In many countries there are now laws and statutes in place specifically to deter environmental crime. Criminal prosecutions to tackle crimes against the environment have increased considerably in developed countries over the last few decades. In India, however, although the number of criminal provisions punishing environmental violations both under the environmental statutes and the other general laws [including the Penal laws] are large, actual prosecution is rare. This is largely the result of ambiguity and ineffectiveness in the drafting of these criminal provisions, and the lack of adequate political will to enforce those provisions. Together, these considerably reduce the deterrent effect of these criminal provisions.

The contours of environmental law

Criminal law has certain distinguishing characteristics - e.g. the greater role of 'intent' in the provisions of law, a strong basis in societal moral values, the special character of incarceration as a sanction, and the law's greater reliance on public enforcement. These are more easily applied to individuals, and offences listed under criminal law are prohibited. Civil law, on the other hand, is often held up to be 'morally neutral'; i.e. its penalties are not directed towards punishment but the prevention, cessation or correction of harmful activity. Civil law also side-steps the difficulty of proving mens rea [criminal intent] on the part of the offender. For these reasons, civil law (and tort law) has been thought to be more easily applied to companies and institutions; in these areas violations are priced and constituted as civil wrongs.

While this distinction may be sound, in practice, in India the field of environment tort, remediation and compensation are not well developed and the court process has been rather sluggish. The costs of violations have been too small, and as a result much environmental degradation has been rendered permissible.

Environmental offences, unlike traditional offences, generally are strict liability offences. These must be assessed in two ways: by determing consequentiality (i.e., what is the consequence of a given action or inaction), and by assigning moral responsibility for certain outcomes (known in legal parlance as a deontological perspective). The intent of the offender is not very important for strict liability offences; the penalties are to be borne simply because some barred outcome occurred.

This approach focuses on the impact of punishment on others, looks to punishment for deterrence, rehabilitation and incapacitation. Under such a model, absolute liability offences could be justified as they increase deterrence [1], prosecutors will be able to establish guilt with greater ease, and there will be no requirement of proof of fault. This ease in conviction will increase the deterrent value [2]. The public will be more cautious while engaging in such activities as they risk punishment even without fault. One downside to considering such consequences is that this kind of deterrence does not depend on the chances of conviction alone, but also on the probability of being prosecuted, and the level of prison sentence upon conviction.

Absolute liability offences were introduced to reduce the severe burden on the prosecution to establish intention for certain offences. Keeping this in mind, the laws also set lower penalties for cases where the prosecution cannot establish intention. But inevitably, sometimes the penalties are applied on those who clearly did not intend to violate the law. Critics argue that it morally wrong to punish those who are not at fault. Perhaps. But one possible counter to this objection is that when persons are engaging in activity that could potentially cause harm to the environment and the public, they are obliged to exercise due care, and if damage result they are bound to provide compensation.

Whose fault?

Under the environment statutes if a company performs the illegal act, it is held liable. Imposing liability on corporation is very important as the majority of environment crimes are committed by companies; merely prosecuting the corporate officers for such offences would not sufficiently deter the company. By application of the principle of respondeat superior the company is held vicariously responsible for the actions of its employees in the course of employment and for the benefit of the company. Such liability would be especially useful when it is difficult to pin liability on one particular official, as the environmental violations are the result of the actions of several different officers. Along similar lines of argument, holding companies may also be held liable for the criminal acts of their subsidiaries.

But individuals aren't totally exempt from penalties. If the offence has been committed by the company, then in addition to the company, every person who is directly in charge of and responsible to the company for the conduct of the business of the company shall also be liable. Such corporate officers would escape liability if they can prove that the offence was committed without their knowledge or that there was exercise of due diligence to prevent the commission of the offence. The Water Act, Air Act and the Environment Protection Act are all fairly clear that responsible officers of the company shall be deemed responsible for offences under their watch.

Imposing liability on corporation is very important as the majority of environment crimes are committed by companies; merely prosecuting the corporate officers for such offences would not deter the company.
But these Acts also contain a contradiction. Other clauses in each of the Acts require the prosecution to establish the connivance, consent or negligence of the 'director, manager, ... or other officer' before an offence is established. The difficulty of establishing the constituents of an offence is heightened when following a dualistic model, which imposes civil liability for minor damages and criminal liability for major damages.

Against this background of the laws' purposes and methods, we see that environmental offences should be divided into two categories with accordingly different punishment - (1) the intentional or knowing desecration of the environment, and (2) the accidental damage of the environment despite the exercise of due care and diligence. This distinction on culpability should be significant, it should not be left to the enforcement authorities and sentencing authorities to determine whether to prosecute. There is no such categorization presently under Indian law. With nearly complete prosecutorial discretion the deterrent value and the moral message behind the criminal punishment is vastly reduced. Instead, where crimes are found to be intentional, severe prison sentences and fines should be imposed.

This requires a reconsideration of the current fines imposed - which are ridiculously low, and totally dilute the retribution that is allegedly sought. By recent amendments the degree of some fines have been increased; however to achieve any degree of deterrence especially for large companies, the method of calculating such fines should be different. One option for calculation is that the fine imposed should be proportionate to the magnitude and capacity of the enterprise so that the punishment will have an adequate deterrent effect. More pecuniary compensation may not be an effective deterrent in cases where the defaulter has the capacity to pay from a corporate account. In extreme and appropriate cases, a minimum period of imprisonment in addition to the economic penalty can be an effective sanction to deter affluent offenders.

A satisfactory solution requires not merely a simple criminal prohibition model, say, on the lines of the statue against homicide or burglary, but an elaborate scheme of regulation, administered by a State agency empowered to grant, withhold and suspend licenses, following rules designed to promote fairness and efficiency. Imposing civil liabilities can check a lot of harms for which criminal sanction cannot provide a solution. The role of criminal law would then be a derivative one - to provide backup sanctions to enforce authoritative and/or administrative orders.