LEGISLATIVE FRAMEWORK FOR BIODIVERSITY CONSERVATION AND JUDICIAL ACTIVSM

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. 190

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 The Act of 1865 was amended from time to time and ultimately it was repealed and replaced by the Indian Forest Act 1927 which not only consolidated but also re-shaped the law relating to forests.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 effect 2. 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 notification 3 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. 191

becomes a matter of privilege subject to permission of forest officials acting under governing laws and regulations 4. 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 forest 5. 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 survey 8. 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 192

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 States 9. 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 government 10. 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 1894 12. 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 produce 13 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. 193

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). 194

The Act deals with restriction on the de-reservation of forests or use of forestland 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 directing 18 : 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 2 195

construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes 19. 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 committed 21 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 21 Section 3-B 196

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 20 th January,1-21(2003), No. 17. 197

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. 198

The Amendment Act 28 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. 199

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 8 200

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 fortyeight 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. 201

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. 202

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 Act 40. 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. 203

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 204

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 205

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). 206

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 7 207

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 19 208

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 41 209

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. 210

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 61 211

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). 212

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. 213

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 bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or kendu leaves, medicinal plants and herbs, roots, tubers and so on. 73 The right to minor forest produce includes those minor forest produce that have been traditionally collected from within or outside village boundaries. 74 Fish and other produce of water bodies are covered under a separate right. These rights 68 Sec 5(a). 69 Sec 5(b). 70 Sec 5(c). 71 Sec 5(d). 72 Sec 4(3). 73 Sec 2(i). 74 Sec 3(1) (c & d). 214

should normally be claimed by the community as a whole or by a sub-group within the community. In case the community as a whole is claiming, Rule 11(4) requires that the Forest Rights Committee itself make the application for the right, which is then passed by a resolution to the gram sabha. The Committee should draw up this application during a meeting of the gram sabha. The resolution should list the types of MFP collected and the areas from which they are collected. Under the Act, primitive tribal groups (such as the Juangs, the Chenchus, the Baigas etc.) and pre agricultural communities (such as shifting cultivators and hunter/gatherers) have the right to habitat and habitation. 75 This is a community right, so the application for it should either be prepared by the Forest Rights Committee (in case the village itself is claiming the right) or by a representative body of the PTG / pre agricultural community concerned. The application would include a map of the area being claimed as the habitat of the community. Any unrecorded settlements or forest village on forest land has the right to be converted into a revenue village. 76 This is a community right, so the Forest Rights Committee should prepare the application for this right, preferably during a meeting of the gram sabha; the gram sabha of the village must pass a resolution stating that this village must be converted into a revenue village. The Forest Rights Act also provides for rights to in situ rehabilitation and alternative land in case of illegal eviction or forced displacement. 77 Section 3(1)(l) of the Act provides that any other traditional right of forest dwelling communities can be claimed as a right under the Act, excluding hunting. This section can be used to claim rights such as shifting cultivation, both individual and collective; customary individual or community claims over territory; right to use religious sites / burial 75 Sec 3(1) (e). 76 Sec 3 (1) (h). 77 Sec 3 (1) (m) and Sec 4 (8). 215

sites; right to collect timber for housing or types of produce not covered under minor forest produce, etc. Each gram sabha is to elect a ten to fifteen member Forest Rights Committee having duties ; receiving claims from people; for this, the Forest Rights Committee is responsible for making out the application, which has to be passed by the gram sabha as a resolution after modification if necessary. Along with each claim, the person claiming the right attaches the evidence they are submitting. The Committee can receive additional evidence from the claimant or other witnesses. The Forest Rights Committee can also ask for additional help / assistance from government officials, who are required to provide that help. On any written request from the Committee, the government must provide documents and explain them to the committee members. Also, whether the Committee asks for it or not, the Sub-Divisional Level Committee has to provide forest and revenue maps as well as voter lists of the area. The Committee can then decide whether the claim is correct or not. Finally, the list and the maps prepared by the committee will be presented before the full gram sabha. If the gram sabha agrees, it will pass a resolution endorsing the list and the maps made by the Forest Rights Committee. If it does not agree, it can make changes it feels appropriate and pass a resolution recommending the modified list and maps. During these proceedings, the secretary of the panchayat serves as the secretary of the gram sabha. In case of smaller gram sabhas, the secretary should be summoned to the meetings of these gram sabhas. 78 If any claimant is not satisfied with the gram sabha s decision, he/she can appeal to the Sub-Divisional Level Committee, 79 consisting of Sub Divisional Officer, who is the Chairperson; Forest Officer in charge of a subdivision; tribal Welfare Official at the sub-divisional level, or the official who looks after that subject; representative of Block/Taluka Panchayat nominated by 78 Rule 11(6) of the Act. 79 Sec 6 (2). 216

the Zilla Parishad; representative of Block/Taluka Panchayat nominated by the Zilla Parishad; representative of Block/Taluka Panchayat nominated by the Zilla Parishad. Of the last three, two should be Scheduled Tribes and at least one should be a woman. This Committee is supposed to put together the resolutions of different gram sabha in its jurisdiction and reconcile them with the government records; hear appeals made to it against gram sabha decisions and examine the resolutions of the gram sabha, and then settle dispute between two gram sabhas. If a claimant is not satisfied with the Sub-Divisional Level Committee s decision on their appeal, he/she can appeal to the District Level Committee. However, he/she cannot appeal directly to the District Level Committee after the gram sabha s decision they must appeal to the Sub-Divisional Level Committee first. The committee consists of 80 ; District Collector or Deputy Commissioner, who is the Chairperson; Divisional Forest Officer or Deputy Conservator of Forests; Official in charge of tribal welfare at the district level; Representative chosen by Zilla Parishad; Representative chosen by Zilla Parishad; Representative chosen by Zilla Parishad. Of the last three, two should be ST s and at least one should be a woman. The Committee takes the decisions made by the Sub-Divisional Level Committees and Considers and finally approves them. 81 This Committee may change decisions of the gram sabhas (or the Sub-Divisional Level Committees) on its own; hear appeals against orders of the Sub-Divisional Level Committee and Settle disputes between Sub-Divisional Level Committees in the same manner that disputes between gram sabhas are settled. After this, the District Level Committee issues directions to the government officials to make the necessary changes in the revenue and forest records. The Act contains some special provisions for protected areas. The Act provides protection 80 Sec 6(8). 81 Sec 6 (6). 217

against forcible relocation of people living in protected areas. Notwithstanding the claims by the government and the press, forest dwellers cannot be forced to move out of even tiger reserves in the name of wildlife conservation except with the free, informed consent of the gram sabha. 82 The Act has not taken into account the fact that hundreds of forest dwelling scheduled tribes face charges under different provisions of the draconian Forest Conservation Act of 1980 for accessing minor produce. Although the Act ensures tenurial security and legitimizes the scheduled tribes' ownership over the minor forest produce and their role in the conservation of forest, it failed to address charges/prosecution pending against the tribals under the Forest (Conservation) Act of 1980 and Indian Forest Act of 1927 with retrospective effect. 83 There is no provision in the Forest Rights Act, 2006 providing that cases under the Forest Conservation Act of 1980 against the forest dwelling scheduled tribes for accessing minor forest produce would be dropped or closed. 84 No doubt, the initiatives taken by the Central Government in safeguarding the interests of the tribal and other local communities living in the area definitely are praiseworthy. The Act gives more protection to the people living in forests, and guarantees the forest-dwellers right to sell or occupy forest land, to the extent that they can even set up hotels in reserves and parks. However conservationists of wildlife allege that the major blow to the Wildlife (Protection) Amendment Act, 82 Sec 4 (2) (e). 83 R.B. Singh, Environmental Change and Biodiversity, 193(2009). 84 Report presented by AITPN (Asian Indigenous Tribal People Network) in a paper, India s Forest Right s Act: Illusion or solution? (2006). 218