Special issue with the Sunday Magazine
From the publishers of THE HINDU

EARTHSCAPES: May 20, 2001

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Legal spaces for conservation

V. Shruti Devi and Kanchi Kohli

V. Shruti Devi is a legal consultant and Kanchi Kohli is with Kalpavriksh, Delhi. Both are on the Technical and Policy Core Group of the National Biodiversity Strategy and Action Plan.

The last two decades of the 20th century witnessed the increasing use of legal and judicial processes by Indians to protect the environment. This was manifested by an intensified pressure to strengthen relevant laws and policies, a flood of public interest litigation, and enhanced attempts to impart legal literacy among officials, activists and local communities. The courts responded with a range of pro-environment judgments. However, their impacts have not always been as intended.

Manoj K. Jain

A clear message from the legal activism of these decades was that there was plenty of space available through which citizens could seek legal recourse. While they are by no means adequate, even these existing avenues remain inadequately tapped.

What spaces exist?

The conservation of biodiversity has been woven into the Constitution through Article 48-A, one of the Directive Principles of State Policy: "The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of our country." One of the Fundamental Duties of the citizens under Article 51-A is to"protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures." Although these provisions are not directly justiciable (cannot be taken to court), they can both be effective tools to guide the spirit with which statutes, policies and legal actions come into being.

Over the past two decades, issues relating to ecology and the quality of habitat have been repeatedly addressed on the platform of public interest litigation (PILs). PILs, filed under Article 32 in the Supreme Court, and Article 226 in the High Courts, have been used as an effective tool by many concerned citizens to challenge non-compliance of legal norms, violation of notifications and so on. These Articles give the right to a citizen to approach the judiciary and demand action, without necessarily having to cite violation of a specific law at an initial stage.

Ashish Kothari
Legal flexibility is needed to establish zonation and gradation of human activities to ensure optimum conservation and sustainable use land uses.

One of the most effective arguments has been to interpret the Fundamental Right to Life under Article 21 of the Constitution, to include the right to a clean and healthy environment. Litigation seeking such an interpretation has often resulted in the judiciary attempting, through its judgments, to rescue specific sites from the destructive influences of pollution, deforestation and so on.

However, one must note that these decisions are often driven by anthropocentric needs more than an ethical concern for plant and animal species as such. In a case filed by the Vellore Citizens' Welfare Forum, the issue raised was the discharge of untreated effluents from tanneries and other industries in Tamil Nadu. It was found that thousands of hectares of agricultural land had been rendered unfit for cultivation. Agricultural diversity and sustainability was pitted against the economic gains argument of the foreign-exchange-earning tannery business. The Supreme Court, calling for the regulation of these activities, advocated the concept of sustainable development, and indicated that the Precautionary Principle and the Polluter Pays principle are essential ingredients for this.

Judicial interpretations using the Constitution are one avenue. The other is the direct use of environmental Acts, Notifications, Rules and Guidelines. The most intimately connected to biodiversity are the Wild Life (Protection) Act of 1972, the Forest Act of 1927, and the Forest Conservation Act of 1980. Others include the Air and Water pollution control laws. Official agencies have used these laws with good effect, to conserve large stretches of biodiversity-rich areas, though unfortunately neither of these provides for substantial public involvement in their enforcement, and indeed often disempowers local communities.

Ashish Kothari
Public meeting prior to moves to resettle village from within Melghat Tiger Reserve, Maharashtra: there is a need for open, transparent legal procedures.

The Environment (Protection) Act of 1986 has been elaborated into several significant notifications and guidelines, including the Environment Clearance notification, the Environment Impact Assessment (EIA) guidelines, and the Coastal Regulation Zone notification. A significant part of this is the clause on mandatory public hearings, which is the only face to face occasion that the public has, to confront project authorities and government agencies. Though there are serious doubts regarding the efficiency and sincerity with which these statutes are implemented, they are nevertheless potentially powerful tools which are gradually gaining recognition (see Box on EIAs, with article Develop or Perish, in this issue). It was through these provisions that a fraudulent EIA by the consulting agency Ernst and Young, regarding a dam in Karnataka, was exposed by alert NGOs.

Another statute with potential is the National Environment Tribunal Act, 1995, intended to guide the setting up of specialised panels and benches that address cases pertaining to the environment. Given the enormous backlog of cases in our ordinary courts, this is a potentially useful step.

There are also now laws and policies that, somewhat belatedly, provide for people's empowerment in the management of natural resources. One formal manifestation of this was a Central government circular in 1990 to all States, on Joint Forest Management (JFM). This quasi-policy statement directed the involvement of village communities in the regeneration of degraded forest lands. So far, 24 States, by passing JFM resolutions, have reportedly brought over 11 million hectares of land under the scheme. There are conflicting reports on the success or failure of JFM, with serious flaws such as inadequate devolution of power to local communities. Nevertheless, JFM is seen as a progressive step away from the centralised, exclusive State-managed regime of the last 100 years.

Ashish Kothari
Village-level agitation coupled with legal activism stopped several hundred mines within the Sariska Tiger Reserve, Rajasthan.

The most powerful, however, is the Constitution (Seventy-third Amendment) Act, 1992, regarding village panchayats. This law sought to bring the power to manage local resources closer to the people. The Panchayat (Extension to Scheduled Areas) Act, 1996 is even more powerful in this respect, bestowing unprecedented elements of self-government to scheduled adivasi areas. The working of the Panchayat Raj law needs to be examined separately in each of the States, resulting in State-specific recommendations. The new "forest States" of Chhatisgarh, Jharkhand and Uttaranchal, especially, would need to urgently conduct such an exercise, so that recommendations could be "on board" at an appropriate stage of planning.

A comparative analysis of the decentralisation statutes, with the existing resource conservation statutes, is also necessary, for there are potential contradictions and conflicts: one essentially built on the discourse of human rights, and the other, around the argument of protecting nature in itself. A 1997 order of the Supreme Court directing States to settle the rights of all people living inside and around protected areas, has only served to increase conflicts and given vested interests a convenient entry point to demand the denotification of protected areas. But this is not an inevitable conflict, for there are critical spaces in between, where wildlife conservation and people's livelihood needs go hand in hand. This, indeed, was the motivation behind a strong people's movement in the 1980s which resulted in an alternative People's Forest Bill, and behind attempts to amend the Wild Life and other conservation laws to bring people onto the centre-stage. Finally, a potentially powerful new space is the proposed Biological Diversity Bill, 2000 (see Box).

What is the future of legal spaces?

There are numerous spaces for biodiversity conservation present in India today, and many others in the offing. However, all of them are invariably ridden with problems of content or implementation. It is also disturbing to note the frequent dilution of the spirit and substance of these laws, wilting to national and international commercial interests. Statutes for conservation such as the Forest Conservation Act, are under severe pressure from State governments intent on quickly using their forest lands for so-called development projects. Unless these counter-trends are understood and arrested, the gains of the 1980s and 1990s could well be lost in a very short period of time.

The ongoing National Biodiversity Strategy and Action Plan (NBSAP) process attempts to understand and highlight legal spaces, point towards the need for new spaces, and reconcile some basic contraditions. It is doing this in different ways. A national working group is putting together the overall picture. It is focussing on the contradictions between conservation and development law, and between conservation and livelihood-related law. Specific critical reviews are being commissioned on topics such as the environmental impact assessment procedures. States are being encouraged to conduct similar exercises and to analyse State-specific laws and policies. Groups working on individual aspects of biodiversity (wildlife conservation, agricultural diversity, livelihoods, culture, health, and so on) are being guided to assess the legal implications of their analysis and recommendations. And all this is happening in a manner that encourages the mass participation of all those interested.

The spaces for conservation that the law provides run the danger of remaining hollow unless people are armed with knowledge, attitude and commitment. In order to translate one of the world's largest chunks of environmental law into the actual conservation of biodiversity, we need to generate nationwide public opinion, powerful enough to target political will.

Biological Diversity Bill 2000 Realising that there is no comprehensive legislation dealing with biodiversity in India, and following up on its obligations under the U.N. Convention on Biological Diversity, the Government of India has introduced the Biological Diversity Bill 2000 into Parliament. Currently being examined by a committee of MPs, this Bill: * Prohibits transfer of Indian genetic material outside the country, without approval of the Indian Government; R. Prasanna venkatesh/Wilderfile * Stipulates that patents or other intellectual property rights (IPR) over such material, or over related knowledge, can only be taken after seeking permission in advance; * Provides for the levying of appropriate fees and royalties on such transfers and IPRs; * Regulates access to such material by Indian nationals also, to stop over-exploitation; * Provides for the sharing of benefits of various kinds, including transfer of technology, monetary returns, joint R&D, venture capital funds, and joint IPR ownership; * Provides measures for habitat and species protection, EIAs of projects which could harm biodiversity, integration of biodiversity into all sectoral plans, programmes, and policies; * Gives local communities a say in the use of resources and knowledge within their jurisdiction, and to charge fees from parties who want to use these resources and knowledge; * Provides for the protection of indigenous knowledge, through appropriate legislation or administrative steps such as registration at local, State, and national levels; * Stipulates that risks associated with the use of genetically modified organisms, will be controlled through appropriate means; * Provides for the designation of institutions as repositories of biological resources. The Bill envisages the creation of authorities and funds at National, State, and local levels. Hidden within the overall progressive thrust of the Bill are some serious defects that will need to be tackled. For instance, it omits from its purview all claims of IPRs that are made under the proposed Protection of Plant Varieties and Farmers' Rights Bill (which is also currently in Parliament). Unfortunately the Plant Varieties Bill does not provide for prior consent from farmers or compulsory benefit-sharing arrangements where farmers' varieties or knowledge is used, so such an exemption provides a major loophole for corporations and scientists to gain monopolistic IPRs on plant varieties. Secondly, the Act does not provide citizens with the power to approach courts if they detect violations. The final expert committee draft of the Bill presented to the MoEF contained such a locus standi to citizens, and it is strange that this has been left out. The Bill is also soft on Indian entities, requiring only "prior intimation" for their use of bioresources rather than permission as in the case of foreigners. This could be unjustified, given that Indians (especially corporations) are not necessarily any more responsible in their conduct. The empowerment of local community bodies under the Bill is rather incomplete, for much greater powers to gram sabhas should have been provided. If the above shortcomings are tackled, however, the Bill could be a powerful tool for conservation and for securing the livelihoods of biodiversity-dependent communities. Ashish Kothari