A bench led by Justice Abhay S Oka has consistently reproached the central as well as state authorities for failing to stop stubble-burning despite a high-level panel formed to look into issues concerning Delhi pollution. This body—the Commission for Air Quality Management (CAQM)—had replaced an apex court-appointed committee that used to earlier suggest measures to all stakeholders to reduce pollution levels in Delhi.
During a hearing on 23 October, Justice Oka’s bench was told that the Centre had not finalised rules to nominate the adjudicating authority that would determine the quantum of penalty to be imposed on those who violate the EPA. In the absence of such an authority, the bench was informed that states were unable to prosecute farmers violating EPA by burning stubble. The adjudicatory mechanism was introduced in EPA through the Jan Vishwas (Amendment of Provisions) Act 2023, replacing the penal provision in it.
ThePrint explains the environmental law, the modifications, and its importance in containing pollution levels.
Also Read: DDA tree-felling contempt case: What was L-G’s defence & the ‘misunderstanding’ he admitted to in SC
How an amendment watered down the EPA
In 2023, the Centre implemented the Jan Vishwas (Amendment of Provisions) Act with the objective of removing “outdated provisions that no longer serve the evolving technological and business environment”.
It amended 42 central legislations, decriminalising minor offences across these laws and eliminating 183 criminal provisions across ministries and departments. The EPA, as well as the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981, were also amended.
Punitive provisions that could have been filed against farmers who were violating the law were removed following the amendment in the above-mentioned environment-related laws. They were replaced with monetary penalties. An adjudicatory mechanism was brought in to determine the extent of violations and the corresponding quantum of penalty to be imposed on those found guilty of non-compliance.
Under the EPA, before the amendment, Section 15 entailed a jail term of five years, a fine of Rs 1 lakh, or both for violators of the law. However, the amendment did away with criminal prosecution, retaining only the penalty. Instead, the Act introduced stricter penalties that were proportionate to the severity of offences.
However, under Section 23 of the law, only the Union government can delegate enforcement powers to the adjudicating officer—both at the Centre and in the states—who the law empowers to conduct an enquiry before imposing a penalty for non-compliance. Section 15C of the amended law defines the role and functions of this adjudicating officer, besides outlining the adjudicatory procedure.
Amended vs unamended EPA
Before the amendment, as mentioned above, Section 15 of EPA said that failure to comply with or the contravention of any provision of the Act would be punishable with imprisonment that may extend to five years, a fine of Rs 1 lakh, or both. In case, the failure to comply continued after a conviction, an additional fine of up to Rs 5,000, could be imposed on a daily basis.
If this failure to comply lasted a year after the conviction, the law provided for a punishment of jail term that could extend to seven years.
Post the Jan Vishwas Act, 2023, Section 15 of EPA was modified to exclude penal prosecution. It, however, continued with the penalty provision for non-compliance. The penalty, in case of a violation, in case of each contravention shall not be less than Rs 10,000 but may extend to Rs 15 lakh, it says.
An additional penalty of Rs 10,000 per day is suggested in the new law in cases where the contravention is detected again.
Centre yet to notify rules to appoint adjudicating officer
While the Jan Vishwas Amendment Act concerning the EPA and the Air Pollution Act was enforced in April this year, the Centre is yet to notify the rules to appoint an adjudicating officer, in relation to EPA, can conduct an enquiry and determine the penalty.
Under Section 23 of EPA, the penalty under the law is to be determined either by a central government officer or a secretary-level officer in the states. Such an officer is empowered to summon individuals, demand records, and hold inquiries in case a violation is reported to them.
Section 15C of EPA outlines the function of the adjudicatory officer, the procedure to summon the violator and the factors based on which penalty is determined. The fine under this section is in addition to the liabilities that are required to be paid under the National Green Tribunal Act, 2010 (NGT).
Under Section 17 of the NGT Act, owners of between two and five acres of land are liable to pay Rs 5,000 per incident of violation, while landowners above that have to pay Rs 15,000.
Sub-section 3 of Section 15C of EPA requires the adjudicatory officer to give every person a reasonable opportunity to be heard in the matter, and if on such inquiry, they are satisfied that the person has not complied with the law and rules, the officer may impose a penalty in accordance with the provisions.
The factors based on which the compensation is determined include population and area impacted or affected due to the non-compliance; the frequency and duration of the contravention; the vulnerability of the class of persons likely to be adversely affected by such contravention; and damage caused or likely to be caused to any person as a result of the non-compliance and undue gain derived out of it.
States cannot implement EPA, rely on NGT Act & criminal code
According to the Punjab government’s affidavit in the Supreme Court, filed in connection with the stubble-burning case on 23 October, when the draft amendment rules for EPA were issued in July this year, inviting objections and suggestions, they proposed the secretary in-charge of state environment as the adjudicating officer. The final notifications are, however, still awaited.
Realising the gap in the law’s implementation, the Centre promised the top court that the rules would be in place within a fortnight.
In the absence of the notification on the appointment of adjudicating authority, Punjab said it was unable to proceed against farmers who continue to burn stubble despite repeated warnings under EPA. It has, therefore, collected environmental compensation on the basis of the NGT law and a subsequent 2015 judgment of the National Green Tribunal that reinforced the penalty framework under the special law. This environmental fine has been slapped on 362 offenders this year, it told the court.
(Edited by Sanya Mathur)