On November 21, 2017, a Tis Hazari court sentenced an individual to two years’ imprisonment. What makes the judgment noteworthy is that the case wasn’t a run-of-the-mill criminal case concerning murder, rape, theft or abduction, but an environmental case: the court put the man behind bars for polluting the Yamuna river.
Routinely, the Supreme Court, the Delhi high court and the principal bench of the National Green Tribunal (NGT) voice their concern on environmental issues in the National Capital Region (NCR), particularly on the state of the Yamuna river, air pollution and waste management. But just how often does one hear of a trial court convicting a person for an offence against the environment?
While convictions of this kind are rare, the facts of the case are unfortunately common. Haryana Paneer Bhandar, a manufacturer of sweets and namkeen, was found to be discharging untreated trade effluents into the river. A complaint was filed in June 2000 against the owner by the Delhi Pollution Control Committee (DPCC) under the relevant provisions of the Water (Prevention and Control of Pollution) Act 1974 (the Water Act) after inspection of the site.
Now, almost 17 years after the complaint was filed, the additional chief metropolitan magistrate convicted the owner for the offence of discharging untreated waste (pollutants) into the river, and operating without the necessary consent. He was sentenced to three years’ imprisonment and fined Rs 2 lakh under the relevant provisions of the Water Act. The owner appealed against this decision in the appellate court, and judge Sanjay Kumar Aggarwal delivered a 44-page judgment upholding the conviction on one count, but setting it aside on other counts. He then lowered the sentence to two years’ imprisonment and a fine of Rs 1 lakh. He also directed the appellant to pay Rs 2.5 lakh to the Prime Minister’s Relief Fund as compensation to the broader society.
Many residents of the NCR may be (at least mildly) sympathetic towards the owner of the Paneer Bhandar – seeing the Yamuna as they do every day, it seems possibly excessive to imprison an individual for letting out some sewage into the polluted river. But the fact is that polluting a stream, well or land has been a criminal offence since 1974 when the Water Act came into force. It is just that convictions under the law are so rare that we tend to forget that causing pollution is a serious crime. According to the National Crime Records Bureau (NCRB), in 2016, six cases under the Water Act were decided – resulting in three convictions and three acquittals. Under the Air (Prevention and Control of Pollution) Act 1981 (the Air Act), only a single case was adjudicated by a court, resulting in an acquittal. Undoubtedly, this minuscule number is not a reflection of the quality of water or air in our country, but of the sorry state of enforcement of the country’s primary pollution control laws.
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The court’s judgment in the Paneer Bhandar case is founded primarily on four arguments. First, the Water Act prohibits any person from intentionally allowing any matter to enter a stream which will impede the proper flow of the water. In this case, the appellant’s establishment was found to be letting out waste material into the river which was likely to have this consequence. Second, the appellant could not be convicted for operating without the necessary consent (an admitted fact in the case) since the DPCC had not issued proper notice asking him to apply for such consent.
Third, the appellant was in violation of the Supreme Court’s order banning industries from discharging effluent into the Yamuna directly or indirectly. The fact that the appellant’s establishment was inspected before the DPCC’s circular requiring establishments, such as the appellant’s, to set up waste treatment facilities, was considered irrelevant. Fourth, the court rejected the appellant’s request for leniency, and confinement of the sentence to monetary fine as opposed to imprisonment on the grounds that the court needed to take into account the rights of the victim as well as the society, and adopt ‘the corrective theory’ and the deterrence principle. The court also referred to the Uttarakhand high court’s judgment declaring the Ganga and the Yamuna as living entities to reiterate the importance of unpolluted rivers.
It is not possible to predict the final outcome of this litigation as it will probably be challenged in the high court, but the judgment provides an opportunity to reflect on the efficacy of India’s pollution regulations. Two issues in particular need to be highlighted.
First, people pollute waters with impunity because nothing in the current regulations deters them. What can the State Pollution Control Board (SPCB) do when it finds that an establishment is discharging untreated sewage? It can do two things: issue directions; and/or approach the criminal courts. It may issue directions for closure of the establishment or for cutting off its water or power supply. But before it can issue such directions (which are likely to have other unintended adverse consequences), the SPCB has to mandatorily issue a show cause notice to the establishment, and give the owner time to respond. This period of notice and reply often extends indefinitely (frequently involving several notices). During that time, the pollution of water may well continue, and the polluter is not required to remedy the situation or compensate those who may have been affected due to its negligent action.
The SPCB could also file a criminal complaint in the magistrate’s court against the polluter. A case goes through several appellate/revisional forums and each forum often takes a long time to conclude proceedings. During the pendency of the case, unless an injunction is specifically granted restraining the offending unit from continuing its operations, the unit may well continue to pollute. In the Paneer Bhandar case, the first conviction came 17 years after the complaint was filed. The first appeal was decided in November, and the matter could technically go all the way to the Supreme Court in appeal, and then even be sent back to the lower court for reconsideration. This long-drawn legal battle is a strain on the SPCBs’ limited resources, but hardly a cause for concern for the polluter who is at minimal risk of conviction, and therefore not a very effective or timely way of enforcing environmental standards.
Second, the capacities and capabilities of SPCBs are not adequate for them to effectively perform their statutory functions. Over the years, several studies commissioned by the government, as well as some undertaken independently, reveal that the SPCBs do not have the capacity to effectively discharge their responsibilities. The lack of capacity has been attributed to various factors: inadequate sanctioned strength of personnel, high numbers of vacancies, absence of proper training, lack of pollution monitoring and abatement equipment, absence of technically competent leadership, etc. These problems have persisted for many years, yet they remain unresolved. Recently, the Supreme Court observed that “many of [the SPCBs] possess only a few or sometimes none of the […] attributes of good governance and again a few or none of them are adequately empowered”.
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In the Paneer Bhandar case, the conviction by the lower court on two counts was set aside because the DPCC had not submitted a laboratory report proving that the sewage discharged by the appellant violated environmental standards, and because the DPCC officials did not issue a notice to the appellant for operating without a consent. These seem like routine functions, and yet, these were not performed. This is symptomatic of what is happening across the country.
This case yet again brings to the fore the need to confer SPCBs with effective enforcement powers, as the fear of criminal prosecution is clearly not an effective deterrent. At the same time, it is important to consider the existing design and institutional capacity of SPCBs. Increasing their powers won’t help if their capacity and competence to exercise these powers is not enhanced. For example, if the law is amended to allow SPCBs to impose monetary fines on polluting units, the SPCBs must have adequate trained personnel to conduct proper inspections, assess environmental damage and necessary remedial actions, and then calculate the appropriate fine. Currently, SPCBs are not consistent in the exercise of their enforcement powers, partly due to their inability to comprehensively monitor all regulated units, and partly due to extraneous factors which make them ‘look away’. The power to impose monetary fines will only increase the extent of their discretion, and mechanisms ensuring transparency and accountability will be essential to limit abuse.
There are several factors contributing to the failure of environmental governance in India. Some more complex than others. And while many reform measures have been proposed over the years, governments – central and states – need to realise that appropriately empowered and adequately resourced regulatory institutions are the keystone, without which reforms, however radical, are likely to fail. Ignoring demands for strengthening regulatory institutions is coming at an enormous environmental cost, and maintaining the status quo is inexcusable.
Shibani Ghosh is a Fellow at the Centre for Policy Research, and Advocate-on-Record at the Supreme Court of India.