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Environmental legislation

R Prabhakar Rao |

Protection of the natural world has been an integral part of Indian culture and heritage. The Constitution of India places responsibilities on the State as well as citizens for protection of nature and the living beings therein. The following two Articles of the Indian Constitution are noteworthy:

Article 48A: The State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country; and Article 51A (g): Fundamental duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures.

After India attained independence in 1947, five-year planning was introduced from 1950-51 onwards. The first five year plan gave agriculture the primacy. Since then industrial growth was at the centre stage of growth and job creation. The service sector has recently been an engine of growth and employment.

In the face of rapid industrial development, the environmental effects were not given much importance. However, with environmental impacts becoming detrimental for wildlife, biodiversity and people, the Indian Parliament has passed legislation to keep pace with changing demands. The British had passed the Indian Forest Act, 1927, mainly to regulate timber extraction for construction purposes. From production forestry, protection forestry principles were also considered. Later, wildlife (both flora and fauna) were considered essential for sustainable forest management. The Wildlife Act was passed in 1972. The Environment Protection Act was passed in 1986 as an umbrella act to consider environment in its totality. Since then, biological wealth started to be considered as an asset of the country just as other productive assets. In view of bio-piracy and in order to regulate trade in biological components, the Biodiversity Act was passed. Recently diversion of forest land for large industrial and mining projects has meant large-scale displacement of tribals and other forest dwelling people. As a response to this situation, the Forest Rights Act was passed in 2006.

Some of these Acts are briefly discussed.

Indian Forest Act, 1927

This Act passed during British times was largely based on previous Indian Forest Acts implemented under the British. The first and most famous was the Indian Forest Act of 1878. Both the 1878 Act and the 1927 Act sought to consolidate and reserve the areas having forest cover, or significant wildlife, to regulate movement and transit of forest produce, and duty leviable on timber and other forest produce. It also defines the procedure to be followed for declaring an area to be a Reserved Forest, a Protected Forest or a Village Forest.

Wild-life Act, 1972

In 1972, Government of India enacted a comprehensive legislation called the "Wild Life (Protection) Act, 1972" with the objective of effectively controlling poaching and illegal trade in wildlife and its derivatives. Since then, the Act has been amended and punishment and penalty for offences under the Act have been made more stringent. The Act deals with setting aside protected areas in the form of national parks, sanctuaries, conservation reserve and community reserve. It also deals with settlement of rights of people residing in such areas prior to notification. Wildlife under this Act includes both flora and fauna.

Offences pertaining to hunting of endangered species and altering of boundaries of protected areas

'When any person accused of the commission of any offence relating to Schedule I or Part II of Schedule II or offences relating to hunting inside the boundaries of National Park or Wildlife Sanctuary or altering the boundaries of such parks and sanctuaries, is arrested under the provisions of the Act, then not withstanding anything contained in the Code of Criminal Procedure, 1973, no such person who had been previously convicted of an offence under this Act shall be released on bail unless –

(a) The Public Prosecutor has been given an opportunity of opposing the release on bail; and

(b) Where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail".

At present, persons having ownership certificate in respect of Schedule I and Part II animals, can sell or gift such articles. This has been amended with a view to curb illegal trade, and thus no person can now acquire Schedule I or Part II of Schedule II animals, articles or trophies except by way of inheritance (except live elephants).

Environment Act, 1986

This is an umbrella Act for the protection and improvement of environment and for matters connected with it. This Act has given the Central Government power to take all measures it deems necessary for protection and improving the environment and preventing, controlling and abating environmental pollution.

The Act provides that no person carrying on any industry, operation or process shall discharge or emit any environmental pollutant in excess of such standards as may be prescribed. Under this Act, the Central Government has restricted or prohibited the location in the industries. Restrictions have been imposed on various activities in fragile areas like Doon Valley in UP, Aravali Regions in Alwar, Rajasthan, Coastal zones and ecologically sensitive zones, etc. Even the SPCB cannot relax either the time limit for compliance or the standards stipulated by the Government.

Biological Diversity Act, 2002

This is an Act for preservation of biological diversity in India, and provides mechanism for equitable sharing of benefits arising out of the use of traditional biological resources and knowledge. The Act was enacted to meet the obligations under Convention on Biological Diversity (CBD), to which India is a party.

Forest Rights Act 2006

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed almost unanimously by the Lok Sabha as well as the Rajya Sabha. This legislation, aims at giving ownership rights over forest land to traditional forest dwellers. The fact that the Act has finally been passed is at least a recognition of the historic injustice done to forest dwellers. By seeing forest dwellers as encroachers on land they have been occupying for years, the state has been denying their right to a livelihood for decades. Once ownership rights are granted, eviction and land takeover for industrial projects is made very difficult.

The Act has been vehemently opposed by the wildlife conservation lobby and the Ministry of Environment and Forests who see it as an ideal recipe to ensure the destruction of India's forests and wildlife by "legalising encroachments". The forest department is not happy with the law since it would curtail their exclusive control over forests. Corporates are also against it because since lack of tenurial rights of tribals and other forest dwellers make the process of eviction and land acquisition for industrial projects easier.

There are many loopholes and a process of dialogue is going on between the Government and the civil society groups.

There is other legislation that has been passed from time to time to address specific environmental situations. Rules have been framed to make laws simple. Though India is not lacking in enacting laws for environment protection, it would be better if implementation of the spirit of these laws can be ensured.

The writer is associate professor, Zakir Hussain Delhi College.