By Sehaj Cheema and Kuldeep Garg
When the Supreme Court expressly dubbed pollution a tort in 1997,[i] the pronouncement was perhaps prophetic of India witnessing the contentiousness that the law of torts entails. Amongst the controversies that have ensued in the field of India’s environmental laws, a fundamental one is the blurring of the line between civil and criminal liabilities. The reason that this question assumes increased importance is that the answer to it consequently constricts the powers of National Green Tribunal (NGT), the civil forum for majority of environment-related litigation.
Between Compensating and Punishing
The NGT is in essence, a civil court,[ii] empowered therefore, only to impose liabilities of a civil nature. The NGT itself has conceded to its lack of jurisdiction over cases involving provisions of criminal law.[iii] The distinction between the compensatory nature of civil liabilities and the punitive nature of criminal liabilities is amongst the most fundamental concepts of law, appreciated by the NGT itself.[iv] The NGT’s jurisdiction, therefore, depends on whether the pollution in question is legally viewed as a tort (a civil law concept) or an offense (a criminal law concept). It follows, by necessary consequence, that the NGT cannot validly impose a fine or imprisonment. These sanctions are punitive in nature.
If the idea of pollution as a tort is discounted from the Indian legal system, then the above demarcation becomes simple to follow. However, since reality detracts from the above proposition, the remedies available against pollution venture into the law of torts. The root of the problem lies in the tenuous distinction between the nature of tort and crime. The Nariman Committee, amongst other recommendations to curb mob violence, suggested incorporating the partly punitive nature of tort-based remedies into Indian law. “Tort and criminal law have always shared a deterrent function in relation to wrongdoing”[v]– This statement implies that when an act is viewed through the lens of tort, even the ‘civil’ remedies available against the act can assume a ‘deterrent’ or ‘punitive’ nature, conventionally reserved for criminal punishments.
In the context of anti-pollution laws and NGT’s powers, the aforementioned statement evinces the uncomfortable presence of a question – How far can the civil remedies against pollution assume a punitive form? Answering this question by looking to the extreme ends of possible perspectives is unadvisable. One extreme perspective would advocate strictly restricting the NGT’s powers (equivalent to a Civil Court’s powers) to the compensatory domain, like all other civil liabilities. The other end of the spectrum[vi] would call for erasing, in essence, the line between compensatory and punitive sanctions.
A concept which factors into this fine balance is the invention of ‘punitive damages’, used synonymously with ‘exemplary damages’. Since this remedy partly exits the compensatory realm, caution has to be exercised concerning its outreach into the criminal-law realm, lest the requirement of a fair trial is virtually reduced to a nullity. Thus, the matter, albeit technical, has a bearing upon some of the most fundamental principles of legal operation.
The Case for ‘Civil’ Fines
The idea of a ‘civil fine’ is not entirely a novel concept. Concepts such as ‘administrative penalties’ under Corporate Law are oft-debated. However, considering the special status of the NGT, whose powers have been restricted to the civil realm,[vii] one endorsing the idea of fines might not be able to draw on a similar rationale as is employed by administrative bodies which impose penalties.
The NGT has, at least by appearance, acknowledged the limitation on its remedial powers.[viii] However, the Tribunal has also inconspicuously reached beyond its legal powers. A striking example is presented by the case of Tanaji Balasaheb Gambhire v. Union of India,[ix] where the NGT specifically imposed a ‘fine’ on the Pune Municipal Corporation for apparent collusion between the authorities and polluters. That the judicial members might not have been cognizant of the NGT’s lack of power to impose criminal liabilities is a tenuous defense. The imposition of a fine was a conscious decision of the Tribunal. Furthermore, upon appeal, the Supreme Court specifically affirmed and upheld the NGT’s imposition of a fine.[x] The question whether the NGT even has the legal power to impose a criminal sanction did not come up before the Court.
This precedent sits uneasily with a previous ruling of the Supreme Court in the case of M.C. Mehta v. Kamal Nath.[xi] The case raised a question whether a ‘pollution fine’ imposed by authority was valid. Answering in the negative, the Supreme Court iterated that the sine qua non of criminal punishment is ‘a fair trial by a competent court.’ Given that NGT is not the competent court, and is far from being well-equipped to conduct a trial, the Hon’ble Apex Court seems to have quite patently erred in deciding the appeal in the Tanaji Case, rendering the decision per incuriam.
However, if by a stretch of the imagination, the Court had deliberated the question of whether the NGT is equipped to impose such a fine, the Tribunal would not be without defense. Such quasi-criminal fines under civil law can be justified by the previously-stated concept of punitive damage. Thus, a fine, apparently a criminal sanction, could theoretically be placed within the bounds of civil remedies. The leading authority on the concept of punitive/exemplary damages is the case of Rookes v. Barnard.[xii] While deliberating the nature of such damages, the Court affirmed that a fine may be an ingredient of exemplary damages, and may take on a punitive function. Causation of environmental degradation is amongst the most serious wrongs within Torts, as per contemporary international concerns. The gravity of the problem warrants remedies beyond just the pecuniary equivalent of the damage caused by the polluter.
Deterrence has been accepted as one of the foremost principles in implementing environmental law.[xiii] Deterrent sanctions necessarily require imposing liabilities in addition to the exact value of the damage caused. Such liabilities thereby automatically assume a beyond-compensatory form, one which reeks of punishment without being strictly a ‘criminal’ sanction. Given the NGT’s focus on deterrence, obvious in some of its important orders,[xiv] the liabilities that the ‘civil’ forum imposes are bound to bear semblance with criminal punishment.
The Middle Ground
Thus, the two competing perspectives, regarding the nature of imposable liabilities, have been explicated in the preceding paragraphs. The problem with the lob-sided perspectives clearly lies in the extremity of their logic. The motive of the above deliberation is to appreciate the two lines of legal and logical reasoning so as to demarcate the nature of liabilities that can be imposed under the civil wing of environmental law in India (a task exclusively entrusted to the NGT). The solution to the aforementioned problem of the blurring line between civil and criminal liabilities lies in finding ‘the middle ground’ between the two arguments.
The middle ground would allow the imposition of quasi-criminal liabilities by the NGT, in appropriate situations, while preserving the sanctity of the requirement of a fair trial before criminal punishment. Depending upon the gravity of the actions in question, it might become imperative for the NGT to exceed the compensatory realm in order to hold polluters and colluders to account. However, at the same time, the Tribunal cannot be allowed to override the procedural necessities of criminal adjudication, evolved over time. The middle ground, which could solve the dilemma, lies not in the field of environmental law, but in the law of torts itself.
The case of Rookes v. Barnard,[xv] specifically laid down three situations where damages could extend to a punitive extent; firstly, where there is oppressive, arbitrary or unconstitutional action by servants of the Government; secondly, where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant; and thirdly, where such damages are provided by statute.
The third situation can be made possible by apt legislative stipulations in environmental laws framed in the future. For the judiciary, and more specifically the NGT, the first two requirements must be the guiding factors in determining whether a case warrants the exceptional and quasi-criminal remedy of punitive damages. Moreover, the burden of proof, where the said remedy is demanded, must be more onerous than in run-of-the-mill cases, and yet, not as high as in criminal trials.
For instance, where the evidence on record evinces patent collusion between governmental authorities and the polluter, the NGT may impose punitive damages. Or where a multinational corporation disregards legal provisions, motivated by the disproportionate profits it stands to make by violating provisions, punitive damages may be warranted. The nomenclature of such damages is of importance to avoid infructuous litigation. To impose a ‘fine’, though theoretically within the NGT’s remit, will unduly attract attention and litigation. Thus, the NGT must exercise caution in naming the kind of liabilities it imposes. Any ambiguity, suggesting a patently criminal nature of the sanction, would serve as excuse enough for polluters to sway appellate courts in their favor.
Needless to say, the above issue, as a whole, warrants a decisive ruling of the Apex Court, specifically in reference to the NGT’s powers. However, till the arrival of such conclusive precedent, the NGT will do well to ensure that it exercises powers, in essence, and in appearance, within the technical bounds of established law.
[i] M.C Mehta v. Kamal Nath, A.I.R. 2000 S.C. 1997.
[ii] §14, The National Green Tribunal Act, 2010 (No. 19 of 2010).
[iii] M.P.P.C.B v. Sajjan Chemicals & Investment Pvt. Ltd, (2013) S.C.C. OnLine N.G.T. 201.
[iv] SPCB Odisha v. Swastik Ispat Pvt. Ltd., (2014) S.C.C. OnLine N.G.T. 13.
[v] Kodungallur Film Society v. Union of India, (2018) 10 SCC 713.
[vi] Punitive Damages: India is behind the Curve (July 23, 2014) https://www.livemint.com/Opinion/rOpy1dDyF7Lxn8Yzr70EaN/Punitive-damages-India-is-behind-the-curve.html (Last Accessed January 22, 2020)
[vii] Madhya Pradesh Pollution Control Board v. Commissioner, Municipal Corporation, (2013) S.C.C. OnLine N.G.T. 56
[viii] Id
[ix] (2016) S.C.C. OnLine N.G.T. 4213.
[x] Goel Ganga Developers India (P) Ltd. v. Union of India, (2018) 18 S.C.C. 257.
[xi] Supra note i.
[xii] 1964 AC 1129
[xiii] Les Carlough, General Deterrence of Environmental Violation: A Peek into the Minds of the Regulated Public, Accessible at https://www.oregon.gov/deq/FilterDocs/DeterrenceReport.pdf (last accessed January 22, 2020)
[xiv] Shailesh Singh v. Sheela Hospital & Trauma Centre, O.A. No. 710 of 2017, National Green Tribunal.
[xv] Supra Note xii.
[The co-authors are third-year B.A. LL.B Students at Rajiv Gandhi National University of Law, Patiala.]
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