Criminal laws for Environment
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This article is written by Pranjali Aggarwal from University Institute of Legal Studies, Punjab University, Chandigarh. This article elucidates the importance of wetlands and various laws that protect the wetlands in India.

Introduction

Many major civilizations in history have been found near the wetlands only. For instance, the Mesopotamian Civilization between Euphrates and Tigris River or the Indus Valley Civilization on the banks of river Indus. This clearly portrays the significance of wetlands. Wetlands are ubiquitous. They are found from the tundra to the tropics and on every continent except Antarctica. The wetlands only cover around 6% area of the Earth but still, almost 40% of the species of plants and animals thrive in wetlands.

Definition of wetlands

Wetlands are the areas where water is the prime factor that determines the environment, types of flora, and fauna of the place. The wetlands are mainly found where the water level is at par with or near the surface of the land or if the land is covered by water. According to the Intergovernmental treaty “The Convention on Wetlands,1971” also known as ‘Ramsar Convention’, the wetlands refer to the “areas of marsh, fen, peatland, or water, which can be either naturally existing or made by humans artificially, either perennial in nature or temporary, water in the area can be static or flowing, the water could be saline, brackish or fresh and includes areas of marine water that are not more than six meters deep at the time of low tide”.

The variation in soil, water chemistry, hydrology, weather conditions, vegetation are a few factors that lead to the formation of different kinds of wetlands.  

India and wetlands

According to the National Wetland Atlas, a project sponsored by the Ministry of Environment and Forests (MoEF), India’s 4.7% land amounts to wetlands which encompasses almost 15.3 million hectares of area under it. In India, there are around 757.06 thousand wetlands out of which inland wetlands cover 69%, coastal wetlands 27% and other wetlands around 4% of the total area. The wetlands in India consist of the river basins of Ganga and Brahmaputra, the wetlands situated in the Himalayas, saline and temporary wetlands in the arid and semi-arid areas, lagoons, backwaters situated in the coastal region, the coral reefs in the marine wetlands, and others. India is the house of the diversity of wetlands and they play an imperative role in the life of an individual as well as the economy. Despite the fact that wetland is a significant ecosystem, still, they are subjected to several threats because of human activities like urbanization, construction of dams, inducement of chemical fertilizers and other pollutants in the wetlands, etc. These threats have led to a reduction in the area of wetlands in India and therefore they need to be conserved. Even the provisions of the Constitution of India support the conservation of wetlands.

Importance of wetlands

  • Water purification -The forests are remarked as the ‘lungs of the earth’; similarly, wetlands are considered to be the ‘kidneys’ because they aid in filtering waste from the land. They trap all the loose particulate matter from the water before it enters the larger water bodies thereby, controlling water pollution by filtration of the pollutants.
  • Controlling carbon emission – The wetlands are naturally capable of sequestering carbon emissions. Through the process of photosynthesis, they absorb and trap a large amount of carbon in the form of biomass within them. The plants present in the wetlands grow rapidly; that’s why they absorb a large amount of carbon and as the soil present in the wetlands is deprived of oxygen (anaerobic), so the carbon present decomposes very slowly. Thus, the wetlands are aptly called wetland sinks.
  • Source of livelihood – Wetlands are being used for agriculture and several allied activities like fishing etc. The soil of the wetland is rich in nutrients and it also supports aquatic life. Several crops like rice, berries, maize, wheat, etc can be grown which provides livelihood to the farmers. The trees like mangroves, birch, etc are found in abundance in the wetlands which are sold as timber in the market.
  • Source of food – The abundance of water as well as nutrients create a perfect environment for growing crops. Thus, a large variety of food grains can be grown in these areas that cater to the food requirements of the people.
  • Supports plants and animal communities – Wetlands are often remarked as ‘Reservoir of Beauty’. The wetlands are a storehouse of minerals and nutrients that supports the existence of different species of flora and fauna. The wetlands are natural habitats of many endangered animals like the Everglades Snail hike, Eastern Indigo snake, and almost 80 others; thus wetlands are imperative for the conservation of various species. 
  • Provides recreational activities and tourism – Many wetland sites (like coral reefs) attract a lot of tourists. People visit to see picturesque scenery and engage in recreational activities like hiking, boating, and birdwatching, etc. This helps to create employment opportunities for several people and benefit the economy also.
  • Historical, scientific, and cultural values – Many communities are connected culturally and historically with the wetlands. Many religious places are situated on or near wetlands only, thus holding a special value for the people. The wetlands are still to be properly researched upon thus are important from a scientific aspect. 
  • Erosion check – The wetlands act as the binder for the soil. The roots of the plants of the wetlands penetrate deep down in the land thus preventing the erosion of the soil.
  • Prevention of floods – The wetlands are just like sponges and in case of floods, the excess water is being absorbed by them and the dense forest areas help to slow down the floodwater. Thus, it helps in controlling floods.
  • Aesthetic appeal – The wetlands mostly have forests and a water source which is the apt representation of natural beauty. The serene sites with flora and fauna are aesthetically appealing and thus adds to the beauty of the area.
  • Groundwater replenishment – The wetlands are porous in nature, so they absorb the water, and thus the level of groundwater is recharged.
  • Combating climate changes– All the above-mentioned points lucidly portray the importance of wetlands in dealing with climate changes. Not only does it curb the pollution level by trapping carbon emissions but also helps in the flourishing of natural flora and fauna, control soil erosion, and restoration of groundwater. These all aspects are significant in the conservation of nature and tackling climate changes.

Threats to wetlands

The wetlands are facing several threats due to which the land under wetlands is reducing day by day. The major threats faced by the wetlands include the urbanisation and anthropogenic pressure, dumping of solid waste by industries, exploitation of the land for food, wood and fodder, industrial and agricultural activities near the wetlands, intoxicants and waste from industries and aquaculture etc. 

Constitutional provisions for the wetland protection

Article 21 of the Constitution

As held in the case of Subash Kumar versus the State of Bihar (1991), Article 21 not only guarantees the right to life but also the right to live in a healthy & hygienic environment and the same stand was echoed in Virendra Gaur versus State of Haryana (1994). Thus, every citizen is entitled to the right to a clean environment which also implies the fact that preservation of the environment is necessary. The wetlands are an important ecosystem to maintain balance with other ecosystems and they are considered natural purifiers for the environment. Thus, their protection is crucial to enjoy the right to life as the right to a clean environment is also enveloped around it.

Article 48-A of the Constitution

The Directive Principles of State Policy impose a duty on the state to develop laws and policies related to subjects mentioned under it in the interest of justice. Article 48A is one of the DPSPs that deals with the protection and improvement of the environment and safeguarding of forests and wildlife. 

Though DPSPs are not legally enforceable, but if we read both Article 21 and Article 48A together, then it could be inferred that it is the legal duty of the state to develop laws for the conservation of the environment, forests, and wildlife. In the landmark judgment of the Honorable Supreme Court in M.C.Mehta versus Union of India (2002), it was held that the protection and improvement of the environment is the duty of the state. The wetlands support bountiful species of forests and wildlife and are an integral part of the environment. Thus, as per provisions of Article 48A, the state needs to introduce policies and statutes to protect the wetlands.

Article 51(A)(g) of the Constitution

Article 51(A)(g) is the fundamental duty envisaged under Part IV-A of the Constitution. This Article was incorporated in the Constitution of India through the 42nd Constitutional Amendment, 1976  to comply with Article 29(1) of the Universal Declaration of Human Rights. This Article imposes the duty over citizens to conserve and improve the environment and follow a benevolent approach towards all the living creatures. This duty thus implies the safeguarding of wetlands.

Article 31-A 

Article 31A was integrated into the Constitution of India through the Constitutional First Amendment Act,1951. Clauses (a) and (b) of the Article empowers the state to acquire any estate or property so that it can be properly managed or such acquisition is for the welfare of the public at large. Thus, according to this provision, the government can acquire wetlands for its management and protection.

Laws for conservation of wetlands in India

Ramsar Convention

The intergovernmental treaty to conserve and wisely use the wetlands was signed in 1971 in the city of Ramsar in Iran. Since its inception, it has been called the Ramsar Convention. The Convention recognizes and designates different wetlands from the world as Ramsar sites. The chosen wetlands are incorporated in the Convention’s List of Wetlands of International Importance. Presently, 170 countries have become a signatory of the Convention, and around 2300 sites throughout the world have been earmarked as Ramsar sites.

The countries signing the Convention have to oblige to the three pillars that are:-

  • The wetlands should be wisely used.
  • Recommend the wetlands to designate them as Ramsar sites and to effectively manage the wetlands.
  • Countries should cooperate with each other regarding the shared or transboundary wetlands. 

India and Ramsar Convention

India became the contracting party of the Ramsar Convention on 1st February 1982. There are 42 wetlands of India that are declared as Wetlands of International Importance. Since the ratification of the Convention, India has been administering steps to conserve wetlands. The signing of the Convention only imposes the duty to wisely use the wetlands and to conserve them. There are no set of rules that are to be adhered to, only the guiding framework in form of the three pillars of the Convention has been enunciated. The Ramsar Convention helps in the protection of wetlands in the following ways:-

  • The Convention acts as the foundation for the national policies and laws regarding the protection of wetlands. This helps them to employ wetlands to use by following principles of sustainable development.
  • It provides a platform for the country to put forward its voice on the issue of wetland conservation before all the signatories.
  • The wetlands that are designated as Ramsar sites become important for the government also. The government puts its best foot forward and invests more funds for the protection of Ramsar sites.
  • It also encourages conservation and improvement of other wetlands so that they can be added to the list of international importance.
  • The Convention helps to access the latest information and measures adopted worldwide pertaining to the conservation of wetlands.
  • International cooperation is encouraged which creates several opportunities like increased funding, support for the projects about conservation of wetlands.

Wetlands (Conservation and Management) Rules, 2017

The Wetlands (Conservation and Management) Rules, 2010 were the first-ever specific guidelines related to wetlands in India formed as per the provisions of the Environment Protection Act, 1986. These rules were drafted by the Ministry of Environment, Forest and Climate Change (MoEF&CC). Despite these guidelines, the wetlands were degrading, thus these were not able to fulfil the purpose for which they were enacted.

Thus to overcome the inadequacies in the previous guidelines, the Draft Wetlands (Conservation and Management) Rules, 2016 was developed by the Central government. After reviewing all the comments and suggestions from the public, the Wetlands (Conservation and Management) Rules, 2017 were enforced on 29 September 2017. The 2017 guidelines replaced the guidelines of 2010.

The key features of the Wetlands (Conservation and Management) Rules, 2017 are as follows:

Establishment of State Wetland Authority

The rules direct the establishment of State Wetland Authority or Union Territories Wetland Authority in each State or Union Territory according to Rule 5(1) and Rule 5(2) respectively. The Authority will be headed by the Environment Minister of the state and other government officials will be its members. The members will also encompass at least one expert belonging to each field of wetland ecology, hydrology, fisheries, landscape ecology, and socioeconomics. The experts shall be nominated by the respective state governments.

Functions of the State Wetland Authority have been as follows-

  • The comprehensive lists regarding the identification of wetlands shall be revised and updated accordingly after ten years.
  • The projects or activities that can be undertaken by people on or near wetlands shall be explicitly mentioned in a list.
  • The state government can prohibit certain activities other than mentioned in the guidelines for the areas under their jurisdiction according to the need.
  • The measures to create awareness about the importance and preservation of wetlands among locals and other key people should be adopted
  • The framework and policies should be formulated so that wise use of wetlands can be made. (as per Rule 5(4)(g))
  • To suo motu advice on any matter or as directed by the state or Union government. 

National Wetlands Committee

The National Wetlands Committee shall be set up according to the Rules of 2017(Rule 6(1)). This committee is to be headed by the Secretary of MoEF&CC. 

The functions of the National Wetlands Committee are as follows:-

  • The supervision and regulation of all the state authorities regarding their working.
  • To ensure proper implementation of the rules in each state.
  • To act as the advisor for the Central Government on the matter related to conservation and wise use of wetlands.
  • Develop the policies on the basis of wise use of the wetlands.
  • Advice on collaboration with the international agencies for the conservation of wetlands.
  • Suggest names of wetlands to be designated as Ramsar sites. 

Prohibition of activities

Performance of certain activities was explicitly banned by the guidelines on the notified wetlands that are as follows:-

  • Establishment or expansion of any industry 
  • The conversion of wetland for non-wetland purposes, even intrusion that may harm the ecology of the wetland is also prohibited.
  • Usage of wetlands as dumping ground for solid waste.
  • The influx of untreated chemical wastes and sewage from industries, houses, villages, etc in the wetland.
  • The construction of any infrastructure that is permanent in nature except for boat jetties
  • Poaching and trespassing.

Penalties

If an act of any individual or organization violates the rules set by the Authority, then the action against such a party can be taken as per the Environment (Protection) Act,1986.

National Plan on Aquatic Ecosystems (NPAC)

The National Plan for Conservation of Aquatic Ecosystems was enacted in the year 2015 after the amalgamation of the National Lake Conservation Plan and the National Wetlands Conservation Programme. This plan works for the protection of both wetlands and lakes. The Act is administered by the Union Ministry of Environment and Forests. 

The main objectives of this plan are:-

  • The foremost objective is the holistic conservation of the wetlands.
  • It also focuses on other related aspects like ameliorating water quality, biodiversity, etc.

Thus, this plan ensures the conservation of wetlands.

Other laws that indirectly help in the conservation of wetlands

Some laws are not directly enacted for the conservation of the wetlands but cover its protection within its ambit because the wetlands coincide with the subject matter of that laws. Some of them are as follows:-

National Environment Policy, 2006

The National Environment Policy, 2006 was incorporated in the Indian legal regime because of the rising importance of the environment in one’s life. The wide interpretation was given to Article 21 and the right to a clean environment was also added within the ambit of the right to life in the case of Subhash Kumar v. State of Bihar (1991). Even Articles 48A and 51A support this right. 

This strategy includes several measures for the conservation of wetland that are as follows:-

  • A proper mechanism as per law should be set up that will help in the identification of the wetlands that need conservation. It will also aid in the process of conservation so that wetlands are not degraded further.
  • Steps to encourage sustainable tourism on certain wetlands should be taken. The local communities and public agencies should be taken on board to build wetland as a tourist spot. This will not only help in preserving the wetlands but will also help in creating livelihood opportunities for the people.
  • Any development or infrastructure project to be undertaken should be properly analyzed and the impact on wetlands should be noted. The approval for such projects should be given accordingly.

Wildlife (Protection) Act,1972

The Wildlife (Protection) Act, 1972 came into force on 9th September 1972. This Act majorly deals with the protection of wild animals, birds, and plants. It has provisions for the prohibition of hunting and regulates all the national parks, wildlife sanctuaries, zoos, etc. in order to conserve the flora and fauna. This statute does not explicitly cover wetlands but the wetlands that coincide with the national parks or wildlife sanctuaries are under the ambit of the Act.

Forest Laws

The laws formulated for the conservation of forests like the Indian Forest Act,1927, the Forest (Conservation) Act,1980, and State Forests Acts. These laws are enacted to conserve forest cover and wildlife. The wetlands that fall under the ambit of these laws are governed as per the provisions of forest laws only. They do not fall under the Wetlands (Conservation and Management) guidelines.

Indian Fisheries Act,1857

The Indian Fisheries Act,1857 protects fish but as wetlands are storehouses of a wide variety of species, thus this Act ensures the protection of wetlands also. The provisions for the protection of wetlands are as follows:-

  • The licensing of the boats in the wetlands (estuaries, lagoons) has been made mandatory so that strict check on them is maintained. This helps to curb the degradation of wetlands through human activities.
  • The dumping of solid wastes in wetlands is prohibited and any person found guilty shall attract the liability as per the Act.
  • The encroachment, pollution, unauthorized construction on or near the wetland area shall be treated as the cognizable offence and will be punished accordingly.
  • Even steps to create awareness regarding the importance of biodiversity, fisheries, wetlands can be undertaken.

Other laws like Territorial Water, Continental Shelf, Exclusive Economic and other Marine Zones Act,1976, Water (Prevention and Control of Pollution) Act,1977, Coastal Zone Regulation Notification,1991, etc also cover provisions to conserve wetlands.

State laws regarding conservation of the wetlands

The Kerala Conservation of Paddy Land and Wetland Act, 2008

This Act was implemented by the Kerala government in the year 2008. The main purpose behind this Act is to prevent the conversion of wetlands and paddy land for other purposes. The Act ensures the sustainability of these ecosystems.

The main provisions of the Act are as follows:-

  • The committee that shall monitor and supervise all the activities should be formed at a local level in each Panchayat or Municipality, district level, and state level.
  • The Reporting officers are appointed under the Act. Their main task is to report any violation of the Act to the Revenue Divisional Officer.
  • The wetlands should be maintained and their reclamation after the inception of the Act is banned.
  • If any person is found guilty for the conversion of wetland in such a way that it cannot be reverted to its original state, such person shall be liable for imprisonment ranging from six months to two years and a fine of a minimum of Rs 50,000 that can extend up to Rs 1 lakh.

Andhra Pradesh Water, Land, and Trees Act, 2002

The Andhra Pradesh Act, 2002 came into force on 1 July 2002. This Act primarily deals with the conservation of water, expansion of tree cover, and the replenishment of groundwater. The wetlands though not directly covered under the Act, but are incidentally protected under it because wetlands naturally help in the conservation of water and flourishment of the tree cover. The major steps employed under the Act are as follows:-

  • The Water, Land and Tree Authority has been set up under the Act that will regulate and supervise all the work done to preserve natural resources.
  • The efforts for the conservation of wetlands are made by permanently demarcating the area and by preventing any sort of encroachments.
  • All the groundwater sources will be managed by the authority.
  • Appraising local communities about the methods and significance of conservation and engaging them in the protection of natural resources.

East Kolkata Wetlands (Conservation and Management) Act, 2006

The East Kolkata Wetlands (Conservation and Management) Act, 2006 came into force on 11th October 2006. It is applicable to the Ramsar site of East Kolkata. It is formulated to conserve wetlands by the adoption of the following measures –

  • Banning its conversion or further degradation.
  • Establishing East Kolkata Wetlands Management Authority to look after the wetlands.
  • Any action that is against the principles of the Ramsar Convention is not allowed.

The West Bengal Wetlands and Water Bodies Conservation Policy (2012) is a draft policy formulated to conserve the wetland areas by the four-member expert committee that suggests some measures for the conservation of the wetlands in Kolkata. It is also developed by adhering to the basic outline of the Ramsar Convention.

Conclusion

The wetlands have acquired critical importance due to their role in water security, support to plants and animals, role in mitigating pollution and occurrence of other natural phenomenons like floods, erosion, etc. Despite their immense value, wetlands are subject to anthropogenic and non-anthropogenic pressures. This results in the degradation of wetlands through shrinkage, drainage, reclamation, pollution, and habitat destruction.

There are several laws that remark conservation of wetlands but they are not yielding desired results. The strategies and measures built on the lines of holistic and multidisciplinary approaches are needed in order to conserve and manage wetlands. They should be based on scientific knowledge. All the key stakeholders from diverse strata should come forward in the conservation of wetlands.

References


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