ENVIRONMENTAL CRIME AND THE LAW; HOW THESE LAWS CAN BE STRENGTHENED TO ACHIEVE SUSTAINABILITY?
Author: Heeral Devpura, IV year of B.B.A.,LL.B.(Hons.) from Amity University Rajasthan
Abstract
Environmental crime is the violation of laws designed to protect the environment and human health. These laws regulate air and water quality and dictate how the disposal of waste and hazardous materials can be done legally. Sustainable development creates a framework in which people can live and thrive in harmony with nature, rather than living at the expense of nature, as we have done for centuries. However, despite the many existing environmental and natural resource laws, sustainability does not have an adequate or supportive legal basis today. If we want to make significant progress on the way to a sustainable society, let alone achieve sustainability, we have to develop and enforce laws and legal institutions that do not exist today or that exist in a completely different form. In order to achieve sustainability, we must also recognize that environmental law, while key to achieving sustainability, is only a part of necessary legal framework. Other legal foundations pertain to a wide range of other laws, including land tenure and use laws, tax laws, laws affecting our government structure, and the like. This issue of sustainability is not just about the relationship between law and sustainability. The patrons to this issue also try to answer the question of how the law can and should be used to achieve sustainability in different ways. Basically, the "Law for Sustainability " is also about governance for sustainability, because the law provides essential instruments and institutions to govern sustainably.
Keywords: environmental law, sustainability, sustainable development, law for sustainability, law, legal institution, environmental crimes
Introduction
Environmental crime is widely recognized as one of the most profitable forms of transnational crime. Environmental crime is increasing and efforts to prevent it should increase as well. Functional criminal law also aims to deter and generally prevent such activities. There are several reasons why existing laws have not been effective in curbing environmental crime. There are a variety of problems faced by those tasked with enforcing these laws. There are several loopholes in the dual role of agencies, which are both advisers and enforcers of these laws. In addition, there are problems that prosecutors and police face when investigating the jurisdiction and responsibility of the accused. These concerns seek clarity about the underlying causes of these fundamental issues. Therefore, this article examines whether criminal law can help protect our environment by acting as a means of monitoring and controlling dangerous activities that directly or indirectly affect the environment. It focuses on how effective the regulatory aspects of the law are, the likelihood of sanctions and penalties, and their severity in actually deterring such activity.
Introduction to Environmental laws
These laws deal with the regulatory web, the general principles that govern them, and the customary laws that describe the impact of human activities on the environment. These laws mainly work on the idea of ​​pollution as the centre of all implementation. They recognize our natural resources, their scarcity, the need to conserve them for future generations and generally work for environmental impact assessment.
For India, our environmental laws mainly focus on areas related to air pollution and quality, water pollution and quality, sustainable development, waste management, preventive and preventive measures, elimination of pollutants, safety in discharge and treatment of discharge of chemical elements and public Trust. However, its implementation involves much more complex problems, where social, political and economic factors combine to address serious environmental impacts. All of these environmental rights and principles have been behind the development of environmental jurisprudence and judicial jurisprudence in the country. This existing framework is used to mediate the role of the various public and private companies and to determine their constitutional, statutory and customary application and performance.
In the context of the country's efforts to respond to increasing environmental degradation, there is a conceptual clarity about the laws, the gaps, their application, the obstacles and limitations they face that are relevant to improving the environment, required quality of the environment. the country's environmental policy.
Environmental Crimes
Environmental crime encompasses a wide range of offenses that harm the environment and human life, from administrative or recordkeeping errors to the actual dumping of pollutants into the environment illegally. Environmental crime may include, but is not limited to[1] the following:
i. Poaching
ii. Unreported fishing
iii. Unlawful trade in wildlife
iv. Trade in unregulated and illegal products for financial and personal gain: trade in timber, ivory, rhino horn or even sandalwood
v. Oil spills
vi. Littering
vii. Destruction of wetlands
viii. Dumping into oceans, streams, lakes, or rivers
ix. Irregular waste disposal
x. Inappropriately handling pesticides or other toxic chemicals
xi. Unethical removing and disposing of asbestos
xii. Falsifying lab data pertaining to environmental regulations
xiii. Burning garbage
xiv. Confiscating certain chemicals, such as CFC refrigerants, into the U.S.
xv. Committing fraud related to environmental crime
So far, the environment has been heavily impacted by human activities, the damage caused is irreparable, but it can still be repaired if people understand the following statistics
Every year, people consume more than 50 billion tons of natural resources
At the rate of deforestation, increasing whatever the purpose, the rainforest will only be around for the next 80 years, after that we won't have a rainforest anymore, they are responsible for a large percentage of the fresh oxygen we humans live on.
In 2020, people eliminated almost 10 million tons of hazardous waste.
According to some predictions humans will need another planet like earth to support life on the real earth, we are consuming the near future, we are consuming the entire planet. But people don't realize that they only have one.
Humans have consumed more than half of coral reefs and are consuming at a rising rate. There will be no more coral reefs in the next 30 years. They are being lost due to human activities causing seawater temperature rise, acidification and algae.
By 2050, humans will lose all of their fisheries, which are the lungs of the planet.
Humans eat, destroy and consume more than 2 billion innocent animals and plants every week.
Humans are responsible for killing more than ten thousand species of animals and plants every year.
Almost 50,000 litres of fresh water are needed to produce 1 kg of meat.
Legal framework
The crime against the environment implies the violation and disobedience of pre-existing laws and laws aimed at protecting the ecological balance of nature. The pursuit of the rich, ever richer and richer, in the name of development and society's ever-increasing capitalist idealism has conveniently managed to reach this troubling state of dangerous profligacy. There are a variety of laws introduced by the legislature and government to protect the environment.
To name a few, these include the Water (Pollution Prevention and Control) Act[2], the Environment (Protection) Act[3] (enacted after the Bhopal gas tragedy), the Water (Prevention and Pollution Control) act[4], the (Pollution Prevention and Control) Act[5] etc. Despite this broad legal landscape with a wide spectrum of legislation, there are countless loopholes and loopholes in the shocking application of these sanctions and penalties to environmental crimes. For example, India is a signatory member of five major international wildlife conservation conventions, but there are many instances where illegal trade in endangered animals has taken place between neighbouring countries. All of this targets one thing: institutional failure and legislative inadequacy, and hence, despite so many enforcement provisions, the criminal sanction has proven ineffective.
Constitution and judicial intervention
Under the title "Fundamental Duties and Guiding Principle of State Policy" (DPSP), India is working on its national obligation to promote environmental protection. These articles were a guide for the country to ensure a healthy environment for its people. All these edicts, laws and their application are the result of many litigations of public interest based on the principle settled by court under Article 21 of the Indian Constitution, which recognizes the fundamental substantive right to a healthy and pollution-free environment[6].
Furthermore, it was the 42nd Amendment that introduced the word Environment into the Indian Constitution along with Article 48A of the DPSP and Article 51A among the Basic Duties[7].
Article 48A- It is in Part IV of the Constitution of India, under the guiding principles of state policy, it is entitled Protection and Improvement of the Environment and Protection of Forests and Wildlife. It is interoperable that the government has a responsibility to protect the forest and wildlife. The court has the power to impose economic sanctions on wrongdoers, but recently they have started using incarceration as a tool under the jurisdiction of the court and the intensity of the crime.
Article 51A- under Part V of the Indian Constitution, under the basic duties, it is referred to as the basic duties, a duty (g) has been added, which is interpreted as meaning that people have a duty and obligation to the environment, viz They must protect rivers and wildlife and have compassion for all living beings around them.
Criminal Remedies: The following are the Criminal Remedies under the Indian Penal Code The following sections of the IPC, 1860 deal with public safety, public health, public nuisance, negligence:
• Section 268 to-Section 294-A
• Section 269-271- spread of infectious disease is a public nuisance and a crime
• Section 277- preventing water pollution
• Section 290- Smoking in public is a crime
• Section 426-Pollution caused by mischief
• Section 430-Pollution caused by mischief
• Section 431-Pollution caused by mischief
• Section 432-Pollution caused by mischief
All of these are crimes and these crimes are public in nature, meaning they are against the state. The remedies used are economic sanctions, imprisonment, or both
Significant Amendments in Environmental Law in India
There have been some major, important and recent changes in the National Environmental Law of India, these changes are as follows. These laws have both relaxed and imposed restrictions.
As part of the Environmental Impact Assessment in 2006, it helped loosen infrastructure, but at the expense of massive dangers, before this change almost all large projects were required, but now the projects covering the area less than 50,000 square meters are not. require prior official approval.
An amendment was introduced in the Coastal Ordinance[8] which helped increase tourism in India, but again at the expense of the environment. In this government, the requirement for prior government approval for starting such a project in the coastal regions has been removed. The above laws eased government restrictions. Listed below are the changes that have helped the government to enact proper regulations in environmental policy. They are as follows:
The Motor Vehicles (Amendment) Act[9] - This Act focuses specifically on increasing the penalty for violators of all motor vehicle laws, z 100 in front of the people who were required to knock Rs.100 now had to pay Rs. 1000 for the same crime, this law had a great impact, people began to obey road laws and proper equipment in cars to avoid environmental damage. But various states in India came full circle when they changed state laws in, returning fines for political and social benefits to nominal rates.
Factories Act 1987 - this was a much-needed law that brought strict laws on factories mainly responsible for environmental degradation after the Bhopal gas tragedy, and strict steps were taken in the drafting of these laws to ensure adequate control over the factories maintain factories to see whether the basic standards are met or not.
Case Laws
1. Municipal Council, Ratlam v. Vardhichand and Others[10]Also known as the Ratlam City case, considered a landmark and very important ruling by the Supreme Court of India, in this case the court dealt with the effect of the deteriorating urban environment on the poor living in the area public health recognized as a human right, which forced the local council to take appropriate action, particularly in the management of the drainage works in Ratlam.
2. M.C Mehta v. Union of India (Shriram Industries Case)[11]Also referred to as the Shriram gas leak case. This was thecase of gas leak of edible chemicals in the capital of the country, New Delhi. During this case the court ascertained that company in below absolute liability, to pay the compensation to the victims of the gas leak, this was the primary case in India, within which the thought of absolute liability was introduced. This was conjointly the first case in India in which the defendant was penalized, and was asked to obtain the injury caused, and pay compensation to the victims of the gas leak.
3. M.C Mehta v. Union of India (Ganga case)[12]Also referred to as the Ganga pollution case, this is often a case, that is taken into account to be the foremost important case, for rivers associate degreed their rights. During this case the court ascertained, and closed several tanneries around and within the town of Kanpur, Uttar Pradesh, as Ganga is one among the biggest rivers in India, there are many industries, which cause pollution. Justice E.S. Venkataramiah observed rather like a business which cannot pay minimum wages to its staff cannot be allowed to exist, a workplace which cannot setup a primary treatment plant cannot be permissible to still be in existence.
4. Tarun Bharat Singh, Alwar v. Union of India and Others[13]In this case, the court banned mining in the region of Sariska National Park, but unfortunately, according to reports from 2015, mining in Sariska is in full swing and causing environmental damage. And no appeal has been lodged with the Supreme Court, not even against Article 21, which guarantees the right to a safe and healthy environment.
Principles Guiding Environmental Jurisprudence
1. Polluter pays principle
It only makes the polluter responsible for the damage done to the environment. The polluter must not only compensate the victims of the pollution, but also compensate for the restoration of the environmental destruction already caused. This principle has been widely applied by the courts, for which the National Environmental Policy, 2006 had previously indicated the need to move away from the criminal sanction mechanism and introduce a strict civil liability mechanism based on the polluter pays principle.Times have changed and the inadequacy of the applicable criteria of the laws and their application has been sufficiently demonstrated.
The Supreme Court operationalized this principle by dividing the question into five questions.These are who the polluter is, how and when the application of the principle is activated, how to assess damage and determine compensation, what the polluter pays and finally what are the limits of the principle. However, the courts have acted inconsistently in implementing this principle.
2. Public trust doctrine
First application in Indian environmental law in the case of M.C. Mehta vs Kamal Nath and Ors[14], promotes the idea that natural resources do not belong to one person and that it is up to the government and regulators to act as trustees and hold the resources for the free and unhindered use of those resources by others at large Publicity. Once applied, however, it seems quite difficult to see how the doctrine could provide predictability for public trust decision-making. The doctrine needs to become more relevant and find ways to better protect the natural resources it holds in trust.
3. Precautionary principle
This principle, as the name suggests, promotes the implementation of preventive measures in situations that, despite the lack of scientific certainty, could lead to a serious threat or irreversible damage. However, the application of the principle in the Vellore judgment is at odds with the Supreme Court's definition of the principle. There is a lack of clarity in the Court's commitment to this principle and a blurring of the boundaries between two distinct legal principles: precautionary and prevention. This can be helpful in arriving at green court outcomes, but does not bode well for the development of clear case law.
4. Sustainable development
This concept aims to meet people's current needs without compromising future generations' access to similar resources. To elaborate on the Indian Supreme Court's definition of the principle, reference may be made to the judgment in Vellore Citizens' Welfare Forum v. However, Union of India[15], after a critical examination of the Narmada judgment (1999), shows how the Supreme Court "instructionally exploited the inherent vagueness of the principle".
Environment protection beneath the common law
Negligence
Action beneath negligence may be introduced with the aid of using organising an immediate nexus/connection among the negligence and the harm caused. It additionally calls for the respondent to show that fairly enough care became taken to keep away from such public nuisance as required with the aid of using the law. It is higher defined withinside the case of Naresh Dutt Tyagi v. State of Uttar Pradesh[16], which became a uncomplicated case of negligence. Herein the fumes launched from the leaked insecticides to the close by place via ventilators resulted in the dying of 3 youngsters and a foetus in a pregnant woman.
Nuisance
This pertains to unlawful interference of one’s amusement of land and any legal rightarisingfrom it which might be classified under personal or a common nuisance relying upon the affected individuals. But public nuisance is completely controlled under Section 91 of the Criminal Procedure Code, 1973 (CrPC). It states filing of a suit to demand relief or interim injunction that's possible to cause a public nuisance. CrPC conjointly empowers a judge under Section 133 to require applicable action by restraining a person effecting an act of public nuisance. Within the case of Ramlal v. Mustafabad Oil and Oil Ginning plant [17], the geographical region and Haryana Court discovered that noise arising from a legal activity that's on top of the mandatory threshold is not any defence from attracting the liability of common nuisance. The Indian Penal Code, 1860 conjointly deals with public nuisance which is able to be mentioned later.Section 133 of CrPC, 1973 generally provides for the clean-up of pollution by authorizing a district judge and subdivisional judge to clean up the nuisance. Any order made pursuant to this provision will not be challenged in civil court. The word harassment accustomed in Govind Singh v. In Shanti Swarup[18], the court gave a very liberal interpretation, including in its meaning the removal of substances, the construction of structures, the pursuit of trade and commerce, and the confinement or elimination of all dangerous animals. However, a personal dispute can't depend on this segment and have to be a case of coming near threat affecting the general public interest.
Strict Liability and Absolute Liability
This principle was established by the case of Rylands v. Fletcher[19] in which a person brings onto his land for his own purposes and collects and stores there anything that can do harm. at his own risk, and if he escapes and causes damage, he is prima facie liable for all damage which is the natural result of his escape. This principle was also recognized in the Indian legal framework in M ​​C Mehta v. Union of India[20] which recognizes strict liability and extends it to absolute liability given the seriousness of the damage caused. Exceptions to strict liability include acts of God, fault of the plaintiff, an act of a third party, any act committed after obtaining the plaintiff's express or implied consent, or where the defendant uses the land naturally.The concept of absolute liability also developed from the above-mentioned MC Mehta case, which was based on the strict liability rule and stipulated that the liability for the damage caused remains with the defendant, regardless of the exceptions to the strict liability rule. This rule states that a person who engages in an inherently dangerous activity and, by engaging in such an activity, causes himself or herself injury as a result of an accident, is fully liable.
Course of Action and Steps Ahead
Although the entire article so far has spoken of the need to criminalize environmental crimes, it needs a separate heading for a better understanding. The current state of affairs reflects very well the inadequacy of the existing institutional framework for sanctions, which has not proven to be as strong a deterrent. Academics have also argued that administrative penalties would be inappropriate when the environmental impact is large, and that is where the penal provisions come in. While there are several problems with the existing laws, some of which are: Fewer regulatory/enforcement staff required in regulators versus the increasing number of industries, lack of adequate technical knowledge/skills needed to enforce regulations, resistance to change/compromise issues, prevailing attitudes, lack of financial resources in general, with only specific ones species is given importance pollution, lack of an independent regulatory mechanism for environmental policy, etc., an integrated approach would introduce holistic legislation as well as a criminal law approach which would solve most problems automatically.
Criminalizing environmental crimes would also allow the court to question the moral guilt of the accused. Otherwise, we are simply undermining the indirect effects of capitalist costs at the cost of harming an entire community of civilians. Until now, Indian courts and green courts rely on a few prominent principles to impose penalties and liability; However, there is no specific law determining the amount of the penalty. Indian authorities also do not maintain reliable sources for data on sanctions imposed by the courts. Compared to the US, his fines totalled just $74,715 compared to $253,437 for antitrust offenses and $141,351 for other crimes. These righteous ways indicate that although large organizations have to pay for environmental violations, they simply treat them as a cost of doing business. It doesn't necessarily prevent them from doing even more harm to citizens, showing that these monetary and administrative sanctions are not enough.
Criminalizing certain environmental crimes would serve the purpose efficiently. This statement is based on data from the USA, which has done pioneering work in this field. They began criminalizing environmental crimes in the 1980s, and the results have been "concrete," according to one scholar. The US Department of Justice also stated that the Department has filed environmental criminal charges against 911 companies and individuals and that 686 guilty pleas and convictions have been filed. A total of $212,408,903 in criminal penalties was imposed. More than 388 years of imprisonment were imposed, of which almost 191 years correspond to effective imprisonment. A penal code would at least instil fear in people to take environmental laws and prohibitions seriously. One way to move in that direction would be to issue such penalties based on actual damage inflicted rather than the number of sections injured. Depending on the severity, they can impose simple fines or penalties, or severe penalties and criminal sanctions. It may have its own difficulties, such as B. Determining the phase that attracts criminal acts, but that can be better managed by the wisdom of lawmakers.
However, three main models can be invoked that would pave the way for determining such violations. These are the abstract hazard model, the concrete hazard model, and the severe environmental contamination model. In all of these models, two main questions are addressed, whether the criminalization is being carried out because of the violation of the law or whether it should be done because the violation of the law has a strong impact on the general public. Criminal liability could arise solely from violating a rule and not just by causing significant damage. This is based on the "minimum guilt" model by Michael M.O’Hear.
What is really important to consider, however, is the idea that the rule should be enacted in a way that directly/indirectly creates deterrent value. It would also be beneficial to have clear guidelines for sentencing the crime. The organization could have some sort of self-monitoring mechanism to uncover the impact of their violations and reduce sanctions. Another thing to consider is that hefty fines and penalties would also cause the organization to resort to expensive remedies to prevent such violations, which in turn would automatically increase their cost of doing business and therefore the cost of the product to consumers, which is not the Fall seems like a wise way out.
Conclusion
It has been found that there is too much legislation trying to address environmental issues. However, this has only led to more ambiguity and difficulties in implementation. What we need is a strong integrated system that provides a unified holistic approach and effective outcomes. With all principles in place, judicial enforcement mechanisms have had mixed success. In addition to complex external factors, certain institutionalized internal weaknesses of the affect the implementation process, such as the inconsistency of the courts in the implementation of the implementation mechanisms and that their orders require stronger legal justification and better integration into the existing regulatory framework.All of these issues can be efficiently addressed by introducing criminal liability, which would not only save the court time but also add deterrent value. It's time the country exposed the serious criminal consequences that people would face for breaking laws when it comes to environmental destruction.
We as humans have done enough to break the planet, and this planet has given the humans everything issue they need, however owing to the human greed, that's present within the society, has junction rectifier to the present damage. There are that} we tend to humans will recover but it'll take time, but first we need correct law enforcement, to bring a finish to these reasonably activities, and even before that. we want new laws, which are strict enough, to use the principle of deterrence. This paper has catered to bring the crimes against surroundings and life nearer to the crime against humanity, crime against environment and wildlife, ought to be thought of as a criminal offense against humanity. This environment has been there to fulfil every and each would like of the humans, we tend to have to be compelled to watch out of the environment because it has taken our care. The environment doesn't need humans for its existence the humans need environment for his or her survival. In India and round the world we've got several thinkers, many laws, many activists, however it’s the role of very single individual that contributes to environment degradation, or surroundings development. we've got several things to do, however we tend to cannot do, until the time we don't seem to be able to save our environment. Finally, we can say, that with each step that we conceive to take towards the environment we should always take solely once assessing every factor, we should follow the principles, and laws. we should always respect and watch out of the environment, as we will only develop till the time life exist during this planet, and existence of life is extremely getting ready to an environment. while not environment there's no life, and while not life there aren't any humans.
[1]listed by the United Nations Interregional Crime and Justice Research Institution [2]1974 [3] 1986 [4] 1977 [5] 1981 [6]Constitution of India, 1949 [7]Bare act- Constitution of India [8]under the Environmental Protection Act in 1996 [9]2019 [10]1980 AIR 1622,1981 SCR (1) [11]1987 SCR (1) 819, AIR 1987 [12]1988 AIR 1115,1988 SCC (2) 530 [13]1993 SCR (3) 21,1993 SCC [14]1996 [15]1996 [16](1993) [17](1968) [18](1978) [19](1868) [20](Oleum Gas Leak Case 1986)