With the growing consensus in the world about the negative impact of human activities on the environment it becomes imperative for the government to make legislature that aims to preserve the environment and put significant restrictions on humans that deter them from undertaking any act that damages the environment. Laws play a pivotal role in deterring the layman from undertaking any detrimental activity. The judiciary too has taken cognizance of this dire need to protect and preserve the environment by extending the scope of Article 21 of the Constitution to include within its horizon the Right to clean and healthy environment. Despite the efforts the recent amendments passed in both houses of the Parliament without any significant discourse like the Biological Diversity (Amendment) Act 2023, Forest Conservation (Amendment) Act,2023, and the Wildlife (Protection) Amendment Act 2022 have provisions that can lead to depletion of our already exhausted natural resources. While the government through these laws has brought in certain new provisions that encourage commercialization and has tried to incentivize investment in areas of a potential boon this could be at a loss of our non-renewable resources that hundreds of years to rejuvenate. These bills which have been given the assent by the President infringe upon the rights of the indigenous communities who are solely responsible for conserving and preserving the invaluable forest denses in our country. The government’s move to favour economic prosperity at the expense of our scarce resources can prove to be a dagger for this fragile ecosystem in the future.
Keywords-
Forest Conservation Act, Biological Diversity Act, Wildlife Protection Act, equitable distribution, commercialization
Introduction-
Recently the Parliament passed certain amendments to the already existing laws that regulated the activities of humans regarding the use of our invaluable natural resources are being deliberately debated due to the various questionable provisions that have been introduced. The preamble inserted in Forest (Conservation) Amendment Act, 2023 notifies that this legislation aims to enhance the tree cover to one-third of the land area and comprehensive and multifaceted development of forest and its communities. It also aims to achieve the Nationally Determined Contribution (NDC) target of creating a carbon sink of additional 2.5 to 3.0 billion tons of CO2 equivalent by 2030. Contrary to the sustainable assurance of impetus to the forest cover are certain provisions in the act that fail to recognize forest land that has not been notified as a forest under the Indian Forest Act,1927 or that hasn’t been recorded in Government records as forest.
The Biological Diversity (Amendment) Act,2023 defeats the whole purpose of the Convention on Biological Diversity (CBD) which it claims to implement and purport through this legislation. The exemptions provisions in the law transgress the principles of the convention which aims at conservation, sustainable use, and fair sharing of benefits.
The Wildlife (Protection) Amendment Act 2022 which was enacted in 1972 has gone through various amendments but the recent one has led to the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Convention aims to protect wild animals and plants from extinction due to international trade. The law appears to be an imperfect articulation of a concept that lacks earnest and thorough formulation. Spotted deer, a common animal throughout India, placed in Schedule 1 requiring utmost protection can be a clear representation of this imperfect formulation.
The research paper delves into the recent amendments passed and the sheer contradictions between the intent of the legislation and its actual implications and repercussions on the environment. The paper showcases the negligence of the government towards the environment evident through the formulation of inadequate provisions.
Research Methodology-
The nature of the paper is descriptive and all the data has been derived from secondary sources regarding the laws and their various problematic provisions. Sources like articles, research papers, reports, etc have been referred to to write this paper.
Review of Literature-
The research paper delves into critically analysing the recent bills passed in the Parliament which can possibly result in grave damage to the environment. Thus, the literature review encompasses of the relevant sources used to gather information about newly amended bills and their implications on our ecosystem.
- A 2023 Article titled “Challenges and Ambiguities In India’s Biodiversity Amendment Bill” authored by Ipsita Sinha presents us with the history of India’s Biodiversity Act and proceeds to critically analyse it.
- The article “Community Rights and Forest Conservation” by Abhilash Thadathil goes to question the real intent of the Government behind introducing such amendments in the Forest Conservation Act.
- “When tigers and jackals get the same protection” authored by Kartik Shanker delves into the issues and loopholes in the Wildlife (Protection) Amendment Act, 2022 while also giving suggestions to the government
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In the present day and age, unarguably the environment is what needs our utmost attention. With increasing instances of extreme drought, floods, rising sea levels, and various other natural disasters comes the crucial and indispensable need for well-crafted environmental laws that can help the world mitigate the repercussions of human actions. Additionally, citizens have the fundamental Right to Clean and Healthy environment. It was in M.C. Mehta v Union of India that this right was recognized under Article 21 Right to Life and Personal Liberty of the Indian Constitution. Article 48A also talks about the responsibility of the state to protect and improve the environment. The Parliament recently has passed certain amendments which have remarkably detrimental effects on the environment
The Biological Diversity (Amendment) Act, 2023
This Act was originally enacted in 2002 with the intention to implement the Convention on Biological Diversity (CBD) to which India is a Party. CBD was signed by nations at the Earth Summit in Rio de Janeiro on June 5, 1992, and India became a party to the Convention on February 18, 1994.
CBD is based on the principles of conservation of Biological Diversity, sustainable use of Biological Diversity, and fair and equitable sharing of benefits from the use of such biological resources. The Convention gives paramount significance to the indigenous and local communities and recognizes their effort to preserve the biological resources of a country. It is entirely reasonable for the local communities to get their fair share of the benefits derived from the use of such resources. CBD also propels the idea of decentralization to the lowest level to maintain efficiency in the system and involvement of the all the stakeholders.
The CBD requires the Parties to obtain the prior consent of the local communities before utilizing and accessing the bio-resources or the knowledge in order to compensate them for protecting and preserving these resources. Sec 7 of the Act states that a person utilizing biological resources or associated knowledge has to obtain permission from the State Biodiversity Board (SBB). The proviso clause of this section is extremely questionable which exempts codified traditional knowledge, vaids, hakims, and registered AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddha, and Sowa Rigpa and Homeopathy) practitioners from taking the prior permission of the SBB.
The bill exempts the registered AYUSH practitioners from paying Access and Benefit Sharing (ABS). Access and Benefit Sharing is a way of procuring biological resources and formulating an agreement in a manner where both the providers and the users of the biological resource get a part of the benefits as a result of its use. The genetic and biological resources here being talked about refer to all living organisms example plants and animals that are sourced from the environment which are extremely beneficial and crucial for the survival of human beings. A huge range of routine products that humans use is dependent on such resources. This contributes to a wide range of products from medicines, cosmetics, and personal care to agriculture. The human population is heavily dependent on the ecosystem to provide us with certain vital needs. The products developed are commercialized and the research taken lead to innovations. Hence, it’s fundamental to recognize the imperative role of the providers, for example, the indigenous and local communities, in conserving the resources and the knowledge around it. The preamble of the Act claims it to be necessary to provide a fair share of benefits to the providers but the provisions of the new Act work in contradiction of these claims.
The exemptions provided in the Act give way to commercial exploitation cleverly presented under the guise of “ease of doing business”. Mammoth organizations in ayurvedic industries like Dabur which earn humongous revenue can now escape ABS since it comes under the purview of AYUSH. A booming industry like that of ayurvedic which is substantially reliant on biological resources and traditional knowledge regarding it can now be free from paying the ABS. This provision unjustly deprives the providers and conservers of resources from their share in the pie.
This amendment goes against the judgment of the Uttarakhand High Court that on December 21, 2018, held Divya Pharmacies for not paying the Access and Benefit Sharing and not obtaining the prior permission of the State Biodiversity Board. On average, the ABS is 0.5% of the revenue earned by the corporation which goes to the indigenous communities on whom such companies are completely relied on.”
Additionally, the Act also exempts users of “codified traditional knowledge” from benefit sharing. Now a complex situation occurs since “codified traditional knowledge” is not defined in the Act. A wide interpretation of this phrase can lead to the exemption of an excessive number of corporations from paying the justified due to the tribal population. The Bill also takes away their direct participation in determining the terms of the benefit sharing. Earlier the agreements were granted by the National Biodiversity Authority (NBA) along with the assent of the applicant, appropriate local bodies, and the benefit claimers. However, the amendments take away the power from the benefit claimers to have a say in the terms of benefit sharing. This goes in contradiction to the principles of the Convention on Biological Diversity (CBD) which the legislation aims to implement. One of the core principles of CBD is that management should be decentralized as it ensures efficiency in the system and consideration of local interests.
The Forest (Conservation) Amendment Act, 2023 –
The Act is an amendment to the Forest Conservation Act enacted in 1980. The name of the Act has been amended to Van (Sanrakshan Evam Samvardhan) Adhiniyam. The Forest (Conservation) Amendment Act, of 2023 aims to restrict the activities of humans in areas designated as forests. The preamble of the Act aims to conserve the forest area and envisages increasing the forest cover to one-third of the area. Such an Act gained significance since about four million hectares of forest land was used for non-forestry activities. These forests act as a vital source for human functioning and it is imperative for the government to ensure their conservation and preservation
The provisions of the Act although go in contravention to its aim of conservation and sustainable development. The key contentious amendment brought in is that the only land notified as a forest under the Indian Forest Act,1927, or land registered in government records as a forest after the 25th October 1980 will be considered as forest land. The provisions of the Act will also not apply to forest land that has been used for non-forest purposes on or before 12th December 1996.
The amendments go against the Govardhan judgment of the Supreme Court in 1996 that extended the scope of the term “forests”. The Apex Court not only recognized the forest land notified in government records but also any land that comes under the dictionary meaning of forest. This puts large portions of forest land not registered in government records under threat of being deforested since that land won’t be protected by this legislation. The judgement also directed states to constitute a State Expert Committee which would be responsible for granting legal recognition to forest land. The government claims to rely on reports of these State Board Committees for the categorization of land. Interestingly the Government of Nagaland, a State that has the fifth largest forest cover in the country, claims that most of the forest areas in the state find no place in Government records. The issue lies in the uncertainty of whether all States have established this authority and the reliance on hastily documented reports that might not reflect the real on-ground situation .
Another exemption granted in the bill is forest land within 100 km of international borders for the purpose of constructing any linear project of national importance . This means that the whole of forests in the northeastern states are not protected under this legislation since they share a boundary with our neighbouring countries. This blanket exemption and extreme vagueness regarding the type of projects that can be undertaken in these sensitive areas make this bill highly debatable. The forests in the Himalayan as well as those in the northeastern states are known for their rich biodiversity and are home to rare resources. Such an exemption with absolutely no clarity can put these ecologically rich forest areas under threat of being cleared for non-forestry activities.
The bill also exempts zoos, safaris, and other eco-tourism facilities from obtaining prior permission from the Central Government. The government asserts that such activity is a part of forest conservation and will lead to the improvement of the livelihood of the local communities. By adding this provision, the government is overlooking deforestation and deterioration of the forest that will take place as a result of building such structures. Such developments and commercialization in sensitive forest areas can lead to serious implications and consequences.
The Wildlife (Protection) Amendment Act, 2002 –
This bill seeks to amend the Wild Life (Protection) Act, of 1972. The Act was intended to conserve wildlife and their natural habitats. It was established to prevent hunting and poaching of certain species. Wildlife is an extremely integral part of human existence which includes trees, animals, birds, etc. To prevent the extinction of wildlife this legislation came to be of importance. Over the years this piece of legislation has been very effective in preserving the wildlife of our country. The protection provided by this Act to the Royal Bengal Tiger and one-horned Rhino has helped immensely in restoring their number.
The Act was enacted to give effect to the Convention on International Trade on Endangered Species of Wild Fauna and Flora (CITES). The Convention aims at ensuring that the trade of wild animals doesn’t lead to their extinction. The global trade of animals constitutes a billion-dollar industry. This includes animals and plants and other products like medicines, and timber that are derived from wildlife. Trade is capable of endangering a species since they are displaced from their natural habitat and exploited. To prevent the extinction of our country’s wildlife effective legislation to implement CITES is essential.
The principal bill had 6 schedules which has been reduced to 4. Schedule 1 of the bill gives the utmost protection to critically endangered animal species. Schedule 2 gives a lesser amount of protection to the animal species. Schedule 3 entails protection to plant species and Schedule 4 has specimens listed in the Appendices under CITES. The bill gives power to the central government to formulate a Management Authority which would grant permits for the trade of specimens and a Scientific Authority, which would be responsible for advising regarding the impact of trade on specimens.
An amendment that is extremely dubious is the inclusion of species that cause immense harm to people in Schedule 1 for instance inclusion of wild pigs, who cause tremendous harm to cultivators, to Schedule 1. Conservation and preservation of wildlife don’t empower the government to neglect the predicaments faced by the local communities who face enormous damage due to these animals. It is imperative to take into account if the wildlife is responsible for killing people and destroying their livelihood.
A major concern raised by almost all ecologists is the methodology of listing species in different categories. The presence of spotted deer, a common animal in Indian territories, which is not an endangered species in Schedule 1, and omitting of various endangered species from Schedule 1 and 2 poses a lot of questions regarding the mechanism used for such classification unlike the International Union for Conservation of Nature’s Red List (IUCN) which has data-driven criteria to determine the classification of species under different categories. Additionally, the amendments would have an adverse impact on research purposes due to the restrictions imposed and the lengthy process of procuring permits due to the long list of species classified. This might be a huge setback to our scientific progress and research.
Conclusion-
With the increasing frequency of natural calamities occurring throughout the world, it becomes vital for the government to pay much-needed heed to the environment and its preservation. The analysis of the above-discussed laws passed by the Parliament showcases the government promoting commercialization and investment while overlooking the conservation of nature and its unreplenishable resources. At this moment it is extremely crucial for policymakers to consider the significance of our environment and bring about laws that favour sustainable development, and human health and preserve our biodiversity and ecosystems.
Saloni Mandhan
New Law College, Bharati Vidhyapeeth, Pune