When Development Dilutes Deterrence: Rethinking Decriminalization Of Environmental Laws In India

Anup Koushik Karavadi and Kanishk Tiwari

Introduction

The Brundtland Commission described sustainable development as a model of progress that safeguards the needs of future generations while addressing those of the present.¹ This conception was never intended to become a pretext for developing economies to deplete ecological resources in pursuit of economic expansion. In India, the recent enactment of the Jan Vishwas (Amendment of Provisions) Act has ignited considerable debate for precisely this reason.² Although framed as an instrument of trust based governance and ease of doing business, the statute reduces criminal penalties across forty two central laws into monetary fines. Critics argue that such decriminalization may suit large corporate entities far more than the environment or the general public, whose long term health outcomes are directly linked to ecological integrity.

The Statement of Objects and Reasons for the Jan Vishwas Bill emphasized the need to encourage entrepreneurship by limiting the fear of imprisonment.³ Yet the environment remains a uniquely vulnerable public good. When violations carry only financial consequences, especially modest penalties relative to industrial profits, the deterrent value of the law collapses. An environmental regulatory framework that favours efficiency over accountability risks shifting the normative balance from protection to permissiveness, reducing environmental harms to manageable costs rather than societal injuries demanding punishment.

Constitutional and Jurisprudential Foundations of Environmental Protection

Indian environmental jurisprudence has developed through a rights based and eco centric lens. Beginning with the Stockholm Conference and later the Rio Earth Summit, Indian courts imported key international principles into domestic law, including Polluter Pays, the Precautionary Approach, and Sustainable Development.⁴ Through expansive interpretation of Article 21 of the Constitution, the Supreme Court recognized that the right to life includes the right to clean air, safe drinking water, and protection against the adverse impacts of climate change.⁵

Once environmental protection was absorbed into fundamental rights, the legal system acknowledged that environmental degradation deserved punitive remedies that transcended compensatory approaches. Criminal liability served both deterrent and expressive functions. It unequivocally signalled that environmental harm is an offence against society and future generations rather than a mere procedural irregularity.⁶ Environmental statutes such as the Environment (Protection) Act, the Water Act, and the Air Act embedded this philosophy by prescribing imprisonment for serious violations.⁷

Corporate Liability and the Utility of Criminal Sanctions

Earlier debates concerned the feasibility of imposing imprisonment on corporations. Scholars questioned whether companies, as artificial persons, could meaningfully bear criminal responsibility. Indian law addressed this difficulty by assigning liability to individuals in positions of control. Officers in default and responsible directors could be prosecuted when the company committed offences under environmental statutes.⁸ This framework ensured that criminal provisions were not symbolic but enforceable.

The Jan Vishwas Act reverses this architecture. By substituting imprisonment with monetary penalties, the statute inadvertently transforms environmental harms into calculable expenses.⁹ For large industrial polluters, fines restricted by statutory caps and administrative discretion often fail to exceed the economic benefits derived from non-compliance. This mismatch between profit margins and penalty amounts creates a moral hazard, where violations become rational business decisions rather than unlawful acts demanding accountability. The assumption that trust alone can generate compliance ignores the chronic resource constraints of regulatory bodies such as state pollution control boards, which face acute understaffing and limited monitoring capacity.¹⁰

Decriminalization, Inspector Raj, and the Risk of Overcorrection

Supporters of the reforms claim that decriminalization will curtail inspector raj, reduce corruption, and prevent arbitrary prosecutions that have historically discouraged investment.¹¹ These criticisms of the criminal framework are not without merit. Yet the solution cannot be a uniform elimination of imprisonment across all categories of offences.

Environmental violations vary widely in nature and consequence. Some involve minor lapses in reporting or compliance documentation. Others involve intentional discharge of hazardous effluents, falsification of environmental impact assessments, or repeated polluting activities causing long term ecological and public health damage. A nuanced reform model would distinguish between inadvertent and intentional violations, and between low impact and high impact harm.¹² The Jan Vishwas Act, by treating all categories similarly, disregards this essential hierarchy of culpability.

Studies in regulatory theory caution that decriminalization without enhanced administrative capacity often leads to under enforcement. In such situations, regulated industries interpret leniency as institutional weakness. Newer scholarship on environmental governance in India indicates that civil penalty regimes work only when supported by robust monitoring, transparent inspection systems, and independent oversight of regulatory authorities.¹³ These systems are still developing and remain unevenly implemented across states.

Comparative Approaches and Their Limits

Countries like the United States and the United Kingdom employ a graded enforcement model that distinguishes between technical non-compliance and serious environmental crimes.¹⁴ The U.S. Environmental Protection Agency, for instance, reserves criminal sanctions for violations involving knowing endangerment, falsification, or large scale pollution. Administrative penalties are used for less serious matters, but only after rigorous inspection and data collection. Similarly, the U.K. Environment Agency uses structured sanctions that escalate based on culpability and harm.

While such models offer valuable insights, wholesale transplantation into the Indian context is impractical without adapting to local administrative realities. India faces a distinct environmental crisis marked by high pollution levels, limited compliance culture, political interference in regulatory processes, and severe capacity deficits within monitoring agencies.¹⁵ Without first strengthening regulatory institutions, the removal of criminal sanctions risks accelerating ecological decline.

International scholarship on environmental federalism also highlights the importance of deterrent penalties in jurisdictions where environmental regulation relies heavily on self-reporting by industries.¹⁶ In countries with weak institutional capacity, criminal liability remains vital to preserving compliance incentives.

Democratic Participation, Legal Personhood, and Alternative Frameworks

A sustainable approach must incorporate broader democratic participation in environmental governance. Corporate lobbies often have disproportionate influence in policy discussions, while communities affected by pollution are underrepresented.¹⁷ Participatory decision making processes, community based monitoring, and public access to environmental data can improve accountability.

Indian courts have shown willingness to use innovative tools for environmental protection, including granting legal personhood to rivers and other natural entities. Such developments reflect a judicial recognition that ecological harm affects not only humans but also ecosystems that possess intrinsic value. Although legal personhood remains contested, it demonstrates openness to new frameworks that expand standing and create stronger duties of care.

Expanding these approaches through legislative deliberation could ensure that environmental protection moves beyond punitive models and incorporates ecological justice perspectives. This, however, can only complement, not replace, effective deterrence mechanisms.

Reasserting the Role of Criminal Law in Environmental Governance

Decriminalization should not become a proxy for deregulation. The trust based governance philosophy assumes high baseline compliance, which is inconsistent with India’s industrial landscape. In sectors where violations are frequent and regulators are resource constrained, removing the threat of imprisonment dilutes the deterrent effect of the law.¹⁸

Effective environmental enforcement requires a combination of civil and criminal measures that respond to differing levels of harm and culpability. Trust must be built through consistent compliance, transparent regulation, and credible enforcement rather than through leniency.¹⁹ A hybrid model that retains imprisonment for serious or repeat violations while simplifying procedures for minor offences would strike a more appropriate balance.

Conclusion

India stands at a critical juncture where the pursuit of development must be reconciled with ecological survival. Reducing environmental violations to financial liabilities risks normalizing harm in an era when the country faces alarming levels of pollution, declining biodiversity, and heightened vulnerability to climate change. The removal of criminal sanctions without adequate institutional strengthening may leave regulatory agencies ill equipped to prevent or respond to violations.

A coherent and just approach to environmental governance must preserve deterrence while improving administrative efficiency. Environmental protection and economic progress need not exist in tension. They are complementary duties that require thoughtful calibration of incentives, penalties, and democratic oversight. India’s developmental trajectory will only be sustainable if grounded in a regulatory framework that safeguards the environment.

References

1. World Commission on Environment and Development, Our Common Future ((Oxford Univ. Press 1987).
2. Jan Vishwas (Amendment of Provisions) Act, No. 18 of 2023, § 20, INDIA CODE (2023); Report of the Joint Committee on the Jan Vishwas (Amendment of Provisions) Bill, 2022 (Parliamentary Joint Committee report / PRS copy).
3. Statement of Objects and Reasons, Jan Vishwas (Amendment of Provisions) Bill, Bill No. 134 of 2022, Lok Sabha (India).
4. U.N. Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1 (June 16, 1972); U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I) (1992).
5. Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 S.C.C. 647; M.C. Mehta v. Union of India, (1987) 1 S.C.C. 395; Indian Council for Enviro Legal Action v. Union of India, 1996 SCC (3) 212; Subhash Kumar v. State of Bihar; M K Ranjitsinh. v. Union of India, Writ Petition (Civil) No. 838 of 2019.
6. Shyam Divan & Armin Rosencranz, Environmental Law and Policy in India: Cases and Materials 87–90 (3rd ed., Oxford Univ. Press 2022).
7. Environment (Protection) Act, No. 29 of 1986, § 15, INDIA CODE (1986); Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 37, INDIA CODE (1981); Water (Prevention and Control of Pollution) Act, No. 6 of 1974, § 41, INDIA CODE (1974).
8. Environment (Protection) Act, § 16 (Offences by Companies); see also Vikrant Yadav, Corporate Criminal Liability: A Comparative Analysis of Judicial Trend, 1 Int’l J. Applied Res. 756 (2015), https://ssrn.com/abstract=3656081 or http://dx.doi.org/10.2139/ssrn.3656081.
9. Jan Vishwas Act, supra note 2; NITI Aayog, Regulatory Reforms for Ease of Doing Business (2022).
10. Central Pollution Control Board, Annual Report 2021–22, at 45 (2023).
11. Press Release, Press Information Bureau, Ministry of Commerce & Industry, Cabinet Approval for Jan Vishwas (Amendment of Provisions) Bill (Dec. 2022).
12. Joint Committee Report, supra note 2.
13. S. Veeramani & A. Bose, Regulatory Compliance and Enforcement in Indian Environmental Law, 14 NUJS L. Rev. 201 (2022).
14. U.S. Environmental Protection Agency, Environmental Enforcement Annual Results 2022; U.K. Environment Agency, Enforcement and Sanctions Policy (2023)
15. NLSIU Centre for Environmental Law, Education, Research & Advocacy (CEERA), Quasi-Decriminalisation of Environmental Offences in India: A Critical Appraisal (2023).
16. Wallace E. Oates, Environmental Federalism, Resources for the Future Discussion Paper 19 (2001).
17. Mohd. Salim v. State of Uttarakhand, Writ Petition (PIL) No. 126 of 2014 (Uttarakhand High Court).
18. The India Forum, Jan Vishwas Act, 2023: Symbol of a Broken Legislative Process (Aug. 2023).
19. M.C. Mehta v. Union of India, (2004) 12 S.C.C. 118 (India).