The damage caused by global warming and climate change to non-human as well as humankind is widely known. The rate at which biodiversity is being lost, forests are cleared, rivers and skies are polluted is unprecedented. The detrimental effects on the health of the planet are being felt already.
The mindless pursuit of hard cash and tall-grey buildings has blinded humankind. The race towards self-destruction has been going on for a long time now. The future of this planet is seemingly bleak if adequate and urgent measures are not taken towards remedying the harm being caused to it.
Considering the complex policy questions which environmental degradation poses, the United Nations General Assembly has declared 2021-2030 as the Decade on Ecological Restoration. The UN defines ecosystem restoration as, ‘Ecosystem restoration means assisting in the recovery of ecosystems that have been degraded or destroyed, as well as conserving the ecosystems that are still intact.’
A healthy and thriving ecosystem has a positive impact on the overall functioning of the biomes. It helps in keeping the rich biodiversity intact. ‘Healthy terrestrial ecosystems also play a key role in mitigating climate change, as soils are a major carbon sink.
They are more resilient to environmental disturbances than degraded land, and thus are significant in regulating natural hazards like floods, landslides, and drought — a service that becomes even more important in times of global climate change.’
India has many policies and laws which govern activities like afforestation, purification of water bodies, forest conservation, etc. However, in this discourse of revitalising the ecosystems, it is equally important to continue working towards protecting the pristine ecology in the first place.
Transformation begins by changing what is existing. Ecological restoration cannot function in a stand-alone fashion. Environmental crimes like illegal logging, discharging untreated waste in the rivers, etc., have extremely detrimental effects on the biomes and environment in general.
Therefore, it is vital to recognise the gravity of environmental harms in order to set the law in motion against the perpetrators of environmental crimes.
One such example is the Green India Mission, a project that comes under the umbrella of the National Action Plan on Climate Change (NAPCC). One of its objectives is to increase the green cover to 5 million hectares (mha) of land and improve the quality of forest cover in another 5 mha of forest and non-forest lands.
Unfortunately, the lack of funds and lacunae in proper financing often leads to improper and inadequate implementation. The central government’s afforestation scheme, Green India Mission (GIM), was able to only achieve 2.8 per cent of its plantation target, according to the Economic Survey released by the Ministry of Finance on January 29, 2021.
The budget for the National Mission for Green India has been reduced by 6.7 per cent as mentioned in the Union Budget 2021-22. In light of this, we can grasp the status of ecological regeneration in India. Therefore, it becomes more important to address the issue of environmental crimes in India in order to protect and preserve the existing ecological heritage.
The National Crime Records Bureau (NCRB) in a report published by them included environmental crimes in a separate chapter for the first time in 2014 under the heading ‘Environment Related Offences’. During the year 2019, as many as 34,671 crimes related to the environment were recorded according to a report titled “Crimes in India 2019” released by the NCRB.
The government, the media, and the public rarely conceptualize environmental harm and injustice as “crime” despite overwhelming evidence to the contrary. Environmental crime is responsible for a great deal of harm to the ecosystem and human health. In comparison to more conventional types of crimes, the recognition of environmental crime is relatively new.
Academic endeavours and attention towards crimes against the environment and the punishing practices have increased substantially over a period of time.
Environmental law until now has not been successful in the adequate implementation of the legislative intent of bringing about a balance between race towards development and environmental conservation. ‘The theoretical argument for government activity in the context of the environment is provided by the public-good nature of environmental protection.
Private agents systematically fail to take into account the full costs of pollution due to the associated externalities, creating the scope for government intervention (Stavins 2004).’ The State, therefore, not only has a vital role to play but it has the duty to perform where the private agent falls short.
In furtherance of the responsibilities with which it is vested, the State will need to step in to safeguard the ecosystems, regenerate the environment and restore the balance. Law is an instrument in the hands of the State by which it can act and regulate the affairs pertaining to environmental crimes.
It is often believed that environmental harms cannot be termed as “hard” crimes as they do not fit well within the tenets of criminal law which encompasses the principle of actus non facit reum nisi mensit rea. However, isn’t an act that is committed with an intention to gain wrongfully criminal in nature?
How can a deliberate attempt to cause wrongful loss to the environmental resources which ultimately affects public goods and security not be a crime? Ultimately, the perpetrators too aren’t immune from bearing the brunt of their own actions.
To put India’s concerns in an international perspective, one can refer to The UN Environment study. It identified several major gaps in the response to environmental crime. Lack of data, knowledge, and awareness, limited use of legislation, lack of institutional will and governance, lack of capacity in the enforcement chain, lack of national and international cooperation and information sharing among authorities, and lack of engagement with private actors and local communities were among those listed.
India’s Environmental Performance Index (EPI) score is as low as 27.6 as per 2020 reports of EPI prepared by Yale University. India’s rank stands at 168 out of 180 countries. Poor environmental health, law enforcement, and policy decisions seem to have an effect on the index.
Therefore, in order to have a stronger environmental governance regime, there is a need for urgent action and overhaul in the existing institutions. There lies a need to re-imagine environmental law and policymaking in India. It is pertinent to note that strict punishments and stringent fines alone are not enough to address ecological destruction.
The preventative aspect of crimes is not usually taken into consideration while framing the environmental laws. Green crimes can be effectively dealt with if the law provides for execution-based Green Police Units can be established to administer the effective implementation of law and policy related to environmental protection and regeneration.
It can be involved in activities like monitoring, patrolling, and controlling the green harms. Sensitising the citizens regarding the protection and revitalisation of ecosystems is also essential. Synchronising and synthesising the execution and implementation of law in its true spirit can solve half the problems at hand.
When it comes to the adjudication of environmental crimes, the data at hand paints a poignant picture. It is estimated that the Indian courts will take between nine and thirty-three years to clear a backlog of cases for violations under several environmental laws at their current pace, states Down to Earth’s State of India’s Environment 2020: In Figures, released on June 4, 2020.
The slow pace of the courts in dealing with and disposing of cases pertaining to environmental crimes can also be understood by the fact that 45,008 environmental cases were pending for trial at the start of 2018. Another 34,503 court cases were filed throughout the year, taking the total to 79,511 cases. By the end of the year, the number of cases pending trial climbed to 48,238.
Justice can be realised only when the wrong is recognised and adequately addressed through law. There lies an immense potential to utilize law as an instrument of ecological protection and regeneration. Law needs to be used as a sword as well as a shield when it comes to environmental governance.
Humans need to divert their rigour from building hollow concrete towards building upon their understanding of preserving the rich ecosystems their existence hinges upon. Their drive towards the light from darkness is indeed long due. Let us rebuild what we have destroyed.
Let the trumpets be sounded to herald our march towards a green future. It would indeed be interesting to explore how law can be instrumental in conserving the ecology and restoring the long-lost environmental equilibrium.
By Dirgha Nanavati, 5th Year B.A. LL.B. (Hons.), Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara