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Over the years, together with a spreading of environmental consciousness, there has been a change in the traditionally-held perception that there is a trade-off between environmental quality and economic growth as people have come to believe that the two are necessarily complementary. The current focus on environment is not new-environmental considerations have been an integral part of the Indian culture. The need for conservation and sustainable use of natural resources has been expressed in Indian scriptures, more than three thousand years old and is reflected in the constitutional, legislative and policy framework as also in the international commitments of the country.
Section 1: Legislations for environmental protection in India, Section 2: Indigenous Peoples, Section 3: Indigenous Peoples and Scientific Legislations
Legislations for environmental protection in India
Even before India’s independence in 1947, several environmental legislation existed but the real impetus for bringing about a well-developed framework came only after the UN Conference on the Human Environment (Stockholm, 1972). Under the influence of this declaration, the National Council for Environmental Policy and Planning within the Department of Science and Technology was set up in 1972. This Council later evolved into a full-fledged Ministry of Environment and Forests (MoEF) in 1985 which today is the apex administrative body in the country for regulating and ensuring environmental protection. After the Stockholm Conference, in 1976, constitutional sanction was given to environmental concerns through the 42nd Amendment, which incorporated them into the Directive Principles of State Policy and Fundamental Rights and Duties.
Since the 1970s an extensive network of environmental legislation has grown in the country. The MoEF and the pollution control boards (CPCB i.e. Central Pollution Control Board and SPCBs i.e. State Pollution Control Boards) together form the regulatory and administrative core of the sector.
A policy framework has also been developed to complement the legislative provisions. The Policy Statement for Abatement of Pollution and the National Conservation Strategy and Policy Statement on Environment and Development were brought out by the MoEF in 1992, to develop and promote initiatives for the protection and improvement of the environment. The EAP (Environmental Action Programme) was formulated in 1993 with the objective of improving environmental services and integrating environmental considerations in to development programmes.
Other measures have also been taken by the government to protect and preserve the environment. Several sector-specific policies have evolved, which are discussed at length in the concerned chapters.
This chapter attempts to highlight only legislative initiatives towards the protection of the environment.
Forests and wildlife
The Wildlife (Protection) Act, 1972, Amendment 1991
The WPA (Wildlife Protection Act), 1972, provides for protection to listed species of flora and fauna and establishes a network of ecologically-important protected areas. The WPA empowers the central and state governments to declare any area a wildlife sanctuary, national park or closed area. There is a blanket ban on carrying out any industrial activity inside these protected areas. It provides for authorities to administer and implement the Act; regulate the hunting of wild animals; protect specified plants, sanctuaries, national parks and closed areas; restrict trade or commerce in wild animals or animal articles; and miscellaneous matters. The Act prohibits hunting of animals except with permission of authorized officer when an animal has become dangerous to human life or property or so disabled or diseased as to be beyond recovery (WWF-India, 1999). The near-total prohibition on hunting was made more effective by the Amendment Act of 1991.
The Forest (Conservation) Act, 1980
This Act was adopted to protect and conserve forests. The Act restricts the powers of the state in respect of de-reservation of forests and use of forestland for non-forest purposes (the term ‘non-forest purpose’ includes clearing any forestland for cultivation of cash crops, plantation crops, horticulture or any purpose other than re-afforestation).
Environment (Protection) Act, 1986 (EPA)
This Act is an umbrella legislation designed to provide a framework for the co-ordination of central and state authorities established under the Water (Prevention and Control) Act, 1974 and Air (Prevention and Control) Act, 1981. Under this Act, the central government is empowered to take measures necessary to protect and improve the quality of the environment by setting standards for emissions and discharges; regulating the location of industries; management of hazardous wastes, and protection of public health and welfare.
From time to time the central government issues notifications under the EPA for the protection of ecologically-sensitive areas or issues guidelines for matters under the EPA.
The Environment (Protection) Rules, 1986
These rules lay down the procedures for setting standards of emission or discharge of environmental pollutants. The Rules prescribe the parameters for the Central Government, under which it can issue orders of prohibition and restrictions on the location and operation of industries in different areas. The Rules lay down the procedure for taking samples, serving notice, submitting samples for analysis and laboratory reports. The functions of the laboratories are also described under the Rules along with the qualifications of the concerned analysts.
The National Environment Appellate Authority Act, 1997
This Act provided for the establishment of a National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any industry operation or process or class of industries, operations or processes could not carry out or would be allowed to carry out subject to certain safeguards under the Environment (Protection) Act, 1986.
International agreements on environmental issues
India has signed several multilateral environment agreements (MEA) and conventions, such as:
Convention on International Trade in Endangered Species of wild fauna and flora (CITES), 1973, to regulate and inhibit international commercial trade of endangered species or derivative products. Its aims to counter the economic incentives of poaching endangered species and destroying their habitat by closing off the international market. India became a party to the CITES in 1976. International trade in all wild flora and fauna in general and species covered under CITES is regulated jointly through the provisions of The Wildlife (Protection) Act 1972, the Import/Export policy of Government of India and the Customs Act 1962 (Bajaj, 1996).
Convention on Biological Diversity, 1992 is a legally binding treaty. It deals with conservation of biodiversity, sustainable use of biological resources and equitable sharing of benefits arising from their sustainable use. It addresses several concerns such as including habitat preservation, intellectual property rights, and indigenous peoples’ rights.
India’s initiatives under the Convention include the promulgation of the Wildlife (Protection) Act of 1972, amended in 1991; and participation in several international conventions such as CITES.
An assessment of the legal and regulatory framework for environmental protection in India
The extent of the environmental legislation network is evident from the above discussion but the enforcement of the laws has been a matter of concern. One commonly cited reason is the prevailing command and control nature of the environmental regime. Coupled with this is the prevalence of the all-or-nothing approach of the law; they do not consider the extent of violation. Fines are levied on a flat basis and in addition, there are no incentives to lower the discharges below prescribed levels.
In 1995, the Ministry of Environment and Forest (MoEF) constituted a task force which strongly advocated the use of market-based instruments for the control of environmental pollution. Various economic incentives have been used to supplement the command-and-control policies. Depreciation allowances, exemptions from excise or customs duty payment, and arrangement of soft loans for the adoption of clean technologies are instances of such incentives. Another aspect that is evident is the shift in the focus from end-of-pipe treatment of pollution to treatment at source. The role of remote sensing and geographical information systems in natural resource management and environmental protection has also gained importance over time.
An important recent development is the rise of judicial activism in the enforcement of environmental legislation. This is reflected in the growth of environment-related public litigation cases that have led the courts to take major steps such as ordering the shut-down of polluting factories.
Agenda 21 highlights the need for integration of environmental concerns at all stages of policy, planning and decision-making processes including the use of an effective legal and regulatory framework, economic instruments and other incentives. These very principles were fundamental to guiding environmental protection in the country well before Rio and will be reinforced, drawing on India’s own experiences and those of other countries.
The Indigenous Peoples
In India, the indigenous peoples are predominantly composed of the large and diverse tribal populations scattered across several states. Anthropological literature suggests that the tribal designation arose as a colonial construct, in which all those living on the margins of mainstream agrarian society but within the structure of the Hindu caste system were delineated as “primitive” and “tribal”. In Indian languages, there is no exact equivalent for the word “tribal”, but close synonyms are vanavasis (forest dwellers) or adivasi (original inhabitants). The 1891 Census Report arranged different castes according to their traditional occupations, and forest tribes were assigned a separate category from that of agricultural and pastoral castes. Thus, both etymologically as well as spatially, the lives and livelihoods of tribal communities in India are intrinsically linked with forests.
It has been argued that the definition of indigenous peoples as “original settlers” is problematic in the Indian context. Sociologists like Dube (1977) and Beteille (1998) have pointed out that “tribal traditions themselves make repeated mention of migration of their ancestors. There is considerable evidence to suggest that several groups were pushed out of the areas that they were first settled and had to seek shelter elsewhere.” Today more than 50 million of tribal people live in and around forests. There is a clear overlap between the forest and the tribal maps of the country, as well as an overlap with poverty (Poffenberger and McGean 1996)
At present, about 95% of the total forest area belongs to the government, and the tribal population of India has been divested of much of its legal communal rights. This is a major practical concern, because the rural economy of India is largely biomass-based. People are directly dependent on forests and common lands for a variety of non-commercial-timber forest products for food and fuel, small timber for housing, and herbs and medicinal plants for meeting their subsistence livelihood needs. In the absence of alternative sources of livelihoods or an ability to eke out sustenance from marginal landholdings, there is a continued high level of dependence on forests for survival.
The widely used state right of “eminent domain” allows the state to acquire private and common property for public purposes. The eminent domain right has remained supreme, overriding all other policies, laws, and regulations. It is under the right of eminent domain that the state acquires land to build infrastructure, mines, dams, and other projects. With an estimated $30 billion proposed as investment in mining-related projects in the next decade, communal land will continue to be a site of intense conflict between tribal people and the state.
The encroachment of the state on forests and customary tenure rights of tribal forest-dwelling communities did not go unchallenged during the colonial and postcolonial periods. Undeterred by the provisions of the Indian Forest Act of 1927, many tribal groups have mounted a sustained challenge to the continued denial of their communal rights over forests.
The example of the van panchayats (forest councils) demonstrates this point. In response to agitations, the colonial government gradually recognized the existence of some local community rights over forests and their resources, and these were incorporated in the Indian Forest Act of 1927. The act provides for constituting “village forests” to meet local needs, and this led to the creation of forest councils in Uttar Pradesh through a new state law passed in 1931. All the “de-reserved” marginal reserved forests were reclassified into Class 1 forests and placed under the jurisdiction of the van panchayats, in which local tribal communities play a key role in forest administration. More than 4,000 van panchayats were created, although the area under their control did not exceed 8% of the total forest area of India. Nonetheless, they represent an example of a forest tenure system in which communal tenure is recognized by law (Sarin 2003).
‘Indigenous people and their communities represent a significant percentage of global population. They have developed over many generations, a holistic traditional scientific knowledge of their lands, natural resources and environment â€¦In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous people, national and international efforts to implement environmentally sound and sustainable development should recognise, accommodate, promote and strengthen the role of indigenous people and their communities’.
The above extract from Agenda 21 (UNCED, 1992), aptly captures the need for increased recognition of indigenous people and their knowledge of natural resource management and its use in sustainable development.
Integration of indigenous people and scientific forest management
Indigenous forest management activities may originate in specific areas in response to specific pressures, but this does not prevent them from adopting and transforming appropriate components of scientific forest management systems through interaction and shared experience. Indeed there is a need to promote equity of forest management systems between indigenous communities and formal forestry scientists around the world (Agarwal, 1995). This process of integrating two forest management systems is essential to achieving sustainable forest management. There is no fixed method of addressing the bottlenecks in integration of indigenous and scientific knowledge, instead the methods chosen will vary according to what is appropriate and feasible within the institutional, ecological, and social environments in which they operate.
The Indian Forest Policy of 1988 (MoEF, 1988) and the subsequent Government resolution on participatory forest management (MoEF, 1990) emphasise the need for people’s participation in forest management. The policy document asserts that local people should be actively involved in protection, conservation and management of forests. Hence the policy envisages a process of joint management of forests by the state government (professional foresters) and the local people. So far, out of 25 state governments, 23 states have adopted Joint Forest Management (JFM). As on the 1st January 2000, 10.24 million ha of forestlands were managed under the JFM programme through 36 075 forest protection committees (MoEF, 2000).
Evidence of long standing local forest management practices can be found in various parts of India particularly in eastern and north-eastern regions. Despite increasing pressures with the increased population, regulations regarding resource use and harvest assist in managing forests in a sustainable way.
As the JFM programme has evolved, there are clear indications that the programme has had considerable impact on local ecology, economics, and the people (Yadav et al., 1997). Initially the relationship between the local people and forest department was strained and lacked trust. Regular interaction and participatory learning and planning activities has facilitated an open dialogue and removed mutual distrust between officials of forest department and local people. Viewed in the light of the adaptive learning model, it was found that exchange and interaction of scientific and indigenous aspects of forest management within the context of JFM have resulted in ecological improvement and increase in average household income after four-five years of strong JFM activities.
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Local people as well as foresters identify with the JFM programme. They take pride in being part of the programme and are recognising its benefits. Based on the successful experience of JFM, irrigation, health, and agriculture sectors are also now placing an emphasis on integration of indigenous and scientific knowledge through people’s participation in resource management.
However real integration of scientific and indigenous management systems is still rarely achieved, and in presenting the model I aim to make more explicit the opportunities for doing so, and highlight ways forward for the continuous process of adaptive learning.
There is a need to strengthen indigenous community institutions to allow them to function effectively and interact with outside actors. Appropriate policy reforms are required to include these institutions in government programs and schemes, and provide support for capacity building to enable them to function in a democratic and transparent manner, ensuring social and gender equity. It is necessary to identify common parameters among different indigenous community institutions and develop guiding principles, processes, and mechanisms that allow better interface between the institutions, local government, and technical agencies.
To encourage sustainably productive forest management by communities, there is a need to eliminate harvesting and transport permit requirements where possible and create free forest trade zones for community enterprises in upland areas of the Northeast. Community networks should be established or strengthened to self-monitor environmental impacts of small-scale forestry enterprises.
As a result of carrying colonial baggage, the Indian Forest Act and the environmental law in general still caters to the British policies with respect to Indian forests . This law is ideal tool for furthering the cause of revenue generation.Conservation and involving the people in the management of forests were not the British approach. Newer legislations such as the Forest (Conservation) Act, Wildlife Protoection Act, The Biological Diversity Act, and most recently the Scheduled Tribes Bill have made attempts to bridge this gap, with ample support from the Courts. It is time though to take up all the laws and combine them to come up with a composite and comprehensive Environmental Law that reflects the change in approach towards the environment and the indigenous people who live most integrated with it.
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