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Course 2: Law and Policies Pertaining to Environment

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Course 2: Law and Policies Pertaining to Environment COURSE 2: LAW AND POLICIES PERTAINING TO ENVIRONMENT Block 3 : Environmental Liabilities Unit 7 : Criminal Wrongs and the Environment ................. 3 Unit 8 : Law of Torts, Civil Wrongs and the Environment ..... 19 Unit 9 : Strict and Absolute Liability .............................. 37 Centre for Environmental Law, WWF-India National Law University, Delhi 172-B, Lodi Estate Sector-14, Dwarka New Delhi-110003 New Delhi-110078 November, 2011 © CEL, WWF-India & National Law University Delhi 2011 All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, mimeography or other electronic or mechanical methods, without the prior written permission of the copyrighters, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. Course Coordinator Ms. Ramya Iyer, Centre for Environmental Law, WWF-India Email: [email protected] Block Writers Unit Preparation CEL, WWF-India Course Advisor & Editor Format Editor Ms. Moulika Arabhi, Ms. Ramya Iyer Director, CEL, WWF- India Programme Officer, CEL, WWF-India Proofreading Laser Composition Ms. Neeru, Independent Consultant Tessa Media & Computers C-206, A.F.E-II, Jamia Nagar New Delhi-110025 UNIT 7 CRIMINAL WRONGS AND THE ENVIRONMENT Contents Page No. 1. Introduction 3 2. Environmental Crimes 5 3. Types of Environmental Criminal Wrongs 8 4. Some Important Criminal Statutes 11 5. Other Legislations Related to Environmental Crimes 14 6. Best Practices 16 7. Conclusion 17 8. References and Recommended Readings 18 1. Introduction A Crime is an act or omission that violates the law conclusively constituting an offense that may be prosecuted by the state and is punishable by law. It is a breach of rules or laws for which some governing authority (via mechanisms such as legal systems) can ultimately prescribe a conviction. Individual human societies may each define crime and crimes differently, in different localities (state, local, international), at different time stages of the so-called “crime” (planning, disclosure, supposedly intended, supposedly prepared, incomplete, complete or future proclaimed after the “crime”). Crime constitutes such acts that are prosecuted by the state specifically because they are harmful for society at large because the act itself is against the society even if only one person has to suffer and be the victim to it. It is not necessary that the violation of every law constitutes a crime, since crime is the violation of law for example, breaching of contract may constitute as an offense but not as a crime. While every crime violates the law, not every violation of the law counts as a crime; for example: breach of contract and of other civil law may rank as mere offenses or infractions but not necessarily a crime. Modern societies generally regard crimes as offenses against the public or the state, as distinguished from torts (wrongs against private parties that can give rise to a civil cause of action). The reason crime or criminal wrongs are different from a civil wrong is because unlike criminal wrongs, civil wrongs are only against the interest of one person. The liability of the civil wrongdoer is based principally upon the loss he or she has induced, while the criminal wrong exists in, in norm at least, in the controlled act of the committer, their liability, and the harm caused. And whereas in civil law proceedings are generally brought by the injured party in order to secure compensation or restitution unlike criminal wrongs where the state prosecutes and punishes crime.1 There are many procedural differences between civil wrongs and criminal wrongs. However, the most known criminal wrongs would be murder, rape, treason etc. 1 Lucia Zedner, Criminal Justice (Oxford: OUP, 2005), at 58–63. 4 Environmental Liabilities All over the world in every country there are statutory provisions defining criminal wrongs. While they may vary slightly from country to country, the graver wrongs are considered more or less the same. Criminal wrongs are wrongs against the state, and not just against an individual. Criminal wrongs are much more serious than civil wrongs because they are against the whole society, even if only one individual gets hurt. Difference between civil and criminal wrongs A civil wrong is a wrong against a particular individual while a criminal wrong is a wrong against the society. Due to this difference in nature, civil wrongs are redressable i.e. the injured party/individual may claim damages from the party who inflicted the wrongs on him. Civil wrongs can also be defined as the wrongs that are not recognised by the state as being criminal wrongs. The wrongs which are against the benefit of the public, and the state are labeled as criminal wrongs, whereas wrongs that affect the interests of a particular individual are called civil wrongs. The criminal wrongs include acts such as murder, robbery, assault, theft etc. while the less serious wrongs like trespassing, nuisance, copyright infringement etc. are recognised as civil wrongs. In the case of criminal wrongs, the state takes the action against the offender by hiring a public prosecutor to prosecute the case in the court; this is called the system of public prosecutions. However, this is not the case of civil wrongs, where one party has cause injury to the other or their property, and the injured sues the other and hire lawyers to represent them in the court. Here, the state does not get involved. In a criminal case, if a person has committed a criminal wrong, it is up to the state to find the accused, prepare a First Information Report (FIR), investigate the crime and hire a public prosecutor to represent the state in front of the court in a public prosecution which is different from the procedures of a civil wrong where if a party has acted in such a way that has caused injuries to the other party, the plaintiff would sue them in the court and will have to hire their own lawyer to represent their case in the court. In the case of civil wrong, the injured party (the plaintiff) sues the party who inflicted the injuries (the defendant) to them. Then the injured party would seek compensation for the injuries and the effects of the injuries inflicted on them by the other party. If the defendant is proved to be liable for the injuries, the court can award damages to the plaintiff. Whereas, if a person commits a criminal wrong, it is up to the state (police) to bring the accused to the court and prosecute him. Also in a criminal wrong, the court focuses on punishing the criminal and not on compensating the victim. Example – When a person commits the civil wrong of defamation and injures the reputation of another person, the plaintiff can sue him in the court and if proven to be liable for the injuries, the court can order the defendant to compensate for the injuries in the form of damages. Whereas if an individual commits the crime of culpable homicide, and causes the death of another person, it is up to the state authorities to find him and bring him to the court, prosecute him, and if proven to be guilty, punish him. Here the court focuses on punishing the accused unlike in the case of a civil wrong where the focus of the court is to compensate for the plaintiff’s injuries. Criminal Wrongs and the Environment 5 The criminal law is defined in the Indian Penal Code, 1860 (IPC), and a person who has committed a civil wrong is punished in accordance with the IPC, while aside from a few common laws, there are no laws for civil wrongs, and it is solely up to the judges to decide if the defendant is liable or not, and also the compensation for the same. Example – If a person commits the crime mischief upon another individual or a group he will be punished according to Sections 425-440 (which covers mischief) of the IPC while if a person commits the tort of defamation, it is up to the courts whether to apply an English tort principle if it is needed, or apply it with modifications or not use it at all. Sometimes criminal law is also known as public laws because they affect the whole society. Example – If a person commits a murder, then he is a threat to the whole society and it is up to the state to protect the society. But if a person has injured the reputation of another individual, it does not concern the whole society. So civil laws are also known as private laws. In a criminal wrong, the presence of intention of causing the injury/committing the act plays an important role in the judgment but in a civil wrong, the presence or absence of the intention cause the injury does not play any role deciding the liability of the injuries. If a person watches a deer run behind a bush and shoots at it and hurts another person who was behind it instead, he will not be guilty. While if a person makes loud noise which troubles his neighbours, it wouldn’t matter whether it was his intention to do so or not. There are however, certain wrongs that fulfill the criterion for both civil and criminal wrong. In these situations the distinction between the two wrongs can be slightly blurred. They can be called both as a civil wrong as well as a criminal wrong. So there can be criminal as well as legal action for a single wrong. Some examples to these are assault, defamation, negligence, nuisance, reckless driving etc.
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