Green Criminology The Politics Of Environment And Mainstream Development
Table of contents
- Introduction
- Literature review
- Hypothesis
- The role of Criminal law in protection
of environment - Limiting Factors
- Policies in India regarding Environment Law
- Environment Defined Indian Law
- Different Statutes and Legislation In IndiaExclusively for Environment Protection
- Environment protection under IPC
- Conclusion
- Bibliography
INTRODUCTION
Green criminology can be studied theoretically under many dimensions and it has proved that this concept has contributed in many different substantive matters. Ruggiero and South defined green criminology as the “framework of intellectual, empirical and political orientations towards primary and secondary harms, offences and crimes that impact damaging in a way on the natural environment, diverse species and the planet”1. There are limitations in the fundamental criminology which makes the existing criminal laws insufficient to provide justice to the evaluation and analysis of serious environmental issues. Traditional research has been carried out with a narrow view that criminal justice is the only appropriate way to study green crime, its causes and impacts. However modern contemporary researchers have reported broader perspective that can be used to conceptualize environmental degradation as a heinous crime.2
Cao and Wyatt have adapted Gibbs and Skinnider’s model in their article “The Conceptual Compatibility between Green Criminology and Human Security: A Proposed Interdisciplinary Framework for examinations into Green Victimization” (2016), to explain the different approaches to understand green crime; namely legalist, and socio-legal, eco-centric and bio-centric. Legalist defined environmental crime as “violation of criminal laws framed to safeguard the health and safety of the environment”. The foundation of this definition is criminal laws. Socio legal perspective states green crime as “any illegal activity, in any form the rule might be” with all legal provisions including criminal, civil and administrative laws at its base. Eco-centric approach defines green crime on the foundation of environmental and ecological impacts. Lastly, bio-centric perspective explains it as “any human activity that harms the ecosystem. This includes negligent, irresponsible human activity that impacts negatively on the planet biotic and abiotic natural resources, resulting in immediate noticeable natural resource destruction” 3.
Thus, by observing the above descriptions it can be concluded that legalist approach is limited whereas the bio-centric way is expansive and covers every act of human beings which can be injurious to nature. (Cao & Wyatt, 2016)
A major drawback of territorial and international environment law is the absence of any hardcore punishment for the violation of laws and regulations concerning the environment. The maximum punishment given for committing a green crime would be a fine or compensation and/or few days of imprisonment. Similarly, there are grey areas in the polluter pay and precautionary principles. It is highly recommended that amendments should be made to encompass equitable punishments for despicable crimes.
The Bhopal Gas Tragedy in India in 1984, Union Carbide Corp V. Union Of India 1990 AIR 273, 1989 SCC(2) 540, was an incident of gas leak and has popularly been discussed as one of the worst industrial disaster of the world. The punishment given, despite an official death toll of 3800, was a compensation USD 470 million. This judgment was based on mens rea (intention) and not on the extent of the massive irrevocable devastation. This report aims to suggest that Neill Morgan’s “Fault Element Principle” to be applied to establish a system where the accused should be castigated in accordance with the degree of loss and impairment and not the basis of intention.4
To ensure accountability and responsibility at the level of both, individual and society, it is important to define the debatable range of common property of natural resources. In the Paris agreement between the participating nations it was decided that all nations will work on holding the increase in the global average temperature. This can be achieved once the common property is recognized and specified in clear terms.
Indian legislation lacks provisions to grant punishment of such a nature that anyone should think twice before violating any environmental law. This research proposes incorporation of a new chapter in the Indian Penal Code, “Offences against Environment”, outlining a strict judicial procedures of severe punishments based on the seriousness of the offence.
The concept of green criminology is new and open to exploration. It would be in best interest of the universe if green crime could be legally defined, analyzed, categorized, judicially conceptualize.
LITERATURE REVIEW
The close reading of secondary source material drawn from the library and internet database for research on this topic following attempt is made to review the literature:
- Spapens, T., White, R., & Huisman, W. (2016). Environmental crime in Transnational context: Global issues in Green enforcement and criminology. Oxon: Routledge.
- Lynch, M. J., & Stretesky, P. B. (2010). Global environmental Harm: Criminological Perspectives. (R. White, Ed.) Cullompton, Devon, United Kingdom: Willan Publishing.The above mentioned authors described the concept of green criminology very well but still there is a loose framework or set of intellectual, empirical and political orientations towards problems and harms, offences and crimes related to the environment, different species and the planet.
• Skinnider, E. (2013, March). Effects, issues and challenegs for victims of crimes that have a significant Impact on the environment.
The author emphasized on the definitions of several terms like crime and environmental crime and terminology used for the concept green criminology but the standard is not up to the mark as the term “environmental criminology” has two different meanings. Therefore non expert of the said field can interpret the term incorrectly.
• Muncie, J., Talbot, D., & Walters, R. (2010). Crime:Local and Global. London: willan.
• Gibbs C, Gore M, McGarrell E and Rivers III L (2010) Introducing conservation criminology: Towards interdisciplinary scholarship on environmental crimes and risks. British Journal of Criminology
The above mentioned authors explained the term green criminology in very simple and appropriate manner but author has failed to explain the deterrence effect of the concept.
“Green Criminology: The Politics of Environment and Mainstream Development” is a significant attempt at examining the relevancy of green crimes, its causes and impacts to propose a judicial procedure which will be detrimental in achieving global justice for environmental degradation. The field of green criminology is sufficiently elastic for the incorporation of a thorough study of environmental crime into its conceptual and methodological universe.
HYPOTHESIS
Green criminology will increase or proliferate the criminal liability related to environmental crimes as a deterrence aspect instead of civil liability of compensation.
The Role of Criminal law in protection of environment
Criminal law was one of the main instruments in numerous nations which specifically as well as by implication ensured certain components of the indigenous habitat(natural environment), e.g. air , water, in spite of the fact that the objects of assurance were people. In numerous cases there has likewise been a move to present substantive criminal offenses against nature.
A few demonstrations of contamination 1(pollution) are serious to the point that they are considered to justify the ultimum remedium of stigmatization as criminal. Then again, a blend of criminal and common also, regulatory laws seems more proper to manage the issue. One reason is that victims can initiate the civil proceeding s but they are not entitled to begin with the criminal proceedings. Another critical reason is that much of the States themselves are the most critical polluters and o one can make state liable for the acts which they are doing and increasing pollution.
When we are thinking about environmental protection there is significant role played by the criminal law and one of the important aspect is to define the concept of environment crime. And till now there is no exact definition or recognized definition of crime related to environment.
Problems related to culture may exists while tackling with crimes related to environment and till now all those persons and organizations engaged in these negative acts are not to be regarded as criminals in orthodox sense, in fact they know or aware of the after effects of those activities. And now in this said context the term crime against environment is not apt as much as the term environmental crime is.5 And according to me this concept is similar to the concepts like crime against person or property etc.
We should have some provisions related to criminal jurisprudence in order to respond that particular behaviour which is harmful to the environment and there should clear demarcation between two aspects : environmental crimes and on the flip side there shouldbe licit use of the natural resources. There should be some acts or actions to ensure the utilization of resources in such sustainable manner that balance is maintained.
We have lots of examples in which it is very much clear that states acts can damage the environment on very seriously by many means like weapons used in war or for there testing purpose, moreover disposing off scrap and other dangerous chemical and wastes which are hazardous .
LIMITING FACTORS
The increased interest in using criminal law in environmental protection has brought about a serious debate about the appropriateness and effectiveness of criminal measures in preventing and redressing harm to the environment. One of the biggest concerns derives from the relationship between administrative and criminal law it is feared that criminal law will be inflated and its value thereby diminished since “both murder and mere disobedience of administrative orders is defined as criminal”.6 Another factor can be of high cost involved in protection on environment and it can also be treated as negative effect and moreover developing countries like India usually lacks finances and other resources which are required to enforce these provisions. And that is why hardship ( poverty) degradation in environmental resources are closely related. And protection of environmental resources in developing nations must be an important part of the development process.
Other than all this, in criminal jurisprudence the onus of proof or evidence is very high and there is need to create intention or knowledge. Many a times the concept of strict liability is used to reduce the difficulties attached with the use of criminal jurisprudence. Strict liability works irrespective of fault.
POLICIES IN INDIA REGARDING ENVIRONMENT LAW
There are three important policies or statutes for the environment protection in India
- The National Forest Policy, 1988
- Policy statement for Abatement of Pollution , 1992
- National Conservation Strategy and Policy Statement on Environment andDevelopment, 1992
ENVIRONMENT DEFINED IN INDIAN LAW-
According Section 2(a) of the Environment Protection Act, 1986 Environment includes
- Water , air and Land
- The inter-relationship which exists among and between,i) water, air, land, and
ii) human beings, other living creatures, plants, microorganisms and property
DIFFERENT STATUES AND LEGISLATION IN INDIA EXCLUSIVELY FOR ENVIRONMENT PROTECTION
- The Water (Prevention and Control of Pollution) Act, 1974
- The Water (Prevention and Control of Pollution) Rules, 1975
- The Water (Prevention and Control of Pollution) Cess Act, 1977
- The Water (Prevention and Control of Pollution) Cess Rules, 1978
- The Air (Prevention and Control of Pollution) Act, 1981
- The Air (Prevention and Control of Pollution) Rules, 1982
- The Environment (Protection) Act, 1986
- The Environment (Protection) Rules, 1986
- Hazardous Wastes (Management and Handling) Rules, 1989
- Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
- The Forest (Conservation) Act, 1980
- The Forest (Conservation) Rules, 1981
- The Wildlife Protection Act, 1972
- The Wildlife (Transactions and Taxidermy) Rules, 1973
- The Wildlife (Stock Declaration) Central Rules, 1973
- The Wildlife (Protection) Licensing (Additional Matters for Consideration) Rules, 1983
- The Wildlife (Protection) Rules, 1995
- The Wildlife (Specified Plants – Conditions for Possession by Licensee) Rules, 1995
- The Public Liability Insurance Act, 1991
- The Public Liability Insurance Rules, 1991
- The National Environment Tribunal Act, 1995
- The National Environment Appellate Authority Act, 1997
OTHER THAN ALL THESE THERE ARE PRVISIONS IN INDIAN PENAL CODE FOR PROTECTION OF ENVIRONEMENT:
The Indian Penal Code has a chapter on offences affecting Public Health, Safety, Convenience (Chapter XIV). Sec. 268 provides that “a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.” The section further explains that a common nuisance is not excusable on the ground that it causes some convenience or advantage. Other concerned provisions are: a “negligent act likely to spread infection or disease dangerous to life” (Sec. 269 IPC.), a “malignant act likely to spread infection or disease dangerous to life” (Sec. 270 IPC.), “making atmosphere noxious to health” (Sec. 278 IPC.).
But the one of the main requirement of all the provisions is to punish man is the mens rea i.e. guilty intention either the act done by the accused should be negligent or malicious which harms the environment.
Indian penal code gives maximum of fine of Rs 200/- by the way of punishment ( Section 290) and for making the atmosphere polluted for health Rs 500/- ( Section 78).
If we go through all the laws regarding environment protection in India the punishments are too less or meagre to fulfil the objectives of the statutes and with all these statutes and penal provisions it is not at all feasible to keep check on crimes related to environment.
For example:
Damodar Rao v. S.O. Municipal Corporation AIR 1987 AP 171”
In the above case held that the environmental pollution and many other pollutants which are slowly and steadily pollutes environment should also be regarded as violation of Article 21 of the Indian Constitution. Yet there is no hard core punishment (till today ) for such crime which is affecting us all.
M.C. Mehta and Anr. Etc vs. Union Of India and Ors. Etc 1986 SCR (1) 312
In the above case the concept of public liability was used by the Supreme Court of India. This case is also known as ileum leakage case and Absolute Liability’s principle was applied and court agrees with the situation that industries were set up very near to the residential places and it was harmful, but what court has given as punishments is just industries should be relocated .
Another case was when Mr. M C Mehta pointed out that the pride of India The Taj Mahal was facing huge amount of threats and moreover the colour of the Taj’s marble is also changing because of the acid rains near that place and these acid rains are due to industrial wastes which were emitted by the industries located nearby again industries were relocated and no other punishment was imposed.
M.C. Mehta vs. Union of India AIR 1988 SCR (2) 538
In the above cited case the writ was filed in the Supreme Court regarding the pollution of the Ganga river by the industries around it yet court has given its judgement and ordered the closure of the polluting tanneries but no hard core punishment was given
LAWS IN OTHER COUNTRIES REGARDING ENVIRONMENTAL CRIMES
In Czech Republic and Slovakia they considers environmental crimes as the one of the heinous crimes.
In Hungary, Hungarian Criminal Code environmental crimes or offences are divided in two types , first crimes and second misdemeanours. If we try to explain misdemeanours we can explain its like when there are negligent offences then they are known as misdemeanours and other than this it is further divided into offences based on scale or public in endangered ( major or minor harm)
Similarly most of the developed nations have statutes and provisions which gives punishment to the accused by analysing the graveness of the offence with the intention involved in it or we can say mens rea.
CONCLUSION
The concept of Green Criminology is not a trend it s a reality and environment for the humans is very important and essential part in every aspect of life. Everything on planet earth is dependent upon the environment even essentials required for the survival of living beings are gained through the environment only. Environment is the place where all the developments are done for the subjects. And if we are destroying environment we are destroying our own existence. So much more importance is to be given to environment and if any body tries to exploit the environmental resources in a very bad manner then there should be punishment given to that person or if someone destroys environment they should be treated as environmental criminals.
There should be clear definition of environmental crimes so that legal system can impose proper punishments.
There must be eco crime courts at the regional, national and International level in order to get speedy justice regarding environment crimes. Pre existing institutions should be strengthened so that enforcement of the law and policy related to environment can be done smoothly and efficiently.
Even there should be some mechanism to set up eco crime police and regional, national and international level. Moreover victims of green crimes should be provided with legal aid, there should be hardcore punishments which should include eco- restoration at the cost of polluters at all the levels.
Bibliography
Cao, A. N., & Wyatt, T. (2016). The Conceptual Capability Between Green Criminology and Human Seciruty: A Proposed Interdisciplinary Framework for Examinations into Green Victimisation. Critical Criminology , 24, 413-430.
Chan, W.-C., White, B., & Yeo, S. (Eds.). (2011). Codification, Macauley and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform. Surrey, England: Ashgate Publishing Limited.
Lynch, M. J., & Stretesky, P. B. (2010). Global environmental Harm: Criminological Perspectives. (R. White, Ed.) Cullompton, Devon, United Kingdom: Willan Publishing.
Muncie, J., Talbot, D., & Walters, R. (2010). Crime:Local and Global. London: willan.
Ruggiero, V., & South, N. (2013). Green Criminology and Crimes of the Economy: Theory, Research
and Praxis. Critical Criminology (3).
Skinnider, E. (2013, March). Effects, issues and challenegs for victims of crimes that have a
significant Impact on the environment.
Spapens, T., White, R., & Huisman, W. (2016). Environmental crime in Transnational context: Global issues in Green enforcement and criminology. Oxon: Routledge.
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1 uggiero, V., & South, N. (2013). Green Criminology and Crimes of the Economy: Theory, Research and Praxis. Critical Criminology (3).
2 Lynch, M. J., & Stretesky, P. B. (2010). Global environmental Harm: Criminological Perspectives. (R. White, Ed.) Cullompton, Devon, United Kingdom: Willan Publishing.
3 Cao, A. N., & Wyatt, T. (2016). The Conceptual Capability Between Green Criminology and Human Seciruty: A Proposed Interdisciplinary Framework for Examinations into Green Victimisation. Critical Criminology , 24, 413-430.
4 Chan, W.-C., White, B., & Yeo, S. (Eds.). (2011). Codification, Macauley and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform. Surrey, England: Ashgate Publishing Limited.
5 F. Giampietro, Models and Types of Environmental Offences; Preliminary Considerations, in: H.-J. Albrecht/ S. Leppä (eds.), Criminal Law and the Environment, HEUNI No. 22, Forssa 1992, pp. 142-151
6 4 G. Heine, Elaboration of Norms and the Protection of the Environment, in: C. Zanghì (ed.), Protection of the Environment and Penal Law (Bari, Cacucci 1993), pp. 78-79.