190 V LEGISLATIVE FRAMEWORK FOR BIODIVERSITY CONSERVATION AND JUDICIAL ACTIVSM Conservation of biodiversity includes the preservation of all species, flora and fauna, the enhancement of wildlife habitat, the control of wildlife problems and the sustainable use of forests and wildlife. The rapid rate of extinction of many species of animals is an increasing concern. Habitat preservation and enhancement are critical to existence of wildlife in an area. Animals cannot live in an area that does not provide proper food, cover, water and special needs. People's activities alter many habitats, which acts as a detriment to wildlife. Conservation and sustainable use of biological resources based on local knowledge systems and practices is ingrained in the Indian ethos and way of life. Formal policies and programmes for conservation and sustainable use of biodiversity resources date back to several decades. The concept of conservation of biodiversity is enshrined in the Indian Constitution in Article 48(A and 51A (g). Major Central Acts relevant to biodiversity are: the Indian Forest Act, 1927; the Wildlife (Protection) Act, 1972; the Forest (Conservation) Act, 1980; and the Environment (Protection) Act, 1986. The various Central Acts are supported by a number of State Laws and Statutes concerning forests and other natural resources.
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190
V
LEGISLATIVE FRAMEWORK FOR BIODIVERSITY
CONSERVATION AND JUDICIAL ACTIVSM
Conservation of biodiversity includes the preservation of all species, flora and
fauna, the enhancement of wildlife habitat, the control of wildlife problems and
the sustainable use of forests and wildlife. The rapid rate of extinction of many
species of animals is an increasing concern. Habitat preservation and enhancement
are critical to existence of wildlife in an area. Animals cannot live in an area that
does not provide proper food, cover, water and special needs. People's activities
alter many habitats, which acts as a detriment to wildlife. Conservation and
sustainable use of biological resources based on local knowledge systems and
practices is ingrained in the Indian ethos and way of life. Formal policies and
programmes for conservation and sustainable use of biodiversity resources date
back to several decades. The concept of conservation of biodiversity is enshrined
in the Indian Constitution in Article 48(A and 51A (g). Major Central Acts
relevant to biodiversity are: the Indian Forest Act, 1927; the Wildlife (Protection)
Act, 1972; the Forest (Conservation) Act, 1980; and the Environment (Protection)
Act, 1986. The various Central Acts are supported by a number of State Laws and
Statutes concerning forests and other natural resources.
191
A. Indian Forest Act, 1927
The first codification, which came on the statute book in relation to
administration of forest in India, was the Indian Forest Act. 1865. Thus, the
history of forest law in India is more than a century old. The Act of 1865 was
amended from time to time and ultimately it was repealed and replaced by the
Indian Forest Act 1927 which not only consolidated but also re-shaped the law
relating to forests. The said Act of 1927 was also amended from time to time.
To make forest laws more efficient and to improve the Forest Act 1875, a new
comprehensive Forest Act was passed in 1927 with the following objectives; to
consolidate the laws relating to forests; regulation of and the transit of forest
produce; to levy duty on timber and other forest produce.
The Indian Forest Act1927 contains 86 sections and it deals with four
categories of forests namely (i) Reserve Forests in Chapter II (ii) Village Forests
in -Chapter III (iii) Protected Forests in Chapter IV and (iv) Non-Government
Forests in Chapter V.
The Act empowers the State Government to constitute any forest-land or
waste-land as reserved forest and to issue notification in the official gazette.1 The
notification is required to be published in the official gazette and unless it is
published it is of no effect2. After the notification under section 4 of the Act, no
right shall be acquired in or over the land comprised in such notification and
previously recognized individual and community rights over the forest are
extinguished upon such a notification3 and access to forest and forest products
1 Section 3 and 4 of The Indian Forest Act, 1927.
2 Mahendra Lal vs. State of U.P., A.I.R. 1963 S.C. 1019.
3 Forests act, 1927, Sections 5 and 9.
192
becomes a matter of privilege subject to permission of forest officials acting under
governing laws and regulations4. The Act includes procedures for making claims
against the Government for the loss of legal rights over the forests.
The village forests are established when State assigns to a village community
rights over any land which has been constituted a reserve forest5. The State
Governments make rules for managing the village forests and prescribe conditions
under which the village community is provided with timber, other forest products
or pasture. The rules may also assign duties to the village for the protection and
improvement of the forests.6
The State Government has also been empowered to declare any forest-land or
waste-land which is not included in the reserve forest but in which the
Government has proprietary right or rights to any part of the forest products as
protected forests.7 Thus, protected forests cannot be created from reserve forests.
The Government must survey the rights and claims of private persons in forest
being considered for protection but may declare the forest area a protected forest
pending the completion of survey8. Under section 30 of the Act, the State
Governments can close portion of the forests, for such term not exceeding thirty
years, as long as the remainder of the forests is sufficient for individuals and
communities to exercise their existing legal rights to use forests. The State
Governments may prohibit certain activities such as grazing, cultivation, charcoal
burning and stone quarrying. The State Government may also regulate all rights
4 Section 15.
5 Section 28
6 Ibid.
7 Section 29.
8 Ibid
193
and privileges for the use of protected forests. State Governments have been
empowered to notify certain trees and forests to be protected forests and penalize
for cutting, converting, collecting or removing forest produce without license
being granted by the respective States9.
Chapter V of the Act deals with the control over forests and land not being 'the
property of the Government, The provisions of this Chapter show that the Act is
intended to be a piece of legislation not only in respect of government forest but
also in respect of forests and lands not belonging to government10
. In other words,
the Act covers non-government forest also. The State Government can, by
notification, regulate or prohibit the breaking up or clearing of land for cultivation,
the pasturing of cattle or the firing or clearing of the 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,
railways, lines of communication and to preserve public health, etc.11
The Act also
authorizes the State Government to acquire private land for public purposes under
the Land Acquisition Act 189412
.
State Governments have also been vested with powers to impose duty on
timber and other forest-produce and to control transit of timber and other forest
produce13
and to impose penalties for offences committed under the Act.14
Chapter
IX deals with penalties and procedure to be followed in case of seizure of
property. The Act enumerates certain offences and provides for punishment of
9 Sections 32, 33.
10 See Kashi Prasad v. State of Orissa, A.I.R. 1963 Ori. 24
11 Section 35.
12 Section 37.
13 Section 41.
14 Section 42.
194
imprisonment for a term which may extend to six months or with fine which may
extend to Rs 500/- or with both.15
The Act of course recognizes the concept of
„compensation‟ for damage done to the forest as the convicting court may direct to
be paid in addition to the sentence of imprisonment for a term which may extend
to six months or fine which may extend to Rs 500/- or both, for the acts prohibited
in the reserved forest.16
B. Forest (Conservation) Act, 1980
Deforestation causes ecological imbalance and leads to environmental
deterioration. Deforestation had been taking place on a large scale in the country
and it had caused widespread concern. The Government passed the Forest
(Conservation) Act, 1980 which is a landmark in the history of the protection of
Forests. The Act was passed to remove the difficulties of the Forest Act, 1927 and
to conserve the vegetation cover of the nation. This historical Act consists of five
sections but has proved very effective and successful in the conservation of the
forests.17
The main Objective of the Act is to provide for the conservation of forests and
for matters connected thereto. Conservation of forests is necessary as deforestation
cause ecological imbalance and leads to environmental deterioration.
Deforestation has been taking place on a large scale in the country and it has
caused widespread concern.
15 Section 33.
16 Section 26.
17 See generally, Shyam Divans and Armin Roscencranj, Environmental Law and Policy in India,
64 (2001); P. Leelakrishnan, Environment Law in India, 39 (2008); See also, P.B. Sahasranman,
Handbook of Environmental Law, 188 (2009); Gurdip Singh, Environmental Law in India,
332(2005).
195
The Act deals with restriction on the de-reservation of forests or use of forest-
land for non-forest purposes. It provides that notwithstanding anything contained
in any other law for the time being in force in a State, no State Government or
other authority shall make, except with prior approval of the Central Government,
any order directing18
:
1. that any reserved forest declared under any law for the time being in force
in that State or any portion thereof, shall cease to be reserved;
2. that any forest land or any portion thereof may be used for any non-forest
purpose; that any forest land any portion thereof may be assigned by way of
lease or otherwise to any private person or to any authority, corporation,
agency or any other organization not owned, managed or controlled by
Government;
3. that any forest land or any portion thereof may be cleared of trees which
have grown naturally in that land or portion, for the purpose of using it for
re-afforestation.
For the purposes of this section „non- forest purpose‟ means the breaking up or
clearing of any forest-land or portion thereof for ; the cultivation of tea, coffee,
spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants; or
any purpose other than reafforestation, but does not include any work relating or
ancillary to conservation, development and management of forests and wild-life,
namely, the establishment of check-posts, fire lines, wireless communications and
18 Forest (Conservation) Act, Section 2
196
construction of fencing, bridges and culverts, dams, waterholes, trench marks,
boundary marks, pipelines or other like purposes19
.
The Act provides that whoever contravenes or imprisonment for a period,
which may extend to fifteen days.20
A perusal of this section shows that the Act
contemplates only the punishment of simple imprisonment and it does not
contemplate any punishment in terms of fine.
The Act also provides that where any offence under this Act has been
committed21
by any department of Government, the head of the department or by
any authority, every person who, at the time the offence was Committed, was
directly in charge of, and was responsible to, the authority for the conduct of the
business of the authority as well as the authority, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished accordingly.
However, the Head of the Department or any other person referred to above shall
not be liable to any punishment if he proves that; the offence was committed
without his knowledge; or he exercises all due diligence to prevent the
commission of such offence.
Where an offence under this Act has been committed by a Department of
Government or any authority referred to above and it is proved that the offence has
been committed with the consent or connivance of, or is attributable to any neglect
on the part of any officer other than the Head. of the Department, or in case of an
authority any person other than the persons referred to above, then such officer or
19 See explanation of section 2 of the Forest (Conservation) Act, 1980.
20 Section 3-A
21Section 3-B
197
person shall also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly.22
C. Wild Life (Protection) Act, 1972
The Wild Life (Protection) Act 1972 passed by the Parliament under article
252 of the Constitution at the request of eleven States, was intended to provide a
comprehensive national legal framework for Wild Life protection. The Act adopts
a two pronged conservation strategy; Specified endangered species are protected
regardless of location, and all species are protected in specified areas. The Act has
been amended by amendment in 2002.23
The main objective of the Act is to provide protection to the wild animals,
birds and plants. The Act empowers the Central Government to declare certain
areas as Sanctuaries or National Parks. The object of the Wildlife Act has been
well explained by the Supreme Court in the following words:
“The policy and object of the wild life laws have a long history and are the
result of an increasing awareness of the compelling need to restore the serious
ecological imbalances introduced by the depredations inflicted on nature by man.
The State to which the ecological imbalances and the consequent environmental
damage have reached is so alarming that unless immediate, determined and
effective steps were taken, the damage might become irreversible. The
preservation of the fauna and flora, some species of which are getting extinct at an
22 See, P. Leelakrishnan, Environment Law in India, 67 (2008); P. B. Sahasranaman, Handbook of
Environment Law, 222 (2009). 23
The Wildlife (Protection) Amendment Act, 2002 received the assent of the President on
January 17, 2003 and published in the Gazette of India, Extra., Part II, Section 1, dated 20th
January,1-21(2003), No. 17.
198
alarming rate, has been a great and urgent necessity for the survival of humanity
and these laws reflects….. a grave situation emerging from a long history of
callous insensitiveness to the enormity of the risk to mankind that go with the
deterioration of environment”.24
This Act has been enacted for the two main purposes: to provide for
protection of' wild animals, birds and plants and for matters connected there with
or ancillary or incidental there to and; to ensure the ecological .and environmental
security of the country.
For the purposes of this Act, the Central Government may appoint a Chief
Wild Life Warden and Such other officers and employees as may be necessary.25
Similarly, the State Government may appoint a Chief Wild Life Warden; Wild
Life Wardens; Honorary Wild Life Wardens; and such other officers and
employees as may be necessary.26
In the performance of their duties and exercise
of their powers under the Act, the Director shall be subject to the directions of
Central Government and Chief Wild Life Warden shall be subject to the directions
of the State Government, which may be given from time to time. The officers and
other employees are also required to assist the Director. The Director, with a
previous approval of the Central Government and the Chief Wild Life Warden
with a previous approval of the State Government, by order in writing delegate all
or any of their powers and duties under this Act to any other officer subordinate to
them and subject to such conditions which may be specified in the said order.27
24 State of Bihar v Murad Ali Khan, AIR 1989 SC 4.
25 Section 3
26 Section 4 vide Amendment Act, 2002.
27 Section 5 vide Amendment Act, 2002.
199
The Amendment Act28
of 2002 provides that the Central Government shall
constitute the National Board for Wild Life, with Prime Minister as Chairperson. It
shall be the duty of the National Board to promote the conservation and
development of wild life and forests by taking such measures as it thinks fit.29
Such measures may provide for framing policies and advising the Central
Government and the State Governments on the ways and means of promoting wild
life conservation and effectively controlling poaching and illegal trade of wildlife
and its products; making recommendations on the setting up of and management
of national parks, sanctuaries and other protected areas and on matters relating to
restriction of activities in those areas; carrying out or causing to be carried out
impact act assessment of various projects and activities on wild life or its habitat;
reviewing from time to time the progress in the field of wildlife conservation in
the country and suggesting measures for improvement thereto; and preparing and
publishing a status report at least once in two years on wild life in the country.
The State Government shall constitute a State Board for wild life with
Chief Minister of the State as the Chairperson; the Minister in charge of Forests
and Wild Life Vice- Chairperson; and other members as prescribed.30
The Board
shall meet at least twice a year and shall regulate its own procedure including
quorum. Any defect in the constitution of the Board or any irregularity in the
procedure of the Board shall not affect the merits of the case.31
Despite such clear provisions of the Act, many States in the country have
shown laxity in the enforcement of Wild Life Act. In the case of Centre for
28 Section 5-A
29 Section 5-C added by Amendment Act of 2002.
30 Section 6. This section was substituted by the Amendment Act of 2002.
31 Section 7.
200
Environmental Law, WWF v. Union of India,32
the Supreme Court directed the
States which had either, not constitute Wild Life Advisory Board or where the
term of the Board had expired, to constitute Boards within two months. The Court
also directed in this case that State Governments, which had failed to appoint Wild
Life Wardens, should appoint Wardens for all the areas within the State. It shall be
the duty of the Wild Life Advisory Board to advise the State Government in the
selection and management of areas to be declared as protected areas; in
formulation of the policy for protection and conservation of the wild life and
specified plants; in any matter relating to the amendment of any Schedule; in
relation to the measures to be taken for harmonizing the needs of the tribals and
other dwellers of the forest with the protection and conservation of wild life; and
in any other matter connected with the protection of wild life which may be
referred to it by the State Government.33
No person shall hunt any wild animal specified in Schedules I, II and III of
the Act. In the case of State of Bihar v. Murad Ali Baiq the Supreme Court held
that the elephant is included in Schedule I and hence hunting of elephants is
prohibited. However, if the Chief Wild Life Warden is satisfied that any wild
animal specified in Schedule I has become dangerous to human life; or is so
disabled; or diseased as to be beyond recovery; or any wild animal specified in
Schedules II, III or IV has become dangerous to human life or to property
including standing crops on any land; or is so disabled; or diseased as to be
beyond recovery; he may order in writing and stating the reasons permit person to
hunt such animals. It shall be lawful for the Chief Wild life Warden to grant
permission to hunt animals for the purposes of education, scientific research,
scientific management means, collection of specimen for recognized zoos or for
32 1997) (6) SCALE 8 (SP), See also A.I.R. 1999 S.C. 354; (1998) 9 SCC 623
33 Section 8
201
museums, derivation, collection or preparation of snake venom for the
manufacture of life saving drugs.34
The Act provides that every wild animal, other than vermin, which is
hunted with the permission of Wild Life Warden ;or kept or bred in captivity; or
hunted in contravention of any provision of this Act; or found dead or killed by
mistake, and animal article, trophy or uncured trophy.; or meat derived from any
wild animal ;or Ivory imported into India and any article made from such ivory, or
vehicle, vessel, weapon, trap or tool used for committing an offence under the
provisions of this act and which has been seized, shall be the property of the State
Government and where such animal is hunted in a Sanctuary or National Park
declared by the Central Government, it shall be the property of the Central
Government. Any person who obtains the possession of the Government property
by any means, he must inform the nearest police station within a period of forty-
eight hours of obtaining such possession. No person can acquire or keep in
possession, custody or control, or transfer to any person, whether by way of gift,
sale or otherwise, or destroy or damage such Government property without prior
permission of the Chief Wild Life Warden or the authorized officer. 35
In the case of B NatwaIl Vaid v. State of Tamil Nadu the Madras High
Court held that the wild animal, which are found dead in a private Land, the owner
of the land is entitled to claim the ownership of such dead animal. The body of the
wild animal becomes the absolute property of the owner of the soil even if killed
by a trespasser, unless the trespasser chased the animal on the land of one person
and killed it on the land of another. In the present case the forest authorities had
34 Section 12.
35 Section 39.
202
not chased the elephant but some unknown persons had shot it and it voluntarily
quit the reserved forest and entered the private land where it died.
No person shall except under a licence by the Chief wildlife warden or
other designated officer: commence or carry on the business as a manufacturer of
or dealer in, any animal article; or a taxidermist; or a dealer in trophy or uncured
trophy; or a dealer in captive animals; or a dealer in meat; or cook or serve meat
in any eating-house; derive, collect or prepare, or deal in, snake venom. However,
this shall not apply to the dealer in tail feathers of peacock and articles made
therefrom. Every person who intends to obtain a licence shall make an application
to the Chief Wild Life Warden or the authorized officer for the grant of a licence.
Every licence granted should specify conditions subject to which the licensee shall
carry on his business. Every licence granted shall be valid for one year from the
date of its grant and would be non-transferable. It can be renewed for a period not
exceeding one year at a time. No application for the renewal of a licence shall be
rejected without giving a reasonable opportunity of hearing to the concerned
person.36
The Chief Wild Life Warden or the authorized officer may, for reasons to
be recorded in writing, spend or cancel any licence granted or renewed under this
Act.37
An appeal from an order refusing to grant or renew a licence or an order
suspending or cancelling a licence shall lie to the Chief Wild Life Warden, if the
order is made by the authorized officer. And the second appeal shall lie to the
State Government; or to the State Government if the order is made by the Chief
36 Section 44
37 Section 45.
203
Wild Life Warden. And the order passed by the State Government shall be final.
An appeal shall be preferred within thirty days from the date of the
communication of the orders to the applicant. However, the appellate authority
may admit any appeal after the expiry of thirty days period if it is satisfied that the
appellant had sufficient cause for not filing an appeal in time.38
Transportation of
any wild animal, trophy, animal article, etc. (other than vermi) without a valid
license is also prohibited.39
The Act deals with penalties for contravening provisions of the Act40
. It
does not mention „mens rea‟ as one of the essential requirements for punishing a
person under the Act. It further provides in some cases maximum punishment,
which can be imposed and for other offences minimum as well as maximum
punishment has been provided.
Any person who contravenes any provision of this Act (except Chapter V-
A dealing with prohibition of trade or commerce in trophies, animal articles, etc.
derived from certain animals and section 38-J dealing with prohibition of teasing.
etc.. in a zoo) or any rule or order made there under or who commits a breach of
any of the conditions if any licence or permit granted under this Act, shall be
guilty of an offence against this Act, and shall, on conviction, be punishable with
imprisonment for a term which may extend to three years or with fine which may
extend to twenty- five thousand rupees or with both.
Provided that where the offence committed is in relation to any animal
specified in Schedule I or Part II of Schedule II or meat of any such animal or
animal article, trophy or uncured trophy derived from such animal or where the
38 Section 46.
39 Section 48- A.
40 Section 51.
204
offence relates to hunting in, a Sanctuary or a National Park or altering the
boundaries of a sanctuary or a National Park, such offence shall be punishable
with imprisonment for a term which shall not be less than three years but may
extend to seven years and also with fine which shall not be less than ten thousand
rupees.
Provided further that in the case of a second or subsequent offence of the
nature mentioned above, the term of imprisonment shall not be less than three
years but may extend to seven years and also with fine which shall not be less than
twenty five thousand rupees.
Any person who contravenes any provisions of Chapter V-A, (dealing with
prohibition of trade or commerce in trophies, animal articles, etc. derived from
certain animals), shall be punishable with imprisonment for a term which shall not
be less than three years but which may extend to seven years and also with fine
which shall not be less than ten thousand rupees.
Any person who contravenes the provisions of section 38-J, (dealing with
prohibition of teasing, etc., in a zoo) shall be punishable with imprisonment for a
term, which may extend to six months, or with fine, which may extend to two
thousand rupees, or with both. Provided that in the case of a second or subsequent
offence the term of imprisonment may extend to one year, or with fine which may
extend to five thousand rupees.
In addition to the above the animal, animal article, trophy or meat etc. and
the tool. Trap, vehicle, vessel or weapon used in the commission of the offence
shall be forfeited by the State Government; and licence or permit for hunting. etc.
and Arms Licence shall also be cancelled.
Further, Section 360 of the Code of Criminal Procedure, 1973 or the
probation of Offenders Act. 1958 shall not be made applicable to a person
205
convicted in respect of hunting in a Sanctuary or National Park unless such a
person is less than eighteen years of age.
In PyarelaI v. State (Delhi Admn.) 41
the accused was convicted for possession
of lion shaped trophies of Chinkara skins. meant for sale without licence. But there
was no evidence whatsoever as to when the accused came into possession of these
trophies. The Court held that in these circumstances proviso to section 51 of the
Act providing minimum sentence of six months is not attracted and thus the
accused was sentenced to two months imprisonment.
The Wildlife (Protection) Act, 2006 came into effect from September 4 of
2006, with the following features:42
1. The duration and value of the sentences for disturbing the tiger reserves
have been enhanced. Hence, the penalty for an offence relating to the core
area of a tiger reserve, in case of first conviction, the imprisonment for not
less than three years extended up to seven years. The imprisonment may be
along with that may extend from Rs. 50,000 to Rs. 2 lakh. Similarly, the
punishment at second subsequent conviction level has been increased to
imprisonment upto seven years along with fine that would be something
between Rs 5 lakh to 50 lakh.
2. The National Tiger Conservation Authority (NTCA) and the Wildlife
Crime Control Bureau are to be constituted within six months from the date
of commencement of the Act. These machineries are empowered to
investigate and check the poachers and other persons who interfere with
41 A.I.R 1995 S.C. 1159
42 http://envfor.nic.in/legis/wildlife
206
tiger and its natural habitat. The authorities are to work in coordination with
local law enforcement authorities and prosecute the criminals. In this regard
the Bureau is empowered to set up and gather intelligence information
relating to wildlife crime in assosication with the State Governments, and
develop scientific and professional investigation mechanism to check
wildlife crimes so that the prosecution of wildlife crime becomes easier.
Major functions of the National Tiger Conservation Authority would be
approving tiger conservation plans prepared by respective states; laying
down normative standards for tiger conservation; and providing
information about protection, census, patrolling and other activities.
The NTCA constituted under the Act is to be headed by the Minister of
Environment and Forests, whereas the minister of state will be the Vice-
Chairperson for a tenure of three years. The office of the Chairman is to be
supported by a team of 24 members body, out of which 18 members are to
represent various ministries and eight to be non-official experts. The main
Objectives of the Act ate to facilitate implementation of the recommendations of
the Tiger Task Force; to strengthen conservation of tigers and other endangered
species by consulting the Wildlife Crime Control Bureau; and to strengthen all the
ongoing initiatives and projects of tiger conservation.43
43 Lakshmi Lella, “Who Needs Protection: Tiger or Tribal?”The ICFAI Journal of
Environmental Law, volvi,no 4, 22(2007).
207
D. The Biological Diversity Act, 2002
The primary aim of the Act is to provide for Conservation of Biological
Diversity, sustainable use of its components and fair and equitable sharing of the
benefits arising out of the use of biological resources, knowledge and for matters,
connected therewith or incidental thereto.44
Moreover, India is a party to the UN
Convention on Biological Diversity signed at Rio de Janeiro on June, 1992.45
The
Act consists of 65 sections and is divided into twelve chapters. It is applicable to
whole of India. The Act aims to regulate the access to Biological diversity under
Sections 3 to 7. To achieve its aim the following prohibitions have been imposed:
No person (Citizen of India, NRI and body Corporate) shall undertake Bio
diversity related activities without the approval of the National Authority.46
No person shall transfer to a foreigner/NRI/body corporate not registered in
India, any result of any research relating to any biological resources.47
Application for intellectual property rights not to be made without the
approval of the National Biodiversity Authority inside India or outside
India.48
Prior intimation must be given to the State Biodiversity Board for obtaining
biological resource for commercial utilization.49
44 Act No.18 of 2003; online: http://www.envfro.nic.in.
45 CBD has come into force on Dec. 29, 1993
46 Section 3 , The Biological Diversity Act, 2002
47 Section 4
48 Section 6
49 Section 7
208
The Act has constituted a „National Biodiversity Authority‟ at the Centre
with its head office at Chennai, consisting of fifteen members and one Chairman
who shall be an eminent person in the' field of conservation and sustainable use of
Biological diversity.50
The National Bio- diversity Authority is authorized to
constitute other committee to deal with agro-biodiversity and other committees for
the efficient discharge of its duties.
The Board shall advise the Central Government in matters relating to
conservation of biodiversity, its sustainable use and equitable sharing of benefits.
It shall also advise the State Governments in the selection of areas of Bio-diversity
importance. It is also authorized to take any measures necessary to oppose the
grant of intellectual property rights in any country outside India.51
Prior approval
of the National Biodiversity Authority is necessary; to obtain any biological
resource occurring in India; to apply for patent or intellectual property protection
whether in India or outside India.
The Board has authority to approve or reject the application for such approval
after giving the applicant an opportunity of being heard. The National Biological
Authority shall give public notice of every approval granted by it.52
The State Government may also establish „State Biodiversity Boards‟
which shall be body corporate. The function of the State Boards shall be to; advise
the State Government on matters relating to the conservation of biodiversity,
sustainable use, and equitable sharing of benefits arising out of the utilization of
biological resources; regulate by granting of approvals or requests for commercial
50 Section 8
51 Section 18
52 Section 19
209
utilization or bio-survey and bio-utilization of any biological resources by Indians;
other necessary functions to carry out the provisions of the Act.53
Further, one has to seek prior approval of the State Board to obtain
Biological resources for commercial utilization after giving prior intimation. The
Board after making such enquires as it feels necessary, may approve, or, by order,
prohibit or restrict any such activity if it is detrimental or contrary to the objects of
conservation and sustainable use of biodiversity, etc., after giving the applicant an
opportunity of being heard.54
The State Governments are also authorized to notify the areas of
Biodiversity importance as biodiversity heritage site. State Governments shall also
frame schemes for compensating or rehabilitating any person or section of people
economically affected by the declaration.55
Every local body shall constitute a 'Biodiversity Management Committee'
within its area for the purpose of conservation, sustainable use and documentation
of biological diversity including preservation of habitat, conservation of landraces,
folk varieties and cultivators, domesticated stocks and breeds of animals and
micro-organism and chronicling of knowledge relating to biodiversity.56
The State
Government shall also provide local biodiversity funds
The duties of the Central Government shall be to develop national
strategies, plans, programs for sustainable use biological diversity, etc. The
Central Government shall also issue directions to the State Government to take
53 Section 23
54 Section 24
55 Section 37
56 Section 41
210
immediate measures to ameliorate the situation if any area rich in biological
diversity or resource and its habitat are being threatened by overuse, abuse or
neglect.57
It shall also undertake measures for assessment of environment impact
of the project which is likely to have adverse effect, and also, where appropriate,
provide public participation in such assessment. The Act also provides that the
Central Government shall also endeavor to respect and protect the knowledge of
local people relating to biological diversity as recommended by the National
Biodiversity Board. including the registration of such knowledge at local level.58
The Central Government is also empowered to notify any species which is on the
verge of extinction or likely to become extinct in the near future or regulate
collection thereof for any purpose and necessary steps to rehabilitate and preserve
these species.59
The Central Government may, in consultation with the National
Biodiversity Board, designate institutions as repository for different categories of
biological resources. Such repository shall keep in safe custody the biological
material including voucher specimens.60
The Biological Diversity Act also provides for penalties. According to the
present Act, whoever contravenes or attempts to contravene or abets the
contravention of Section 3 (to obtain biological resources with the permission of
the National Board), Section 4 (results of research not to be transferred to a
foreigner or NRI without the permission of the National Board), Section 6
(application of intellectual property right not be made without the approval of the
National Board) shall be punished with imprisonment which may extend to five
57 Section 36
58 Section 36(5)
59 Section 38.
60 Section 39.
211
years, or with fine up to ten lakh rupees, and where the damage caused exceeds ten
lakh rupees such fine-may commensurate with damage caused, or with both.
If a person obtains biological resources for commercial purpose without the
permission of the State Biodiversity Board, he will be punishable with
imprisonment which may extend to three year, or with fine up to five lakh rupees,
or with both.61
If any of the offences is committed by a company, or with the consent or
connivance of or is attributable to any neglect on the part of any manager,
secretary or other officer, they will be deemed guilty and punished as per
provisions mentioned above.62
The provisions of this Act shall be in addition to, and not in derogation of,
the provisions in any other Law, for time in force, relating to forests and wildlife.63
No court shall take cognizance of any offence under this Act except on complaint
made by the Central Government or any authority or officer authorized in this
behalf by the Government, or any benefit claimer who has given notice of not less
than thirty days in the prescribed manner of such offence and of intention to make
complaint, to the Central Government or the Authority or officer authorized as a
foresaid.64
61 Section 55.
62 Section 56.
63 Section 59
64 Section 61
212
E. The Scheduled Tribes and Other Forest Dwellers (Recognition of
Forest Rights) Act, 2006
After acrimonious public debate for more than a year since tabling in the
parliament on 13 December 2005, the Scheduled Tribes (Recognition of Forest
Rights) Bill, 2005 which was re-christened as “The Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed
in the parliament on 13 December 2006.
The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 faced
stiff opposition from two quarters. Few environmentalists advocate management
of forest, wildlife and other bio-diversity with complete exclusion of tribal people,
local communities or forest dwellers contrary to the Rio Declaration, decisions of
the Conference of Parties of the Convention on Biological Diversity and
recommendations of the United Nations Forum on Forest. The poaching of the
tigers in the Sariska sanctuary provided much needed excuse. Second, the Ministry
of Environment and Forest had opposed the Bill on the ground that
implementation of the bill will result in the depletion of the country's forest cover
by 16 per cent. This is despite the fact that over 60 percent of the country's forest
cover is found in 187 tribal districts where less than 8 percent of national
population lives. This reflects the culture of the tribal peoples to conserve forest.
On the other hand, the Ministry of Environment and Forest has diverted 73percent
(9.81 lakh hectares of forestland) of the total encroached areas for non-forest
activities such as industrial and development projects.65
65 Report of the National Consultation on the Draft Forest Rights Bill, 2005.AITPN,oct, 2005,
onlinaw http:/www.envnfor.nic.in; See, P. Leelakrishnan, Environment Law in India, (2008); and
P. B. Sahasranaman, Handbook of Environment Law, (2009).
213
The Forest (Rights) Act, 2006 consists of various Provisions. One of the
Provisions of the Act states, “Where the forest rights recognized and vested by
sub-section (1) are in respect of land mentioned in clause (a) of subsection (1) of
section 3 such land shall be under the occupation of an individual or family or
community on the date of commencement of this Act and shall be restricted to the
area under actual occupation and shall in no case exceed an area of four
hectares.”66
This provision hardly benefits the Scheduled Tribes. Rather than
empowering, this law seeks to dispossess the forest dwelling Scheduled Tribes of
their ancestral lands that they have in possession in excess of 4 hectares as
provided in Sub-section (6) of Section 4. Nor the Act provides for compensation to
those who will be forced to share their lands in excess of 4 hectares.
A large number of forests‟ dwelling Scheduled Tribes would have to
mandatorily part with large chunks of ancestral lands that they have been actually
occupying before the enactment of this Act. The provision is also inapplicable in
the northeast India. One of the most important rights in the Act is the right to
protect traditional forests.67
Under this right, whatever the Forest Department
might say, the community can “protect, regenerate, or conserve or manage” any
“community forest resource” and is also empowered to protect trees, biodiversity,
wildlife, water sources etc. in any forest . As soon as the Act came into force, this
right became a power of communities under section 5 of the Act.
This is the most powerful right under this Act. The community has the
following rights over community forest resources to protect and/or conserve them;
to manage them; to regenerate them (e.g. through planting of native
trees/shrubs/grasses or through natural regeneration); to sustainably use these
66 Sec 4(6) of The Forest (Rights)ct, 2006.
67 Sec 3(i) and 5 of the Act.
214
resources. In particular, the functions of the gram sabha (or any other village
institution, or even individual forest rights holders) are to protect wildlife, forest
and biodiversity; 68
protect adjoining water sources and “catchment areas”;69
protect
the habitat and “cultural and natural heritage” (e.g. sacred groves, religious sites,
mountains, water bodies etc) of their community from destruction;70
and finally,
the gram sabha can make rules for regulating access and protecting wild life,
forests or biodiversity of community forest resources, and it (or any forest rights
holder) has the power to ensure that these decisions are followed.71
This means
that, for the first time, whatever the Forest Department or government or forest
mafia may decide, a community can enforce its decisions and protect its forests.
The Act also provides certain rights under different sections like any land
claimed by an individual or a community under any part of this Act should have
been under their occupation since before December 13th, 2005, and should still be
in their possession at the time of making the claim.72
Forest dwellers can claim
rights over minor forest produce under the Act. Minor forest produce includes