Protection Against Harm to Environment
Dr Banusri VelpandianSenior Law Specialist Ms Pali SinghLegal ConsultantCo-author The National Crime Records Bureau (NCRB) Crime Report in India 2022 evinced that the number of cases registered under the six major environmental acts increased notably from previous years . This trend in increasing reporting on major violation of environmental regulations also indicates a greater enforcement activity and mainstreaming of environmental compliance into the legal system. Environmental crimes are often described as ‘Low Risk, High Reward, which makes it a highly lucrative operation for many criminals, typically because of the lack of strong legislative deterrence, fragmented regulation and lenient penal consequences as compared to other crimes. Environmental harm does not have an identifiable ‘victim’ and its adverse effects are not realised and felt immediately. But the consequences can be profound, irreversible and transnational, not only to the ecosystem but also to humans and societies dependent on them. In legal remedial terms, environmental harm can be tackled through either civil or criminal mechanisms. In the civil or regulatory jurisdiction i.e., forums like National Green Tribunal, Pollution Control Boards, Constitutional Courts (vide PILs), may direct remedies like closures, compensation/ damages, restoration, regulating license etc.; whereas in criminal persecution, wilful or gross environment violations are treated as offences punishable by imprisonment, fines, or both. While the civil environmental law focuses on various legal principles of polluter pay principle, precautionary principle etc., the criminal environmental law focuses on imposing punitive consequences against the violator, for acts that constitute offences against the environment and, by extension, against society at large. In this article, we will explore the concept of harm to nature, various legal principles, the legal and policy framework in India including Constitutional and statutory provisions along with judicial precedents, and touch upon some of the international efforts to mitigate and deal with the environmental crimes. Understanding Environmental Harm and Their Impact ‘Environmental harm or crime (or) green crime’ is a complex and evolving concept with no standard, universally accepted definition. Broadly, it encompasses unlawful acts that cause significant harm to the environment, including ecosystems such as forests, rivers, wetlands, oceans, and the wildlife and communities dependent on them. The United Nations Environment Programme and Interpol define environmental crime as “a collective term to describe illegal activities harming the environment and aimed at benefiting individuals or groups or companies from the exploitation of, damage to, trade or theft of natural resources, including, but not limited to, serious crimes and transnational organized crime.” Similarly, a notable development in international legal discourse is the push to recognise ‘ecocide’ as a core international crime in the Rome Statute, alongside genocide, crimes against humanity, war crimes, and aggression. In fact in 2021, the Independent Expert Panel for the Legal Definition of Ecocide proposed a legal definition of the term ecocide which means “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”5 While being important, the issue with such a broad definition may be to identify the exact ‘victim’ (whether a river, forest, species, single animal), defining the jurisdiction (domestic, regional, global) and determining culpability (individuals, corporations, or state actors). Persecution for such crimes may be difficult especially when environmental harm occurs in the pursuit of economic development, cultural or local practices, and animal-human conflict. According to Interpol, environmental crimes may range from ivory trafficking, overfishing, illegal logging or the dumping of hazardous waste. They are often embedded within the same routes used to smuggle weapons, drugs and people. An Interpol study ranked environmental crime as the third-largest criminal sector in the world, after drug trafficking and counterfeiting, with an estimated worth of USD110- 281 billion annually. Environmental or green crimes occur due to both structural and systemic vulnerabilities including transnational nature of crimes, poor enforcement, widespread corruption and collusion, lack of prosecution, limited international coordination and regulatory frameworks. It is also because of high demand for exotic and rare animal and plant products and poverty and economic desperation which fuel such illegal acts. A paradox is that even an effective attempt to crack down on such supply can increase black-market prices, thereby incentivising more illegal activity.7 Nevertheless, such harm is rarely isolated and is often interlinked with other criminal activities like money laundering, human trafficking, smuggling etc. Unsurprisingly, the consequences are multi-dimensional, often having ripple effects: ● Environmental Effects: Environmental degradation, biodiversity loss, climate change, damage to natural resources. ● Social Effects: Displacement of communities, cultural loss, health risks, exacerbating poverty and inequality. ● Economic Effects: Loss of government revenues, illicit depletion of natural capital, and disruption of sustainable livelihoods. ● Political and Security Effects: Cross-border smuggling, money laundering, funding armed groups, fueling conflicts, destabilizing fragile regimes. Principles of Environmental Law Environment Law principles act as guidance for policy-makers, legislators and judiciary that have emerged over the decades from international conventions, treaties, judicial pronouncements, legislations etc. Some of these are discussed below: 1. Polluters Pay: Polluters Pay is a fundamental principle which primarily means those who pollute the environment must pay the cost of such degradation, in terms of the damage and the restoration. It acts as a double-edged sword, wherein, it discourages pollution, and also holds individuals/ industries strictly liable even if pollution was unintentional. The United Nations Environment Programme and Interpol define environmental crime as a collective term to describe illegal activities harming the environment and aimed at benefiting individuals or groups or companies from the exploitation of, damage to, trade or theft of natural resources, including, but not limited to, serious crimes and transnational organized crime The principle 16 of the Rio Declaration (1992) states, “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that ‘the polluter should, in principle, bear the cost of pollution,’ with due regard to the public interest and without distorting international trade and investment.” The courts in India have actively applied the principle in the judicial pronouncement….