Why has the provision to imprison polluting industrialists dropped, wonders Ahmedabad NGO in note to MoEFCC

By A Representative
In a note it has sent to the Ministry of Environment, Forests and Climate Change, Ahmedabad-based environmental NGO Paryavaran Mitra has taken strong exception to the Environmental Impact Assessment (EIA) draft notification seeking to drop the provision for imprisoning the polluter.
The NGO, in its note it has circulated to activists, has said that Section 15 of Environment (Protection) Act, 1986, not only provided cash penalty for violation of any provisions of legislation or any rules made or orders or directions issued under the Act, but also provided punishment of up to five years imprisonment for the first offence, or fine of Rs 1 lakh, or both.
The Act further provided for “additional fine of Rs 5,000 for every day and an enhanced sentence of imprisonment for a term which may extend to seven years where violation continued beyond a period of one year after the date of conviction”, the NGO says.
However, the NGO said, “The proposed draft notification, instead of giving punishment of imprisonment as well as fine, has opted only for fine as penalty to the violator, which gives a way out to the violators and encourages them to pollute and then pay fine.”
Objecting to yet another provision, the NGO says, the MoEFCC “is giving opportunity to project developers to obtain post facto environmental clearance by just implementing an environmental supplementary plan (ESP).”
It comments, “This approach if allowed would give project developers free hand to first start the project causing irreversible damage and then seek post-facto clearance.”
Suggesting that this would “dilute the powers of the National Green Tribunal and the judiciary, which are the only effective grievance redressal mechanisms for the affected peoples”, the NGO says, the draft notification also allows the MoEFCC to provide environmental clearance even as it is in the midst of preparing an ESP and agrees to implement the latter.
Objecting to this, the NGO says, “This means that, whether the violator successfully implements ESP or not, MoEFCC would grant environmental clearance, and the violator would not be under any pressure to implement ESP. On contrary, it would give the benefit of guaranteed environmental clearance from MoEFCC, because it has already agreed to implement ESP.”
The NGO questions the failure of the draft notification to implement the principle of “polluter pays”. It says, “First of all, the question is, do violators pay big fines? Secondly, the government has till date not made any provision or policy for using environmental fine or money collected from bank guarantee for environmental management.”
In fact, according to the NGO, “The Central Pollution Control Board (CPCB) has published a guideline for all State Pollution Control Boards (SPCBs) on how to use bank guarantee amount taken away from noncomplying units. Yet, state governments have not been using the money for environmental conservation or for the amelioration of the affected people.”
Even then, the NGO says, the draft notification wants the ESP to be such that it provides for the remedies caused by ecological damage caused due to violation. However, it wonders why does not give any clarification on short term or long term damages incurred by a project, and how this should be evaluated.