The Indian Forest And Wildlife Acts International Law Essay
A forest is a terrestrial ecosystem, where communities of plants and animals interact with one another and with the physical environment (World Wide Fund for Nature). They are natural renewable resources. Countries differ in their forest cover, which in turn depends on various factors such as climate, availability of land, population density etc.
Forests are critical for maintaining the quality of global environment. The benefits accruing from the forests include tangible products such as fuel wood, timber, fodder, manure and other non-timber and minor forest products like fruits and flowers, intangible services such as moderating the hydrological cycle, soil conservation, climate change mitigation and habitat for wildlife, and other intangible values such as spiritual, recreational and aesthetic values. Millions are dependent on forests for their livelihood and subsistence.
India is the seventh largest country in the world occupying 2.4 percent of the world area. However, only 1.8 percent of forests cover lies in India. Inspite of recent efforts to increase forest cover through reforestation, being carried out mainly under Compensatory Afforestation Management and Planning Authority (CAMPA), India’s forests are in a devastated condition, with just over 21 percent of India under forest cover in 2007 (State of Forest Report 2009 released by the Union Minister of Environment and Forests). Dense forests cover only 12 percent of land (Rawat et al, 2003). The policy requirement is that the forest cover should be 33 percent of the area of the country, and all of this should be closed forest. However, we are far from achieving this figure.
Forests in India are under immense pressure today and are reducing at an alarming rate due to the rapid population explosion of human and livestock, over-utilization and exploitation of forest resources, conversion of forest land for non-forestry purposes, expansion of agriculture and other illegal activities such as illegal logging, poaching and unauthorized occupation of forest land.
“Systematic management of forests began in the mid-nineteenth century. The first forest policy of India enunciated in 1894 focused on commercial exploitation of timber and gave importance to permanent cultivation. The 1952 revision of the policy recognized the protective role of forests and proposed that one-third of the land area of the country be retained under forest and tree cover. The Forest policy of 1988 focused on environmental stability and maintenance of ecological balance."
Until before 1976, forest and wildlife were State subjects in the Indian Constitution. The forest departments regulated forests in accordance with the Forest Act of 1927. Recognizing the significance of forests and wildlife, the 42nd Amendment to the Constitution deleted both from the State list and placed them in the Concurrent list, bringing them under the purview of both the Central and State governments. Now, Centre and States may legislate on issues pertaining to forests and protection of wildlife.
The 42nd Amendment also introduced a new Directive Principle of State Policy [Article 48-A] and a Fundamental Duty [51 (A) (g)] for the protection and improvement of the forests. These provisions provide as under:
1. Article 48-A – Protection and improvement of environment and safeguarding of forests and wildlife. The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.
2. Article 51(A) (g) – It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
Forest Conservation and Legislative Action
“Even prior to the British era, customary rules have regulated the use of forests in India. Certain types of trees were regarded as sacred and never cut. Certain areas under forest were regarded as God’s groves and not even deadwood and leaves were taken out from these areas" (Gadgil M, Vartak V.D., 1981).
The history of modern forest legislation in India is more than a century old. The first codification in relation to the administration of forest in India was the Indian Forest Act, 1865. It empowered the government to appropriate any land covered with trees as government forests and manage them. The existing rights of individuals and communities were not to be impinged upon as the Act did not cover private forests.
“The Act of 1865 was replaced by a more comprehensive Indian Forest Act of 1878. Forests were divided into Reserve Forests, Protected Forests and Village Forests. Several restrictions were imposed upon the people’s rights over forest land and produce in the Protected and Reserved Forests. The Act drastically changed the nature of common property, making it state property."
The Act was amended from time to time and was ultimately repealed and replaced by the Indian Forest Act, 1927.
Current Forest and Wildlife Legislations in India
The important forest legislations in India are:
1. The Indian Forest Act, 1927
2. The Wildlife Protection Act, 1972
3. The Forest Conservation Act, 1980
4. The Scheduled Tribes and other Traditional Forest Dwellers Act, 2006
The Indian Forest Act, 1927
The Indian Forest Act, 1927 was enacted during pre-independence era with the objective “to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce." It also sought to consolidate and reserve the areas having forest cover, or significant wildlife.
“The Forests Act establishes three kinds of forests, namely, Reserve Forests, Protected Forests and Village Forests. Reserved forests are the most restrictive category of forests. These forests are constituted by the State Government on any forestland or wasteland which is the property of the government or on which the government has proprietary rights. Protected forests, constituted by the state government, are forests other than reserved forests over which the government has proprietary rights. Village forests, are those in which the state government assigns to ‘any village-community the rights of government to or over any land which has been constituted a reserved forest’." (http://www.nlsenlaw.org/)
There is another type of forests known as Non-government Forests. It covers the forests and land not being in control of the government. “The State government can, by notification, regulate or prohibit the breaking up or clearing of land for cultivation, the pasture for cattle or the firing or clearing of vegetation to protect against storms, winds, rolling stones, floods and avalanches, to preserve soil from erosion, to maintain water supply in springs, rivers and tanks, to protect roads, bridges, railway, lines of communication and to preserve public health."
The Act also defines a forest offence and vests power in the State Governments to impose penalties on violation of the provisions of the Act.
The Forest Conservation Act, 1980
In 1980, the Parliament, in response to the rapid decline in the forest covers in India, and also to fulfill the Constitutional obligation under Article 48-A (42nd Amendment in 1976), enacted a new legislation called the Forest Conservation Act, 1980.
“The Act made the prior approval of the Central Government necessary for de-reservation of reserved forest and for use of forest land for non-forest purposes. It also provided for the constitution of an advisory committee to advise the Central Government with regard to grant of such approval." (http://www.nlsenlaw.org/)
“In national interest and in the interest of future generations, this Act regulates the diversion of forest lands to non forestry purposes. The basic objective of the Act is to regulate the indiscriminate diversion of forest lands for non forestry uses and to maintain a balance between the developmental needs of the country and the conservation of natural heritage." (http://moef.nic.in/modules/project-clearances/forest-clearances/)
“The Act allows the diversion of forest land only for certain purposes such as to meet the developmental needs for drinking water projects, irrigation projects, transmission lines, railway lines, roads, power projects, defense related projects, mining etc. For such diversions of forest lands for non forestry purposes, compensatory afforestation is stipulated and catchment area treatment plan, wildlife habitat improvement plan, rehabilitation plan etc. are implemented, to mitigate the ill effects of diversion of such vast area of green forests. To monitor the effective implementation of the compensatory afforestation in the country, an authority named as "Compensatory Afforestation Management and Planning Authority (CAMPA)" has been constituted at the national level. A monitoring cell has also being set up in the Ministry of Environment & Forests to monitor the movement of proposals at various stages and the compliance of the conditions stipulated in the forestry clearances by the user agencies." (http://www.envfor.nic.in/divisions/forcon/forcon.html)
The Scheduled Tribe and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
“The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed by the Lok Sabha as well as the Rajya Sabha on December 18, 2006. This legislation, aimed at giving ownership rights over forestland to traditional forest dwellers" (Krishnan R., 2006).
The Ministry of Tribal Affairs was established as an independent ministry in 1999 to deal specifically with scheduled tribes. The criteria for designating a tribe as “scheduled" include having ‘primitive’ traits, dwelling in geographical isolation, having a distinct culture, being shy of contact with the outside world and being economically ‘backward’. There are more than 600 officially listed scheduled tribes in the country, comprising less than 10% of the country’s total population and with little over 2% believed to be dwelling in forests.
The list of rights as provided under the Act includes:
Right to live in the forest under the individual or common occupation for habitation or for self-cultivation for livelihood
Right to access, use or dispose of minor forest produce
Rights of entitlement such as grazing and traditional seasonal resource access
Rights for conversion of leases or grants issued by any local authority or any state government on forest lands to titles
Right to protect, regenerate or conserve or manage any community forest resource which the scheduled tribes and other traditional forest dwellers have been traditionally protecting and conserving
The Act is one of the most controversial and strongly opposed legislations. “The Act has been vehemently opposed by the wildlife conservation lobby and the Ministry of Environment and Forests who termed it as the ideal recipe to ensure the destruction of India’s forests and wildlife by ‘legalizing encroachments’. The forest department, together with the timber mafia, too had been blocking it, since it would severely erode their stranglehold over forest products. Corporates are also against it, since the illegal status of tribals and other forest dwellers makes the process of eviction and land acquisition for industrial projects easier" (Krishnan, R. 2006).
“Some of this opposition has been motivated by those who see the law as a land distribution scheme that will lead to the handing over of forests to tribals and forest dwellers. However, the strongest opposition to the Act has come from wildlife conservationists who fear that the law will make it impossible to create ‘inviolate spaces’, or areas free of human presence, for the purposes of wildlife conservation. Tiger conservation in particular has been an object of concern" (Thapar, V. 2007).
Parliamentarians supporting the Act have been accused by some as pursuing vote-bank politics to appease tribals.
Inspite of the strong opposition against the Act, it has been instrumental in stall major mining projects in forested areas, example Vedanta and Posco. The supporters of the Act argue that it is in fact the large developmental projects, such as large dams, power plants, mining activities etc., that need to be checked, rather than the forceful eviction of traditional forest-dependent communities to save the forests. Several groups contend that it is not tribals who are bringing in commercial activities into forests, but external commercial pressures that are degrading the forest resources and thereby eroding the traditional lifestyles of tribal communities. As per them, “the Act is not a land distribution measure, and further that the Act is more transparent than existing law and so can help stop land grabbing." With regard to wildlife conservation, they have argued that “the Act actually provides a clear and explicit procedure for resettling people where necessary for wildlife protection, but also provides safeguards to prevent this being done arbitrarily." (http://forestrightsact.com/)
The Wildlife Protection Act, 1972
The WPA is the most important statute providing protection of wildlife. “The Act prohibits hunting of animals listed in Schedule I, II, III & IV. Under the Act, the state government may declare any area of adequate ecological, faunal, floral, natural or zoological importance as a sanctuary or a national park. In both national parks & sanctuaries, public entry is restricted & the destruction of any wildlife or habitat is prohibited. In 1986 the Act was suitably amended. Under the 1972 Act, trade & commerce in wild animals, animal articles and trophies was permissible within the country. But many traders smuggled the animal skins, animal articles and trophies to foreign countries for getting huge profit. Hence, by 1986 Amendment Act it was provided that no one will be allowed to carry on trade in wild animals specified in Schedules I & II of the Act. Also the then existing licenses for internal trade of animals and animal articles were revoked and a total ban on trade in Indian ivory was imposed."
“Another Amendment in 1991 prohibited hunting of all wild animals except vermin. But in certain exceptional circumstances such as for protection of life & property, education, research, scientific management & captive breeding, hunting of wild animals was permitted. To control the death rate of animals on account of communicable diseases, compulsory immunization was provided for in national parks & sanctuaries. The provisions of national park & sanctuary were extended to territorial waters without seriously affecting the interests of local fishermen. Further, the Act prohibited the collection of snake venom for producing life saving drugs from snakes like Cobra & Russell’s Viper." (http://www.legalserviceindia.com/articles/wild.htm)
The Wildlife (Protection) Act, 1972 was further amended by Wildlife (Protection) Amendment Act, 2002. The said amendment was notified in 2003. “The amended WPA is stronger with several new clauses and important amendments making it the bulwark and guardian of wildlife and its habitat. Penalties for hunting wild animals have been increased. A new clause empowers enforcement authorities to effect forfeiture of property derived from illegal hunting or trade of wildlife. To ensure better protection of wildlife habitats, illegal encroaches within national parks or wildlife sanctuaries can now be evicted and structures removed; no construction of commercial tourist lodges, hotels and zoos can be allowed without the prior approval of the National Board for Wildlife. The commercial exploitation of forest produce has now been made illegal" (Gubbi, S. and Bhargav, P. 2003).
The Act has been amended further in 2006 by the Wildlife Protection (Amendment) Act, 2006. Through the amendment, “the scope of the Act has widened, and it has become stronger with the incorporation of stricter penal provisions and the constitution of a National Board for Wildlife. Under the Act, convicted offenders are liable to a maximum sentence of three years, extendable to seven, and a fine of Rs.10,000, which is increased to Rs.25,000 if there is a second conviction. Bail terms have been made stringent and the accused can be released only after the public prosecutor has been heard and even then only if the court is convinced that the accused is blameless. The 2006 amendment to the Act has also resulted in the formation of the Wildlife Crime Control Bureau. It is meant to collate intelligence relating to wildlife crime, ensure coordination with the State governments and other authorities and develop infrastructure for scientific and professional investigation. It is also meant to assist the State governments in the prosecution" (Bavadamn, L. 2007)
Other Important Central Legal Provisions for Forest and Wildlife Conservation
The Environment Protection Act, 1986
Another important general framework of environment protection is provided under the Environment Protection Act, 1986. It is of immense value in supporting legal action for forest conservation.
Under the Act, “the Central Government is vested with power to take all such measures, as it deems necessary or expedient for the purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution. The Central Government has been empowered to issue directions including the power to direct closure, prohibition and regulation of any industry, operation or process or stoppage or regulation of the supply of electricity or water or any service."
Despite the fact that the Act does not have provisions relating to forest conservation, it has scope for liberal interpretation. Its use can have wide implications in areas of biodiversity importance that are not protected under the existing legal regime. Example the corridors of protected areas used as migratory paths by wildlife and vital for genetic exchange, are not covered under any law – they may be treated as protected zones under the Environment Protection Act.
The Biological Diversity Act, 2002
The Biodiversity Act 2002 has been enacted in pursuance of the United Nations Convention on Biological Diversity 1992. The preamble to the Act borrows the objectives as laid down in the Convention and says that the Act is to “provide for conservation of biological diversity, sustainable use of its components and equitable sharing of the benefits" arising therefrom.
Forest Policy of 1988
The Forest Policy of 1988 represented a major paradigm shift from the earlier policies. Unlike, the use oriented policy of 1952, the Forest Policy of 1988 lays major emphasis on the ecological roles of forests, and envisages that “the rights and concessions from forests are to be primarily for bona-fide use of communities living within and around the forest areas, especially tribals. Such communities are required to be motivated to protect and develop such forests from which they derive their benefits." “In the field of domestic energy, fuel wood needs to be substituted as far as practicable with alternative sources like biogas, solar energy, LPG, etc." “The NFP further stipulates that any diversion of forest land should be subject to most careful scrutiny by specialists and must take into consideration the social and environmental costs."
The various central legislations for forest conservation and wildlife protection provide a powerful legal framework for protection of wildlife, establishment of protected areas, management of habitats, regulation and control of hunting and trade in parts and products derived from wildlife. (http://www.cepf.net/)