INTRODUCTION
Maritime transport plays a vital role in global trade, yet it simultaneously exposes coastal states to complex environmental management challenges. Commercial vessels routinely carry ballast water, chemical cargo, and other operational discharges that may introduce ecological disturbances across marine and coastal ecosystems. Increasingly, such disturbances are being understood not only in terms of conventional marine pollution but also as matters of ecological biosecurity, particularly where the movement of organisms through ballast water or the accidental release of hazardous substances threatens biodiversity and coastal habitats.
Following evolving international standards, India has undertaken significant legislative reform through the Merchant Shipping Act, 20251 (hereinafter “MSA, 2025”) and the development of various rules under the Act, including the Draft Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Rules, 20262 (hereinafter “Draft Ballast Water Management Rules, 2026”). These developments are intended to modernize the country’s maritime regulatory framework and align it more closely with international practices.
However, the adequacy of these reforms must be assessed in light of emerging environmental concerns, including the spread of invasive aquatic species through ballast water, the absence of India’s accession to the international liability and compensation regime for hazardous and noxious substance incidents, and the structure of enforcement mechanisms governing pollution from ships. These developments raise important questions about whether India’s maritime regulatory framework is adequately equipped to address the ecological risks associated with modern shipping activities. Given the transboundary nature of maritime pollution and biological invasions, the effectiveness of India’s regulatory framework carries implications not only for domestic environmental protection but also for the management of shared marine ecosystems. This paper examines these issues within the evolving maritime environmental regime in India, with particular reference to ballast water management, liability for hazardous substances, and the enforcement architecture under the MSA, 2025.
BIOSECURITY RISK UNDER INDIA’S DRAFT BALLAST WATER MANAGEMENT RULES
The Draft Ballast Water Management Rules, 2026, reflect a critical failure to align administrative thresholds with biological reality. By adopting a rigid 400 Gross Tonnage (GT) baseline for mandatory surveys and Ballast Water Management Certification3, the framework conditions regulatory scrutiny on vessel size rather than on the biological risk inherent in ballast water discharge. Although the Rules nominally apply to all ships, vessels below 400 GT are not subject to compulsory surveys or Ballast Water Management Certification, thereby creating an enforcement lacuna in relation to smaller coastal craft, including tugs, barges, and offshore supply vessels. This regulatory design is problematic because invasive species are size-blind. Empirical surveys conducted in Kochi and Ashtamudi have linked the secondary spread of the Charru Mussel (Mytella strigata) to the frequent movement of unregulated small vessels between international port hubs and sensitive estuarine ecosystems.4 The absence of a verification mechanism for smaller vessels therefore raises concerns regarding cumulative ecological risk and secondary vector transmission.
The risk is further amplified by Draft Rule 2(2)(b) and (d)5, which permits the exclusion of certain vessels operating in Indian waters or on the high seas where it is administratively determined that ballast water discharge would not “impair or damage the environment, human health, property or resources”. However, the draft fails to provide measurable scientific criteria, biological thresholds, or standardized testing protocols to define what constitutes “impairment” or “damage”. This regulatory gap leaves the determination of ecological safety to administrative discretion rather than a codified scientific framework, potentially undermining regulatory predictability and environmental safeguards.
A comparative assessment with the Australian Biosecurity Act 20156 highlights this divergence. The Australian regime adopts a “biosecurity-first” approach that prioritizes the biological profile of ballast water through rigorous, evidence-based risk triggers. Section 2707 establishes a general prohibition on the discharge of unmanaged ballast water8 irrespective of vessel size, thereby shifting the regulatory focus from ship-based classifications to biosecurity risk.
Although both frameworks permit exemptions, they differ significantly in their administrative and scientific rigor. Under Paragraph 3 of the First Schedule to the Indian Draft Rules9, the Director General may grant exemptions for up to five years based on IMO risk assessment guidelines, provided the discharge does not “impair or damage” the environment. In contrast, Section 28010 of the Australian Act requires that decisions conform strictly to prescribed biosecurity regulations. Notably, Section 280(6)11 incorporates computer-assisted risk assessment mechanisms to evaluate environmental safety. This structured, algorithm-supported decision-making process reflects a precautionary and data-driven model, minimizing subjective administrative discretion.
HAZARDOUS AND NOXIOUS SUBSTANCES LIABILITY AND INDIA’S ACCESSION GAP
Although the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 201012 (hereinafter “HNS Convention”) has not yet entered into force—primarily because the required minimum of twelve ratifying States has not been reached and four additional assessions are still needed13—India’s continued non-signatory status reveals a structural gap in its maritime liability architecture, particularly in relation to ecological restoration following hazardous and noxious substance incidents. To be sure, Part IX of the Merchant Shipping Act, 2025 has substantially modernized India’s maritime liability regime by aligning domestic law with several international compensation frameworks. However, these instruments primarily govern limitation of liability or address specific pollution regimes such as oil spills, and they do not establish a dedicated international compensation system for damage arising from the maritime carriage of hazardous and noxious substances. This gap assumes greater importance given that more than 2,000 types of hazardous and noxious substances are regularly transported by sea, and chemicals traded annually by tankers alone account for over 200 million tonnes of cargo.14
The absence of accession becomes particularly significant when viewed through the Convention’s definition of compensable damage. Article 1.6(c) of the HNS Convention defines “damage” to include contamination of the environment caused by hazardous and noxious substances and expressly provides that compensation for impairment of the environment covers the costs of reasonable measures of reinstatement actually undertaken or to be undertaken.15 This explicit recognition of reinstatement costs reflects an ecological orientation that goes beyond conventional property-based loss and embeds environmental rehabilitation within the liability regime itself.
India should therefore consider accession alongside states such as Canada and Norway to facilitate the Convention’s eventual entry into force. Such accession would address the disparity between oil pollution compensation and liability for hazardous and noxious substance incidents, while ensuring that the costs of marine ecosystem restoration following chemical spills are covered through an international compensation mechanism.
ADMINISTRATIVE PENALTIES FOR MARITIME POLLUTION REGULATION
The enforcement architecture under the MSA, 2025 is primarily governed by the penalty framework contained in Part XIV (Penalties and Procedures). In particular, violations relating to the discharge of polluting substances from vessels under Section 13316 are addressed within the broader penalty framework of Section 28117, where they are classified as contraventions or offences. Serial No. 57 of Section 281(2)18 classifies several pollution-related breaches—including the discharge of sewage, garbage, and ballast water and sediments—as contraventions liable to monetary penalties imposed administratively. Notably, the discharge of ballast water and sediments is treated as a contravention punishable with a monetary penalty not exceeding five lakh rupees,19 notwithstanding the well-documented role of ballast water as a major pathway for the introduction of invasive aquatic species and associated biosecurity risks. However, Serial No. 13 of Section 281(3) prescribes enhanced penalties for offences involving the discharge of oil and noxious liquid substances, which may attract criminal liability including imprisonment.20 This distinction becomes significant given that ballast water discharge, much like oil and noxious liquid substances, can generate substantial ecological harm through the introduction of invasive aquatic species. The treatment of such discharges primarily as administrative contraventions therefore raises concerns regarding whether the present penalty structure adequately reflects the environmental and biosecurity risks involved.
In contrast, the Australian Biosecurity Act 2015 adopts a stricter statutory approach, where Section 270 treats the unauthorised discharge of ballast water in Australian seas as a statutory offence.21 Under Section 270, the unauthorised discharge of ballast water constitutes both a fault-based offence punishable by up to 2,000 penalty units and a strict liability offence punishable by up to 500 penalty units,22 reflecting a significantly stronger deterrent framework than the administrative monetary penalties prescribed under the MSA, 2025.
Where environmentally sensitive discharges are addressed primarily through relatively modest monetary penalties without corresponding criminal liability, there remains a risk that regulatory compliance may evolve into a “pay-to-pollute” dynamic, whereby penalties are internalised as operational costs rather than functioning as effective deterrents against activities that may generate significant ecological and biosecurity harm.
CONCLUSION
The examination of India’s evolving maritime regulatory framework reveals that recent legislative reforms, while institutionally significant, have not yet fully resolved several structural challenges in maritime environmental governance. The analysis of the Draft Ballast Water Management Rules, 2026 demonstrates that regulatory design choices may constrain the effectiveness of oversight mechanisms intended to address the ecological risks associated with ballast water discharge. When considered alongside the enforcement architecture under the MSA, 2025, where certain environmentally significant discharges are treated primarily as administrative contraventions subject to relatively modest monetary penalties, questions arise regarding whether the present framework provides sufficient deterrence against activities capable of generating ecological and biosecurity harm. The study also highlights the implications of India’s continued non-accession to the HNS Convention, which leaves the country outside a dedicated international liability and compensation regime for hazardous and noxious substance incidents. Given the scale of global chemical transport by sea and the potential environmental consequences of such incidents, participation in this regime would strengthen the legal framework available for addressing large-scale marine environmental damage and supporting ecosystem restoration.
Taken together, these issues suggest that strengthening maritime environmental governance in India will require greater integration between regulatory design, scientific risk assessment, international liability mechanisms, and enforcement structures capable of ensuring meaningful compliance. Measures such as refining scientific risk-assessment criteria within ballast water regulation, reconsidering the deterrent structure of pollution-related penalties, and advancing accession to the HNS Convention would contribute to a more coherent and precaution-oriented maritime environmental framework. Such reforms would enhance India’s capacity to manage the ecological risks associated with contemporary shipping activities while supporting the broader objective of safeguarding marine ecosystems and coastal environments.
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Footnotes
1. The Merchant Shipping Act, 2025, No. 24, Acts of Parliament, 2025 (India).
2. The Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Rules, 2026 (Draft), Ministry of Ports, Shipping and Waterways (India).
3. See id. Paragraph 17(1) of the First Schedule.
4. Jayachandran PR et al., First record of the alien invasive biofouling mussel Mytella strigata (Hanley, 1843) (Mollusca: Mytilidae) from Indian waters, 8 BIOINVASIONS REC. 828, 835 (2019).
5. See supra note 3.
6. Biosecurity Act 2015 (Cth) (Austl.).
7. See id. § 270.
8. See id. § 271.
9. See supra note 3.
10. See supra note 7.
11. See id. § 280(6).
12. International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, May 3, 1996, 35 I.L.M. 1406, as amended by Protocol of 2010, Apr. 30, 2010, IMO Doc. LEG/CONF.17/10.
13. Status of the HNS Convention and 2010 Protocol, HNS Convention, (last visited Mar. 5, 2026), https://www.hnsconvention.org/status/.
14. The HNS Convention: Why it is Needed, IMO, (last visited Mar. 5, 2026), https://wwwcdn.imo.org/localresources/en/MediaCentre/HotTopics/Documents/HNS%20ConventionWebE.pdf.
15. See supra note 13.
16. See supra note 2.
17. See id.
18. See id.
19. See id. Serial No. 57(c) of Section 281(2).
20. See id. Serial No. 13(a) and (b) of Section 281(3).
21. See supra note 7, § 270.
22. See id.