Proposed changes to environmental law impose ‘lesser’ penalty based on size,  turnover of industry

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Right to Information (RTI) papers received from the Ministry of Environment, Forests and Climate Change (MEoFCC) have suggested that the Government of India intends to levy monetary penalties for environmental damage, says an analysis by the Centre for Policy Research (CPR)-Namati team:

The CPR-Namati team recently received documents related to the proposed amendments to the Environment Protection Act (EPA) 1986 following a year-long follow up through the Right to Information (RTI) process. The environment ministry has shared information only up to July 2016, indicating that the other documents are with the Law Ministry, undergoing scrutiny.

This information includes two detailed versions of the proposed amendments and note sheets related to the process of drafting the amendments – carried out between August, 2014 and July, 2016.

On October 07, 2015, the Ministry of Environment, Forests and Climate Change (MoEFCC) had made public the Environment Law (Amendment) Bill, (ELAB) 2015, inviting comments. The CPR-Namati Environmental Justice team made a submission to the MoEFCC when the ELAB was put out in public domain. Manju Menon and Kanchi Kohli discuss some of their arguments in an article in The Wire in 2015.

The documents received indicate that the 2016 version of the ELAB proposed to amend the existing EPA, 1986 by introducing monetary penalties for violations. The environment ministry’s justification is that the current legal structure in place for the protection of the environment is not effective. It is claimed that “available remedies under Section 5 and Section 15 are time consuming and not in the larger public interest because industry units have to shut down even in cases where contraventions are minor and reversible.”

The process for making amendments to the EPA had commenced in August 2014, with the appointment of Shri VK Bhasin, a former Law Secretary, as a consultant. It was following the presentation at the Prime Minister’s Office in September 2015, that the Draft Bill was made accessible to the public in October, 2015. The Bill received around 130 comments and Shri Bhasin was appointed for a second term in November, 2015 to revise the draft based on the comments received.

An analysis of the RTI papers by Debayan Gupta reveals that the October 2015 version of the ELAB has been substantially altered. The earlier version proposed levying penalties for damage and violations based on the extent of the geographic spread of the damage. It also introduced the concept of spot penalties for minor violations, which caused neither substantial nor non-substantial damage to the environment. The April 2016 version however has done away with both of the above mentioned aspects.

The key proposals of the 2016 version are:

  • A set of penalties for certain defaults in the Schedule to the Act, to be decided by the Adjudicating Officer;
  • Types and grades of environmental pollution specified in sections 14H to 14U, the quantum of which is to be determined by the Adjudicating Authority;
  • Imposition of a lesser penalty on Micro, Small and Medium industries;
  • The money collected by way of penalties to be credited to the Consolidated Fund of India;
  • The government can levy fees for carrying out the functions assigned under the Act.

Unlike the earlier draft Bill, the April 2016 version imposes only two sets of penalties with fixed upper limits. The determination of the actual amount is to be done by either the Adjudicating Officer or the Adjudicating Authority, both of whom are to be appointed by the government. It also does away with the idea of spot violations for minor violations and allows for the imposition of a ‘lesser’ penalty based on the size and turnover of the industry.

The RTI application, filed on June 31, 2016 by Kanchi Kohli asking for details of the process remained pending for a year. It was only on June 7, 2017 that the MoEFCC responded agreeing to provide the information within 15 days (the letter disposing the first appeal can be found here). However, only partial information up to July 2016 has been provided, indicating that the most recent file is under scrutiny by the Law Ministry. The documents provided by the MoEFCC include:

  • File notings from December 2014 to July 2016 (accessible here);
  • The first tentative working draft of the ELAB after 07.10.2015 (accessible here);
  • The third working draft after 07.10.2015 (accessible here)
  • The draft cabinet note dated April 2016 (accessible here)

The CPR-Namati team has analysed this information a recent article The Wire.

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