Criminalising wilful environmental damage is harder than it sounds

General Studies Paper 3

Context

• While many countries are mulling incorporating ecocide into their respective legal frameworks, debate continues on how it can be criminalised, identifying the burden of proof, and – especially in India – how it will sit with other laws that keep the door open for environmental harm on various grounds.

Defining Eocide and Ecocide

• Ecocide, derived from Greek and Latin, translates to “killing one’s home” or “environment”.
• Such ‘killing’ could include port expansion projects that destroy fragile marine life and local livelihoods; deforestation; illegal sand-mining; and polluting rivers with untreated sewage.
• Ecocide constitutes the 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.

Ecocide – A crime

• Ecocide is a crime in 11 countries, with 27 others considering laws to criminalise environmental damage that is wilfully caused and harms humans, animals, and plants.
• The European Parliament voted unanimously this year to enshrine ecocide in law.
• Most national definitions penalise “mass destruction of flora and fauna”, “poisoning the atmosphere or water resources” or “deliberate actions capable of causing an ecological disaster.”
• None of the existing international criminal laws protect the environment as an end in itself, and that’s what the crime of ecocide does.
• The movement also responds to harsh climate realities. Over a third of the earth’s animal and plant species could be extinct by 2050. Unprecedented heat waves have broken records worldwide. Changing rainfall schemes have disrupted flood and drought patterns.

The purpose

• The purpose of ecocide laws is to define the “significant harm” of environmental damage, together with accountability and liability.
• Deforestation of the Amazon, deep-sea trawling or even the catastrophic 1984 Bhopal gas disaster could have been avoided with ecocide laws in place, according to Stop Ecocide International.
• These laws could also hold individuals at the helms of corporations accountable.
• That something is morally questionable usually doesn’t hinder investment.
• Laws provide boundaries and sanctions for investment, as no company or organisation – such as the World Bank – would want to invest in something potentially criminal.
• Ecocide laws could also double up as calls for justice for low- and middle-income countries disproportionately affected by climate change.

India’s stance

• Some Indian judgments have affirmed the legal personhood of nature by recognising rivers as legal entities with the right to maintain their spirit, identity, and integrity.
• More importantly, some others have used the term ‘ecocide’ in passing but the concept hasn’t fully materialised in law.
• India’s legislative framework vis-à-vis environmental and ecological governance includes the Environmental (Protection) Act 1986, the Wildlife (Protection) Act 1972, and the Compensatory Afforestation Fund Act (CAMPA) 2016, as well as separate Rules to prevent air and water pollution.
• According to Prof. Siddiqui, these separate laws have to be consolidated into a unified code and institutions have to be streamlined so that debates like the one about ecocide and rights of nature find “their proper way through legal channels.
• Notably, the National Green Tribunal, India’s apex environmental statutory body, does not have the jurisdiction to hear matters related to the Wildlife (Protection) Act 1972, the Indian Forest Act 1927, and other State-enacted laws.
• As a result, mining of sand on the banks of the Chambal river or the Himachal floods would qualify as being environmental crimes under the current articulation.

Way forward

• Even before ecocide laws come up internationally, India needs to first bring its [environmental] laws in tune with the idea of ecocide.