The Jan Vishwas (Amendment of Provisions) Act, 2023 was promulgated to amend certain enactments with the objective of decriminalisation and rationalising offences. In Terms of enactments related to environment and pollution control, it has amended certain provisions of the E.P. Act. 1986 and the Air Act 1981 (No. 23 of 2023 CG-DL-E-12082023-248047 dated 11-08-23). The Ministry of Environment, Forests and Climate Change has notified (GSR 749E dated 17-10-2023) 1st April, 2024 as the date on which the amendments in the E.P. Act 1986 will come into force. The amendments with regards to the Air Act will also come into force from 01-04-2024 (GSR 757E dated 18-10-2023).
Significantly the Act provides that the fines and penalties prescribed under the different enactments included in this Act (Jan Vishwas Act of 2023) shall be increased by 10% of the minimum amount every three years from the commencement of the (Jan Vishwas) Act.
Most interestingly, the savings clause to the Jan Vishwas Act (Section 4) provides that the amendment or repeal of any enactment by this Act (Jan Vishwas Act 2023), shall not affect any other enactment in which the amended or repealed enactment has been applied, incorporated or referred to. This may also need to be better understood along with other provision of section 4 of the Jan Vishwas Act 2023. In an earlier case and under identical provisions, the Honourable Supreme Court in the matter of Criminal Appeal No. 185 of 1957 has held that the provision as above (Not affecting any other enactment) allow the amended/repealed portions of the parent acts to be in force even after being repealed or amended. (The court has held that provisions of section 6-1-A of the Wireless Telegraph Amendment Act 1949 will hold good even if the provisions have been repealed by the repealing and Amending Act 1952, on an offence committed in 1953 much after the repeal). This is important and may need clarification.
In terms of amendments, the following changes have been made to the Environment Protection Act of 1986.
- Power of Entry and Inspection
The earlier provisions under section 10 of the E.P.Act 1986, entrusted duties (subsection 2) upon persons carrying out any industry, operation or process or handling any hazardous substance to assist in the inspections being carried out by the competent authority as authorised by the Central Government for the purposes of the Act. Failure to comply would be treated as an offence under the Act. A fresh provision has been inserted through the Jan Vishwas Act 2023 which now makes the offence liable to penalty provided under the freshly introduced section 14 (B) of the E.P. Act, which now fixes a penalty which shall not be less than 10000 Rs. but which may extend to five lakh Rupees. Continued contravention would attract the liability of an additional penalty of ten thousand Rupees for every day during which the contravention continues.
Similar penalties (14B as above) have been provided in the Jan Vishwas Act 2023 if the person wilfully delays or obstructs any authorised person from making the inspection under Section 10 (Sub Section 3).
The provision of subsection 4 of section 10 had made alternative provisions for the States of Jammu and Kashmir and other areas where the CrPC was not in force and provided that any corresponding law in force on such states would apply. The amendment through the Jan Vishwas Act of 2024 now substitutes this to provide that- “The provisions of the code of criminal procedure, 1973 (2 of 1974), shall, in so far as may be, apply to any search or seizures under this section as they apply to any search or seizures made under the authority of a warrant issued under section 94 of that code”.
- Amendment to Section 14. (Reports by Government Analysts)
Section 14 of the E.P. Act 1986 had earlier provided for any document purporting to be a report signed by a Government Analyst to be admissible as evidence of facts therein in any proceeding under the E.P. Act 1986.
The amendment through the Jan Vishwas Act has retained this but introduced two new subsections 14A and 14B.
- Section 14A provides for a penalty which shall not be less than one lakh Rupees but which can extend to 15 Lakh rupees for each contravention on any person operating any industry, operation or process and discharging beyond the prescribed standards as in Section 7 of E.P. Act 1986 and also for handling Hazardous substances in contravention of prescribed procedures and not complying with prescribed safeguards. Continued contravention will invite a penalty of Rs. 50000 for every day of continued contravention.
- Section 14(B) prescribes for a penalty of Rs. 10000 extendable to Rs. 5 Lakhs for every contravention (Additional penalty of 10,000 Rs. per day) if the person operating any Industry or process does not assist in a duly authorised inspection or obstructs or prevents an authorised person from inspecting (Section 10) or not informing the competent authorities of the occurrence of accidental discharges or apprehended discharges beyond the prescribed standards and not taking preventive or mitigating measures or rendering assistance to prescribed authorities in the matter as provided in section 9 of the E.P. Act 1986. The authorities, on receipt of information either through the industry, operation or process or otherwise, have also been entrusted the responsibility through Section 9 of the E.P.Act 1986 to take remedial measures to prevent or mitigate the environmental pollution and recover expenses with interest as arrears of land revenue. I would feel that the authorities have a big responsibility and need to be very proactive on this account as the penalties as above apply to any person who contravenes the provisions and is likely to include them also on default.
The penalties as above (14B) would also apply to contravention of the procedures prescribed for sampling as in section 11 of the E.P. Act. In this case also, it has to be better understood if the penalties would apply on the concerned authority also if the samples are not taken as per prescribed procedures.
- Amendment to Section 15 to 17
Section 15 to 17 of the E.P. Act 1986 dealing with Penalties and Offences by Companies and Government Departments have been substituted by a fresh section 15
- Section 15, as added, prescribes for a Penalty of Rs. 10000 extendable to Rs. 15 Lakhs with an additional penalty of Rs. 10000 per day for continuing offences against provisions of the Act where no penalty has otherwise been provided in the Act.
- Section 15A as introduced through the Jan Vishwas Act now removes the provision of imprisonment (up to five year) for contravention of any of the provisions of the E.P. Act or any rules or directions issued under the E.P. Act 1986. (as earlier prescribed under Section 15) and now prescribes a penalty not less than Rs. One lakh but which may extend to Rs. 15 Lakhs for contravening any of the provisions of the act by any company. Continued contravention is liable to be penalised at Rs. 1 Lakh for every day the contravention continues.
- The newly introduced Section 15B provides for penalties on offences by Government Departments and makes the Head of Department liable to penalty equal to one month of his basic salary and also provides that he would not be liable if he proves that the contravention was committed without his knowledge or instruction or that he exercised due diligence to prevent such contravention. Similar provisions have been made for officers other than the Head of department. Liability for contravention shall not be established if the officer proves that he exercised all due diligence to avoid such contravention.
- Section 15 (C) as introduced through the Jan Vishwas Act 2023, provides for an adjudicating officer to be appointed by the Central Government and not below the rank of Joint Secretary to the Government of India or a Secretary to the State Government, for the purposes of holding an enquiry and impose penalty in the matter, as may be prescribed. The Central Government may appoint as many adjudicating officers as may be prescribed, required.
- Rule 15 (D) as introduced in 2024, provides for an appeal to be preferred at the NGT against any order passed by the Adjudicating Officer and for such appeals to be filed within 60 days of the receipt of the order passed by the Adjudicating Officer. The appeal would only be entertained if at least 10% of the penalty imposed by the adjudicating officer is deposited.
- The Section 15 (E) provides that the penalty shall be credited to the Environmental Protection fund established under Section 16.
- Section 15 (F) provides that if the penalty (initial or additional) is not paid within 90 days, the person found guilty would be liable for imprisonment which may extend to three years or with fine which may extend to twice the amount of the penalty or with both. Every person of the company, who at the time the offence was committed, was responsible to the company for conduct of business shall be deemed to be deemed to be guilty and liable to be proceeded against unless he proves that the offence was committed without his knowledge or he exercised due diligence in the matter. Where it is proved that other officers have connived or consented to the offence or have neglected their responsibilities, such officers or others concerned shall be guilty of the offence and liable to be proceeded against.
- Section 16 in the E.P. Act, 1986 which earlier made a reference to offences by Companies has been replaced by a new Section 16 relating to the creation of an Environment Protection Fund for the purpose of crediting the penalties imposed under the E.P. Act. It also provides that the Fund should be spent for promotion of awareness, education, and research for the protection of environment, for meeting the expenses for achieving the purposes of this E.P. Act and the Air Act and for such other purposes as may be prescribed. The amended act also provides a 75% transfer of funds to the State Governments or the Union Territory Administrations which has created the funds and the system for audit and reporting. The Water Act has been separately amended in 2024 but it needs to be understood as to how the E.P. fund could be utilised to fulfil the objectives of the Water Act under stipulations in the amendments under the Jan Vishwas Act 2023.
- Section 17 of the E.P. Act of 1986 which deals with offences by Govt. Departments has been omitted under these amendments.
- Amendment to Section 24
- Section 24 of the E.P. Act 1986, under subsection 1, which related to the effect of other laws had provided that the provisions of the E.P. Act 1986 and the rules and orders therein shall have effect, notwithstanding anything inconsistent therewith contained in any other enactment other than this Act. The same section 24 in subsection 2 made a provision that if an offence is punishable under the E.P. Act 1986 and also under any other act then the offender found guilty shall be liable to be punished under the other Act and not under the E.P. Act 1986.
Section 24 has been amended through this Jan Vishwas Act of 2023 and now, while section 24(i) has been retained in sprit, Section 24(ii) and its reference in Section 24(i) has been deleted and to my opinion, the penalties now, would be as in the E.P. Act 1986 and that the E.P. Act of 1986 and rules and orders mentioned therein shall have effect, not withstanding, anything inconsistent therewith contained in any other enactment other than the E.P. Act 1986.
- Amendment to Section 25
- Section 25 of the E.P. Rules relate to the Power of the Central Government to make rules for carrying out the purposes of the Act. The amendment of 2023 through the Jan Vishwas Act, 2023 adds new provisions as follows after section 25(g).
- Power to makes rules regarding the manner of enquiry or imposing of penalty by the adjudicating officer and other factors for determining the quantum of penalty. (25g.a)
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- Power to make rules for administering the provisions as prescribed regarding the Environment Protection fund under section 16 sub sections 2,3, 4, 16A.i and 16B (ga to gf).
Also See:
- Amendments to the Air (Prevention and Control of Pollution) Act 1981 made through the Jan Vishwas (Amendment of Provisions) Act, 2023
- Salient features of The Water (Prevention and Control of Pollution) Amendment Act, 2024
- The Water (Prevention and Control of Pollution) Act, 1974
- Need for guidelines on appropriate Appellate Authorities in case a combined order is issued for closure and other directions under the Water and Air Acts
- The Air (Prevention and Control of Pollution) Act 1981