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Environmental Crime And The Law In India A Critical Analysis

The term "Environmental Crimes" does not have a universally accepted definition and is usually defined based on ease of interpretation. The genesis of such an idea can be attributed to the harmful acts/omissions responsible for environmental law violations.

According to Y. Situ and D. Emmons, an environmental crime is "an unauthorised act or omission that violates the law and is thus subject to criminal prosecution and criminal sanction." Ecological crimes, according to the United Nations Crime and Justice Research Institute, illegal activities "include a wide range of illicit activities, such as illegal wildlife trade, smuggling of ozone-depleting substances, illicit trade of hazardous waste, illegal, unregulated, and unethical behaviour" and unreported fishing, and illegal logging and timber trade. "For an act or omission to be considered an "Environmental Crime," it must:
  1. Cause Direct/Indirect Environmental Damage, And B) Be Prohibited By Law
    These interpretative definitions, while objective, are insufficient on their own. When examining the proposed array of reports available, a few flaws can be identified: first, the lack of a universally accepted definition creates uncertainty about a common ground for accepting an act as an environmental crime; second, the lack of a well-defined area of activities the definition would encompass; and third, jurisdictional and geographical limitations- what is a crime in one nation may not be a crime in another.
     

What Is Environmental Law? Is There Any Procedural Law In India?
To answer all these questions Yes, In India we have an environmental protection act in 1986 and before that, there has been a long journey that environmental law went through. ENVIRONMENTAL LAW? It can be defined as the set of rules and regulations which are prescribed by the authorities and under this law leaders have the power to make rules and function and the distribution of powers to define the functions and duties of the state.

As we are constantly developing, society needs new rules and regulations that can restrict and limit some actions, such as reducing waste, reducing polluting elements, sustainable development and conservation of natural resources.

When the world was developing and countries were using the natural reserve whichever, way they wanted and that's when things went out of control, In India, before 1912 there was no fundamental law which was protecting the environment or wildlife.
  • Wild Birds and Animals (Protection) Act, 1912:
    Under this act state government had the power to notify in the official gazette that this kind of animal or bird must be protected and preserved.
     
  • This act was applied throughout the country and under this killing or capturing, selling or buying of any kind of wild birds or animal was punishable under section 3 with a fine which may be extended to fifty rupees.

Stockholm Declaration

Like the wild birds and animal protection act 1912, several laws came after that. Still, the foundation of environmental protection was laid down after the 1972 United Nations conference on the environment held in Stockholm.

The Stockholm Declaration, which set forth 26 guiding principles, elevated environmental concerns to the top of the international agenda and signalled the beginning of a conversation between industrialised and developing nations about the relationship between global economic development, air, water, and ocean pollution, and human well-being.

Three Main Categories:
  1. Global Environmental Assessment Programme (watch plan);
  2. Environmental management activities;
  3. International initiatives to assist national and international assessment and management initiatives.
After the Stockholm Conference, the Department of Science and Technology established the National Council for Environmental Policy and Planning in 1972 as a regulatory body to handle environmental-related issues. The Ministry of Forests and the Environment was later appointed by this Council (MoEF).

Amendment
Mrs Indira Gandhi was the first head of state to address the first International Conference on Human Environment in Stockholm in 1972; she voiced deep concern about the degradation of the environment and eco-imbalances. She also emphasised that pollution, population and poverty are interrelated problems and there must be an integrated approach to deal with them. India was also one of the signatories of the Stockholm Declaration, known as the Magna Carta on the Human Environment.

Originally the Indian Constitution of 1950 did not have explicit reference to environmental protection, so there was no independent and separate provision dealing with the protection or improvement of the environment. But taking note of the Stockholm Conference and growing awareness of environmental pollution and eco-imbalances, the Indian Parliament passed a historic amendment 42nd Constitution Amendment Act, 1976.

This 42nd Amendment incorporated two significant articles - Articles 48-A and 51-A(g) to protect and improve the environment. it introduced certain changes in the Seventh Schedule of the Constitution. 48-A. Protection and improvement of environment and safeguarding forests and wildlife.

The State shall make efforts to preserve the nation's forests and wildlife and protect and improve the environment.

51-A. fundamental duties - Every Indian citizen shall be required to:

(g) to have compassion for all living things and to preserve and enhance the natural environment, including forests, lakes, rivers, and wildlife.

Seventh Schedule: List III, Concurrent List:

17-A. Forests

17-B. Protection of wild animals and birds.

As a result, several State List II entries were moved to List III (Concurrent List), allowing Parliament to pass laws about environmental issues like forests, wildlife, population control, family planning, etc. It was necessary to make such changes to bring uniformity to the law throughout the country.

India's constitutional framework and international commitments reflect the need to protect and conserve the environment and sustainably use natural resources.

Every Indian citizen is responsible for preserving and enhancing the natural environment, including forests, lakes, and rivers, under Part IVA of the Constitution (Article 51A-Fundamental Duties).

Rivers, wildlife, and love for all creatures Additionally, the State shall make efforts to safeguard the nation's forests and wildlife as well as the environment, according to Part IV of the Indian Constitution (Article 48A-Directive Principles of State Policies).

Development Of Laws

The MOEF was founded in 1985 and is now the country's top administrative body for regulating and ensuring environmental protection and establishing its legal and regulatory framework. Since the 1970s, there have been numerous environmental laws. The regulatory and administrative centre of the industry is comprised of the MoEF and the state and federal pollution control boards (collectively referred to as CPCBs and SPCBs).

Some Of The Important Legislations For Environmental Protection Are As Follows:
  • The National Green Tribunal Act, 2010
  • The Air (Prevention and Control of Pollution) Act, 1981
  • The Water (Prevention and Control of Pollution) Act, 1974
  • The Environment Protection Act, 1986
  • The Hazardous Waste Management Regulations, etc.

Bhopal Gas Tragedy 1984

  1. When people started to notice the need for environmental law after the BHOPAL GAS TRAGEDY 1984 . On December 3rd 1984 there was a leakage started in the union carbide factory which is situated in Bhopal, India there was a pipe which was leaking METHYL ISOCYANATE GAS (MIC) which was dripping like a yellow substance.
     
  2. The worker thought it was just water and nothing serious and they went on their breaks around 01:00 midnight the smell became a strong order and the workers felt that their eyes are bored and they can't breathe this gaseous cloud formed and spread all over Bhopal also known as world's worst disaster.
     
  3. Union Carbide is an American chemical corporation this is a more than a 100-year-old company they had products like EVEREADY BATTERIES etc. In 1969 union carbide started a factory in Bhopal to make SEVIN, they got permission from the Indian government for the production but (UCIL) was told to work on an evacuation plan but they didn't make one.
     
  4. In 1980 union carbide stopped the import of MIC gas because the company was facing severe losses because there were a lot cheaper products available in the market, they started cost-cutting and to reduce the cost they started the production of MIC, they reduce the workers, they didn't replace the old pipes they just repair those and they were making they dangerous product like MIC.
     
  5. In 1981 MOHAMMED ASARAF a worker died due to exposure to MIC and before he died, he told his friend Journalist Rajkumar Keswani about the dangerous condition in which the factory is operating, and how server the consequence can be if anything happened.
     
  6. Keswani started his investigation and published a report called 'If Anyone Refuse to Understand It, It Will Be Their End.' In his report, he stated what could happen in UCIL if proper safety measures were not taken place. In his report, he found out that UCIL was making a dangerous chemical which contains gases like 'Phosgene' which was used in the time of World War 2. MIC is very dangerous and if it comes in contact with water or air it converts into Methyl gas which is hazardous for living beings.

    He tried to talk and wrote many times to SC AND CM but no one took him seriously which turns out to be the most harmful gas tragedy of humankind 'Bhopal Gas Tragedy.' On December 3 1984, more than 40 tons of methyl isocyanate gas leaked from a pesticide plant in Bhopal, India, immediately killing at least 3,800 people and thousands more, resulting in significant morbidity and premature death.
     
  7. Some half a million survivors suffered respiratory problems, eye irritation, redness or blindness, and other maladies resulting from exposure to the toxic gas. Approximately 200,000 persons were exposed, and 3598 deaths have resulted as of November 1989. The main factor contributing to morbidity appears to be chronic inflammatory damage to the eyes and lungs. There have been reports of reproductive health issues, including an increase in spontaneous abortions, as well as psychological issues.
     
  8. The Union Carbide Corporation (UCC) initially offered India a $5 million relief fund, but fund, the government turned down the offer and demanded $3.3 billion in 1985. Eventually, an out-of-court settlement was reached in February 1989, Union Carbide agreed to pay $470 million only for damages caused.
     
  9. This case laid down the foundation of environmental law in India, when this tragedy happened there was no law which defined the responsibility towards the polluter or the boundaries which defined the establishment of factories near residential areas everyone understood that we needed a law that must set some boundaries and ground rules, so because there are no boundaries which were defined, that's why companies and industrialist like Union Carbide Corporation got away with this crime.

M.C. Mehta And Anr vs Union of India & Ors on 20 December 1986
In 1987, M.C. Mehta v. Union of India 18 (The Oleum Gas Leak This case is based on yet another gas leak that occurred shortly after the disastrous Bhopal Gas Tragedy. A major leakage of oleum gas was reported in one of the Shriram Food and Fertiliser Industries' units, causing significant damage to the workers and people living nearby.

An advocate was also said to have died as a result of the gas leak. The Court correctly sought to hold the chairman and Managing Director, as well as other officers, the operator and head of the concerned plant, personally liable for this mishap. Such officers are frequently regarded as the corporation's mind, soul, and body.

The outcome of this case, however, was especially disappointing because the Court later decided to change the First Order. Following that, the Court ruled that the officials could be exempted from liability if they could demonstrate that the gas escape was caused by an Act of God, vis major, or sabotage.

On the plus side, the case has significantly impacted the development of criminal law in environmental jurisprudence, as well as the incorporation of the tortuous doctrine of absolute liability in India. Also, in another landmark judgement where the supreme court of India defines the concept of absolute liability.

Vellore Citizens Welfare Forum vs Union of India & Ors 28 August 1996
Citizens complained that untreated effluents from tanneries and other industries in Tamil Nadu were discharged into rivers. Every day, about 200 tonnes of leather were produced in tanneries; each kilo used 40 litres of water in the process, and each litre of water contained 176 different types of toxic acids. Because of the toxic nature of the effluents, potable water was contaminated.

The river water flowed into the adjacent lands due to rain and flooding in the nearby town. The nearby lands were mostly used for cultivation and agriculture. As a result of the effluents, the agricultural land became contaminated. The supreme court of India held in this case, the industrialists ought to take the necessary steps for the restoration of the environment.

M.C. Mehta vs Kamal Nath & Ors on 13 December 1996
Also known as the Span Motel case, the Court stated that "one who pollutes the environment must pay to reverse the damage caused by his acts." It was proven that the Motel administration changed the course of the river to protect the Motel from future floods. The Court ruled that the Motel should pay for the restitution of the area's environment and ecology.

The pollution caused by the Motel's various constructions in the riverbed and on the banks of the river Beas must be removed and reversed." The Court ordered the National Environmental Engineering Research Institute, Nagpur (NEERI) to submit an estimate of the cost of repairing the damage caused by the Motel to the environment and ecology of the area.

S.Jagannath vs Union of India & Ors on 11 December, 1996
The Court applied the Polluter Pays Principle also known as the Shrimp Farming case, and issued orders against the shrimp farming culture industry found guilty of polluting coastal areas. The Court ruled that the shrimp culture industry was obligated to compensate the affected parties under the Polluter Pays Principle.

The Court directed the Central Government to establish an Authority under section 3(3) of the Environment (Protection) Act, 1986 to address the situation created by the shrimp culture industry in the Coastal States and Union Territories.

The Court also stated that the aforementioned Authority should assess the environmental damage in the affected areas, identify the individuals or families who suffered as a result of the pollution, and determine the amount of compensation to be paid to them.

The Court ruled that the Authority should determine the amount of compensation to be recovered from polluters as the cost of repairing the environment.

Conclusion
A shift in environmental jurisprudence from tortious liability to criminal sanctions for crimes that affect the health and lives of a large number of people and irreparably harm the environment is urgently needed. Criminals must not be let off the hook by the courts. It is past time to amend the environmental provisions to a) include organised environmental crimes as separate and specific offences and b) tighten the currently lax penalties.

The diverse body of environmental legislation should be consolidated into a single, focused piece of legislation that specifically addresses environmental offences and their associated penalties. Corporations' lame excuses continue to exploit the weak legal framework and degrade the environment.

As a result, it is strongly advised to allow the full application of absolute liability in environmental offences. Given the heinous, grave, and egregious nature of environmental crimes, significant efforts should be made to define and categorise the acts that would result in environmental crime.

The absence of a universally accepted definition, liberal penalties, a weak legal framework, and judicial activism have all exacerbated the consequences of such a crime. All of these gaps should be given high priority and investigated thoroughly. Otherwise, profit-hungry corporations would continue to deteriorate and harm the environment. After all, it is the serious, irreversible deterioration of the environment that affects not only the current generation but also future generations.

It has been observed that there are far too many attempts at environmental legislation, principles, and doctrine. However, according to the NCRB report, which shows an increase in environmental crime, this legislation, principles, and doctrine are insufficient to protect the environment from environmental crime.

Considering the environmental impact of this crime, we must remember that it also affects individual abuse, defilement violations, money laundering, killings (as a result of illegal logging), and numerous other related issues.

Environmental crime is a significant impediment to future development. What we want is a strong integrated system that provides a comprehensive holistic unified approach and powerful results. It is past time to amend the environmental provisions to include organised offences and stiffen the currently lenient penalties.

People are now everywhere and the never-ending hunger to have more and more is also the main reason our environment is facing the issue today. greenhouse gas and the increasing of the core temperature of earth increased the ozone layer depletion and due to this more radiation is being exposed all these factors are responsible that we need Environmental law-making law to save our planet.

Development is important but we should be aware that what are we doing with what we have been given by mother nature, development is part of the change in any society but we should consider and see Environmental crime and the law in india : a critical analysis the bigger picture first.

Written By: Ashok Kumar Choudhary, Indore Institute Of Law


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