The façade of Decriminalization: Adivasis Rights vis-à-vis Corporate Interests


  • August 2, 2022
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The Ministry of Environment, Forest and Climate Change (MoEFCC) has proposed a number of amendments in the environmental laws, forest conservation laws and forest laws of the country. In this article, Puja explains whose interest these amendments will serve. She tries to explore if the amendments do make lives easier, if yes, for whom? Or, do they decriminalise environmental violations by putting a price tag on non-compliance by big capitalists.

 

 

What is a crime? Who is a criminal? It is essential to ask these simple questions to understand the newer developments in law, including the discourse on decriminalization of access to forest under the Indian Forest Act, 1927 (IFA) and the environmental offenses under the Environmental Protection Act, 1986 (EPA, 1986). According to Austin, any act or omission which the “sovereign power or government is disposed to punish” is illegal and should be considered a crime. According to Kelsen “the essence of law is an organization of force, the law thus rests on coercive order designed to bring about certain social conduct”. The positivist and purist school of thought in jurisprudence give absolute authority to the state to coerce people and extract obedience. Punishment in the form of imprisonment or fine forms a significant part of the criminal justice system to govern and discipline its people. But, how does the state determine what should be considered an offense and who should be punished for committing it?

 

In the Indian context, the state machinery took roots in the form of colonial regime and so did the criminal justice system. The colonial regime widely used criminal laws to coerce the colonized people to submit to their authority. After independence, the Indian state introduced more specialized criminal laws into the fold and at the same time held on to the old ideas of criminality by refusing to repeal laws such as, the Indian Forest Act, 1927 (IFA); adultery or homosexuality under the Indian Penal Code, 1860 (homosexuality and adultery are no longer offenses). So, the idea of criminality is still informed by colonial discourse. To have a meaningful debate on the criminal justice system and the process of decriminalization one should ask: does law treat everyone equally? Whom does it coerce to make them abide by its authority?

 

It can be argued that anyone can be booked for an unlawful assembly (Section 149) or sedition (Section 124A) or assault on a public servant (Section 353) under the Indian Penal Code, 1860. Similar arguments can be made for special laws such as: the Unlawful Activities (Prevention) Act, 1967; and the IFA. The letter of these laws or provisions do not target any specific community. But if we look at the application of the criminal law it becomes clear that in fact the criminal justice system has a caste-and-class character. The NCRB data shows that the members of Scheduled Caste, Scheduled Tribes, Muslims, and weaker sections of the society are the most favored suspects and convicts. They form the largest number of undertrial population in Indian jails. According to 2019 NCRB data, out of the total number of people in prison, the Scheduled Tribes form 10.5 per cent undertrial and 13.7 per cent. Similarly, an analysis of the 2020 NCRB data shows that 7 in 10 undertrials are dalit. Individuals from these communities emerge as the prototype criminal of the Indian criminal justice system. The nature and quantum of punishment also speaks a lot about the position of an individual or community in the society where inequality is graded. In that case, who is punished, how much and by what means becomes one of the most important questions?

 

I am forced to ask this question because in a couple of months, the MoEFCC has proposed a number of amendments in the environmental laws, forest conservation laws and forest laws of this country. This includes proposals to amend the IFA; the EPA, 1986; the Air (Prevention and Control of Pollution) Act, 1981 (APCPA); and, the Water (Prevention and Control of Pollution) Act, 1974 (WPCPA). Dealing with all the laws in this short piece will be an impossible task. Therefore, I will limit my inquiries towards understanding the recent discourse on ‘decriminalization’ by juxtaposing IFA with the EPA, 1986. I am keen to understand whose interest do these amendments serve? Do they make lives easier, if yes, for whom? or, do they put a price tag on death?

 

The public notice for consultation on the proposed amendments to IFA state that the Ministry is reviewing IFA for “decriminalization of relatively minor violations of law, expeditious resolution through compounding of relatively smaller offenses and reducing compliance burden on citizens” to prevent harassment. On the other hand, the notice for public consultation for proposed amendment in the Environmental Protection Act, 1986 states that the amendment would “decriminalize the existing provisions of the EPA, 1986”. The decision to decriminalize environmental violation was taken because “concerns were raised with regard to the present penal provisions” and there was a need to “weed out fear of imprisonment for simple violations”. According to the note, the decision was “based on the inputs received from various stakeholders”.

 

The decriminalization debate is important with regard to IFA and the rights of the forest dwellers for a number of reasons. First of all, IFA is a colonial legislation. The British indiscriminately plundered the natural forests of India during the 17th and 18th century for their lust for timber. Later, to mitigate the damage caused by them, they established the forest department and enacted the IFA. But, the task of the forest department or the IFA was not to limit the destruction of forests; rather it was to limit the access of forest dwelling communities in the forests. They saw the forest dwellers such as; the Adivasis, the pastoralists, the nomadic tribes and others who depended on forests for their every-day needs (such as, fodder, fuel-wood, food and medicines) as a threat to their monopoly over forest. So, they used IFA to solidify the administrative categories of forests in the form of reserved forests and protected forests. Secondly, the colonial regime justified the criminal provisions under IFA on the basis of the prejudice that forest dwellers were responsible for the destruction of forests. Therefore, offenses were created under IFA to limit the access of the forest dwellers on these forests. Section 26 and 33 created offenses against certain acts.

 

After independence, the Indian government hardly made any consequential move to decriminalize the offenses under IFA. Even the proposed amendment misrepresents what decriminalization means. The process of decriminalization in the context of marginalized communities who have been wronged, means declaring an activity as a non-offence and to eliminate the structural discrimination faced by these communities. Currently, section 26 lists ten activities as an offense. The penalty for such offense is maximum imprisonment of six months or fine of rupees five hundred or both. In addition to that, the court may direct to pay compensation or damage to the forest while convicting the accused. It is funny that all of the above-mentioned offenses can be regarded as normal acts if the permission is given by the Forest-officer in writing. As a rule, access to forest is considered an offense which can be turned into a non-offence by the Forest-officer. The proposed amendment to this section will take away the provision of imprisonment from few acts mentioned in Section 26, including: kindling or keeping fire; trespassing, allowing cattle to trespass or pasturing cattle; negligently causing damage in felling trees, cutting or dragging timber. It does not do away with the provision of imprisonment for all the listed offenses in Section 26. Similarly, Section 33 lists eight activities as offenses and their punishment in a protected forest. The penalty for commission of such offenses can be a maximum six months imprisonment or fine of rupees five hundred or both. The proposed amendment for Section 33 is identical to the proposed amendment for Section 26. So, the proposed amendments to both Section 26 and 33 do not do away with the provision of imprisonment for all actions listed as offenses. Doing away with imprisonment cannot be called decriminalization because the list of offenses is still intact, only the nature of punishment has changed for some of those offenses.

 

Moreover, the accused will still be subjected to the criminal procedure laid down under IFA. In special laws like the IFA, the criminal provisions provide unprecedented and disproportionate power to the forest bureaucracy. It ranges from power to arrest without warrant, search a person and his property, seizure of such property, and charge such a person with a variety of forest offenses, without the consistent supervision of a Judicial Magistrate and other such protective procedures laid down under the ordinary criminal laws. In addition, the forest officers are also vested with the power to compound offenses and collect such compounding amounts, without the supervision of a judicial officer. The ordinary criminal process continues to remain unavailable to the accused, who is instead relegated to the less robust ‘summary trial’ process, unless in rare cases a forest officer decides to approach the judicial system for formal cognizance of a forest offense. Doing away with imprisonment for a few actions which are categorized as offences does not take away the trauma, discrimination and violence faced by the forest dweller by being forced to interact with the criminal justice system. The forest dwellers will still be identified by the state and society for these actions as a criminal.

 

Further, there are a number of other problems with this amendment. Firstly, the proposed amendment will be utterly irrelevant because various state governments have heavily amended various provisions of the IFA. The reality is that State level amendments provide much harsher punishments than the central law, ranging from mandatory minimum sentences of imprisonment to prison sentences up to 5 years, in addition to highly enhanced fines as well. Secondly, the amendment fails to streamline the provisions of IFA with Forest Rights Act, 2006 (FRA) and Panchayats (Extension to Scheduled Areas), Act 1996 (PESA). Those actions which are considered criminal by IFA are regarded as statutory rights of the forest dweller under the FRA and PESA. For example, the ownership rights on minor forest produce [u/s 3(1)(c ) of FRA and u/s 4(m)(ii) of PESA. If the state is serious towards decriminalization, it should have taken steps towards recognizing these rights and the authority of the Gram Sabha on the community forest and resources. In fact, the situation on ground shows otherwise. The ambit of criminality in forests has expanded under IFA because those lands which are considered as non-forest land, unclassified forest, degraded forest land, chote jhad ke jangal are being used for compensatory afforestation. Before compensatory afforestation is undertaken on land it is transferred to the forest department and classified as protected forest. Traditionally, the forest dwelling communities use such land for grazing, cultivation or other livelihood and community purposes. The declaration of such land as protected forest leads to atrocities and criminalization of their access to such land.

 

Finally, the note seeking public comment says that effort is being made to “reduce compliance burden on citizens, rationalization of penalties and reducing harassment of citizens”. “The citizens” here mean the Adivasis and forest dwellers who are subjected to harassment by the forest department by use of IFA. But, were they even consulted before proposing these changes to the law? The answer is a big “NO”. In that case, does the proposed amendment to IFA only serve as an optics of the state to legitimize destruction of the stringent environmental protection regime in India?

 

The proposed amendment to the Environmental Protection Act, 1986 (EPA, 1986) comes in the light of the structural changes being made by the MoEFCC in the environmental protection and forest conservation regime to legitimize and normalize ‘deregulation’. The EPA, 1986 was enacted in the wake of the Bhopal Gas leak which led to the death of more than 15,000 and affected more than five lakh people. The preamble of the Act says the law was enacted for the “protection and improvement of environment”, “the prevention of hazards to human beings, other living creatures, plants and property” and to honor India’s commitment to the Stockholm Conference, 1972.

 

The environmental law regime in India puts criminal liability on the polluter or the offenders. The EPA, the APCPA, the WPCPA have provisions which provide for imprisonment and fine for the violation of the provisions of these laws. The violation under EPA includes:

 

  • Emission or discharge of environmental pollutants in excess to the given permit. [Section 7]

 

  • Failure to comply with procedural safeguards while handling hazardous substances. [Section 8]

 

  • Unwillingness to furnish information to authorities and agencies about excess discharge of environment pollutants. [Section 9]

 

  • Unwillingness to cooperate with the enforcement officer to enter an industrial premises, examine or investigate equipment or records, seize equipment or records which is necessary to prevent or mitigate environmental harm. [Section 10(2)]

 

  • Willful delay or creating obstruction in the performance of the functions of an enforcement officer. [Section 10 (3)]

 

Any failure to comply with or in contravention of the provisions of the EPA could be punishable with an imprisonment upto 5 years or with fine upto Rs. 1 lakh or both. [Section 15 (1)]. Continuation of such offense beyond a period of one year would lead to an imprisonment upto seven years [Section 15(2)]. Even the companies, corporations and industries can be held liable. The person in-charge of the affairs of the company, director, manager or secretary would be held responsible for such offenses and be punished with imprisonment or fine or both. Similarly, the head of the department of a government department could be punished with imprisonment or fine or both.

 

The proposed amendment seeks to do away with the criminal provision and reduce the non-compliance into tortious liability which is civil in nature. Non-compliance will be subjected to monetary ‘penalty’. The amendment puts a price tag on environmental violations. For example, the proposed amendment to Section 15 provides a penalty for violation of EPA in the form of a fine that could range from Rs. 5 lakh to Rs. 5 crore. A continuation of the offense would result in paying further damages upto Rs. 5 lakh. The powers of examination, search and seizure, and investigation of environmental violation under the Act will be virtually rendered ineffective if the amendment passes because of the lack of penal sanction. The violator will have no fear of prosecution, since they will only have to pay a fine or damages.

 

The environmental law regime in India has developed in the context of environmental violations that have led to loss of human life on a very large scale. Therefore, it sets a very high bar for the polluters or offenders to comply with environmental regulations. As opposed to the principle of strict liability which developed in the west with regard to environmental violations, the principle of absolute liability was developed in India. In environmental criminology, strict liability requires mens rea and actus reus to prove that crime has occurred. Defense of an honest or reasonable mistake can be taken. But, in absolute liability, mens rea is not required. The accused cannot take the plea of due diligence. It should not be forgotten that the principle of absolute liability was propounded by the Supreme Court of India in the light of the escape of oleum gas from Shriram Food & Fertilizers in Delhi and Bhopal Gas leak. In the Bhopal gas leak case Union Carbide, the violator was a large multinational corporation. On the other hand, the victims were common people and many among them belonged to the working-class who worked at the factory. The Supreme Court of India took a harsh approach towards the disaster to seek accountability from Union Carbide. The Supreme Court laid down the principle of absolute liability in the case of M. C. Mehta v. UOI and Charan Lal Sahu v. UOI. It held that industries that pose a potential health and safety hazard to the people living near it have ‘absolute and non-delegable duty’ to ensure that they are not harmed by such industrial activities. If any harm falls on the victims, the accused cannot take the plea of reasonable care. Moreover, the Court also held that victims of the Bhopal gas leak have a right to recover damages or compensation on the basis of the principle of absolute liability.

 

The proposed amendment in the EPA, 1986 is on the lines of the civil-tortious liability that has developed in the USA. It should not come as a surprise that even in the USA, big corporations hardly pay any damages or compensation for the environmental harm caused by them. The environmental protection agencies try to enforce environmental laws on the smaller companies or firms instead of the bigger ones because they have immense resources to contest the case. In fact, research shows that the environmental regulations have been purposefully weakened by the US government and even civil enforcement through compensation and damage has gone down to 1/3 since the 1990s. In a country like the USA where the state institutions are old and strong, the government (especially the Trump Administration) trampled upon the environmental protection regime to favor the corporations. India should not walk down that path when our legislature and courts have provided us a stronger framework of criminal liability to deal with environmental violations. Experiences from the USA shows that taking away criminal liability will not guarantee compliance. In India, where the violators are powerful and the victims are powerless, provisions of imprisonment under EPA, 1986 act as a necessary deterrent, even though there is huge lack of compliance with its penal provision. According to the data, out of the 61,767 cases of environmental crimes in India, only 992 cases were relating to violation of the EPA. But, under-utilization of a law or provision cannot be an excuse to do away with it. In fact, it is the state that has failed to do its duty.

 

The proposed amendment to the EPA also suggests to appoint an adjudicating officer who will be of the rank of joint secretary or secretary of the central government or the state government, respectively. The MoEFCC is giving power to the executive to adjudicate upon the environmental violations, it is oxymoron-ish because the executive especially the MoEFCC is an active participant in such violation. It also proposes to set up an environmental protection fund and provides a mechanism for its accrual.

 

The problem with the amendment therefore becomes two-fold: practicality of enforcing it and the morality of such law. In a place like India, the rural and the urban working class who are most vulnerable to environmental disasters and climate change impact. The mining, hydropower or industrial projects are heavily located in tribal areas. Access to justice for the Adivasis, Dalits and working-class living in these areas is a distant dream. Assuming that these communities will be able to contest the environmental violations and take it up before the adjudicating authority which is physically and mentally removed from them shows absolute lack of consultation. Lack of a deterrent in the form of imprisonment could probably lead to serious environmental damages in tribal and rural areas without any accountability. Even when the violator is held accountable, are we comfortable counting bodies and putting a price tag on them? It seems that the amendments made to the EPA, 1986 have been made to bypass environmental regulations to serve the interest of the capital. Afterall, who are these stakeholders who raised the issue of ‘fear of imprisonment for simple violations’ during a ‘closed-door public consultation’ that led to the proposed amendment? As per my knowledge, no Adivasi, peasant, dalit working class, activists, rights-based groups were informed about such ‘public consulation’.

 

At last, the comparative analysis of the IFA and the EPA, 1986 shows that determining whether an act is ‘criminal’ or not, is a political decision. The state chooses to consider one act as criminal while decriminalizes other actions. The imposition of criminality on forest dwellers by the Indian state is informed by the pre-conceived notions and prejudices against them. The colonial discourse on forest conservation and centralized forest governance policy still informs the MoEFCC, therefore, it is unable to acknowledge the identity of the forest dwellers as custodians of forest. It still treats them as criminals which shows that they are victims of structural discrimination. Unless FRA and PESA are truly implemented in letter and spirit this situation will not change. If the state truly wants to take up the process of decriminalization, it should remove all activities of access to forest as an offense. On the other hand, it is the duty of the state to protect the environment. So, instead of promotingease-of-doing-business’, it should retain the provisions of criminal liability in the EPA, 1986 and other laws. It should assist the environmental protection agencies to increase compliance with the environmental regulation.

 

The author is a Lawyer and Visiting Faculty at NLS Bangalore.

 

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