Biodiversity preservation and sustainable development an analysis in India by Ms. Nanda Pardhey

 

Biodiversity preservation and sustainable development an analysis in India

Ms. Nanda Pardhey[1]

India’s fast growth and huge population, scientific and techonological development, urbanization, industrialization and various other related factors are responsible for the rapid degradation of the environment and the ecosystem. Environmental problems and balancing of the biodiversity and ecosystem has become a serious issue in India, its a high time that this issues need to be curb and effective measures be taken for sustainable development of the environment and also protect and preserve biodiversity not only for present but also for the coming future. It has been observed past few decades, and it is evident that we can no longer think of socio- economic development in solitude from environment and biodiversity.

Biological diversity is an essential factor in the organization of  organism for survivability and sustainablity of life. Biological diversity means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species and of ecosystems[2]. Biodiversity can be classified and categorised in three sphere of living system- genetic, species and ecosystem diversity. Genetic diversity relates to genetic variability within species.  The term diversity also covers distinct population of a single species. Every individual species possesses genes which are the source of its own unique features. Species diversity relates to the variety of different animals and plants that live in a particular habitat. An ecosystem is a natural system consisting of all plants, animals and microorganisms (biotic factors) in an area functioning together with all the non-living physical (abiotic) factors of the environment.

 

Biodiversity preservation and protection is knittly related to various global environmental changes and globalization, industralization, urbanization and technological develpoment  has raised many issues relating to climate change, land use and land cover change. If we look over the last century due to fast growth in industralization and urbanization there has been drastic change in the ecosystem as compared to the history of mankind, as a result biodiversity has been impacted and variety of genes, species and ecosystem has declined rapidly in India and around the globe imbalancing the ecosystem. This loss has fused the knowledge of biodiversity amongst the people who were in close proximity with the natural ecosystem.

 

India has a varied biodiversity amongst the people and is known for its genetic and species richness in vivid ecological zone throughout. Scientific and technological development has disturb the ecosystem and increasing human intervention and excessive exploitation of natural resources had resulted in tremendous changes in the environment and contributed alarming signals of increased biodiversity loss. Due to this change in the ecosystem which resulted in a policy shift from conservation single species to their habitats. Presently we can see that there is distinct change in understanding the priorities of biodiversity preservation, protection and balancing the ecosystem mainly through sustainable development in various vivid biodiversity rich and poor areas in India.

 

The change in past century relating to land use and agriculture in Indian subcontinent and South Asia is remarkably diverse. According to many ecologists and environmentalist  relating to preservation and protection of biodiversity, inquest remain uncertain to estimate species richness, due to the drastic decline of species diversity and ecological imbalance which relates to climate change. Various issues are seen confronting us with the increasing degradation of the ecosystem and steps are being necessiated by various countries by making rules, regulation and law for preserving the nature and ecosystem. At international level many countries came together for protection of the biodiversity and balancing the ecosystem by sustainable development.

 

The milestone event at international level was laid down by the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro in June 1992, which effectively aggravated the world’s attention on environmental and development issues which the global community face as a whole. The Summit lead in sync governments from around the world from 178 countries , representatives from International agencies  and NGO with the objective of preparing the world for attaining long-term goals of sustainable development and the fundamental focus was on the issues of how to diminish the global environmental system through the launch of principles of sustainable development. The concept of sustainable development highlight that socio-economic progress depend critically on preservation and protection of the natural resources which will ultimately prevent environmental degradation.

 

Rio Earth summit made a benchmark as compared to an earlier Conference in Stockholm plus ten which was held in Nairobi, Kenya in 1982. Rio Summit strived two terms together relating to broadening the scope of global environmental diplomacy and adopting the notion of sustainable development. Increased leveled of public interest was seen amongst the people in the environment and environment concerned was raised relating to stratospheric ozone depletion and global climate change were on the policy map and emphasis was laid for preservation of energy which become a major concern for economic security. If we look it from jurisprudential point , it can be said that social engineering theory of Roscoe pound can be related here when it comes to preservation and protection of natural resources by using the means of sustainable development and conservation of natural resources. According to his theory, satisfaction of maximum wants with minimum friction and waste is complementary and supplementary to the concept of sustainable development and conservation of biodiversity. Further, the concept of interests in his theory , under social interest emphasised on protecting and preserving social resources not only for today but also for the coming generation. Social interest tries to balance the needs of the people  same can be applied to environment were it demand for balancing the ecosystem while utilizing the natural resources. Rio Declaration also advocated that development should not undermine the natural resources which are base of future generation and its a collective responsibility of all countries to preserve and protect environment and biodiversity by using the means of sustainable development.

 

The Rio Declaration on Environment and Development is a set of 27 legally non-binding principles designed to commit governments to ensure environmental protection and responsible development and intended to be an Environmental Bill of Rights, defining the rights of people to development, and their responsibilities to safeguard the common environment.[3] The Declaration also established the Precautionary principle[4] which had a impact in India too. The declaration also adopted various progressive approaches like polluter pay principle i.e., the polluter bears the costs of the pollution which he has done to the environment.

 

According to Agenda 21 , which was the international plan of action to sustainable development, made a blueprint of key policies for acheiving sustainable development that meets the needs and also recognizes the limits of development. The agenda define a balance between development and natural resources and keep a check on the production, consumption, population, development  and the Earth’s life- supporting capacity. The main emphasis of agenda was  firstly sustainable development, with conservation and management of natural resources like atmosphere, land, forest, deserts, agriculture, biodiversity, etc. Secondly, socio- economic aspect relating to developing countries, consumption patterns, population, assimilating environment and development.  Thirdly, strengthening the role of major groups like indigenous peoples, NGO’s, local authorities, farmers, scientists and technologists. Lastly, laying down means of implementation by way of technology transfer, science, education, capacity-building, international institutions, legal measures and information.

 

The United Nations Convention on Biological diversity which is also known informally as the Biodiversity Convention was signed by 154 member countries and today it is 197 member countries. The fundamental purpose of the convention was conservation of biological or biodiversity and protecting and preserving various species, genetic resources, various habitats and the ecosystem; to ensure sustainable use of the biological components and guarantee fair and equitable sharing of benefits arising from genetic resources. The convention was to envisage the principles laid down in Agenda 21 into reality and use it as a practical tool.

 

The United Nations Commission on Sustainable Development (CSD) was established by the UN General Assembly in 1992 to ensure aftereffect of UNCED. The commission is responsible for reviewing the breakthrough of the Agenda 21 and Rio Declaration on Environment and Development, and also administering policy guidance to follow up the Johannesburg Plan of Implementation (JPOI)[5] at local, regional, national and international levels. The commission advocated the CSD in the high-level conference for sustainable development within the United Nations system.

 

Indian Scenario on sustainable development and biodiversity

 

Sustainable development focuses on the development and also emphasises on the environmental mandates. Natural resources to be sustainable, balancing the development, the development  should be both economic and ecological sustainability. Sustainable development must be economic and environment friendly and necessary conditions for achieving it by way of ecological security, economic efficiency and fair and equitable social equity based on the CBD. Sustainable development is the highway for conserving and preserving the socio-economic well-being of the people around the world. The CBD stressed that all states have the sovereign rights to exploit their own resources, and further laid down that all contracting parties should co-operate for the conservation and sustainable use of biodiversity, develop national strategies, plans and programmes, identify and monitor components of biological diversity and make endeavours for in-situ and ex-situ conservation[6]. Each contracting parties shall take all practical measures to promote and advance priority access of a fair and equitable basis by contracting parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by the contracting parties. Such access shall be on mutual agreed terms[7].

 

India is a party to the CBD has incorporated with the guidelines laid under it and in 2002 enacted the umbrella legislation called the Biological Diversity Act, 2002 (BDA)(No.18 of 2003) aimed at conservation of biological resources and associated knowledge as well as facilitating access to them in a sustainable manner and through a just process. The following are the thrust areas of BDA[8]:

  1. Access to biological resources and information.
  2. Benefit sharing with conservers of biological resources and holders of knowledge and information relating to use of biological resources.
  3. Notification of areas important relating to use of biological diversity as biological heritage sites.
  4. Protection of threatened species.
  5. Involvement of local bodies in sustainable management of biodiversity and the preparation of biodiversity registers.
  6. Establishment of biodiversity authority, state biodiversity boards and biodiversity committees at block/village level to implement the legislation.

 

BDA incorporates these ideas as well as broadly accepts the provision of the CBD.The National Biodiversity Authority (NBA) is a statutory autonomous body, under the Ministry of Environment and Forests, established in 2003 to implement the provisions under the Act. State Biodiversity Boards (SBB) has been created in 28 States along with 31,574 Biological management committees (for each local body) across India. NBA advises the Central Government on conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilisation of bilogical resources[9]. The regulatory provisions in BDA are at par and in conformity with the provisions of CBD. The purpose of these committees is to promote conservation and facilitate sustainable use and documentation of biological diversity along with preservation and protection of habitats and cultivars, domesticated stocks and breeds of animals and micro-organisms and record of knowledge relating to biological diversity.

 

Initiatives by the government for protection and preservation of biological diversity and sustainable development has been taken, but apart from the BDA there is protection under the Indian Constitution for protechtion of environment. India is at developing stage when it comes to protection of the environment. We have the Environment Protection Act, 1986 but wholesome environment is a fundamental right under Art. 21 of the Constitution of India and there must be balance between development and ecosystem.” Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generation”[10] and the Stockholm Declaration can be retraced in the Fundamental Rights that are among the basic features of the Constitution of India under Art. 14 and Art. 21.

 

Right to life encompasses in it the right to healthy and clean environment. In the case of Rural litigation and Entitlement Kendra v. State of UP[11] the mining operation of limestone in the valley was causing ecological disturbance and the Supreme court established Committee of Experts which found that there was ecological balance which has been damaged and the notion of Art. 21 was accepted. The Supreme Court in M. C. Mehta v. Union of India[12], observed that ‘the development and the protection and preservation of the environment are the two side of the same coin. If without degrading the evnvironment or minimizing  the adverse effect thereupon by applying stringent safeguards and if it is possible to carry on development procedure by applying the principles of sustainable development and the balance need to be struck between development and environment. In case of Vellore Citizens Welfare Forum v. Union of India[13], the Hon’ble Court observed that, “Sustainable development” means development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. The “Sustainable Development” has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-system. The “Precautionary Principle” and the “The Polluter Pays Principle” were the essential features of “Sustainable Development. “Adherence to sustainable development is a constitutional requirement the bench said in its order, which only seeks safeguards by which we are able to protect nature and subserve development. While the country needed to focus on its present development needs, it had to be done without compromising the needs of future generations, the court added[14].

 

The courts in the recent decades have become activist in environment issues and interpreted clean and healthy environment as a fundamental right under Art. 21 of the constitution. Courts extensively had address this right in variety of aspects relating to environment protection and improvement of the environment by laying down guidelines and measures to the concern authorities. In Hinch Lal Tiwari v. Kamala Devi[15] the court held that preservation of material resources of the community such as forests, tanks, ponds, hillocks is needed to maintain ecological balance so that people would enjoy a quality life, which is the essence of the right guaranteed under Art. 21. In K. M. Chinnappa v Union of India[16] the court explained the concept of right to life in Art. 21 of the constitution thus:

“Enjoyment of life and its atainment including their right to life with human dignity                        encompasses within its ambit, the protection and preservation of enviornment,       ecological balance free from pollution of air, water, sanitation without which life                              cannot be enjoyed. Any contra acts or action would cause environmental pollution[17]“.

 

The 42nd Constitutional Amendment of 1976, which was four years after the Stockholm Conference, incorporated two significant articles to protect the environment under the Indian constitution under the Directive Principle of State Policy under Art. 48-A[18] and Art. 51-A (g)[19]. In case of M/s. Ivory Traders and Manufacturers Association and Others v. Union of India and Others[20], the Delhi High Court held that “ no person can claim ivory trade as a fundamental right as per Art. 19(1)(g) and prohibition is imposed thereon on this fundamental right by the Amendment Act which is in the public interest with consonance with moral claims embodied under Art. 48-A of the Constitution. Futher it stated that right of an ivory dealer are subject to the paramount interest of the public at large who have right to healthy environment and balanced ecology, killing of elephants for procuring ivory should be stopped for balanced environment.

 

In Chandmari Tea Co v. State of Assam[21]the Gauhati High Court sought strength from the directive principles of state policy and the fundamental duties, when it needs to protect the habitat of the wild animals and justify depriving of the privileges of not only certain persons but also a corporate entity engaged in a plantation business. Right to life and protection of habitat is a corresponding duty within the domain of the human species which is universally limited. In Kenchappa v. State of Karnataka[22] the High Court referred to Art. 47, 48-A and 51-A (g) of the constitution to call attention of the State to protect the fundamental right of the villagers to have access to the land reserved for greenbelt around their residential village . Later the conversion of these lands to the industry sites were blocked.

 

Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric[23]. Many of our principles like sustainable development, polluter-pays principle, intergenerational equity have their roots in anthropocentric principles. The National Wildlife Action Plan 2002-2012 and the Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 are centred on the principle of ecocentrism[24]. In Suo Moto v. The State of Karnataka[25] the court stated that, “We are inclined to see this overlap as a potential opportunity for new models of conservation rather than as a threat. Hence, we recommend that, in the present circumstances, the State and the adivasis jointly draw up management plans compatible with the goals of conservation, in consultation with experts, clarifying their respective rights, roles and responsiblities to further conservation through a democratic process, and to hold each other accountable to that commitment”.  The court was of the view that we should incorporate with the international declaration to which we are signatory and adhere to the provisions of various acts existing in India for preservation and protection of the environment and biodiversity. Steps should be taken to harmonize the human needs with that of ecosystem.

 

Deforestation causes ecological imbalance and leads to environmental deterioration[26]. Deforestation had been taking place on a large scale in the country and it had caused widespread concern. Therefore, this Court recognized the need to take all precautionary measures when forests land are sought to be diverted for non-forestry use, the Court took into consideration intergenerational equity. The State was required to undertake short term as well as long term measures for the protection of the environment[27]. The state and centeral government needs to take more initiatives for balancing the demands of the people but with that it needs to conserve and protect the environment and biodiversity.

 

Conclusion

 

The socio-economic development is undoubtedly a positive force for the nation, but with that protection of environment and biodiversity laws has change drastically and initiatives are been taken and guideilnes are been provided by the courts for protecting and preserving the endanger species. Development is important for socio-economic growth of the people, along with primary measures for conservation and protection of environment and biodiversity are needed. Various statutes concentrates on the importance of sustainable development, applying the precautionary principle and intergenerational equity are common  which cast a responsibility between and amongst countries. Resolving environmental issues and following the pathway of sustainable development if done judiciously could lead to acheiving sustainability by moving on or beyond the benchmark.

 

 

 

 

 

[1]Assistant Professor, Amity Law School, Amity University Mumbai.

[2]www.cbd.int/convention/articles accessed on 16/12/2014

[3] Ida Kubiszewski and Cutler J. Cleveland, Sustainable Development International Environment Issues, published 2007 and updated 2012

[4]Black Law Dictionary “A rule in environment management which states that if serious damage can be caused to the environment and/ or to the health of a human being, immediate steps should be taken in order to contain or to prevent such an event from happening. It is also known as the preventative principle”.

[5]Johannesburg Declaration on Sustainable Development, A/CONF.199/20, Chapter 1, Resolution 1, Johannesburg, September 2002

[6]P. Leelakrishnan, Environment Law in India, 2008, p 153-154.

[7]Ibid

[8]Ibid

[9]Biological Diversity Act, 2002

[10]Princliple 1 of  Declaration of the United Nations Conference on the Human Environment  held at Stockholm 1972

[11]1985 AIR 652, 1985 SCR (3) 169

[12]1988 AIR 1115, 1988 SCR (2) 530

[13]AIR (1996) 5 SCC 647

[14]Ibid

[15]AIR (2001) 6 SCC 496

[16]AIR 2003 SC 724

[17]Supra

[18]Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

[19]to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

[20]AIR 1997 Delhi 267 b, ILR 1997 Delhi 22

[21]AIR 2000 Gau. 13

[22]AIR 2000 Kant. 73

[23]E.Seshan vs Union Of India on 25 September, 2013

[24]Ibid

[25]The  High Court of Karnataka, on 08 October, 2013.

 

[26]T.N. Godavarman Thirumulpad v. Union Of India & Ors on 12 March, 2014

[27]Ibid

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s