcement of environmental law.
The need for a structural change by way
of an independent regulatory authority
for environment protection is required.
References
Ministry of Environment and Forests (2006):
National Environment Policy, 2006, Government of India, 18 May, viewed on 17 March
2016, http://www.moef.gov.in/sites/default/
files/introduction-nep2006e.pdf.
(2009): Towards Effective Environmental Governance: Proposal for a National Environment
Protection Authority, discussion paper, 17 September, Government of India, New Delhi.
M C Mehta and Another v Union of India and Others
(1987): AIR, SC, p 1086.
Vellore Citizens Welfare Forum v Union of India and
Others (1996): AIR, SC, p 2715.

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