CRIMINAL SANCTIONS UNDER THE WATER ACT, 1974 WITH SPECIAL REFERENCE TO ECLIPSE OF THE OTHER PROVISIONS UNDER THE CRIMINAL JURISPRUDENCE
– Dr. K.J.Thaker
The theme of this article would permit me to refer to the recent message “Pavan Guru, Pani Pita, Mata Dharat Mahat”(air the Guru, water the father and earth the mother) which if the people had followed sincerely, the Country would not have faced the terrible environment crisis which is being witnessed today.
The Brihadaranyaka injunction reminds one of the awesome powers of specialjurisdiction in India of authorities that have no bounds but self-imposed ones. Brihadaranyaka Upanishad declares that the ruler too is obliged to follow dharma on pain of sanction for infraction. Dharma was all encompassing from natural justice to equality to considerate treatment of all mankind and exhortation, to co-determination for betterment of humankind. Betterment of each individual is the raison d’etre for later societies to identify and recognize human rights as basic and inherent in humans vis a vis development.
IMPORTANCE OF WATER TO SOCIETY
Water plays a very significant role in the balancing of our environment. There are two kinds of water reserves (a) Sweet Water (b) Salty Water. Sweet Water is essential for sustenance of all forms of life on this planet including of course human life. 70% of earth is covered by water. As is evident from history all kinds of living beings were found on the beds of rivers. The old civilizations developed alongside water reservoirs such as rivers. Water is also called `ambrotia’ i.e. Nectar. The old scriptures considered water as life line of all living things. Water is life itself as it is inconceivable to imagine `life’ if there is no water: Equation is very simple – no water; no life.
Now a days after the advent of transportation and ships, they have become source of pollution in water and rivers and Sea. The legal regime after 1974 is specific however as would be seen there were laws to curb pollution of water even prior to the 1974 Act which are recognised and are even good for present times. The study determines and shows the effectiveness of criminal sanctions in 21st century. Environmental jurisprudence has now taken a front seat and is playing important role in the economy of this country. The industry leaders during this pandemic would try to bounce back and would try to give a go by to the environmental norms fixed by the courts and, therefore, this Article assumes importance.
IMPORTANCE OF WATER TO LIVING BEINGS
This is not an investigative Article or research paper. The unexplored area which is sought to be focussed and answered is whether the provisions of tort, I.P.C. / Cr.P.C. can still be invoked or they are eclipsed after coming into force of the Water Act.1974 .The article also focuses on a new sort of punishment for these offence which would be deterrent but beneficial to stop the misuse of water. The legal regime after 1974 is specific however as would be seen there were laws to curb pollution of water even prior to the 1974 Act which are recognised and are even good for present times.
These are regulated by two processes namely the administrative process envisioned in Sections 33A along with Sections 25 & 26 of the Act which deal with regulatory and prohibitory orders. The Pollution Control Board under the Water Act would also have the power of administering the same industrial concern. The second is dealt in chapter vii namely criminal dealing with penalties and sanctions.
The study of enforcement of criminal sanctions under environmental jurisprudence acquires significance as unlike the other criminal actions, these are special legislations. The study so as to make manageable from the vast span of various subjects under the environmental jurisprudence, the author has chosen Water Act of 1974 herein after refereed as the Actandin that also has focused on the problem of eclipse vis a vis other legislations sanctions under Chapter VII of the Act without delving in deep on the other aspects.
The legal proposition which will be investigated and answered is whether other provisions embodied in other legislations would also govern and would be or would not be applicable to sanctions under the Act. The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as `Water Act’) was enacted by the parliament though applying to states which have concurred to passing of the said enactment. One additional regulatory legislation by way of Environment (Protection) Act had to be legislated in the year 1986. These two legislations regulate the activities of the person and industries qua water, through administrative process subjecting industries to certain norms to be fixed by Pollution Control Boards both Central and State. The industries which are causing pollution require to be regulated under these Acts.
Industries are brought within the frame work of these legislations over and above the criminal liabilities under Section 133 of Criminal Procedure Code, 1973 and the provisions of Indian Penal Code in its chapter X Section 268 which relates to theory of negligence and nuisance and other legislation which are in force also as far as Municipalities Act of each state which also regulates to certain extent the water problem of people and regulates the activities of the polluters, industrialists and persons staying within the municipal area.
CRIMINAL PROCEDURE CODE, 1973
The Criminal Procedure Code 1973 has provisions to curb pollution of water. Chapter 10 relate to maintenance of public order and tranquillity. We are concerned with Sections 133 to 148.and 197
The Apex Court as early as 1980 Municipal Council Ratlam v. Vardichand; AIR 80 SC 1622 “The decision is well known for showing how powerful is the ambit of Section 133 which has proved to be the torch bearer in matters concerning Water Pollution and duties of Municipalities towards its subjects.”
Chapter VII of the Water Act1974 prescribes penalties and procedures, which are embodied in Sections 41 to 50. The Author would like to concentrate on the decisions which have either followed U.P. Pollution Control Board Vs. Modi Distillery. The judgment of Apex Court in U.P. Pollution Control Board Vs Mohan Meakins “The reason for penning is dynaming of the litigations is rampant.”
Enforcement of criminal liability under Water Act
The nature of crimes under Water Act, Elements to be proved for environmental crime, enforcement of criminal liability, new suggestions, eclipse under Section 133 of Cr.P.C., vis-a-vis special legislation. The procedure under section 133 is fast efficacious.
Non Application of Doctrine of Eclipse to Provisions of Criminal
Procedure Code Vis A Vis Water Act 1974:
The main question which arose way back in 2003 as to whether after introduction of Act there was implied repeal of applicability of section 133 of the Code ?The supreme court answered in favour of non eclipse . The reason for discussing this topic has twin purpose namely post COVID as the health hazards will have to be answered instead of punishing the offender resort to this alternative non cumbersome non decennial procedures can be adopted as the aims and objects of this legislation are different but end result and purpose is to restrain the wrongdoer. We need to alleviate nuisance foul play and pollution which act in different domains.
The doctrine of Eclipse would it apply after coming of the Water Act was a question as to. whether the provisions of Section 133 of the Criminal Procedure Code would stand obliterated or deleted as far as it concerned nuisance of pollution. The Provision would not become nugatory. The provision of Section 133 of the Criminal Procedure Code renders summary remedy so that specific nuisance or obstructions may be removed.
Section 133 can be invoked to stop potential, private nuisance turning into public nuisance, if not curbed at its inception. Normally as per interpretation of the statute the subsequent provision which is the same general subject matter dealing more minutely would be legislated with a view to repeal the general provision.
However, the repeal has to be of those legislations which reasonably cannot co-exist and cannot be allowed to operate and are repugnant to each other. If it is a special enactment which covers a particular area would have a clause overriding the general enactment. The provisions of Section 133 of the Cr.P.C. when examined on the aforesaid touch stone would show that (a) that it is not repugnant (b) there is no apparent conflict causing inconvenience or confusing consequence. Section 33 of the Act serves similar purpose as is in Section 133 of the Code but though it is the board that has the power and function to initiate proceedings. The Apex Court would have struck down the order of the District Magistrate who passed the order under Section 133 (1) of the Code issuing certain directions.
The Water Act serves the purpose of permitting board to have the powers to come to the Court, seek prosecution, and seek closure. It was only after the Amendment Act of 1988 that the powers started being vested, directing closure but till then only competent authority who could exercise the powers of certain regulation for curbing nuisance was the Sub-Divisional Magistrate who could exercise the power under Section 133.
The provision of Cr.P.C. in 141 is such which would grant the authority to fix time to perform the act as ordered by the District Magistrate. The provisions of Section 133 when compared to the provision of Chapter V of the Water Act, it would be very clear that the Sections are mutually exclusive and they can exist together. Neither the Water Act and nor the provision of Air Act have impliedly overruled the applicability of provision of Section 133 of the Cr.P.C.
The necessary questions to be asked for exercising power under both the legislations are: (1) Whether there is direct conflict between the two provisions. (2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law. (3) Whether the two laws occupy the same field. As would be seen after appreciating the provisions of Criminal Procedure Code, 1973 it can be seen that applicability of Section 133 and imminence of nuisance is necessary to attract operation of section 133 and Section 144. However, there are certain limitations which will have to be borne in mind regarding the limited application of Section 133 of Criminal Procedure Code which can be summarised as under:
(a) Relevance of duration of nuisance.
(b) Public Place
(c) Necessity to fix time for removal of nuisance
(d) No power to reject
Thus it can be said that the Water Act does not eclipse provisions of Cr.P.C The decision of the Apex Court holding field but not used is taken for analysis namely State of Madhya Pradesh vs. Kedia Leather and Liquor Ltd. wherein the Apex court has laid principles time has now come for invoking this section or else there would be challenge to issuance of summons then file discharge then challenge then the stage for appearance as is evident in the recent decision of Allahabad High court in case titled M/s Dwarka Sugar Works Vs. State of U.P. and another, The supreme court has recently held that no permission to prosecute under section of the Act is necessary. reference to deeming fiction of guilt of Head of department under section 48 of 1974 Act prior section not necessary to under section 197 of code rebuttable presumption of deemed guilt of the person.
Alternative to Jail Term
The area, which the author wishes to delve on is whether instead of punishing and sending a person to jail for the environmental offence qua water under the Water Act; and whether principles propounded till date can be substituted so that the efficacy of criminal sanctions are not thwarted by filing petitions what are known as quashment petitions. The reason for this is if we go by the statistical data criminal sanctions for environmental violations has till date proved ineffective there are very few convictions recorded.
The applicability of the principle of strict liability be invoked simultaneously so that the misuse or use can be regulated as in the case of Vohra Sadikbhai Rajakbhai Vs State Of Gujarat and instead of punishing the law of tort be invoked in the alternative levy of sewerage cess on the polluting industry can be levied as done in Vasant Chemicals Vs Hyderabad Metro Metropolitan Water Supply &Sewerage Board. The polluting concerns could go on polluting and then plead before the Court, invoking the principle of non committing of offence but in some non heinous crimes which may be due to technical defects the courts instead of sending to jail introduce the theory of nolo condore and that of polluters pays as is done in the case of Kamalnath by the Apex Court.
The object of the Act can be seen to be marred .This author has made in depth detail study about water and its effects on human beings. Unpotable water has caused various diseases to the living beings on the globe. The legislations enacted and applied throughout the country The overall analysis of the decisions under criminal and writ jurisdiction goes to show that the criminal sanctions have failed to bring out required result for various reasons.
The doctrine of non eclipse as discussed herein above has to be adopted by the Trial Courts under the provisions of Criminal Procedure Code. In a recent decision of the Apex Court which is analysed. The criminal sanctions, if have to be decided on technical grounds, the yeomen work in writ jurisdiction will have no meaning. The reason for alternative mode of punishment is suggested so that pendency before courts comes down challenge is less to summoning orders petitions for quashment would be less.