The sinking of the container ship MSC Elsa 3, reportedly carrying hazardous cargo, off the Kerala coast on May 24 has raised serious concerns about its potential impact on marine biodiversity.
Even as long-term ecological consequences of maritime disasters dominate public discourse, the incident offers an opportunity to revisit the statutory scheme of the Biological Diversity Act, 2002 (BDA) and examine whether the institutional mechanisms established thereunder are legally equipped to undertake effective enforcement actions.
The BDA was enacted with a threefold objective: conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources. While these goals are articulated in the preamble and scheme of BDA, the aspect of biodiversity conservation and protection receives scant legislative attention in terms of concrete, and operative enforcement related provisions. This is a consequence of poor legislative drafting, which places emphasis on access and benefit-sharing, but leaves biodiversity conservation and protection related monitoring and enforcement measures largely undefined in the legislative structure.
From a biodiversity conservation and protection perspective, the enforcement-related provisions in the BDA leave much to be desired, as they lack clarity and the necessary legal teeth for holding violators accountable and ensuring remedial action in the event of loss or damage to biodiversity. The National Biodiversity Authority (NBA), the State Biodiversity Boards (SBBs) and Biodiversity Management Committees (BMCs) are statutory authorities entrusted with the conservation of biological diversity. However, their role in monitoring and assessing biodiversity loss and enforcing accountability for loss and damage to biodiversity caused by human activities remains poorly defined under the current legal framework. There are no specific provisions in the BDA that enables the Central and state governments, NBA, SBBs or BMCs to take direct and binding actions in the event of imminent threats as well as actual damage or loss to biodiversity.
Prior to the 2023 amendment, the very nature of the offences under the Act - which were classified as cognisable and non-bailable by Section 58 - impliedly empowered the police to take necessary steps from an enforcement perspective. Nonetheless, the police could not register an FIR, as criminal prosecutions under the BDA could only be initiated through a written complaint filed before the competent magistrate by officers empowered by the Central government. A significant dilution in the enforcement framework of the BDA occurred with the 2023 amendment, which omitted Section 58 from the text of BDA.
Sections 55 and 56 are the two main provisions which deal with contraventions under the BDA. By the 2023 amendment, the contravention specified in Section 55 - which is particularly relevant from an access and benefit-sharing perspective – was decriminalised. The contravention is now punishable only with a monetary penalty to be adjudicated by an adjudicating officer appointed under Section 55A. However, the 2023 amendment has retained the text of Section 56, which deals with the contravention of other orders or directions issued by the Central or state government, NDA or SBBs, and makes such contraventions punishable with a fine that may extend to one lakh rupees.
According to Section 61 of BDA, prosecution for offences under Section 56 can be launched before ordinary criminal courts only through written complaints filed by officers or authorities empowered by the Central government. Certain forest officers and officers of NBA and SBBs not below a specified rank have been authorised by gazette notifications to file such written complaints in criminal courts. However, the BDA’s silence on whether the officers empowered under Section 61 are entitled to seek the assistance of other general law enforcement agencies and whether general law enforcement agencies are under a legal obligation to assist them, can severely hinder the effectiveness of the said enforcement architecture.
The officers empowered under Section 61, particularly those belonging to the NBA and the SBBs, often lack the necessary wherewithal - both in terms of investigative capacity and field-level enforcement infrastructure - to effectively enforce the BDA from a biodiversity conservation and protection perspective. Unlike traditional law enforcement agencies, they do not possess coercive powers such as arrest, search and seizure, nor do they have a dedicated cadre trained in criminal procedure or forensic investigation. This institutional limitation raises serious concerns about the enforceability of the BDA, especially in complex cases and more acutely in the context of maritime zones where logistical constraints can further hinder effective enforcement.
The BDA is also silent on the specific enforcement related powers that can be exercised by the officials from a biodiversity conservation and protection perspective. At present, Section 55B is the only provision that can arguably be interpreted - albeit indirectly - as addressing enforcement from a biodiversity conservation and protection standpoint. While the provision does not specifically address biodiversity conservation and protection, it empowers authorities to enter upon any land, vehicle or premises and to inspect, investigate, survey and collect information and make a map of the premises. However, these general powers fall short of constituting a robust enforcement framework. These limitations become critical in scenarios like the MSC Elsa 3 incident, where the ecological threat arises not from direct access to biological resources, but from a broader environmental disaster.
Marine spaces present unique challenges for biodiversity governance. Unlike terrestrial ecosystems, marine areas require distinct legal and institutional approaches. When the BDA was originally enacted, it reflected a distinctly terrestrial orientation. The applicability of the law extended only to the terrestrial territory and territorial waters - areas over which India exercises full sovereignty. The law lacked provisions for the governance of marine biodiversity in other maritime zones, leaving ecologically significant areas such as the exclusive economic zone, the contiguous zone and the continental shelf outside its regulatory ambit. Even within territorial waters, the law remained silent on crucial aspects of implementation and enforcement.
In 2023, the BDA was amended to extend its applicability to the exclusive economic zone, continental shelf and contiguous zone. While this is a welcome move, the amendment remains largely symbolic. The 2023 amendments failed to introduce any institutional or procedural mechanisms to facilitate biodiversity governance and enforcement in marine spaces. The extension of jurisdiction without corresponding operational frameworks leaves a critical gap in India's marine biodiversity governance regime. In short, the law as it stands today overlooks the operational realities of marine biodiversity surveillance and enforcement, thereby weakening the monitoring, regulatory and enforcement regime in marine environments.
Section 121 of the Coast Guard Act empowers Coast Guard personnel to enforce enactments that extend to India’s maritime zones, provided they are empowered to do so by an order of the Central government. The powers that could be exercised by the Coast Guard in the context of such enforcement is limited to those that any other officer is empowered to exercise or discharge under the relevant enactment. Following the extension of the BDA to India’s maritime zones, the Coast Guard is now enabled, in principle, to exercise enforcement powers under the BDA. However, in the absence of a well-defined enforcement framework in the BDA, the Coast Guard's ability to carry out enforcement functions relating to conservation and protection of biodiversity in the maritime zones remains limited.
To ensure effective implementation of its conservation objectives, the BDA must therefore confer specific and actionable enforcement powers upon the existing institutions. If necessary, new institutional arrangements or coordination mechanisms must be established, aligned with the complex and dynamic realities of maritime spaces. The legislative framework must clearly empower NBA, the SBBs and BMCs with unambiguous authority to issue directions and undertake preventive or remedial measures, particularly in the context of ecological emergencies that threaten biodiversity.
Equally crucial is the establishment of robust institutional frameworks and effective enforcement mechanisms to ensure the implementation and enforcement of BDA within the maritime zones of India. Strengthening the legal and enforcement architecture in this manner is essential to conserve and protect biodiversity, more particularly marine biodiversity, in the years to come.
Dr Jacob Joseph is a Professor of Law at Saveetha School of Law, SIMATS, Chennai.