Environmental Legislation

Criminalising Ecocide

Context: Mexico is the latest country to consider passing a law to make ecocide a crime.

About Ecocide

It is human impact on the environment causing mass destruction to the environment.
It is defined as “as unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”.
It is also refer as killing one’s home or environment refers to acts like port expansion projects, deforestation, illegal sand mining, polluting rivers and releasing untreated sewage, etc., that destroy fragile natural ecosystems and local livelihoods.
Commonly cited examples of ecocide include; deforestation during the Vietnam War, the destruction of the environment during the Russian invasion of Ukraine, deforestation in Indonesia and the Amazon rainforest, oil pollution in the Niger Delta and the Chernobyl disaster.
The term was popularised by Olof Palme when he accused the United States of ecocide at the 1972 UN Conference on the Human Environment.
There is no international law against ecocide that applies in peacetime, but the Rome Statute makes it a crime.
The Rome Statute of the International Criminal Court (ICC) deals with four atrocities: genocide, crimes against humanity, war crimes, and the crime of aggression. The provision on war crimes is the only statute that can hold a perpetrator responsible for environmental damage, but only if it is intentional and in wartime.

Need for criminalising ecocide

Over a third of the earth’s animal and plant species could be extinct by 2050. Unprecedented heat waves have broken records worldwide. Changing rainfall schemes have disrupted flood and drought patterns.
Deforestation of the Amazon, deep-sea trawling or even the catastrophic 1984 Bhopal gas disaster could have been avoided with ecocide laws in place.
Ecocide laws could also double up as calls for justice for low- and middle-income countries disproportionately affected by climate change.

Global status of ecocide laws

It is a crime in 11 countries, with 27 others considering laws to criminalise environmental damage that is wilfully caused and harms humans, animals, and plants.
Countries that have criminalised ecocide include Vietnam, Ukraine, Russia etc.
The European Parliament penalise “mass destruction of flora and fauna”, “poisoning the atmosphere or water resources” or “deliberate actions capable of causing an ecological disaster.

India and Ecocide

Some Indian judgments have affirmed the legal personhood of nature by recognising rivers as legal entities with the right to maintain their spirit, identity, and integrity and some others have used the term ‘ecocide’ in passing but the concept hasn’t fully materialised in law. Environmental (Protection) Act 1986, the Wildlife (Protection) Act 1972, and the Compensatory Afforestation Fund Act (CAMPA) 2016, as well as separate Rules to prevent air and water pollution.

In Chandra CFS and Terminal Operators Pvt. Ltd. v. The Commissioner of Customs and Ors (2015), the Madras High Court noted: “the prohibitory activities of ecocide have been continuing unbridledly by certain section of people by removing the valuable and precious timbers”.
In an ongoing case, T.N. Godavarman Thirumulpad vs Union of India & Ors, the Supreme Court called attention to an “anthropogenic bias” and argued that “environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric”.
Challenges: The National Green Tribunal, India’s apex environmental statutory body, does not have the jurisdiction to hear matters related to the Wildlife (Protection) Act 1972, the Indian Forest Act 1927, and other State-enacted laws.
- Forest Conservation (Amendment) Bill 2023 and Biodiversity (Amendment) Bill 2023, which experts have said will dilute current legal protections and will lead to the loss of 20-25% of forest area in the country and the attendant biodiversity and ecosystem issues.
- One critical challenge is to tackle problems of liability and compensation an example of the friction between committing to environmental protection and actual action. For example, survivors of the Bhopal gas disaster are still fighting for compensation.

Objections overruled; Forest Bill goes to House unchanged

Context: A Parliamentary committee, set up to examine proposed amendments to the Forest (Conservation) Act, 1980, has endorsed the amendment, Bill.

Forest Conservation Act, 1980

FRA was enacted to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto.
It provides that prior permission of the Central Government is required for de-reservation of forest land, use of forest land for non-forest purposes, assigning of forest land by way of lease to private entities and for clearing of naturally grown trees for the purpose of reafforestation.
FRA empowers the Centre to require that any forest land diverted for non-forestry purposes be duly compensated.
The clearance process involves seeking permission from local forest authorities or wildlife authorities. Under this act, the Centre is eligible to reject a request or allow it with legally binding conditions.

Supreme Court Case

Godavarman case

The Supreme court in the Godavarman Case 1996 held that forest would not only cover the statutorily recognised forest under this act. It would recognise any area recorded in government record regardless of the ownership.

Forest (Conservation) Amendment Bill, 2023

The bill is introduced to amend the Forest (Conservation) Act, 1980, which envisages to remove ambiguity in the applicability of the provisions of said Act, to promote plantation in non-forest areas and to conserve the forests.

Provisions of the Bill

The Bill amends the FRA to make it applicable to certain types of land.
- These include land notified as a forest under the Indian Forest Act, 1927 or in government records after the 1980 Act came into effect.
- The Act will not be applicable for land converted to non-forest use before December 12, 1996.
It also exempts certain types of land from the purview of the Act.
- These include land within 100 km of India’s border needed for national security projects, small roadside amenities, and public roads leading to a habitation.
In the FRA the state government requires prior approval of the central government to assign any forest land to a private entity.
- The Bill extends this to all entities, and allows the assignment to be made on terms and conditions specified by the central government.
The FRA specifies some activities that can be carried out in forests, such as establishing check posts, fencing, and bridges. The Bill also allows running zoos, safaris and eco-tourism facilities.

Issue raised against the bill

The changed definition of the land may go against the Supreme Court’s judgement in Godavarman case on preventing deforestation.
Exempting land near border areas for national security projects may adversely impact the forest cover and wildlife in north-eastern states.
A blanket exemption for projects like zoos, eco-tourism facilities, and reconnaissance surveys may adversely affect forest land and wildlife.
There were even objection to the proposal to change the name of the 1980 law from the Forest (Conservation) Act to the Van (Sanrakshan Evam Samvardhan) Adhiniyam, which literally translates to Forest (Conservation and Augmentation) Act The objections were on the grounds that it was “non-inclusive” and left out “vast tracks of population both in South India and also in the North-East.”
This has invited opposition from multiple quarters, including some north-eastern States who objected that vast tracts of forest land would be unilaterally taken away for defence purposes.

The activities exempted by the proposed bill may help in economic development may even contribute to national priorities such as energy security and industrial growth. However, there may be a need to balance -economic benefits of such activities with that of conserving forests. Rather than giving a banket exemption to central government to determine the exempted activities a balance and inclusive approach can be discussed before finalising the bill.

New Collective Quantified Goal (NCQG)

Context: The recently concluded Bonn climate conference in Germany, expected to outline the political agenda for the crucial end-of-year Conference of Parties 28 (COP28) in Dubai, was critical for reviewing and reforming the climate finance architecture. The conference has exposed a gaping hole in the funding needed to pay for climate action.

What is NCQG?

At the 2009 CoP, the commitment of ‘$100 billion per year till 2020’ to developing nations from developed countries was set.
Therefore, under Article 9, the 2015 Paris Climate Agreement agreed to set a New Collective Quantified Goal (NCGQ) for climate financing before 2025.
The deliberations were aimed at strengthening the global response to the threat of climate change in the context of sustainable development and efforts to eradicate poverty, including by making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.
The NCQG work programme runs from 2022–24 and includes four technical expert dialogues (TEDs) each year and a High-level Ministerial Dialogue.
The NCGQ is termed as the “most important climate goal” because,
- It pulls up the ceiling on commitment from developed countries.
- It is supposed to anchor the evolving needs and priorities of developing countries based on scientific evidence and
- It should respond “to the ever-increasing sums of funding, necessary for Loss and Damage in response to failed and/or delayed financial support.

Why do we need a new financial goal?

The finance provided by developed countries may be inflated and misleading.
The $100 billion target set in 2009 was seen more as a political goal since there was no effort to clarify the definition or source of ‘climate finance’.
The economic growth of developed countries has come at the cost of high carbon emissions, and thus they are obligated to shoulder greater responsibility.
Funds available for climate finance have increased quantitatively, but they are inaccessible, privately sourced, delayed, and not reaching countries in need.

Challenges to NCQG:

Developed countries argue that NCQG must be viewed as a “collective goal” for all developed and developing countries.
This argument pushes the “net zero” pathways onto developing countries, which cannot feasibly pay for mitigation, adaptation, loss and damage, along with sustainably developing key elements of infrastructure.
The technical expert dialogues (TEDs) didn't establish a clear roadmap for reaching an agreement by 2024.
In 2021, the standing committee on finance of UNFCCC concluded in its first needs determination report (PDF) that developing countries will need $5.8–5.9 trillion up to 2030 to finance actions listed in their Nationally Determined Contributions (NDCs).
- However, instead of identifying a single aggregate figure, the NCQG could also set separate targets (or subgoals) for focus areas such as mitigation, adaptation, and loss and damage.

"Forest Fury: Nationwide Protests Ignite as Forest Rights Act Falters Across 12 States"

Context: More than 100 indigenous, forest-dwelling, and tribal delegates from 12 States across the nation spoke out against State governments and the Centre on Monday after a two-day convention on forest rights in Delhi, criticizing their failure to implement the Forest Rights Act of 2006.

About Forest Rights Act of 2006

Historical Background

• Tribals and other traditional forest dwellers have been residing in deep forests since eternity.

• Along with their stay, they have also come to develop unique mutualistic relationship with the forest in terms of their dependence on forest resources.

• As the British rule started hunting for resources, they constrained the entry of Indians, especially tribals into the forests. Hence, fury of acts and policies such as the Indian Forest Act of 1927 curtailed centuries‐old, customary‐use rights of local communities.

• This continued even after independence till much later until enactment of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

Forest Rights Act, 2006

The act recognizes and vest forest rights and occupation in Forest land in forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD)who have been residing in such forests for generations.
The act also establishes the responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of ecological balance of FDST and OTFD.
It strengthens the conservation regime of the forests while ensuring livelihood and food security of the FDST and OTFD.
It seeks to rectify colonial injustice to the FDST and OTFD who are integral to the very survival and sustainability of the forest ecosystem.

The Act Identify Four Types of Rights

Title rights: It gives FDST and OTFD the right to ownership to land farmed by tribals or forest dwellers subject to a maximum of 4 hectares. Ownership is only for land that is being cultivated by the concerned family and no new lands will be granted.
Use rights: The rights of the dwellers extend to extracting Minor Forest Produce, grazing areas, to pastoralist routes, etc.
Relief and development rights: To rehabilitate in case of illegal eviction or forced displacement and to provide basic amenities, subject to restrictions for forest protection
Forest management rights: It includes the right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.

Who can claim these Rights?

Members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs.
It can also be claimed by any member or community who has for at least three generations (75 years) prior to the 13th day of December 2005 primarily resided in forests land for bona fide livelihood needs.
Gram Sabha is the authority to initiate the process for determining the nature and extent of Individual Forest Rights (IFR) or Community Forest Rights (CFR) or both that may be given to FDST and OTFD.

Importance

Recognized and provided the rights of Tribals and OTFD over forest resources.
The Act has also helped in the reduction of Naxal problems. Because Land (Jameen) has been one of the three demands of this movement.
Recognizing the community rights over forest resources paves the way for management of forest by the dwellers.

Challenges

Administrative Apathy:
- The existing laws related to Environment and Wildlife protection are not compliant with FRA, 2006
- Many incidents where Supreme Court had to intervene to enforce the provisions of the act.
Lack of Awareness:
- Specially among the tribals. This creates a demand reduction for the rights.
- The forest bureaucracy has misinterpreted the FRA as an instrument to regularize encroachment instead of a welfare measure for tribals.
Reluctance of the forest bureaucracy to give up control
As more and more people legally settle on forested lands, the forest officials fear loss of control over these lands.

Institutional Roadblock

Rough maps of community and individual claims are prepared by Gram Sabha which at times often lack technical knowhow and suffers from educational incapacity.
Intensive process of documenting communities’ claims under the FRA makes the process both cumbersome and harrowing for illiterate tribals

Way forward

Tribals have been living in harmony with forests and the biodiversity therein. The MoU recognizes important role tribal and forest dwellers can play in protection of forests and biodiversity.
Government views MFP rights to curb Naxalism since states most affected by Naxalism are also home to people dependent on forest produce.
Recognition of CFR rights would shift forest governance towards community conservation that is more food security and livelihood oriented.
Large-scale awareness campaigns are required at local level informing both tribal and lower-level officials.
Developing a detailed strategy of training and capacity building of people responsible for implementing the FRA, such as Panchayats, Gram Sabha, village level Forest Rights committee etc.
Relevant maps and documents should be made available to the Forest rights committee and claimants to simplify the task of the Gram Sabha in identifying and filing claims for individual and community rights.
Providing clarity on the time limit for settling claims the act does not specify any time limit for resolving claims. In most of the areas, both the officials and beneficiaries are unaware of this fact.
Centre should take more proactive role in pushing states to honour a law that could change the lives of millions.

Proposed FCA changes to offset SC's forest order

Context: The Forest (Conservation) Amendment Bill, introduced in the Indian Parliament, proposes changes that will undermine the landmark Godavarman judgment of 1996, which has provided the basis for forest conservation in India for over 27 years.

Proposed changes to Forest Conservation Act

The proposed amendments seek to limit the applicability of the Forest Conservation Act, potentially allowing non-forest activities on over one-third of Aravalis in Gurgaon and Faridabad districts.
It would also exempt certain land parcels from prior approval requirements for non-forest use, including linear rail and road networks and land parcels not recorded as forest in government records.
The proposal suggests exempting specific types of lands from the Act in order to expedite the implementation of national strategic and security-related projects.
It also empowers the central government to specify, by order, the terms and conditions subject to which any survey, such as, reconnaissance, prospecting, investigation or exploration including seismic survey, shall not be treated as non-forest purpose.

Godavarman Judgement 1996

Supreme Court passed an interim order directing that tree-felling and non-forestry activity in forests across the country be stopped.
The path-breaking order re-defined the meaning of forests and extended protection to all areas with natural forests irrespective of their ownership.
It laid down that ‘forests’ will be understood by its dictionary meaning, and the provisions of the Forest (Conservation) Act 1980, shall apply to all thickly wooded areas.
States were directed to form expert committees to identify forests as defined and file reports.

Forest Conservation Act 1980

It was passed in India in 1980 to protect forests and wildlife.
The act regulates the use of forest land for non-forestry purposes, such as mining, industry, and construction.
Any diversion of forest land for non-forestry purposes requires prior approval from the central government.
The act establishes a National Committee for the Protection of Forests and Wildlife to advise the government on forest conservation and wildlife protection.
The act provides guidelines for compensatory afforestation, meaning that if any forest land is diverted for non-forestry purposes, an equivalent area of land should be reforested.

Forest in India

Forest Survey of India (FSI), Dehradun, an organization under the Ministry carries out the assessment of forest cover of the country biennially since 1987 and the findings are published in India State of Forest Report (ISFR).
The forest cover assessment is a wall – to – wall mapping exercise based on remote sensing supported by intensive ground verification and field data from National Forest Inventory.
As per latest ISFR 2021, the total forest cover of the country is 7,13,789 square kilometre which is 21.71% of the geographical area of the country.
The current assessment shows that the total forest cover of the country has increased by 1540 square kilometre, tree cover has increased by 721 square kilometre and total forest and tree cover has increased by 2261 square kilometre at the national level as compared to the previous assessment i.e. ISFR 2019.

Efforts to increase forest cover

National Mission for Green India (GIM)

To increase the forest cover in the country, afforestation programmes are taken up under various Centrally Sponsored Schemes of the Ministry such as National Mission for a Green India (GIM).
It is one of the eight Missions outlined under the National Action Plan on Climate Change.
It aims at protecting, restoring and enhancing India’s forest cover and responding to Climate Change by undertaking plantation activities in the forest and non- forest areas.

Nagar Van Yojana (NVY)

The Ministry of Environment, Forests & Climate Change is implementing NVY since the year 2020 which envisages developing 400 Nagar Vans and 200 Nagar Vatika in the country during the period of 2020-21 to 2024-25.
Its objective is to significantly enhance the tree outside forests and green cover, enhancement of biodiversity and ecological benefits to the urban and peri-urban areas apart from improving quality of life of city dwellers with the funds under the National Fund of the Compensatory Afforestation Fund Management and Planning Authority (CAMPA).

Afforestation activities are also taken up under various programmes/funding sources such as Mahatma Gandhi National Rural Employment Guarantee Scheme, Compensatory Afforestation Funds under Compensatory Afforestation Fund Management and Planning Authority (CAMPA). In addition, plantations are also done by various departments, Non-Government Organizations, Civil Society, Corporate bodies etc.