Colonisation, Capitalist Development and Tribal Rights in Forest

Joydip Ghosal, Doctoral Candidate, WB NUJS, Kolkata, Guest Lecturer, Surendranath Law College, Kolkata

In this article author tried to reveal the process whereby through the development of capitalistic forest policy and legislation, the traditionally held rights of forest dwellers have been progressively curtailed. It is very much true that the development of social policy is determined largely by the needs of the dominant groups in society— before independence, by the strategic needs of the colonial masters and after independence, the needs of the capitalists and as usual the tribal continue to face tremendous situation. With the growing consciousness on environmental issues, the problem of deforestation has become a live subject of discussion.

Forest has occupied an important position in India from ancient times. The Mahabharata and the Ramayana give picturesque description of forest live in Dandakarnya and Nandavana. Several kings like Ashoka and Shivaji issued orders encouraging the planting of trees along the roads and on camping sites and prohibited the cutting of fruit trees. During the Vedic period, trees were appreciated for their value, shade and medicinal properties and in fact there is strong evidence that the linkages between deforestation and climatic changes were understood.

Before the advent of the British in India the regulation of people’s use of forests was mainly done through local customs. Several temples had forests regarded as sacred and cutting of trees was prohibited. After the advent of the British the traditional rights of the tribal were no longer recognised as rights. In 1894, they became “rights and privileges” and in 1953 they became “rights and concessions”; they were later being regarded as “concessions”. Before 1947, forests were strategic raw materials crucial for imperial interests such as railway expansion and the world wars, in the post-independence period; it has been the commercial, industrial interests who have dictated forest policy.

HISTORY AND DEVELOPMENT OF TRIBAL RIGHTS IN FOREST

The crucial watershed in the history of Indian forestry is undoubtedly the building of the railway network. This was created to meet the need for rapid troop communication felt after the Mutiny of 1857 and for enabling the characteristic pattern of colonial trade. Great chunks of forest were destroyed to meet the demands for railway sleepers. Before the coal mines in Bengal and Bihar became fully operative, the railway companies also indulged in widespread use of local timber as fuel for the locomotives.

The concept of state-owned natural habitats in India came into existence in the 19th century with the creation of reserved, protected and village forests by the British. The role of the state as landlord created a dual problem. On the one hand, it imposed the British legal system on an ethnocentric legal order based on customary usage and norms guided by ecological parameters. On the other, it paved the way for a Western model of conservation inherently established on the duality of man and nature.

Before British, natural resources were shared in common by the rural and tribal people. The notion of legal ownership as understood in modern law was absent and forest dwelling communities enjoyed their rights over natural resources even in forests that fell within the purview of the various local kingdoms. The absence of the notion of property did not necessarily imply an absence in the idea of ownership. Dwelling in and working in the forest over years bestowed upon the local community’s occupancy rights or communal native titles derived from their ancestral dominion of land.

The British introduced the concept of property with the imposition of a colonial legal system on an already existing pattern of forest use and protection, an age-old tradition governed by customary usage and common law. They created forest laws for the specific purpose of appropriating natural resources and the easiest way of extracting and controlling these resources was by establishing absolute rights over them. The idea of property was introduced by the British as absolute rights locally vested in a body or in an individual over any land and its resources.

FOREST LAWS BEFORE INDEPENDENCE

The beginning of a systematic forest policy begin in 1855 when the then Governor-General Dalhousie issued a memorandum on forest conservation. He suggested that teak timber should be retained as state property and trade in teak should be strictly regulated. In 1856, Dietrich Brandis, a German botanist was appointed as the first Inspector-General of forests to the government of India. It was under his guidance, that the forest department was organised and the first forest Act was enacted.

THE INDIAN FOREST ACT, 1865

The first Indian Forest Act was enacted by the Supreme Legislative Council. The Act was enacted to regulate forest exploitation, management and preservation. For the first time an attempt was made to regulate the collection of forest produce by the forest dwellers. The forests dwindled and the rights of the local people to the forest produce had also eroded. The law was nothing but the formalisation of these changes. Thus, the socially regulated practices of the local people were to be restrained by law.

THE INDIAN FOREST ACT, 1878

The Indian Forest Act of 1878 enhanced the government control over forest. Under the Act, forests were divided into (a) reserved forests, (b) protected forests, and (c) village forests. Persons were to be notified to record their claims over land and forest produce in the proposed reserved and protected forests. Certain Acts like trespass or pasturing of cattle were prohibited. Provisions were also made to impose duty on timber and for private forests.

THE FOREST POLICY RESOLUTION, 1894

In 1894, the then British government declared its first forest policy resolution in which state control and commercialisation of forest again formed the dominant motif. The basic aim of the policy was apparently to conserve forests that were being fast depleted. The resolution declared that the sole object with which the State forests were to be administered was the public benefit. It was specified that the claims of cultivation were stronger than the claims of forest preservation and that whenever an effective demand for cultivable land could be supplied from forest area it should be ordinarily granted without hesitation.

THE LAND ACQUSITION ACT, 1894

The Land Acquisition Act, 1894 conferred power upon the State for the acquisition of land for “public purpose”, enabling the subsequent enactment of the Indian Forest Act and the Indian Mines Act respectively. Eminent domain is only for reasons of public welfare. The term “public purpose” has not been defined in the Act and it has been left to the state to decide what it is. Even though there are provisions in this law for objections and appeals, they are so arcane that it is impossible for tribal to go to the courts and ensure their rights under them. The Indian Government continued with this Act too after independence and used it indiscriminately to acquire land for development projects.

In this Act, the British relied on another legal principle called “res nullies” which means that any property which does not have a documented legal owner can be assumed to be legally unburdened. As the tribal had a communitarian oral culture there was little conception of private property in land among them and absolutely no documentation.

THE INDIAN FOREST ACT, 1927

The Forest Act of 1927 prescribed the manner in which forest resources could be exposed to industrial and commercial exploitation. Elaborate provisions were made to extend state control over forests. Section 5 of the Act provides that any fresh clearing, failing of trees, breaking up of land for any purpose is prohibited in a reserved forest. Also, any right over the lands of reserved forest can be acquired only by succession or under a grant by way of written contract made by the government. Provisions were also made for taking over the management of private forests in certain cases. Forests officers were defined as offences punishable under the Act and the Rules made there under.

FOREST LAWS AFTER INDEPENDENCE

THE NATIONAL FOREST POLICY, 1952

In the National Forest Policy, 1952 it was declared that the forest policy should be based on paramount national needs. In a way this was an extension of the colonial British policy and it was laid down that the claims of communities living in and around forests should not override national interests. The concept of national interest was interpreted in a very narrow sense. The destruction of the forests for the construction of the roads, building of irrigation and hydro-electricity projects, ammunition factories and other projects were justified in the name of national interest. India’s technically skilled professional forest service thought mainly of increasing the revenue from forests, treating tribal as the enemies of the forest.

THE NATIONAL COMMISSION ON AGRICULTURE, 1976

The Commission devoted Part IV of its report to forestry. It advocated commercialization of forests at all costs and recommended regularization of forest dwellers rights over forest produce. The Commission stated that the production of industrial wood. The Commission recommended a drastic reduction in people’s rights over forests. It was stated that free supply of forest produce to the rural population and their rights and privileges has brought destruction to the forests and so it is necessary to reverse the process.

The Commission also recommended strengthening forestry legislation for effective implementation of forest policy and enactment of a revised all India Forest Act. In 1985, an administrative change of some significance took place. The Department of Forest was taken out of the control of the Ministry of Environment.

THE FOREST CONSERVATION ACT, 1980

The Forest Conservation Act was passed in 1980 and subsequently amended in 1988. This amendment was taken place after the forest department was transferred from the Ministry of Agriculture to the Ministry of Environment and Forests (MoEF), thus shifting the focus from revenue-earning to conservation. This Act aimed at conservation of forests and wildlife and greater state control in reserved forests and provided for penal measures in case of contravention of these provisions.

THE NATIONAL FOREST POLICY, 1987

The National Forest Policy in 1988 for the first time spoke about the conservation of biological and genetic diversity, restoration of ecological balance, the preservation of the remaining natural forests and the establishment of an extensive protected areas network. The policy spoke about a forestation and social forestry programmes, but primarily focused on the conservation of eco-systems, wildlife and bio-diversity and the restoration of ecological balance. The policy further spoke about the intrinsic relationship between forests and local communities, the protection of their customary rights and recognised the importance of forests as a means of livelihood. It was perhaps the first time that a policy document endeavour to strike a balance between conservation and the rights of local communities over them. But the problem was that the policy was not backed up by any legislative enactment.

THE JOINT FOREST MANAGEMENT

The Joint Forest Management was launched as a model of participatory forest management effort. The sources of authority for this programme are the Forest Policy Document of 1988 and a circular of the central government in 1990. Through the circular, the central government issued guidelines for involving village communities and voluntary agencies for regeneration of degraded forest lands. The guidelines envisaged formulation of a Joint Forest Planning Management Scheme, involving preparation of plans for the development and protection of forests with community participation and management. But the crux of the matter is that the programme does not have a legal basis. This means that the activity is possible only at the discretion of the government and can be withdrawn at any time.

THE 73rd CONSTITUTIONAL AMENDMENT

In 1992, the 73rd Amendment to the Constitution, which formalized the Constitution of Panchayats as micro institutions of governance, empowered these self-governing bodies to deal with matters concerning forests and other natural resources related matters. Finally, the Panchayat Extension of Scheduled Areas Act, 1996 (PESA) and the Panchayat Raj Act, 1998 conferred ownership of minor forest produce to Gram Sabhas and Panchayats. The JFM notification and the 73rd Amendment were small steps towards bringing back people within the ambit of Indian forest law, and the panchayat laws of 1996 and 98 were infinitely bolder and more positive steps towards social justice.

THE PANCHAYAT EXTENSION OF SCHEDULED AREAS ACT, 1996

It is an important law to improve the governance of the Scheduled Areas in such a way so as to protect the interests of tribal. The main idea of this law is to provide greater strength to the village community to protect the community interests. The PESA firmly established the Gram Sabha as the most basic unit of the Panchayati Raj set up. A limitation of the PESA law is that it is applicable only to those areas which are legally regarded as Scheduled Areas. A significant number of tribal living outside the Scheduled Areas are not covered by this legislation. Though PESA gives the rights of control of natural resources, including minor forest produce (MFP), to the respective local communities, has remained largely unimplemented by individual states, since land use is a state subject. States, in their attempts to invite investment, have been reluctant to uphold legislation such as PEAS.

THE FORESTS ACT, 2006

Recently government realized that forests have the best chance to survive if communities participate in its conservation. Recognition of forests rights enjoyed by the forest dwelling Scheduled Tribes on all kinds of forest lands for generations and which includes both bona fide needs of forest land for sustenance and usufruct from forest are the fundamental bases on which the legislation stands. The purpose of the Act is to recognise the rights of forest-dwelling communities and to encourage their participation in the conservation and management of forests and wildlife.

The provisions of the Act are in addition to and not in derogation of other laws that are in force, such as the Forest Act, the Forest Conservation Act etc. As a result, while forest dwelling scheduled tribes (FDSTs) and other traditional forest dwellers may be vested with certain forest rights under the Act, they may be unable to exercise them because they may be subject to the provisions of the other applicable laws. Problems may also arise regarding the jurisdiction of the various authorities under these separate but overlapping laws.

PROTECTION OF TRIBAL PEOPLE AND NATURAL RESOURCES UNDER THE CONSTITUTION

The Constitution of India has adopted special measures for the protection of the interest and welfare of the tribal people. Article 164(1) provides for the appointment of Minister for Tribal Welfare in the states of Bihar, Orissa and Chhattisgarh to take care of the tribal. The Parliament has also enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to prevent the commission of offences of atrocities against tribal and it also contains provisions to establish special courts for the tribal for such offences. The relief of rehabilitation has also been provided to the victims of such offences under this Act. In M. C. Mehta v. Kamal Nath, the Supreme Court laid down the doctrine of “Public trust” whereby the government is visualised as a public trustee and not as the owner of resources. It holds the resources in trust, to be used for the benefit and welfare of the people. As a trustee, it has to protect, maintain, manage and constantly endeavour to improve their quality.

To protect the cultural identity and socio-economic independence, the Constitution of India has put the tribal under Fifth and Sixth Schedule. The Fifth Schedule of the Constitution has provided the provisions as to administration and control of Scheduled Areas and Scheduled Tribes as required under Article 244(1) of the Constitution. The Governor of a state has been empowered to govern the tribal people. The Seventh Scheduled has special provisions for such administration of Tribal Areas in the states of Assam, Meghalaya, Tripura and Mizoram. The Supreme court in Samatha v. State of Andhra Pradesh, explained the position of the administration of Scheduled Areas as follows— the state, by cabinet form of government, is a persona ficta, a corporate sole. The Constitution empowers the state to acquire, hold and dispose of their property. The Governor in his personal responsibility is empowered to maintain peace and good government in Scheduled Area.

The Sixth Schedule to the Constitution empowers the Governor to regulate allotment of land. It imposes total prohibition on transfer of land in Scheduled Areas. The object of the Sixth Schedule is to preserve tribal autonomy, their culture and economic and political justice for preservation of peace and good governance in the Scheduled Areas. It was also made clear that executive power of the state under Article 298 and legislative power of the state are subject to the provisions of the Fifth Schedule. Thus, any law regarding the regulation or transfer of land by the state legislature is governed and delineated to the provisions of the Sixth Schedule.

Under Article 275,the Union Government has been asked to provide Grant-in-aid (each year) for the purpose of promoting welfare of the Scheduled Tribes and under Article 330(1) reservation of the seats have been made in the House of People. The number of seats in any states shall be made on the basis of the size of the population of tribal people in the state. Article 332 provides for reservation of seats for Scheduled Tribes in legislative assemblies of every state (except in Tribal areas of Assam, Nagaland, Meghalaya and Mizoram). But at the same time, Scheduled Tribes may also contest any seats other than the reserved seats.

EVALUATION OF FOREST LAWS

Continued exploitation of natural resources for increasing economic growth brought with it associated environmental problems. However, these problems were not addressed by the government until 1971, when the Planning Commission wrote a report on the state of India’s environment in preparation for a 1972 UN Conference on the Human Environment. Subsequently, a National Committee on Environmental Planning and Coordination (NCEPC) was formed in 1972 to act as an apex advisory body in all the matters relating to environmental protection and improvement. The fifth Five Year Plan (1974-79) stated that the NCEPC should be involved in all major industrial decisions, so that development can be balanced with environmental management. From all these, environmental decisions for the nation were de facto handed over to a group of bureaucrats, whereas the public, which was at the receiving end of these developmental policies, had no role.

In India, the central government has claimed sole jurisdiction over environmental matter because, the environmental rules were derived from international obligations, as India was a signatory to the 1972 UN Declaration. In 1976, the 42nd Amendment to the Indian Constitution moved the subject of ‘forest’ and “protection of wild animals and birds” from the State List under the Seventh Schedule to the Concurrent List bringing them within the purview of the Centre. It was under these legal bases that the Air Act of 1981 and the Environment Protection Act of 1986 were enacted with no public debate or state role.

The Industrial Policy Resolution of 1956 gave primacy to role of the state to assume a primary responsibility for industrial development. The government established large industrial establishments as Public Sector Units (PSUs) through the 60s and 70s, and it tightly regulated the private sector. The government ownership of industries resulted in a conflict of interest within the government which had to promote industries as well as to address environmental concerns. Given that, environmental concerns were introduced to the government much later after these industries were set up, and only because of external forces (through UN Declarations), industrial interests were prioritized over environmental issues.

INTERNATIONAL INITIATIVES TO PROTECT THE TRIBALS

There has always been a movement to protect and preserve the identity and rights of tribal people. The term “indigenous people” has been used for such persons. After the Second World War, various efforts have been made to recognise and implement the rights of tribal people. The International Commission on Environment and Development in 1987 cautioned that tribal and indigenous people would need special attention as the forces of economic development disrupt their traditional life-style that can offer modern societies many lessons in the management of resources in complex forest, mountain and dry land ecosystem.

The Commission also recommended for the recognition of their traditional rights, to give them right to have a decisive voice in formulating policies about resource development in their area. The starting point for a just and human policy for such group is the recognition and protection of their traditional rights to land and other resources that sustain their way of life—rights they may define in terms that do not fit into standard legal systems.

THE RIO DECLARATION, 1992

The Earth Summit, 1992 affirming the Stockholm Declaration of 1972 held at Rio-de-Janeiro, also proclaimed that Indigenous people and their community has a vital role in environmental management and development because of their knowledge and traditional practices. State should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

THE CONVENTION ON BIOLOGICAL DIVERSITY, 1992

The Convention on Biological Diversity, 1992 also recognised the customary use of biological resources according to traditional cultural practices. It was also declared that traditional practices are relevant to the conservation of biological diversity and therefore, national legislation to respect and preserve the knowledge and practices of indigenous people and local community must be passed. It was recognised by the Convention that indigenous people are closely depended on biological resources and have knowledge, innovations and practices relevant to conservation of biological diversity and the sustainable use of components. Now, almost all the nations have ratified and adopted it.

THE INDIGENOUS AND TRIBAL POPULATIONS CONVENTION, 1957

India ratified the Indigenous and Tribal Populations Convention, 1957, a Convention concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries on 29.09.1958. A subsequent revision to the Convention in 1989 still awaits India’s ratification. The revised Convention adopts new international standards on the subject with a view to remove the assimilationist orientation of the earlier standards. It recognises the aspirations of these people to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the states in which they live.

THE SUPREME COURT AND TRIBAL’S RIGHT IN FOREST

In the beginning the judiciary seemed to have rejected the plea of environmental degradation when the state attempted to monopolise private forests for being distributed among agricultural labourers.

In State of Kerala v. Gwalior Rayons the Supreme Court observed that a law vesting ownership of forest in the state was found as valid an agrarian reform bringing benefits to landless labourers, tribal people and other proletarian groups in a populated state. The court refused to entertain the plea of large-scale deforestation and ecological imbalance on the ground that the state is vested with the power to make a suitable law for agrarian reform.

In State of Tripura v. Sudhir Kumar Ranjan Nath, the Supreme Court did not dismiss the Forest Act as a mere taxing enactment, but considered it as one to preserve, protect and promote the forest wealth in the interests of the nation.

In Pradeep Krishen v. Union of India, the Supreme Court observed that if one of the reasons for the shrinkage in the entry of villagers and tribal living in and around the sanctuaries and the national parks, there can be no doubt that urgent steps must be taken to prevent any destruction or damage to the environment, the flora and fauna and wildlife in these areas.

In Samatha v. State of Andhra Pradesh, the Court held that government lands, tribal lands and forestlands in the Scheduled Areas could not be leased out to non-tribal or private companies for mining or industrial operations. However, the Supreme Court in a latter judgment in Balco Employees’ Union v. Union of India limited the application of the Samatha judgment only to the state of Andhra Pradesh. The Court also expressed its reservations about the correctness of the Samatha decision and suggested that the matter be decided by a five judges Constitutional Bench. However, till date, no such reference has been made.

The outcome of the case of T. N. Godavarman Thirumulkpad v. Union of India was set of Supreme Court orders that effectively constrained the rights of tribal. When the Court forbade the Union Government to allow indiscriminate encroachments without its permission, it was erroneously interpreted as an eviction notice of the tribal by the MoEF, and this led to large scale eviction drives. Widespread protests led to re-affirmation on the part of the MoEF to follow the 1990 guidelines, but in spite of this, evictions continued.

CONCLUSION

Through this analysis, it was found that, before 1947 Indian forests fulfilled the strategic interests of British imperialism and after independence the needs of the mercantile and industrial players. In both these periods, the impact of state policies on the tribal communities deriving sustenance from the exploitation of forests has been a uniform one. It has been shown, how the strategies evolved by colonial management have been taken over by post-colonial forest policy and further been modified and protected. The principles of state monopoly and exclusion of forest communities on which they are based, have been utilized by Indian forestry to serve the interests of dominant classes.

In a country like India, the environment is a source of livelihood for many, particularly the tribal. Environmental degradation has tremendous human costs. It hits the tribal most and directly too. Unfortunately, even conservation projects necessary for promoting national or global interests, such as the preservation of biodiversity, have an adverse impact on the tribal. If, for example, the dependence of the tribal on forests for livelihood is seen as a hindrance to their conservation, particularly of wildlife, the adverse effect of the projects on the tribal would have to be minimized. The tribal would have to be properly compensated and resettled in case they are shifted out of national parks or wildlife sanctuaries.

It is well established that the forest region of India, despite being resource rich, inhabits the poorest people who have not benefited from social and economic development to the same extent as people in other regions have. They must include treating tribal as partners in profit—partners contributing land as capital. Ignoring the importance the socio-cultural and environmental aspects of forests, the government has made all-out efforts to bring resource-intensive mode of development that would create ecological instability and violate the fundamental rights of people.

Across India, forests conserved by local communities for decades are being handed over to powerful commercial interests. This is in the name of “development at all costs” that accompanies the countries quest to become one of the world’s fastest growing economies. At stake are lacks of hectares of bio-diversity rich natural resource systems, the livelihoods of several million people who depend directly on these forests. In fact, in many cases, destructive development activities, rather than the activities of tribal and other forest-dependent communities, are responsible for the over-exploitation, neglect and denudation of forests.

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Marine Environment: An unchartered territory

Anshu Bansal, Research Associate

“Whatever we do, the ocean will survive in one way or another. What is more problematic is whether we shall preserve it in a state that ensures humanity’s survival and wellbeing”

Federico Mayor, Director General, UNESCO

The marine environment includes the waters of seas and estuaries, the seabed and its subsoils, and all marine wildlife and its sea and coastal habitats. It constitutes a fund of resources which can be used to achieve greater economic potential, so its protection in seeking to revitalise its economy ((Protecting and conserving the Marine environment, European Commission (2006).)). The marine environment is a vital resource for life on Earth. Marine ecosystems  perform  a  number  of  key  environmental  functions  —  they  regulate the climate, prevent erosion, accumulate and distribute solar energy, absorb carbon dioxide, and maintain biological control ((Ibid.)).

The world’s oceans are not only the domain of food for human being but also the legitimate concern of marine transport, offshore extraction of oil, gas and other minerals, climate control and recreation. Marine fisheries account for 85% of the global fish catch. Maritime shipping is involved in the transport of over 80% of the world’s merchandise trade ((A. N. Subramanian, Introduction: Marine Environment.)).

Though the seas cover the majority of our planet’s surface, far less is known about the biodiversity of marine environments then that of terrestrial systems ((Ormond (1997).)). The marine environment is also a great contributor to economic prosperity, social well-being and quality of life. Irish and Norse examined all 742 papers published in the journal Conservation Biology and found that only 5% focused on marine ecosystems and species, compared with 67% on terrestrial and 6% on freshwater ((Murphy and Duffus (1996).)). As a result of this disparity, marine conservation biology severely lags behind the terrestrial counterpart, and this gap of knowledge poses major problems for conservation of marine biodiversity and must be addressed ((Ibid)).

International Perspective to Marine Environment

Being a common heritage of mankind, marine resources are also subjected to international Conventions. For instance, many of Europe’s regional seas are the subject of international conventions. Some of the Conventions are: The 1992 OSPAR Convention which regulate and control marine pollution in the North Sea and North Atlantic, the Helsinki Commission on the protection of the Baltic Sea (Helcom) and the Barcelona Convention on the protection of the Mediterranean Sea. A number of these have made excellent contributions to marine protection, but they have few enforcement powers ((Ibid.)). The main reason for the failure of some of these conventions rests in the fact that they did not had effective enforcement mechanism. The most important legislation addressing the increasing problem of marine pollution is probably the 1978 Protocol to the International Convention for the Prevention of Pollution from Ships (MARPOL), which recognised that vessels present a significant and controllable source of pollution into the marine environment [Lentz, 1987] ((Josee G.B. Derraik, The pollution of the marine environment by plastic debris: a review, Marine Pollution Bulletin 44 (2002) 842–852)).

International Management Regimes for Marine Environment

To address the complexity of management regimes, it is essential to develop a methodology and collect the information required for the systematic valuation of ocean assets and services.  At  the  2002  World  Summit  on  Sustainable  Development  (WSSD)  the international  community  agreed  to  “establish  by  2004  a  regular  process under  the  United  Nations  for  global  reporting  and  assessment  of  the  state of the marine environment, including socio-economic aspects building on existing regional assessments ((Symphony of the seas , The Marine Environment, The magazine of the UNEP (December,2007).)).” The 2004 target proved unrealistic, but in 2005 the  General  Assembly  launched  an “assessment  of  assessments”  (AoA)  as  a  preparatory stage for the ‘regular process’, as it is called ((Ibid)).

In February 2004, IMO adopted the Ballast Water Management Convention, addressing the immense damage that can be caused by microscopic aquatic life  transported  around  the  world  in  this  way  and  deposited  in  alien  local ecosystems, threatening to disrupt their delicate balance ((Conrad, Flexible Instrument.)). Most countries recognize the value of their coastal and marine biodiversity and have gazetted marine and wetland protected areas to ensure their sustainability ((UNEP- WCMC (2000).)).

At the global level, the Law of the Sea Convention, the central regime for ocean governance, has established a new treaty system of ocean institutions. Under the umbrella of the convention, a number of ‘sub‐regimes’ can be identified, each of which deals with specialized matters. The most important of these sub‐regimes cover ((A. N. Subramanian, Introduction: Marine Environment)):

  • The sustainable management of marine living resources, the focus for which is Food and agricultural Organization of the United  Nations  (FAO),  including  its  network  of  regional fisheries commissions and conventions;
  • Shipping  and  marine  pollution  control,  centered  on International Maritime Organization (IMO) and several related convention‐based institutions;
  • The marine environment, the main responsibility for which has been assigned to United  Nations  Environment  Programme (UNEP), including its network of regional seas agreements and action plans;
  • Marine scientific research and associated ocean services and management, centered on Intergovernmental Oceanographic Commission of UNESCO (IOC);
  • Deep seabed mineral development, through the International Sea Bed Authority (ISBA).

Major Threat To Marine Biodiversity

There are several causes of marine pollution, such as:

(a)  Dumping of wastes at sea ((Art 1(1)(5)(a) 1982 Law of the Sea Convention.)).

(b) From land-based sources e.g. untreated sewage and the dumping of wastes which reach the sea and oceans through rivers and streams, fumes from power plants and factories, etc.;

(c)  Pollution from ships during their voyages;

(d) Pollution from seabed activities i.e. exploration of mineral resources in the seabed ((Art  43  1982  Law  of  the  Sea  Convention,  “User  States  and  States  bordering  a  strait  should  by agreement co-operate)).

It has also been established that one of the major contributor in pollution concerning marine biodiversity relates to disposing waste in marine environment. One among them is the threat posed by Plastic debris. There are overwhelming evidence that plastic pollution is a threat to marine biodiversity, already at risk from overfishing, climate change and other forms of anthropogenic disturbance. Due to the long life of plastics on marine ecosystems, it is imperative that severe measures are taken to address the problem at both international and national levels, since even if the production and disposal of plastics suddenly stopped, the existing debris would continue to harm marine life for many decades ((Josee G.B. Derraik, The Pollution Of The Marine Environment By Plastic Debris: A Review, Marine Pollution Bulletin 44 (2002) 842–852.  )).

There have been nevertheless some attempts to promote the conservation of the world’s oceans through international legislation, such as the establishment of the 1972 Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter [the London dumping Convention or LDC] ((Ibid.)).

In addition to plastic debris, activities such as fishing and extracting aggregates, oil and gas all affect our marine environment. We have damaged many habitats, for example by some fishing methods and by boat anchor chains dragging through seagrass beds ((Ibid.)). Pressures from commercial activities have caused a decline in a number of species, including spiny dogfish and porbeagle and even extinctions, for example of the angel shark in parts of UK waters.

An estimated 70% of the world’s fish stocks are already being exploited at or beyond sustainable limits, but fishing generally continues unabated despite extensive regulatory arrangements for their management ((Supra note 3.)). Also, Oil spill is one of the major threat. The oil spill from the  Erikaalong the French coast in December 1999, which was followed by two other cases of sinking ships and the release of hazardous substances, namely the Kristal and the Baku ((The Times Editorial, Rough Seas for Maltese Flag, 10th March 2001.)).

Conclusion and Recommendation

The  marine  environment  is  faced  with  a  number  of  increasingly  severe threats.  These include loss or degradation of biodiversity and changes in its structures, loss of habitats, contamination from dangerous substances, and the impacts of climate change ((Supra note 4)). Coastal and marine resources are being vanished and damaged by increase in marine human activities. This leads to deteriorating biodiversity in such a way that livelihood opportunities are decreasing.

In order to deal with the problem, UK Marine Bill can be referred. In UK, Marine Bill was drafted which provided a number of tools to improve our marine environment. For instance, Marine Conservation Zones will provide a mechanism to protect nationally important species and habitats. Marine planning will help us to find space for the competing range of activities in our seas, for example fishing, wind farms and gravel extraction and manage them in a holistic way. The Marine Management Organisation will regulate marine activities and help enforce laws to protect the marine environment ((Jonathan Shaw, Protecting Our Marine Environment Through The Marine Bill, Department of Environment, Food and Rural Affairs.)).

Environmental protection and role of judiciary in India

Anshu Bansal, Research Associate

Can Judiciary manage the Environment?

The role of the judiciary is really important as the role of mitochondria of a living human cell. Had the judiciary turned the deaf ear towards environmental problems it could not be in any way came to celluloid ((Mohindra Kothi, Environmental Protection vis-à-vis Judicial Activism, Waila and OIDA International Journal of Sustainable Development  (2010).)).

It is true that the major compelling force behind number of legislations can be attributed to the active role played by judiciary. Indian judiciary is the first in the row who developed the concept of right to healthy environment as a part of life under Article 21 of our constitution ((Bhandu Mukti Morcha v. Union of India, 1984 (3) SCC 161.)). One significant contribution of judiciary is to create a link between fundamental duty and fundamental right. In the case of Subhash Kumar vs. State of Bihar ((AIR 1991 SC 420.)), it was said that the environmental protection which previously was a fundamental duty under article 51(A) also came as a fundamental right under article 21 of the constitution of India. In this context, Public Interest litigation has emerged as one of the major tool for development of environmental jurisprudence.

In another case ((1995 AIHC 4168)), high court directed the defendants to control the noise pollution occurring from the loudspeaker drums in order to keep right to life which include right to noise free environment intact. In addition to this, Court has also held that in matters of environment, the burden of proof will lie on the party that wants to change the status quo ((S.P. Sathe , Judicial Activism in India  (2nd edition).)). In the Bhopal gas tragedy, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries by interpreting the scope of the power under Article 32 to issue directions or orders, whichever may be appropriate in appropriate proceedings. According to the court of law the power could be utilized for going new remedies and fashioning new strategies ((Rohan Bagai , Judicial Activism and environmental jurisprudence in India)).

Further, in 1998, the Indian Supreme Court, embracing its activist role, issued a controversial order suo moto mandating the conversion of the entire Delhi fleet of diesel-powered buses to compressed natural gas (CNG) ((Rosencranz, Armin, Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).)). Steadfast resistance from the agencies responsible for enforcing the court order has raised serious questions about the wisdom of this decision. Many opponents have disputed the reliability and practicality of CNG, arguing that the technology is still in development, making the conversion both risky and costly ((Id.)).

Legislations  supporting judiciary to take the matter seriously

M.C Mehta has pioneered legal activism for environmental protection and is proof that one man can make a difference ((M.C Mehta Environmental Foundation (MCMEF).)). With the Supreme Court of India taking the lead, the centre of gravity of justice has now shifted from traditional individual locus standi to the community orientation of public interest litigation ((S.K.Aggarwal, Public Interest litigation in India: A Critique, I.L.I., 1985)).

It is pertinent to point out here that the two provisions under Article 226 and 32 of constitution of India which provides gate for filing Public Interest Litigation or Writ petition in the High court and Supreme Court respectively are the two eyes of the judiciary. The increasing scope of these Articles is the immediate effect of various litigations filed in the respective court.  Under the banner of Public Interest Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the higher courts have tried to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content ((Chandra Pal, Environmental Protection And Emerging Trends In Judicial Responses, Central India Law Quarterly)).

However, constitution of India is not the only legislation which aids the activism of judiciary. There are other legislations which also provide for a platform for judicial intervention and aid judiciary to take the matter seriously. They are:

  • Civil procedure code which contains specific provisions which enabled two or more persons having a legitimate interest in the subject matter to seek remedy through court. The first one is under section 91 which provides for remedy for performing public wrong and another one is under section 92 which deals with remedying breaches of public trusts.
  • Under I.P.C ((Chapter XIV Sections 268 to 294A)), Chapter XIV (Sections 268 to 294A) provides provisions to punish the person who pollutes environment.
  • Chapter X, (Sections 133 to 146) and Chapter XI of Cr.P.C. also provides provisions for granting punishment to those who damage environment.

International conventions which support judiciary to take requisite actions

  • United Nations in its International Conference (1972) laid down its agenda as “to defend and improve the human environment for a present and future generation has become an imperative goal for mankind”. This Conference at Stockholm became the turning point for the development of environmental Jurisprudence.
  • Then there is the General Assembly Resolution in 1972 ((General Assembly’s Resolution of 5th December 1972, designating June 5th as World Environmental Day)), emphasizing the need for the active cooperation among the states in the field of human environment.
  • Earth Summit: The document produced at the Earth Summit has 40 chapters having 800 pages. Agenda 21 – a comprehensive programme of action for global action in all areas of sustainable development was also adopted.

Striking the balance between various rights of the citizen of India

It is the conflicting rights of the citizens which make it difficult for the state to strike a balance between various rights associated with different groups of people. For instance, under the right to life, drinking water is one of the fundamental requirements, but simultaneously the State is obliged to preserve the ground water or to restrict the use so that it can be prevented from being wasted. One the one hand, State has an obligation to protect the forest but at the same time it is also obliged to protect the tribal people whose livelihood is based on forest. State is bound to close down those industries, which are hazardous for the environment, but at the same time has to keep in mind the livelihood of the people who work there ((Supra note 1.)). In the Recent Lok Sabha Debate in Feb., 2013 it was discussed that development should not be at the cost of forests; development should not be at the cost of tribals.  Even the Tribal Affairs Minister has written to the Environment Minister saying that the Forests Rights Act is being violated in giving environmental clearance ((Discussion on the Motion of Thanks on the President’s Address to both Houses of Parliament assembled together on 21.02.2013, moved by Shri P.C. Chacko and seconded by Dr. Girija Vyas available at http://www.indiankanoon.org/doc/70144574/)).

Hence, it is indeed a difficult task to strike a balance between various rights related to different groups of people. It requires active participation of all the inhabitants. It is needed that people first make themselves acquainted with the prospective impact of the degradation of environment. Judicial activism can indeed play a pivotal role in curbing commercial problems. In addition to this inclusion of definition of pollution into international crime to ascertain individual criminal liability will lead to reduce in irresponsible and dangerous behaviour of the communities towards environment ((Id.)).

However, the judiciary sometimes is also criticized for acting beyond its limit which is termed as judicial over-activism. Justice Srikrishna is of the view that in the name of judicial activism, modern judges in India had abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of distributive justice ((Discussion regarding need for harmonious functioning of three organs of State – Legislature, Judiciary and Executive,( 3 December, 2007) available at http://www.indiankanoon.org/docfragment/854333/?formInput=Judicial%20activism%20)). But author beg to differ here because in the current scenario, it won’t be possible for judges to act as a neutral referee. In order to keep pace with the changing scenario, it is needed that judiciary should itself play an active role. Judicial legislation is a tool which had served is still serving and is expected to serve in the future as a major reason behind many environment friendly legislations.