Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of MC Mehta v. Union of India has held that after the 2023 Jan Vishvas Amendment, section 15 of the Environment Protection Act, 1986 (EPA) has become in operative. 

What was the Background of the MC Mehta v. Union of India Case?  

• In the present case, a civil writ was filed by the petitioner stating that Section 15 of EPA is not in operation. 
• It was stated that the practice of stubble burning has increased air pollution specifically in the State of Punjab & Haryana. 
• It was alleged by the petitioner that no strict actions have been taken by the authorities against such practices. 
• The respondent contented that Commission for Air Quality Management (CAQM) has issued has issued show cause notices to officers of both Punjab and Haryana including the Secretary of Environment, Additional chief secretary agriculture etc. 
• It was also observed that the monitoring committee is not in function due to absenteeism of its members for which the Union of India assured the court that it will replace the members who are not working properly. 
  • Amicus curiae Aparajita Singh made an observation that in spite of repeated directions by the Court the monitoring committee has made negligible progress.  

What were the Court’s Observations? 

• The Supreme Court made the following observations: 
  • The Supreme Court criticized CAQM for just issuing notices on stubble burning instead of using its power under Section 14 of Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 (CAQM). 
  • The Supreme Court also criticized the Union of India for not making Section 15 of EPA operationalized as due to amendment the penal provisions have been replaced by the penalties. 
  • It was further added by the Court that due to absence of rules related to appointment of adjudicating officers under Section 15C of EPA which made it difficult to impose punishments. 
  • It is also observed by the Court that the amendment under Section 15 of EPA has made the objective of the act baseless and toothless. 
  • The Supreme Court also questioned CAQM for not implementing Section 15 of CAQM Act in the proper manner and for not determining the environmental compensation rates.  
  • The Court last week had summoned the Chief Secretaries of Punjab and Haryana. 
  • The Supreme Court also noted that there was no prosecution under the CAQM Act for violation of CAQM orders regarding stubble burning. 
  • The Supreme Court also criticized the work of the state and the CAQM by stating the improper functioning of the members of the monitoring committee. 
    • It was observed that the members remain absent most of the time and therefore couldn’t make sufficient efforts. 
• Based on the above observations the Supreme Court held that: 
  • CAQM must make rules for making section 15 of CAQM Act operative by prescribing appropriate compensation rates and should not merely rely on the formula set by the National Green Tribunal. 
  • The Supreme Court also directed the Union of India to amend the rules under Section 15 of CAQM within 2 weeks and provide proper rates of environmental compensation. 
  • The Court has also directed the Centre and the Government of Delhi NCR to provide reports of pollution based on the causes of air pollution (waste burning, transport pollution, pollution from heavy trucks, and industrial pollution).  

What is Section 15 of EPA? 

• Section 15 states the provisions regarding penalty for contravention of provisions of Act, rules, orders and directions 
  Main Penalty 
  • Subsection (1) states that any person who does not comply with any of the provisions of this Act or the rules made, or orders or directions issued where no penalty was provided then for such contravention, he shall be liable to pay Rs. 10 lakhs which may exceed to Rs. 15 Lakhs. 
    • This subsection has been amended in accordance with Section 3 of the Jan Vishwas (Amendment of provisions) Act, 2023 (JV) 
    • Under this the fines and penalties under subsection (1) shall be increased by 10% (minimum amount) after expiry of every 3 months from the date of the commencement. 

Old Subsection (1) 

• Before the amendment subsection (1) used to state that: 
  • any person who does not comply with any of the provisions of this Act or the rules made or orders or directions issued where no penalty was provided then for such contravention be punishable with imprisonment for a term which may extend to five years or with Fine which may extend to one lakh rupees, or with both. 
  • in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. 

Continuing Contravention of Subsection (1) 

• Subsection (2) states that for continuing contravention under subsection (1) the person shall be liable to an additional penalty of ten thousand rupees for every day during which such contravention continues. 

Old Subsection (2) 

• Before the amendment subsection (2) used to state that: 
  • in case the failure or contravention continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years. 
• Section 15C of EPA was also inserted by the JV Act which states the provisions for Adjudicating officer. 
  Appointment Of Adjudicating Officers 
  • Subsection (1) states that the Central Government, for the purposes of determining the penalties under this Act, may appoint an officer not below the rank of Joint Secretary to the Government of India or a Secretary to the State Government to be the adjudicating officer, to hold an inquiry and to impose penalty in the manner, as may be prescribed:  
  • Provided that the Central Government may appoint as many adjudicating officers as may be required. 

Powers of the Adjudicating Officer 

• Subsection (2) stated that the adjudicating officer may-  
  • call upon any person alleged to have contravened or not complied with the provisions of this Act and the rules made thereunder or having the knowledge of the facts and circumstances of the case. 
  • require such person to produce any record, register or other document in his possession or any other document, which in the opinion of the adjudicating officer may be relevant to the subject-matter. 

Hearing And Penalty Imposition 

• Subsection (3) states that The adjudicating officer shall, after giving the person a reasonable opportunity of being heard in the matter, and if, on such inquiry, he is satisfied that the person concerned has contravened or has not complied with the provisions of this Act or the rules made thereunder, he may impose such penalty as he thinks fit in accordance with the provisions of sections 14A, 14B, 15, 15A or Section 15B, as the case may be. 

Factors For Determining Penalty 

• Subsection (4) states that the adjudicating officer, while adjudicating the quantum of penalty under Sub-Section (3), shall have due regard to the following, namely: - 
  • the population and the area impacted or affected due to such contravention or noncompliance 
  • the frequency and duration of such contravention or non-compliance 
  • the vulnerability of the class of persons likely to be adversely affected by such contravention or non-compliance. 
  • the damage caused or likely to be caused to any person, as a result of such contravention or non-compliance, if any. 
  • the undue gain derived out of such contravention or non-compliance. 
  • such other factor, as may be prescribed. 

Additional Liability 

• Subsection (5) states that the amount of penalty imposed under the provisions of sections 14A, 14B, 15, 15A or 15B, as the case may be, shall be in addition to the liability to pay relief or compensation under Section 15 read with Section 17 of the National Green Tribunal Act, 2010 (19 of 2010).