Dr. JVSharma Regulatory Framework for the implementation of NLBI In India

Legal Framework in India India has strong legal regime to implement NLBI which for the implementation of SFM: 1. Indian Forest Act,1927- To regulate transport of forest produce To prevent illegal activities in the forests such as illegal felling, encroachments To create RF,PF and VF 2. Forest Conservation Act,1980: To regulate diversion of forest land for non forestry purposes Promote forest conservation Maintain balance between conservation and development.

Legal Framework in India 3. Wildlife Protection Act,1972- An act to provide for the protection of wild animals, birds,plants with a view to ensuring ecological and environmental security of the nation. The Wildlife (Protection) Act, 1972, the provisions of the Convention on International Trade in Endangered Species (CITES) and Export and Import Policy of India are enforced through the offices of the Regional Deputy Directors of Wildlife Preservation located at Delhi, Mumbai, Calcutta and Chennai with the help of State Wildlife Department, the State Police Departments, the Customs Departments, BSF and Coast- Guards.

Legal Framework in India 4. Biological Diversity Act,2002- An Act 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.

Legal Framework in India 5. Forest Right Act,2006- Provides tenurial security to live and cultivate Provide tenurial security to use forest produce on sustainable basis Provide tenurial security to community based forest governance Wild Life Conservation through the provision of Critical Wildlife Habitat Security to livelihood of Forest dwelling communities

Judicial Activism The Godavarman Case since 1995, the Centre for Environment Law –WWF-India in 1995 and the Navin Raheja case since 1998, ongoing before the Apex Court with over few thousand applications of intervention from various stakeholders are the three most prominent examples of judicial activism in the sphere of forests and wildlife. definition of forest and forest produce, transit of forest produces,

Judicial Activism use of forest land and encroachments, mining in forest areas, diversion of forestland for non forestry purposes, settlement of rights of people in and around PAs, depleting tiger population in the country and management of zoos, Creation of CEC

Judicial Activism No forest, National Park or Sanctuary can be de-reserved without the approval of the Supreme Court. No non-forest activity is permitted in any National Park or Sanctuary even if prior approval under the Forest (Conservation) Act, 1980 had been obtained. An interim order in 2000 prohibited the removal of any dead or decaying trees, grasses, driftwood, etc from any area comprising a National Park or Sanctuary. It was also directed that if any order to the contrary had been passed by any State government or other authorities, that order shall be stayed.

Doctrines Evolved by Courts: Judicial Activism Absolute Liability Principle:  M. C. Mehta v. UOI, AIR 1987 SC 1086 (Oleum Gas Leak Case): The principle was adopted to compensate victims of pollution caused by inherently dangerous industries.  Narmada Bacho Andolan v. UOI, AIR 2000 SC 375: The Supreme Court held that the precautionary principle could not be applied to the decision for building a dam whose gains and losses were predictable and certain.

Doctrines Evolved by Courts: Judicial Activism Sustainable Development:  M.C. Mehta v. UOI, AIR 1997 SC 734 (Taj Trapezium Case): while taking note of the disastrous effects that the emissions from the Mathura Oil Refinery had on the Taj Mahal, the Supreme Court applied the principle of sustainable development to the case, and apart from passing various directions, stepped in to execute and supervise the resultant actions.  State of Himachal Pradesh v. Ganesh Wood Products, AIR 1996 SC 149, the Supreme Court invalidated forest based industry, recognizing the principle of inter-generational equity and sustainable development.

Doctrines Evolved by Courts: Judicial Activism Polluter Pays Principle: The object of this principle is to make the polluter liable for the compensation to the victims as also for the cost of restoring of environmental degradation.  Vellore Citizens Welfare Forum v. UOI, AIR 1996 SC 2718: It was held that the precautionary principle and the polluter pays principle are part of environmental law of the country.

Gaps in the implementation of legal Framework Indian Forest Act,1927- Forests of India are largely protected with the help of this legislation. Appropriate number and capacity of front line staff is lacking Fine tuning of legislation is needed with respect to FRA :

Gaps in the implementation of legal Framework 2.Wildlife Protection Act.1972 and CITES- Lack of appropriate number and capacity of frontline staff International market for wildlife products Not enough intelligence to control the crime International cooperation is lacking Inadequate institution for crime control at GOI level

Gaps in the implementation of legal Framework 3.Biological diversity Act,2002- Lack of Institution to implement this legislation Lack of capacity of the community No mechanism for sustainable harvest The activities of Biodiversity authorities are largely limited to celebrate occasions

Gaps in the implementation of legal Framework 4. Forest Right Act,2006- Institutional Conflict in the implementation of this Act No mechanism to harvest forest produce sustainably Only right to cultivate which is attractive to political agenda is being exercised largely, only limited community Rights Lack of conservation agenda in the implementation Livelihood is based on unsustainable harvest largely Nodal Ministry do not have capacity to implement,particularly the conservation spirit of the Act

Forest Conservation Act,1980 Lack of Monitoring for the compliance after approval Lack of adequate action for the violation of FC Act,1980 Success percentage of Compensatory Afforestation is question mark. NPV is under utilized

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