I recently had an interaction with an environmentalist relating to my research on environmental crime. Upon hearing the term ‘environmental crime’, he wondered aloud if in India our environmental jurisprudence prefers to use ‘environmental violation’ as opposed to ‘environmental crime.’ No doubt there is much truth to this. A textual search made on the judgments of the Supreme Court of India and the High Court of Madras, for example, throws up the finding that there are very few judgments that mention environmental crime. This conversation and my subsequent research kindled my cognitive curiosity of returning to the fundamentals to understand the difference between an environmental crime and environmental violation.
What qualifies as a crime?
We all know that most things that intersect with human behaviour must be defined either through laws or norms or shared values and learnings. Unlike norms, social values etc, laws are expressed in just written words. Those words therefore need to be used with precision, as without it, it becomes impossible to enforce the law. It is therefore clear that defining legal terms like ‘crime’ accurately becomes an essential first step in jurisprudence. However, it is very difficult to give a correct and precise definition of crime. Acclaimed legal scholar Glanville Williams, admits the impossibility of having a workable content-based definition of a crime. Further, he points out that the definition of crime is one of the thorny intellectual problems of law. Yet another legal scholar, JW Cecil Turner, conceded that ‘the definition of crime has always been regarded as a matter of great difficulty’ and ‘the truth appears to be that no satisfactory definition has yet been achieved and that it is, indeed, not possible to discover a legal definition of crime.’ Such a ‘difficulty’ in defining arises due to the fluctuating nature of ‘crime’, an outcome of the equally dynamic ‘criminal and penal policy’ of a state. Several social and political factors, individually or collectively, play a critical role in the composition of the criminal policy of a state. Such policies vary according to geography, social values, cultures and beliefs, and the ideology of ruling social-political power. Therefore, a crime is defined broadly as an action or omission which constitutes an offence and is punishable by law.
The essential elements of a crime
Despite the difficulty with defining crime, there is a universal acceptance of essential elements of a crime. This includes a direct act: to be voluntary; to be prohibited by law; and should result in harm. For an act to be qualified as voluntary, there should be a criminal intent or guilty mind, which is mens rea. Such a criminal intent should result in a criminal act or guilty act, which is actus reus. Therefore, the fundamental principle of criminal liability is that there must be a wrongful intention—mens rea, combined with a wrongful act—actus reus. Therefore, an act or omission qualifies to be a crime if it is capable of being distinctly proved of inflicting definite harm on a specific person or the community at large.
What qualifies as a violation?
On the other hand, a violation is an action that breaks or acts against something, especially a law, agreement, principle, or something that should be treated with respect. Therefore, violations are broadly termed as just infractions rather than serious offences. For example, to construct any building in Tamil Nadu, the provisions prescribed under the Tamil Nadu Town and Country Planning Act, 1971 should be complied with. If any individual or organisation fails to comply with the provisions, it qualifies to be an act of violation. To a greater extent, the violators will be imposed with monetary fines rather than imprisonment. The state imposes just monetary fines because the act of violation is less severe and does not directly harm any specific person or the community like a crime does. Therefore, with the above premises on crime and violation, it can be concluded that ‘all crimes are violations, but not all violations are crimes.’
The problem of using the terms ‘environmental crime’ and ‘environmental violation’ synonymously
If we go by the essential elements of crime, any direct voluntary act by a person or organisation (with a guilty mind and action), prohibited by law, and results in environmental harm qualifies to be an environmental crime. Additionally, simply put, any harmful act that contravenes any provisions of criminal or special or local law intended to protect the environment by prescribing a punishment in any form, whether imprisonment or fine or both, qualifies to be an environmental crime. For example, any person or organisation commits an environmental crime when their behaviour contravenes: sections such as 277 (fouling water of public springs or reservoirs) and 278 (making atmosphere noxious to health) under the Indian Penal Code (IPC), 1860; the Wild Life (Protection) Act, 1972; the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; the Environment (Protection) Act, 1986.
Here a question may arise then as to what constitutes an environmental violation? Environmental violations are less serious and infract upon the procedural aspects of any environmental protection laws and rules thereunder. For example, Environmental Impact Assessment (EIA) is notified under the Environment (Protection) Act, 1986 as a precursor to identifying the anticipated environmental, social and economic impacts of a project. Therefore, EIA is mandatory for the expansion or modernisation of any activity or for setting up new projects. If a company fails to carry out EIA, it does not amount to the commission of an environmental crime, instead, it is an environmental violation. This is because the act of omission of carrying out EIA does not directly harm the environment (though indirectly, there is no doubt it does). Likewise, any such procedural norms or infractions not causing any direct harm to the environment are to be construed as an environmental violation. As per the harm principle, legally, it is challenging to criminalise any wrongdoing that occurs without causing any direct harm.
Also, the journey of a direct action from violation to crime is not based on any solid, unchanging body of doctrine but is a response to what society deems acceptable. This is mainly based on the seriousness of harm. Once society recognises the seriousness of a particular human behaviour, that will be discouraged through the enactment of a new law or making amendments to the existing law. In essence, whether we see any direct act by any individual or organisation that affects the environment and its ecosystem as serious or non-serious will judge whether it is a crime or a violation.
As a society, we and our environmental jurisprudence prefer to view environmental harm as a mere violation rather than a crime because we fail to recognise the impact of harm done to the environment and its effect on communities at large. Unlike with a burglary, or a murder where we immediately recognise the signs of violence and aggression, we fail to acknowledge the same when it is inflicted on the environment. We also have little awareness that we ourselves are the victims of environmental crimes. That we therefore prefer to use the terms ‘environmental violation’ over ‘environmental crime’ is a reflection of society’s shortsightedness when it comes to protecting and recognising harm to the ecosystem that keeps us alive and sustains us. Amid rampant environmental harm, it is high time we mainstream the dialogue on environmental crime.