Protection of Biodiversity in India: An Analysis

Anshu Bansal, Research Associate

Biodiversity has “intrinsic value” – or value for its own sake – but it also has significant value in all cultures for the things that it provides: food, medicine, building and craft materials and spiritual, cultural and aesthetic services. Less obvious, but just as important, are the services that allow natural and human-altered ecosystems (such as agricultural and urban landscapes) to function properly – regulating the climate, soil fertility, and the outbreak of pests and diseases. Some level of biodiversity – the exact amount is at this stage unknown – is a necessary condition for the delivery of ecosystem services, but it is especially important for maintaining functional ecosystems ((MA (2006). Ecosystems and Human Well-being: Current State and Trends. Volume 1. Millennium Ecosystem Assessment. Island Press, Washington available at  http://www.millenniumassessment.org//en/productsglobal.condition.aspx.)).

It is indeed true that protection of environment and its functionaries are as important for us as our fundamental rights.  The protection of environment itself is enshrined in the Constitution of India ((Article 48A and Article 51A (g), Constitution of India,1950.)). One of the major parts of environment includes biological resources. Wide-ranging policies, programmes and projects are in place, which directly or indirectly serve to protect, conserve and sustainably use the country’s biological resources. India is committed to conservation of biodiversity. This is not only because of India’s international obligations as a signatory to the Convention on Biological Diversity, but because India believes that protecting our biodiversity is a critical national priority as it is linked to major environmental issues and local livelihoods of millions of people in the country as well. Sustainable use of our biodiversity, therefore, has both ecological and economic value ((The Convention On Biological Diversity (CBD), COP-10. Nagoya, Japan. October 18-29, 2010.)).

It is with this objective that India has enacted Biological Diversity Act, 2002 and set up a National Biodiversity Authority (NBA) in 2003 with an explicit mandate of promoting conservation of biological resources and associated knowledge as well as facilitating access to them in a sustainable manner. Biological Diversity Act, 2002 of India has defined Biological diversity. It says that “Biological Diversity” means the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-systems ((Chapter I, Clause 2b, Bio-diversity Act, 2002 [Hereinafter as BD ACT].))and “Biological resources” means plants, animals and microorganisms or parts thereof, their genetic material and by -products with actual or potential use or value but does not include human genetic material ((BD ACT, Ibid, Chapter I Clause 2c.)).

The Convention on Biological Diversity also defines biodiversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”

Facts about India

India is classified among the 12 mega-diversity centres of the world. India’s record in agro-biodiversity is equally impressive. There are 167 crop species and 320 species of wild crop relatives and several species of domesticated animals. India is considered to be the centre of origin of 50,000 varieties of rice, 1000 varieties of mango, 100 varieties of pepper, 27 breeds of cattle, 22 breeds of goat, 40 breeds of sheep, 18 breeds of poultry, 8 breeds of buffalo (the world’s total biodiversity) and several other varieties of pigeon-pea, turmeric, ginger, sugarcane, gooseberries etc and ranks seventh in terms of contribution to world agriculture ((Kothari A, India’s mega diversity, Folio: Earthscapes (The Hindu), May (20) 2001.)).

National Policy and Macro level action Strategy on Biodiversity (Ministry of Environment and Forests, Government of India, New Delhi) 1999, also says that India has a rich and varied heritage of biodiversity. It has 850 species of bacteria, 6500 species of algae, 14500 species of fungi, 2000 species of lichen, 2850 species of bryophytes, 1100 species of pteridophytes, 64 species of gymnosperms and 17500 species of angiosperms ((National Policy and Macro level action Strategy on Biodiversity (Ministry of Environment and Forests, Government of India, New Delhi) 1999.)). About 5,150 plant species and 1,837 animal species are endemic to India. India’s biodiversity includes wild relatives of agricultural crops and domesticated animals. India has 16 major types and 251 subtypes of forests. The large mosaic of distinct agro-ecosystems has contributed to diverse cropping pattern and systems across the country ((India & The Convention On Biological Diversity (CBD), COP-10 Nagoya, Japan. October 18-29, 2010)).

In addition to this, India has also participated in major international events on environment and biodiversity conservation since 1972. India is also a party to the following international agreements which have bearing on biodiversity:

  • Bonn Convention on Migratory Species
  • Convention on Biological Diversity,
  • Convention on International Trade on Endangered Species,
  • FAO International Treaty on Plant Genetic Resources for food and agriculture.
  • Ramsar Convention on Wetlands,
  • World Heritage Convention,
  • World Trade Organization,
  • UN Framework Convention on Climate Change,
  • UN Convention to Combating Desertification,
  • UN Commission on Sustainable Development,
  • UN Law of the Seas.

Bio-diversity and climate change: need to minimize negative influence of other factors

There exists a very close linkage between biodiversity and climate change. Biodiversity is strongly affected by climate change. Since, biodiversity helps people to adapt to climate change through providing the ecosystem services which reduce their vulnerability and enhance their adaptive capacity to change. This includes the coastal protection provided by coastal mangrove forests from flooding and coastal erosion caused by sea-level rise and more powerful storms ((Pravat Chandro Sutar and Nigamananda Swain, Implementation of Biological Diversity Act in India : An overview with Case Studies, 24th August 2011.)).

Therefore, we need to make additional efforts to minimize the negative influence of other factors, such as over-exploitation, habitat loss and fragmentation, pollution, and the spread of invasive alien species. This way we can ensure that ecosystems are less vulnerable and more resilient to the increasing threat posed by climate change ((Ibid)).

CEBPOL: A step towards better Governance

Since the issues pertaining to policy and law in biodiversity are complex, it is required that there should be some organization in the country that specialises in policy and legal issues relating to biodiversity. In this context, it is important to mention CEBPOL, which provide advice and support to the Government on all biodiversity policy related issues. Its functions includes helping in complex negotiations. It also helps in effective implementation of the international agreements relating to biodiversity and its conservation.

Objectives of the CEBPOL ((Centre for biodiversity policy and Law, National Biodiversity Authority, Chennai, Policy issue in BD, MSSRF, Aug. 29th, 2010 [Hereinafter as Centre for biodiversity policy and Law ].)).

  • Develop professional expertise in biodiversity related policies and laws, inter alia through encouragement of research, development and training matters relating to CBD.
  • Interface with other multilateral environment agreements and United Nations bodies.
  • To provide professional support, advice and expertise to the Government of India on matters relating to biodiversity polices and laws at the national level, as well as in international negotiations relating to biodiversity in multilateral forums.
  • To develop capacity building programmes through multidisciplinary research and customise training programmes.
  • To facilitate interactive information sharing through web conferencing, web seminars and virtual meetings
  • To help develop India as a regional and international resource Centre for Biodiversity Policy and Law.

Functions and activities of CEBPOL ((Centre for biodiversity policy and Law,  Ibid)).

  • Collect, collate, analyse and disseminate information relating to biodiversity policy and law.
  • Execute short and long-term training courses and sensitisation programmes on biodiversity policies and laws for various target groups
  • Engage consultants, policy analysts, legal experts and interns on both short term and long-term basis for providing professional inputs in the training, research, education, analysis and awareness activities
  • Prepare for the Government of India, country’s position papers on various aspects relating to biodiversity polices and law for international meetings and negotiations.
  • Establish appropriate linkages with other similar centres / institutions, both nationally and internationally, for developing collaborative programmes and academic exchange.
  • To strengthen implementation of Biological Diversity Act at the national level.
  • contribute to the ongoing negotiations and eventually implementation of the protocol on ABS ((Centre for biodiversity policy and Law,  Ibid)).

Institutional framework for biodiversity in india

The present institutional framework relation to biodiversity is the outcome of 1986 Environment (Protection) Act. The Environment (Protection) Act contains the legal foundations of the Indian biotechnology system. Sections 6, 8 and 25 are worth noting: Section 6 enables the Indian government to enact rules on procedures, safeguards, prohibitions and restrictions for the handling of hazardous substances; Section 8 subjects the handling of hazardous substances to safeguards and procedures; and Section 25 empowers the government to continue this task and adopt specific rules and guidelines in the field of bio safety ((The Environment (Protection) Act, 1986 (23 May 1986) cited in Biotechnology in India:  Its Policy and Normative Framework (December 2010).)).

The norms of the Environment (Protection) Act provide the legal background to the Rules for Manufacturing, Use, Import, Export and Storage of Hazardous Microorganisms, Genetically Engineered Organisms or Cells ((Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms, Genetically Engineered Organisms or Cells (New Delhi: Ministry of Environment & Forests, GSIR 1037 (E), 5 December 1989). Gazette (12 May,1989).)). This is a key piece of the Indian legislation on biotechnology, which is also known as Bio safety Rules or, simply, the Rules of 1989. The Bio safety Rules deal with the research, manufacturing, importation, usage and storage of microorganisms, gene technology products and products made out of genetically modified microorganisms ((Art. 2 are sale, offer for sale, storage for the purpose of sale, offer and any kind; exportation and importation; production, manufacturing, processing, storage, import, drawing off, packaging and repacking; production, manufacture etc. of drugs and pharmaceuticals and food stuffs distilleries and tanneries, etc. which make use of micro-organisms genetically engineered micro-organisms one way or the other.)).

Biotechnology is a cross-cutting inter-ministerial activity, since several ministries conduct activities in the biotech field: the Ministry of Science and Technology, the Ministry of Agriculture, the Ministry of Health and the Ministry of Human Resource and Development ((Biotechnology in India:  Its Policy and Normative Framework (December 2010).)). Among the agencies under the authority of those ministries the Department of Biotechnology, the Indian Council of Medical Research, the Council of Scientific and Industrial Research, the Indian Council of Agricultural Research and the National Biodiversity Authority ((Ibid.)).

An experience from Costa Rica

The sustainable utilization of biodiversity is already making significant contributions to the social and economic development of Costa Rica in several different ways. These include nature-oriented tourism, payment of environmental services and bio-prospecting.

In the quest for a human sustainable development model, many countries, faces the challenge of how to establish a proper balance among a complex interaction of economic, social and environmental factors. As established in its National Biodiversity Conservation and Sustainable Use Strategy, Costa Rica’s biodiversity conservation policy is based on the ‘save, know, use’ trilogy of principles. ‘Save’ means protecting representative samples of the country’s biodiversity through a system of protected areas; ‘know’ means knowing the biodiversity that exists in the country and particularly in its protected areas; and ‘use’, means using sustainably this biodiversity for the social and economic benefit of the country ((The Link Between Biodiversity and Sustainable Development: Lessons from INBio’s Bio-prospecting Programme in Costa Rica , Charles R. McManis , Biodiversity and the Law Intellectual Property, Biotechnology and Traditional Knowledge [Hereinafter as Bio-prospecting Programme in Costa Rica].)).

An increased awareness of the many different values of biodiversity by society as a whole is expected to help attain biodiversity conservation, as the contributions of biodiversity to the improvement of people’s quality of life become increasingly evident and recognized. Otherwise, those areas devoted to biodiversity conservation run the risk of being converted to other forms of utilization, not compatible with conservation ((Bio-prospecting Programme in Costa Rica , Ibid.)).

Impact of Intellectual Property Rights on biodiversity : balancing IPRs and biodiversity

Biological diversity is the hallmark of life on earth. It is the very backbone of sustainable development. The current Intellectual Property Rights (IPR) regime is encouraging commercialization of seed development, monoculture, protection of new plant varieties, microorganisms, and genetically modified organisms. As a consequence, our rich biogenetic diversity is being eroded irreversibly. We must find out a path to make an alternative approach that will bring a balance in between formal Intellectual Property (IP) system and sustainable aspects of biodiversity ((Sabuj Kumar Chaudhuri, The Impact of IPR on Biodiversity.)).

Over a period of time, most authorities believed that an alarming proportion of the genetic variability of our major food plants-as it is available in the field-has become endangered. Thus, the conservation, preservation and development of these crops and the remaining crop diversity are a matter vital global concern. The benefits of genetic diversity are long term and rarely predictable. Humanity shares a common bowl containing only 20 cultivated crops and all 20 crops originate in developing countries ((FAO, 1991)). All are alarmingly vulnerable to pests and diseases and it needs to be protected for the generations to come.

When farmers look to increase their sale they often sow different and more commercially viable seeds. Sometimes various government schemes force them to adapt specific seeds or new plant varieties. Thus commercial agriculture tends to increase genetic uniformity and this, in turn leads to genetic erosion. IP system encourages commercial agriculture that accelerates genetic erosion. Biotechnology research focuses on commercial agriculture and leads to demand for IP protection with the same potentially negative consequences for genetic diversity ((The Crucible Group, Plants-People, Plants and Patents (IDRC, Canada) 1994.)).

Sometimes various government schemes compel the farmers to adapt specific seeds or new plant varieties in order to increase their sale. This, in turn, leads to an increment in genetic uniformity  and  accelerates genetic erosion ,which is also increased by IP system. In addition to this, PVP (Plant Variety Protection) laws which allows breeders to protect the varieties with alike traits, which means the system tends to be driven by commercial considerations of product differentiation and planned obsolescence, rather than genuine development in inagronomic traits.

Similarly, the requirements for uniformity (and solidity) in UPOV type systems exclude more diverse heritably, and less stable local varieties developed by farmers. Another  trepidation is the criteria for uniformity. While proponents proclaim that PVP, by stimulating the production of new varieties, actually increases biodiversity is totally wrong. Moreover,  the success of Green Revolution Varieties has given rise to greater uniformity , leading to greater vulnerability to disease and failure of on field biodiversity ((Agriculture and Genetic Resources-Integrating Intellectual Property Rights and Development policy (Report of the Commission on Intellectual property Rights, London) September2002, p 61.)). In addition to the above said issues, an engineered organism may produce unanticipated harmful impacts on other species in its new environment that may cause further erosion and ecological degradation.

International conventions and protocol

Internationally also, the need for recognition and sustainable development of bio-diversity is also acknowledged. The possible connection between the goals and ideas of the CBD and environmental law is considered on the basis of the international debate. From an economic point of view, biodiversity contributes in two different ways: as part of the ecological system and as a resource.

The CBD creates a link between the idea of protection and sustainable development by addressing not only the conservation of biological diversity, but also the sustainable use of biological resources. In addition to the very general and basic link of these two terms in the provision that determines the purpose of the Convention (Art. 1) and in the general provisions on sustainable development (Art. 10) and incentives (Art. 11), there is also a special provision in Art. 8 which aim to respect, preserve and maintain local and indigenous ways of cultivation because of their importance for the conservation and sustainable use of biodiversity ((Anja von Hahn, Implementing the Convention on Biological Diversity Analysis of the Links to Intellectual Property and the International System for the Protection of Intellectual Property BfN, German Federal Agency for Nature Conservation 2001.)).

In this connection, it is pertinent to mention here that the preamble of CBD itself affirm that the conservation of biological diversity is a common concern of humankind. Further, it also provides for General Measures for Conservation and Sustainable Use of biological resources in which it is said that  Each Contracting Party shall, in accordance with its particular conditions and capabilities:(a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and (b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies ((Article 6, Convention on Biological Diversity [Hereinafter as CBD].)).

Further, Article 8 provides for  In-situ Conservation and states that each Contracting Party shall, as far as possible and as appropriate: (a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity: (b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity:(c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; (d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings: (e) Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of such areas ((CBD, Article 8)).

Additionally, Article 10 provides for sustainable Use of components of Biological Diversity and Article 14 provides for Impact Assessment and Minimization of Adverse Impacts. It also requires each Contracting Party, as far as possible and as appropriate to introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity.

Cartegena Protocol creates an enabling environment for the environmentally sound application of biotechnology, making it possible to derive maximum benefit from the potential that biotechnology has to offer, while minimizing the possible risks to the environment and to human health. In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on trans-boundary movements ((Article 1, Cartegena Protocol.)).

Nagoya protocol also acknowledges the potential role of access and benefit-sharing to contribute to the conservation and sustainable use of biological diversity, poverty eradication and environmental sustainability and thereby contributing to achieving the Millennium Development Goals.

GMOs and its potential for environmental damage

The Environment (Protection) Act, (EPA), 1986 provides guidelines on the handling, research, application and technology transfer of GMOs, but the trans-boundary movement or trade in GMOs is yet to be addressed. The limitation of the Indian bio-safety framework is perhaps compounded by the lack of a domestic biotechnology policy, despite the fact that India is the first country to have an exclusive department of biotechnology ((Biotech Revolution’, Frontline, Chennai, August 29, 2003, pp 109-26.)).

 The Indian regulatory structure comprises of six committees to regulate GMOs ((Ibid.)):

  • Recombinant DNA Advisory Committee (RDAC),
  • Review Committee on Genetic Manipulation (RCGM),
  • Institutional Biosafety Committee (IBSC),
  • Genetic Engineering Approval Committee(G EAC),
  • State Biotechnology Coordination Committee(S BCC)and the
  • DLC;

The first three come under the DBT and the remaining three are associated with the ministry of environment and forests (MoEF).  The RDAC monitors development in GMOs at the national and international levels and suggests appropriate regulations. The RDAC also drafted the first Indian Recombinant DNA Biosafety Guidelines in 1990 which were implemented by the government ((Lianchawii, Biosafety in India: Rethinking GMO Regulation, Economic and Political Weekly, Vol. 40, No. 39 (Sep. 24-30, 2005), pp. 4284-4289 available at http://www.jstor.org/stable/4417202)).

Genetically Engineered/Modified (GE/GM) crops are organisms created artificially in labs by forcibly inserting genes of unrelated organisms into the genetic structure of the plant. Genetically engineered crops are unpredictable in their character and the plants once released in the environment are uncontrollable and can never be taken back ((The Biotechnology Regulatory Authority of India [ BRAI] Bill 2011 – The bill to end the right to safe food! [Hereinafter as brai bill].)). There are several studies indicating the potential risk to human health and environment- this has resulted in a controversy across the world around the need for introducing such potentially risky organisms. Many countries in Europe, Asia and across the world have adopted a precautionary approach towards GMOs in their regulatory systems. India currently has a regulatory system in place, the intention and efficiency of which had been under question ((brai bill, Ibid.)).

The environmentalists across the globe have however expressed the concern on the use of GM crops as they feel that they would cause environmental damage and they are not safe for human consumption. In the meantime, the Genetic Engineering Approval Committee (the regulatory body for GM crops in India) evaluated the development process of Bt brinjal (eggplant) and has given its approval for commercial cultivation ((Pingali Venugopal,  GM Crops Controversy: Stakeholder Analysis of the Case of Bt Brinjal (Eggplant) in India, Journalism and Mass Communication, ISSN 2160-6579 August 2012, Vol. 2, No. 8, 852-863 [Hereinafter as GM Crops Controversy].)). This further aggravated the GM controversy; while the farmers are interested in cultivating BT brinjal, the activists against GM crops have been protesting against the introduction of these hybrids stating that adequate tests have not been done to check on the safety of BT brinjal. This controversy prompted the Minister of Environment of India Government to hold public consultations across India to access the views of the stakeholders ((GM Crops Controversy, Ibid.)). On the basis of the consultations held, in 2010 the commercial introduction of Bt Brinjal was banned.

Merits of GM crops are as follows ((GM Crops Controversy,  Ibid.)):

(1)   Improved yields;

(2)   they can reduce the huge volume of pesticides used which are an established threat to the environment;

(3)   Tolerance to herbicides (meaning weed-killer can be sprayed to kill all plants but the main crop);

Demerits of GM crops are as follows ((GM Crops Controversy, Ibid)):

(1) Concerns have been expressed that eating GM food could cause health problems in humans, including the development of harmful anti-biotic resistant microorganisms;

 (2) It has been suggested that GM plants could breed with other plants producing uncontrollable “weed” species with herbicide resistance;

 (3) There are concerns that GM crops could “escape” from their fields and become wild plants.

 Conclusion

It is correctly defined by convention on Biological diversity that biodiversity refers to the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part. Biological diversity is indeed an important part of our whole ecosystem and in the recent years the issue became more apparent. India is also party to many international conventions and the required uniformity is also brought after Biodiversity Act, 2002 was passed. The creation of national biodiversity authority has further channelized the process in a correct manner.

However, the conservation and preservation of biodiversity is not possible by merely institutionalising the regulatory bodies rather proper implementation of policies is also required. The combined effort of all the regulatory agencies is needed for the proper implementation of plans and policies. In addition to this, the role played by judiciary cannot be ignored.

Environmental Protection under Indian Constitution

Author: Shashank Sahay, Research Associate

The Indian Constitution is amongst the few in the world that contains specific provision son environment protection. The directive principles of State Policy and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment. Judicial interpretation has strengthened the constitutional mandate ((Shyam Divan and Armin Rosencranz , Environmental Law and policy in India, Second Edition, ,Oxford India Paperbacks, p.41)). The Problem of environment is tackled through various statutes like The Environment (Protection) Act, 1986 was introduced as an umbrella legislation that provides a holistic framework for the protection and improvement to the environment. In terms   of   responsibilities, Air (Prevention and Control of Pollution) Act 1981, Water (Prevention & Control) Act 1974, Water (Prevention & Control) Act 1974 etc.

INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION

Indian constitution provide for a federal structure within the framework of parliamentary form of government. There are Union list (subject matter on which only central government can enact legislations), State list (subject matter on which only state legislatures can make legislation) and Concurrent (both Parliament and state legislature can make legislation) which covers various subject matter related to environment protection. The union list  gives Parliament  exclusive  jurisdiction  over  97  topics  including  foreign  affairs,  defense,  the regulation  and  development  of  oilfields,  and  interstate,  rivers.  The  state  list  gives  state government’s exclusive power over areas such as public health and sanitation, agriculture, water  supplies  and  irrigation,  land  reform  and  improvement,  and  fisheries.  Under  the concurrent list, both the  union government and the states may regulate criminal law and procedure,  forests,  protection  of  wild  animals  and  birds,  population  control  and  family planning, prevention of cruelty to animals etc. A union law regarding a concurrent subject generally prevails over a state law on the same subject, thus providing some administrative uniformity throughout the country.

OBLIGATION ON THE STATE

Article 39 (b) of the Constitution of India provides that the State shall direct its policy to see “that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good. The term “material resources of the community” embraces all things, which are capable of producing wealth for the community ((Assam Sillimanite Ltd. v Union of India, AIR 1992 SC 938)). The expression “material resources of the community” has been held to include such resources in the hands of the private persons and not only those, which have already vested in State ((Sanjeev Coke Mfg. Co v Bharat Coking Coal Ltd., AIR 1983 SC 239)).

The Constitution of India through Article 42 has directed the State to endeavor to secure just and human conditions of work. The Constitution of India under Article 47 also imposes a duty upon the State to endeavor to secure just and human conditions of work. The Supreme Court in Municipal Council, Ratlam v Vardichand ((AIR 1980 SC 1622))observed, “the State will realize that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties.”

Article 48 directs the State to take cognizance of agricultural and animal husbandry on modern and scientific lines. In particular, it is directed to take steps for preserving and improving the breeds and prohibiting the slaughter of cows, calves and other milch and draught cattle.

The State under Article 49 is also required “to protect every monument or place or object of artistic or historic interests (declared by or under law made by Parliament) to be of national importance from spoliation, disfigurement, destruction removal, disposal or export.”

India also being a Welfare State has a responsibility to provide basic amenities and a decent living standard   to   its citizens.  Art 39 (b)  of  Indian  Constitution  earmarks  equitable distribution of natural resources as one of the State’s policy under the scope of Art 21 of the constitution of India  as Right to Life, Supreme Court of India has at many occasions upheld the right to a decent standard of environment as necessary outcome to ensure right to life.

THE FORTY SECOND AMENDMENT ACT     

The Forty-second Amendment Act, passed in 1976, explicitly incorporated environmental protection into the Indian Constitution for the first time. First, article 48A, added to the Directive Principles of State Policy, imposed on the State the responsibility to protect the environment “The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.” Second, article 5 1A of a new chapter entitled “Fundamental Duties” imposed a similar duty on all Indian citizens It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. The Forty-second Amendment Act also added entries to the concurrent list. The Act inserted a new entry, “Population control and family planning, and moved “Forests” and “Protection of wild animals and birds,” from the state list to the concurrent list ((See H. Seervai, Constitutional Law of India: A Critical Commentatory, Vol.1, 1991 and S. Rao, The Framing of India’s Constitution, Select Documents 315, Vol IV, 1968)).

Some members of the Indian academic community believe that the Forty-second Amendment gave  the  central  government  new  powers  to  protect  the  environment,  powers  that  the center did  not  previously  possess.   Debate over the interpretation of the Forty-second Amendment Act centers on whether the central government’s objective was simply to express its willingness to deal with environmental problems, or actually to acquire additional powers as against state governments. To evaluate these opposing contentions and to determine to what extent the centre’s ability to pass  environmental legislation is limited by the division of powers among the lists, it is necessary  to  analyze   the  extent  to which  the  provisions  added  by  the  Forty-second Amendment Act altered the distribution of powers in the original Constitution. Legal pundits have argued that if the central government’s intention in passing the Act was only  to  express  its  willingness  to  prevent  environmental  pollution,  the  incorporation  of Article 48A in the Chapter on  Directive Principles of State Policy certainly served that purpose. For the first time, the policy of environmental protection was given constitutional status. On the other hand, if the central government’s intention was to acquire more powers, then it must be determined what additional powers the government actually gained. Although article 51A (g) states that “it shall be the duty of every citizen of India… to protect and improve the natural environment,” no enforcement mechanism is provided. Further, while article 51A (g) establishes a citizen duty, the language of article 48A, that “the state shall endeavor to protect and improve the environment,1 48 is significantly weaker. In sum, these two articles do not seem to grant any additional powers to the central government.

FREEDOM TO TRADE VIS- A-VIS ENVIRONMENTAL PROTECTION

As environmental regulations grow more stringent and its enforcement becoming more vigorous, industrial challenge to agency action is likely to increase. Courts will then need to balance environmental interests with the fundamental right to carry on any occupation, trade, business guaranteed under Article 19 (1) g. For example, effluent discharge standards prescribed by the pollution control boards may be challenged under Article 19 for being excessive (too stringently to comply with, despite using the best available technology) or otherwise unreasonable. Likewise, unreasonable government decisions relating to the sitting or translocation of industry may also be assailed under Article 19(1) g ((Shyam Divan and Armin Rosencranz , Environmental Law and policy in India, Second Edition, ,Oxford India Paperbacks, p.54)).

ADMINISTRATIVE SYSTEM AND ENVIRONMENT PROTECTION IN INDIA

The structure of India’s administrative agencies reflects the split between union and state authority. Some divisions of the civil service provide India-wide administration, while other administrative services may be regulated by either the union or state governments, or both. Within  the  union  government,  the  Planning  Commission  is  one  of  the  most  important government   entities.   Although   not   specifically   authorized   by   the   Constitution,   the Commission, formed in 1950, plays a key role in formulating national  economic policy. Among other things, it drafts India’s “Five Year Plans,” which set targets for the country’s economic growth. While the states have some input into these Plans through the National Development Council, the Union, through the Planning Commission, has primary authority for national planning.

CONCLUSION

Finally, the insertion of new entries in the concurrent list did not by itself give the Union new powers that it did not have previously. The concurrent list gives the Union the upper hand on deciding whether to legislate on concurrent topics, but moving the forests and wildlife entries from the state list to the concurrent list did not diminish the states’ right to make laws. The issue is whether or not union government legislation has pre-empted state legislation.