Page 29 - Discussion Paper - Restructuring the Environmental Governance Architecture for India
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DISCUSSION PAPER
c) Review the body of existing legislation in order be promoted, together with necessary capacity-
to develop synergies among relevant statutes building, under all action plans.
and regulations, eliminate obsolescence, and b) In order to realize greater decentralization,
amalgamate provisions with similar objectives, in State-level agencies may be given greater
line with the National Environment Policy. Further, responsibility for environmental regulation
encourage and facilitate review of legislation at and management. Such empowerment must,
the level of State and Local Governments with however, be premised on increased transparency,
a view to ensuring their consistency with this accountability, scientific and managerial capacity,
policy. and independence in regulatory decision making
and enforcement action. Accordingly, States
d) Take steps to adopt and institutionalize would be encouraged to set up Environment
techniques for environmental assessment of Protection Authorities on this basis.
sector policies and programmes to address any c) Mechanisms and processes would be set up
potential adverse impacts, and enhance potential to identify entities of “Incomparable Value” in
favourable impacts. different regions. It would be ensured that all
regulatory mechanisms are legally empowered
e) Ensure accountability of the concerned levels of to follow the principles of good governance.
Government (Centre, State, Local) in undertaking
the necessary legislative changes in a defined (ii) Framework for Legal Action:
timeframe, with due regard to the Objectives The present approach to dealing with environmentally
and Principles of National Environment Policy, unacceptable behaviour in India has been largely
in particular, ensuring the livelihoods and well- based on criminal processes and sanctions. Although
being of the poor by ensuring improved access criminal sanctions, if successful, may create a deterrent
to the necessary environmental resources. impact, in reality they are rarely fruitful for a number of
reasons. On the other hand, giving unfettered powers
5.1.2 Process Related Reforms: to enforcement authorities may lead to rent-seeking.
(i) Approach:
TherecommendationsoftheCommitteeonReforming Civil law, on the other hand, offers flexibility,
Investment Approval and Implementation Procedures and its sanctions can be more effectively tailored to
(The Govindarajan Committee) which identified particular situations. The evidentiary burdens of civil
delays in environment and forest clearances as the proceedings are less daunting than those of criminal
largest source of delays in development projects will law. It also allows for preventive policing through
be followed for reviewing the existing procedures for orders and injunctions.
granting clearances and other approvals under various
statutes and rules. These include the Environment Accordingly, a judicious mix of civil and criminal
Protection Act, Forest Conservation Act, the Water processes and sanctions will be employed in the legal
(Prevention and Control of Pollution) Act, the Air regime for enforcement, through a review of the
(Prevention and Control of Pollution) Act, the Wild Life existing legislation. Civil liability law, civil sanctions,
(Protection) Act, and Genetic Engineering Approval and processes, would govern most situations of non-
Committee (GEAC) Rules under the Environment compliance. Criminal processes and sanctions would
Protection Act. The objective is to reduce delays and be available for serious, and potentially provable,
levels of decision-making, realize decentralization infringements of environmental law, and their initiation
of environmental functions, and ensure greater would be vested in responsible authorities. Recourse
transparency and accountability. may also be had to the relevant provisions in the Indian
Penal Code and the Criminal Procedure Code. Both
In addition, the following actions will be taken: civil and criminal penalties would be graded according
a) In order to ensure faster decision making with to the severity of the infraction.
greater transparency, and access to information,
use of information technology based tools will
OCTOBER 2017 29
c) Review the body of existing legislation in order be promoted, together with necessary capacity-
to develop synergies among relevant statutes building, under all action plans.
and regulations, eliminate obsolescence, and b) In order to realize greater decentralization,
amalgamate provisions with similar objectives, in State-level agencies may be given greater
line with the National Environment Policy. Further, responsibility for environmental regulation
encourage and facilitate review of legislation at and management. Such empowerment must,
the level of State and Local Governments with however, be premised on increased transparency,
a view to ensuring their consistency with this accountability, scientific and managerial capacity,
policy. and independence in regulatory decision making
and enforcement action. Accordingly, States
d) Take steps to adopt and institutionalize would be encouraged to set up Environment
techniques for environmental assessment of Protection Authorities on this basis.
sector policies and programmes to address any c) Mechanisms and processes would be set up
potential adverse impacts, and enhance potential to identify entities of “Incomparable Value” in
favourable impacts. different regions. It would be ensured that all
regulatory mechanisms are legally empowered
e) Ensure accountability of the concerned levels of to follow the principles of good governance.
Government (Centre, State, Local) in undertaking
the necessary legislative changes in a defined (ii) Framework for Legal Action:
timeframe, with due regard to the Objectives The present approach to dealing with environmentally
and Principles of National Environment Policy, unacceptable behaviour in India has been largely
in particular, ensuring the livelihoods and well- based on criminal processes and sanctions. Although
being of the poor by ensuring improved access criminal sanctions, if successful, may create a deterrent
to the necessary environmental resources. impact, in reality they are rarely fruitful for a number of
reasons. On the other hand, giving unfettered powers
5.1.2 Process Related Reforms: to enforcement authorities may lead to rent-seeking.
(i) Approach:
TherecommendationsoftheCommitteeonReforming Civil law, on the other hand, offers flexibility,
Investment Approval and Implementation Procedures and its sanctions can be more effectively tailored to
(The Govindarajan Committee) which identified particular situations. The evidentiary burdens of civil
delays in environment and forest clearances as the proceedings are less daunting than those of criminal
largest source of delays in development projects will law. It also allows for preventive policing through
be followed for reviewing the existing procedures for orders and injunctions.
granting clearances and other approvals under various
statutes and rules. These include the Environment Accordingly, a judicious mix of civil and criminal
Protection Act, Forest Conservation Act, the Water processes and sanctions will be employed in the legal
(Prevention and Control of Pollution) Act, the Air regime for enforcement, through a review of the
(Prevention and Control of Pollution) Act, the Wild Life existing legislation. Civil liability law, civil sanctions,
(Protection) Act, and Genetic Engineering Approval and processes, would govern most situations of non-
Committee (GEAC) Rules under the Environment compliance. Criminal processes and sanctions would
Protection Act. The objective is to reduce delays and be available for serious, and potentially provable,
levels of decision-making, realize decentralization infringements of environmental law, and their initiation
of environmental functions, and ensure greater would be vested in responsible authorities. Recourse
transparency and accountability. may also be had to the relevant provisions in the Indian
Penal Code and the Criminal Procedure Code. Both
In addition, the following actions will be taken: civil and criminal penalties would be graded according
a) In order to ensure faster decision making with to the severity of the infraction.
greater transparency, and access to information,
use of information technology based tools will
OCTOBER 2017 29
