PRO TECTIO N OF MANGROVES: A STUDY WITH SPECIAL REFERENCE TO INDIA. M.Sakthivel
1. Introduction. Over exploitation of natural resources has led to serious environmental problems which are of global character. At present, it is commonly accepted that environmental protection is inevitable and essential for the well being and existence of human race. General notion behind the introduction of various environmental legislations aims at protection of public interest. Every state has an obligation to protect and improve standard of living of their people. Preservation of environment undoubtedly forms part of this wider constitutional obligation. Right to health and the right to get clean and healthy environment are fundamental human rights.1 Right to clean and livable environment is in fact considered as a third generation human right. Judicial interpretations adopted by the higher courts in India incorporated right to environment as part of constitutionally guaranteed rights. 2 Marine ecosystem is one of the most important ecosystems which contain mangroves, coral reefs and other living things. As like other ecosystem of the earth, Mangroves are being disturbed by the human beings and their developmental activities. The interventions in the dynamic ecosystem of mangroves have increased considerably over the past decades. Deforestation of the mangrove vegetation, Shrimp Culture Industries and other activities has posed serious challenge on the survival of mangrove resources. The main aim of this paper is to examine the adequacy of the existing legal frameworks relating to the protection of mangroves and their viability.
B.A., B.L., (TN Dr. Ambedkar University) LL.M., (Cochin) Advocate, Madras High Court. The author is deeply grateful to Dr. N.S. Soman, Associate Professor, SLS, CUSAT and Ms. P.S. Seema, Assistant Professor, SLS, CUSAT for their insightful discussion and comments on this paper. Comments can be shared with
[email protected] 1 . See Melissa Thorme, “Estabilishing as a Human Right”, 19 DenverJournal of International Law and Policy 301 (1990-1991). 2 . See Vellore Citizen Welfare Forum v. Union of India, (1996)5 SCC 647.
1 Electronic copy available at: http://ssrn.com/abstract=1706038
2. Nature of Mangroves and its Extent The mangroves are fragile, complex and dynamic ecosystem and are dependent on inter-related, environmental both biotic and abiotic factors.3 Mangroves are characterized as salt-tolerant and high metal tolerant species 4. Generally mangrove plant life is found in the tropical and subtropical coasts. It consists of a number of species of trees and shrubs which can adapt it to survive in the inter-tidal zone. They are basically land plants growing on sheltered shores, typically on tidal flats, deltas, estuaries, bays and creeks. The best locations are where abundant silt is brought down by the rivers or on the backshore of accreting sandy beaches. They need good amount of sun light and have the ability to soak up fresh water from saline water. 5 Therefore it is very clear that mangroves can be found not only in the inhabiting extensive tidal mud flats but also along freshwater riverbanks. Mangroves structure extremely dynamic ecosystems since the inorganic nutrients, brought in by the incoming freshwater from land run-off, are trapped to form the source of energy for many organisms. They constitute a reservoir, refuge, feeding ground and nursery for many useful and unique plants and animals confined to this region. By way of the export of decomposable organic matter into adjoining coastal waters, mangroves provide an important nutrient input and primary energy source for many tropical estuaries.6 Nearly 80 species of mangroves can be found in the entire world. They can be divided into two distinct groups: exclusive and non-exclusive. Exclusive mangroves are the largest group which comprises around 60 types of species. These mangroves are confined to inter tidal areas and are not seen to exist within any other type of vegetation community. Non-exclusive group mangroves constitute remaining 20 plant species.
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. See accessed 28 May 2010 . See Report of the Task Force on Islands, Coral Reefs, Mangroves & wetlands in Environment & Forest for the 11th Five Year Plan at Page 53. 5 . See Ibid at Page 55. 6 . See Ibid at Page 60. 4
2 Electronic copy available at: http://ssrn.com/abstract=1706038
These plants are not restricted to the typical mangrove environment and are often found within drier, more terrestrial areas. Examples include Hibiscus tiliaceus and Barringtonia acutangula.7 The mangroves of India comprise of 69 species of the mangroves are widely available in India under 42 genera and 27 families. The mangroves provide shelter to the wild animals in Sunderbans, Orissa and Andaman and Nicobar Islands. India has only 2.66% of the world's mangroves and it covers nearly 4827 sq.km. Out of India's total area under the mangroves, about 57% are found on the East Coast, 23% on the West Coast and remaining 20% on the Bay Islands (Andaman and Nicobar). The mangroves can be found in Andaman and Nicobar Islands, where many tidal estuaries, small rivers, neritic islets, and lagoons support a rich mangrove flora. 8
3.Unique feature of Mangroves
Mangroves can grow where no other tree has grown before. This is the unique feature of mangroves. They are able to survive in soil which is inundated with salt water and also in soil which is anaerobic. All these things are made possible for the mangrove trees by their aerial roots called Pneumatophores. In order to avoid suffocation in the oxygen poor mud, mangroves develop aerial or air-breathing roots called pneumatophores. The pneumatophores extend upward from the underground roots above the soil surface. 9 The aerial roots have tiny pores called lenticels which are used for respiration. Only air can get through the lenticels, not water or salts. All aerial roots also contain large air spaces called aerenchyma which acts as a reservoir of air during high tide when all the aerial roots may be underwater. Root membranes prevent salt from entering into the plant
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. See Mangroves management in the Northern Territory, accessed 28 May 2010 at page 4. 8 . See Report of the Task Force Plan at Page 60. Some of the important Mangrove species in India are as follows: Avecennia alba, Avecennia officianalis, Avecennia marina, Bruguiera cylindrical, Kendella candel, Rhizophora apiculata, Sonneretia species. 9 .Adaptations: Morphological and Physiological accessed 28 May 2010
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which makes them salt resistant. They also provide structural support in the soft mud. 10 In addition to this, roots also act as a natural shelter 11, natural water filter 12 and stabilizer of coastal and river banks13. 4. Significance of Mangroves: The mangrove lands were considered as "waste land" in the past but they have recently been treated as a valuable ecosystem, especially for their special characteristics. Local community peoples have been traditionally utilizing since long back for variety of purposes. Values of mangroves are recognized as "tangible" and "intangible" benefits. The forest of the mangrove ecosystem gives the following tangible economically important benefits. They provide a source of firewood and wood products such as timber, poles and posts. Feeding, breeding and nursery grounds for a number of commercially important fish, prawn, crabs and mollusks are also provided by mangroves. It also forms a source for Raw materials for the wood-based industry of various natures and including board mills, rayon mills, match factories and charcoal products etc., mangroves are an important souse for Non-timber products including tannin (mostly from bark) to supply raw materials for leather tanning industries, fishing net processing units and thatching material for roofing. Mangroves form a valuable source for Edible products including honey and wax, game animals, meat and fruits, drinks and sugar. It supplies Protein rich fodder for cattle. It shelters commercially important fish and prawn stocks. It is the habitat for wildlife ranging from migratory birds to estuarine crocodiles, tigers etc., and Mangroves Promote tourism. The filtering effects of mangrove forests protect vital coral reefs and sea grass beds from damaging siltation. 14 10
. Mangrove Trees, See < http://www.naturia.per.sg/buloh/plants/mangrove_trees.htm> accessed 28 May 2010 11 . Tree climbing crabs and sea snails climb up their aerial roots at high tide to avoid aquatic predators. The roots provide a surface for all kinds of creatures from algae to shellfish and the tangle of roots provides hiding places for young fishes and shrimps from larger predators. 12 . Underwater, a huge number of filter-feeders such as sponges, shellfish are fastened on the tangle of roots. These filter feeders clean the water of nutrients and silt. As a result, clear water washes out into the sea, allowing the coral reef ecosystem to flourish. 13 . Mangroves‟ roots prevent mud and sand from being washed away with the tide and river currents. As the mud builds up and soil conditions improve, other plants can take root. Mangrove trees also slowly regenerate the soil by penetrating and aerating it. 14 . See Junaid K.Choudhuri, "Sustainable Management of coastal mangrove forest Development and social Needs" < http://www.fao.org/forestry/docrep/wfcxi/PUBLI/V6/T386.PDF> accessed 28 May 2010.
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In addition to the said economic benefits, several mangrove plants are used in indigenous medicine, such as Bruguiera gymnorrhiza for diarrhoea and blood pressure, Rhizophora mucronata for angina, Acanthus ilicifolius for asthma and rheumatism, Lumnitzera racemosa for herpes and itches, and Cynometra ramiflore and Excoecaria agallocha for leprosy. These plants are used for curing elephantiasis, abdominal troubles and skin diseases. They also cure sores, leprosy, headaches, rheumatism, snake bites, boils, ulcers, diarrhea and Haemorrhages. 15 The Mangrove Ecosystem provides some intangible benefits. These benefits are ecologically very important. Mangrove productivity16 is one of the important intangible benefits because it has direct impact on the health and function of the marine food chain and also its quantity is very high. The reason is that they receive energy form both land and sea. Detritus is the main energy resource in the tropical estuaries and mangroves are frequently the producer of this organic litter. 60% of leaf material in tropical estuaries derives from mangroves. Gross primary production in mangroves is seasonally variable but generally comparable to sea grasses and more than coral reefs. 17 Like other plants, mangroves convert energy from the sun into organic matter. When the leaves and branches of a mangrove get down they give a variety of aquatic animals such as molluscs, crabs and worms with a primary source of food. These primary level consumers in turn support an array of secondary consumers, including small fish and juvenile predators such as barramundi which, when mature, become third level consumers.18 It helps in mud flat formation and control of erosion. Further it has the capability to check inland salinity intrusion and also has enhanced capability to combat the impact of cyclone and tidal surge. It plays a significant role as a shelter belt during storms and cyclones.19
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. See V.P.Upadhyay, Rajiv Rajan and J.S.Singh, "Human-mangrove conflicts: The way out", Current Science, Vol.83, No.11, 10 December 2002, p.1328 at 1332 16 . Productivity is a concept used to describe the ecological value or function of a vegetation community. 17 . See Report of the Task Force at Page 51. 18 . See Mangroves management in the Northern Territory(n.7) at page 8. 19 . See Junaid K.Choudhuri,( n.14)
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4.1. Role of Mangroves during Tsunami and Storms: Mangrove green belts protect lives against natural disasters such as cyclone, Tsunami, etc., Coastal forests can also act as windbreaks in reducing destruction in coastal communities resulting from cyclones. A thick area of forest with high densities of trees with their branches and stilt roots will give greater shelter than a degraded forest or a forest in which trees are widely spaced or there are few branches. If the density of the mangrove forests are high, it will help to reduce the force of waves because of the resistance provided by stilt roots as well as the trees' trunks and branches. 20 As widely reported, extensive areas of mangroves can reduce the loss of life and damage caused by tsunamis. For example when the time of Tsunami, the Pichavaram mangrove forest in Tamil Nadu slowed down the waves and protected around 1700 people living in hamlets. In Malaysia, in areas where the mangrove forests were intact, there was reduced damage.21 The protective role of mangroves have been clearly identified by two scientists from Tamilnadu. 22. They have studied the effects of the 2004 tsunami on 18 costal hamlets on the east coast of India and concluded that the distance of a hamlet from the sole elevation and the amount of dense vegetation between the hamlet and the sea were effective protection against the human death and the loss of property. Mangroves positive impacts were already noticed in the Bangladesh cyclone of 1991. Gujarat and Orissa are being continually affected by the cyclones. But the quantum of destruction has been considerably reduced where sufficient mangrove buffers are present.23 It is very evident that Mangroves protect the living resources against natural calamities. 4.2. Role of Mangroves in the Earning of Carbon Credits: Global warming is one of the most important and serious issue in the present scenario. At present, International community is also discussing the same at various 20
. See Report of the Task Force at Page 56. . See accesses 12 June 2010 22 .K.Kathiresan and N.Rajendran, Comments on “Coastal Mangrove Forests Mitigated Tsunami”, Estuarine, Coastal and Shelf Science, Volume 65, Issue 3, November 2005, p 601-606. 23 . See Report of the Task Force at Page 56. 21
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levels. As a result of global warming, the global temperature is increasing at alarming level. By 2025, the atmospheric concentration of CO2 is expected to rise by approximately 440 ppm. During the next 25 years, average atmospheric CO2 concentrations may increase from the current average of 370 ppm to 410 ppm. As a result of that, the temperature may rise by 0.5 – 0.9oC, and sea level may also rise by 3 – 12 cm24. Carbon compensate is a novel concept which targets to tackle global warming. Even though the concept has been put forwarded dates back to 1989, it only took shape as a market able commodity after the Kyoto Protocol on global warming. The Protocol puts obligation on the developed nations to reduce the greenhouse gas emissions by an average 5 per cent compared to 1990 levels between 2008 and 2012.25 Instead of reducing the emissions country-by-country, carbon emission trade creates a choice where most polluting and industrialized countries can spend the money to cover the costs of reducing pollution or else continue polluting and pay someone else to cut their pollution. Right now most of the East African countries try to make cash out of selling carbon credits by way of growing mangroves. 26 Mangrove forests can be a secret weapon in the fight against the climate change. Mangroves have a vital role to play in reducing the impacts of climate change and extreme weather events. In addition to that they also have huge potential to store carbon in their root systems.27 Kenya Marine and Fisheries Research Institute has initiated a project especially for the Communities living on the coastline. As a result of this project local community of that area will soon be earning cash from the global carbon emissions. The carbon credits trade will encourage the local communities to plant more mangrove trees to 24
. Daniel M.Alongi, "Present state and future of the world's mangrove forests", Environmental Conservation 2002, Vol.29(3), pp.331-349 at 340. 25 . See Art.3 of the Kyoto Protocol, 1997. 26 . See East Africa taps into carbon trading, < http://www.carbonoffsetsdaily.com/global/east-africa-tapsinto-carbon-trading-12134.html> accessed 10 June 2010. 27 . See Mangroves a secret weapon in combating climate change, accessed 10 June 2010.
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replenish the declining stock of aquatic life. Further it says the net benefit of carbon emission trade using the mangrove forests is close to $3,000 per hectare yearly, which is more than income generated from the sale of the wood products.28 Therefore, it is obvious that Mangroves help to reduce global carbon dioxide levels and to tackle the global warming issues. This is also another ecological importance of mangroves. 5. Threats to Mangroves Mangroves are being affected by the human beings and their developmental activities. Interventions of the human activities have considerably increased over the past decades in the dynamic ecosystem. Just like other natural resources, mangroves are being exploited and destroyed in the global level. Most of the nations paid very least attention towards the mangrove lands in the past 29. In the 18th century the Sunderbans was twice its present size, which was lost to agricultural lands of the adjoining landlords. 30 In India, total mangroves area was 674 thousand ha in 1987 and the same was reduced to 482.7 thousand ha in 1997. 31 Deforestation of the mangrove vegetation, Shrimp Culture Industries and other activities has posed serious challenge on the survival of mangrove resources. Population and economic growth inevitably changed the use of mangroves lands for diverse purposes such as construction of roads, ports, harbors, industries and urbanization etc., Mangroves were alternatively used especially for the production of fish and prawns and succeeded in fetching higher monetary gains over a short period and land to the conversion of mangroves to fish ponds. This led to the conversion of mangrove lands into salt beds and paddy fields brought in huge profits within a short period.32 Disposal of Waste water effluent of the factories, direct dumping of municipal wastes into the rivers, pesticide runoff from neighboring agricultural areas and accumulation of heavy metals into the 28
. See East Africa taps into carbon trading (n.27) . The mangrove forest in Thailand depleted from 3,60,000 ha in 1960 to 1,74,000 ha in 1991 and while that in Malaysia decreased from 5,05,300 ha to 2,69,000 ha between 1980 and 1990. In Indonesia, 75% of the major cities having over 1,00,000 inhabitants are located in coastal areas, most of which were mangrove forests. By 1990 about 2,69,000 ha of mangroves in Indonesia were converted to fishponds. In the Philippines, 1,69,852 ha of mangroves disappeared between 1967 and 1976. 30 . See Junaid K.Choudhuri (n.14). 31 . See . visited on 12.09.2009. 32 . See Junaid K.Choudhuri (n.14). 29
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mangrove ecosystems, are causing definite stress on them. Another one is oil pollution. It is unavoidably increasing in mangrove areas from shipyards, ship breakers, offshore oil wells, oil tanker accidents and washing of tanks in coastal waters.33 These are all the factors which affect mangroves forests. From the above discussion it is very evident that with in the last two or three decades, density of the mangroves has been considerably reduced in the world. Therefore there is need to examine the existing legal framework in national, international context and administrative measures for the protection of mangroves along with judicial decisions and their viability. 6. International level Protective measures for Mangroves In the international level, there is neither any specific Convention, nor any other mechanism which deals with the protection of mangroves. However, from the existing international documents, an indirect obligation of the States to protect and preserve mangroves could be inferred. The Convention on Wetlands of International Importance especially Waterfowl Habitat, an international treaty adopted on 1971 at Iran, came into force in 1975, and is widely known as the Ramsar Convention. The Ramsar Convention provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources34. It recognizes the importance of wetlands as the key elements of inland waterways and coastal systems 35. Most of the mangroves are situated in the wetland sites. Such mangroves are protected by the Ramsar Convention. 36 Stockholm Declaration also, though not directly, could be used as another international document which mentions the mangroves and their protection, which says that all the natural resources including air, water, land, flora and fauna should be
33
. See Junaid K.Choudhuri (n.14). . See the Ramsar Convention, art.2 35 . See the Ramsar Convention, art.1. 36 . For example, a well known Sunderban forest is covered by the Ramsar wetland site. 34
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protected by careful planning.37 Here natural resources include the mangroves also. Therefore, this provision can be very well read in order to protect mangroves. Principle 7 speaks about the protection of the marine living resources and also protects the marine environment. We know that the marine life includes the mangroves also. Therefore we can say that this provision also gives an obligation to the countries to give effective protection to the mangroves also. 38 Rio Declaration is another international legal document, which specifically emphasizes on sustainable use of the natural resources which is based on the Sustainable Development Principle. 39 Rio envisages the precautionary principle40 and the polluter pays principle 41 for the sustainable use of natural resources. Agenda 21 is also one of the outcomes of the Rio declaration. It says about the protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living
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. Stockholm Declaration on Human Environment, principle 2 says "The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate”. 38 . Stockholm Declaration on Human Environment, principal 7 says "States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea". 39 . United Nation General Assembly constituted the World Commission on Environment and Development, popularly known as the "Bruntland Commission" under the leadership of Gro Bruntland, Prime Minister of Norway. In 1987, the Commission submitted its report, Our Common Future, well known for its espousal of the principle of "sustainable development". The concept reads as follows; Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: the concept of 'needs', in particular the essential needs of the world's poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs. 40 . At the center of the precautionary principle is the concept of taking anticipatory action in the absence of complete proof of harm, particularly when there is scientific uncertainty about causal links. The precautionary principle states that decision-makers should act in advance of scientific certainty to prevent harm to humans and the environment. 41 . As per the OECD Joint Working Party on Agriculture and Environment (2001) Polluter Pays Principle means "... the polluter should be held responsible for environmental damage caused and bear the expenses of carrying out pollution prevention measures or paying for damaging the state of the environment where the consumptive or productive activities causing the environmental damage are not covered by property rights.". However the concept has been interpreted very widely by the judiciary in Indian Council for Enviro Legal Action v. Union of India, AIR 1996 SC. 1468. The court held that "The Polluter Pays Principle means that absolute liability of harm to the environment extends not only to compensate the victims of pollution, but also to the cost of restoring environmental degradation. Remediation of damaged environment is part of the process of sustainable development ."
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resources.42 It envisages that the coastal areas should be protected through sustainable development and integrated management. This Integrated management and sustainable development of coastal and marine areas has been implemented in order to protect coastal and marine environment and their living resources. These are the international legal frameworks which expressly as well as impliedly cover and address the concern of mangroves. In the very beginning of the 21st century, internationally an attempt was made to prepare a code of conduct for the sustainable management of mangrove ecosystem because of the importance of mangroves 43. However the same is still remaining as a draft. It is yet to be made real. From the discussion above, it is very clear that there is no sound mechanism, nor a strong obligation on the part of the States to protect and preserve Mangroves in the International law. So, quite naturally, the answer lies with the domestic law. This paper in the rest of the parts deals with how the Indian legal, executive as well as judicial system contributes towards solving this serious problem. 7. Protection of Mangroves in India - Legislative Measures After the Stockholm Declaration in order to comply with the international obligations, India has amended its Constitution and added new articles namely Article 48A and Article 51A (g).44 Article 48A of the Indian constitution puts an obligation on the part of the state to protect and improve the environment.45 Simultaneously India has enacted various environmental legislations like Water Act 46, Air Act47, Forest Conservation Act48 etc., Some of the provisions can be used to control the untreated effluents into the mangroves area as per the Water Act.
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. See chapter 17 of the Agenda 21. . This Draft was prepared by Prof. Donald J. Macintosh and Dr. Elizabeth C. Ashton. World Bank, ISME and cenTER Aarhus jointily initiated to bring out this draft < http://www.mangroverestoration.com/MBC_Code_AAA_WB070803_TN.pdf > accessed 10 May 2010. 44 . These two Articles were added through 42nd Constitutional Amendment Act, 1976. 45 . Indian Constitution, article 48A reads: "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. 46 . Water (Prevention and control of Pollution) Act, 1974.(India) 47 . Air (Prevention and control of Pollution) Act, 1981. (India) 48 . Forest (Conservation) Act, 1980. (India) 43
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Indian Forest Act 1927 was enacted by the British – Indian Government to regulate the forest based produces. This act classifies forest in to four categories 49 viz., Reserved forest, Village forest, Protected forest and Private forest. Even though the Forest Act gives least protection to the forest, it regulates all of the forest on the basis of above said four categories. All of the mangrove forests are in one way or other way covered by the above said four types of forest. Later government realized the inability of the Indian forest Act, 1927 to guard the forest and enacted a new legislation namely Forest Conservation Act, 1980 for the purpose of providing effective protection to the forest resources. This Act mandates prior approval from the Central Government for using forest land for the non-forest purpose. It restricts the forest lands being utilized for the non-forest purposes.50 The same provision could be used to protect mangroves forest and the mangrove forest areas against the conversion into non-forest purposes. In India, mangrove forests declared as Reserve Forests, Reserve Lands or Sanctuaries are protected by the Forest Department of the concerned State/Union Territories. Mangrove areas of the country are represented in the Sunderbans Tiger Reserve, Bhitarkanika, Coringa, Nelapattu, Point Calimere Wildlife Sanctuaries, Pirotan National Park and other areas. Among these protected areas, Sunderban forest is one of the largest forests which contain large area of mangroves forest. The Sundarban forest which is located in the river belt of Ganga in India and Bangladesh comprises the single largest piece of mangroves in the globe. The total area extends to around 10,000 sq.km and comprises around 6, 50,000 ha of mangroves. The Sunderban is extremely rich in floral and faunal diversity and has economic significance for the local people of the adjacent districts. This forest is considered as one of the oldest examples of 'wise use' of wetland. The entire forest area has been declared as a World Heritage site under Ramsar Convention. 51 The same is also protected as reserved forest as per the 1927 Forest Act.52 49 50
. See the Indian Forest Act, 1927 Chapter II to Chapter V . The Forest Conservation Act, 1980 s 2
51
. See accessed 5 May 2010 52 . Sunderban forest is also a reserved forest under 1927 Act.
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Other than this Sunderban forest, some other areas have been notified under Ramsar Convention. Amongst them Vembanad-lake in Kerala is one of the important wetland sites which contain this mangrove forests. This wetland site has been protected under Ramsar Convention since 2002. In addition to the protection afforded under the Indian Forest Act, some mangrove forests are protected under the Marine Protected Areas (MPAs). The MPAs are notified under Wildlife (Protection) Act, 1972 either as National Parks or as Wildlife Sanctuary53. About 7,300-sq.km area of inter-tidal zone has been notified under the Wildlife (protection) Act.54 In addition to above said legislations, Environment (Protection) Act, 1986 (EPA) also gives protection to the mangroves. Section 3 of the Act says about the power of Central Government to make rules and measures in order to protect and improve the environment. For the purpose of implementing these measures, Central Government may make rules to regulate environment pollution. 55 As per this section Central government has made various notifications and rules to regulate environmental pollution.56 Likewise it protects and regulates the coastal area. The Coastal Regulation Zone (CRZ) Notification has been introduced with three main objects. It aims to maintain a balance between development needs and protection of natural resources. CRZ prohibit or regulate certain activities which are harmful for both coastal communities and their environment. Is also protects the livelihoods of millions of people through the sustainable management.
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. See of the Wildlife (Protection) Act, 1972 Chapter 4 and 4A . In West Bengal, about 50% of total Sundarbans mangroves gets protection and an area of 4,263 sq. km are notified as „Reserved Forests‟. In Orissa, Bhitarkanika covers 133 sq. km and Gahirmatha has 15 sq. km of mangroves. Some part of mangroves in this state is not part of MPAs and notified forests. In Andhra Pradesh, about 60% of total mangroves are in MPAs and also notified forests. In Tamil Nadu, the Point Calimere Wildlife Sanctuary has only small areas of mangroves and the remaining mangroves are protected under the R.F. Pichavaram, which has good mangrove area, is not part of MPAs but is protected under R.F. In Gujarat, 14% of total mangroves are coming under MPAs. Mangroves in Kachchh are not notified as „Reserved Forests‟. The forests that are not notified are found to be present in Porbandar, Junagadh, Bhavnagar, Bharoach, Surat, Valsad, Mundra and Kandla Port. In Andaman and Nicobar Islands, major part of mangroves is not coming under MPAs. However, substantial areas receive protection as MPAs and notified forests in Mahatma Gandhi, Rani Jhansi Marine National Parks and other Sanctuaries. accessed 5 May 2010. 55 . See Environment (Protection) Act, 1986, S. 6. 56 . For example, under this section government has made the Hazardous Waste (Management and Handling) Rules, 1989, Bio-medical waste (Management and Handling) rules, 1998, Coastal Regulation Zone Notification etc… 54
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This is the first legal regulation which expressly addresses the concerns of mangroves vegetative community. Sec 6 (1) provides some of regulatory methods in the coastal areas which includes mangroves area. In order to regulate development activities, the coastal stretches within 500 meters of High Tide Line on the landward side have been classified into four categories, namely: CRZ I, CRZ II, CRZ III, and CRZ IV. The CRZ I areas are the most sensitive ones, where no developmental activity is permitted. It includes ecologically sensitive and important, such as national parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas close to breeding and spawning grounds of fish and other marine line, etc., In India all the states have demarcated that all mangroves vegetative community areas as CRZ I. As per this notification, all mangroves forests with an area of 100 m2 or more are classified as CRZ I, with a buffer zone of at least 50 m. Therefore, the CRZ notification 1991 gives clear emphasize on the significance of mangrove system by way of putting limitations on the use of these ecologically significant areas for any developmental activity. CRZ IV also contains mangroves forest (Andaman and Nicobar Islands). Even though Coastal Regulation Zone notification 1991 addresses the concerns of the mangroves forest, it does not provide adequate protective methods to protect ecologically important vegetative community. The reason is that some exceptions are available to establish industries in that ecologically sensitive area. This is the main pitfall of the said notification. Further the Comptroller and Auditor General of India report, 2006 points out in paragraph 5.1.1 that „The Ministry of Environment and Forests did not enforce the Coastal Regulation Zone Notification effectively resulting in extensive destruction in coastal areas due to industrial expansion‟.57 It clearly shows the ineffectiveness of the enforcement mechanisms. The MOEF drafted a new Coastal Zone Management notification on the basis of the Swami Nathan committee 58 which recognized the importance of the mangroves. Like 57
. See Manju Menon and Aarthi Sridha r, “An appraisal of Coastal Regulation Law in tsunami-affected mainland India” accessed 5 May 2010 58 . The Government of India constituted an Expert Committee under the Chairmanship of Prof. M. S. Swaminathan in 2004 to conduct a comprehensive review of the Coastal Regulation Zone Notification, 1991, in the light to the findings and recommendations of all previous Committees, judicial 14
CRZ, it divided the coastal area into four. CZM I comprised of ecologically sensitive areas such as mangroves and sand dunes. Like CRZ, CZM I also failed to define the ecological significance area on the basis of the quantity and characteristics. All the activities in CMZ-I areas would be regulated by the State or Union territory Coastal Zone Management Authority concerned on the basis of an Integrated Coastal Zone Management Plan (ICZMP) to be prepared by the States or Union Territories Administration with the help of National Institute of Sustainable Coastal Zone Management and other institutions. In the CZM I area the development activities would be carried out subject to the “technical feasibility and costs” which should be consistent with the provisions of the National Environment Policy (NEP). The NEP has been drafted on the basis of the recommendations of the Govindarajan Committee Report on Investment Reforms. Critics of the NEP claim that under the garb of safeguarding livelihood and development concerns, the NEP water downs environmental guidelines in order to promote the pro-industrial development measures rather than pro-environment activities. 59 Therefore it is very clear that the proposed notification also failed to address the concerns of the mangroves in the effective manner. However it lost its validity on July, 2009.60 Instead of the proposed notification Government has decided to amend the CRZ notification61. From the above discussion one can come to a conclusion that Indian legislations are trying to protect the mangroves form the degradations. Even though no special legislation or specific legal rule addressing the issue is available for the conservation of the mangroves, there are statutes which indirectly protect the mangroves forest.
pronouncements, representations of various stakeholders and suggest suitable amendments, if necessary, to make the regulatory framework consistent with well established scientific principles of coastal zone management. The Committee submitted its report on February, 2005. 59 . See for the same types of arguments M Menon, S Rodrigues and A Sridhar, “Coastal Zone Management Notification „07 Better or bitter fare? < http://www.dakshin.org/DOWNLOADS/BitterorBetterFare.pdf> accessed 5 May 2010 at p 10. 60 . Lapsing of Costal Management Zone Notification 2008, MoEF India. accessed 28 May 2010 61 . Joydeep Gupta, India to prepare new rules to save its coastline, accessed 28 May 2010
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8. Protection of Mangrove in India: Executive Measures
Like conservation of the other natural resources, so many administrative measures have been taken for the conservation of the nature. Some of the conservations activities have been discussed in the following passages. 8.1. Scheme on Conservation and Management of Mangroves The Ministry of Environment and Forests launched a Scheme on Conservation and Management of Mangroves and Coral Reefs, 1986-1987 which was in tune with the protection of mangroves and other ecosystems. 62 The objectives of the Scheme on Conservation and Management of Mangroves and Coral Reefs, 1986 were63 to conserve and protect the Mangrove vegetations from the further degradation. Afforestation of degraded Mangrove areas form part if its goal. Restoration of the degraded Coral Reef areas was another objective. Conservation of the genetic diversity including that of the threatened and endemic species as well as creation of awareness among the people about the importance of Mangrove/ Coral Reef Ecosystem forms another objective of the scheme. It also aimed at creating awareness among the general public regarding the need for the conservation of mangroves and coral reefs. The above said objects were considered as immediate objectives of the Scheme on Conservation and Management of Mangroves and Coral Reefs. Further this scheme had various activities to be carried out.
Survey and demarcation Restoration measures:
Natural regeneration, Afforestation, Nursery development, Protection measures, Education and awareness and Research on various aspects of Mangroves and Coral Reef Ecosystem forms part of the activities envisaged under the scheme. In order to achieve the objectives of the Scheme on Conservation and Management of Mangroves and Coral Reefs and to ensure that the activities envisaged therein were achieved the government reconstituted National Committee and Research Sub Committee 62
. See accessed 28 May 2010 . See conservation and Management of Mangroves, accessed 28 May 2010 63
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on Mangroves and Coral Reefs.
State governments and union territories had nodal
agency as well as streaming committees to oversee the implementation of the scheme. As a result of this programme, from the State of Forest Report 1999, the Mangrove Forest coverage in the country is 4,871 sq. km. It has shown significant increase by 615 sq. km. during 1991-99. It clearly showed an increase of 338 sq. km. during 1995-99.64 8.2 National Mangrove Genetic Resource Centre As a result of disaster caused by the super cyclone in the year 1999, importances of mangroves have been identified. For the purpose of identifying the damages caused to the mangroves when the time of super cyclone, a „Task Force‟ was constituted. The study conducted by the task force reviled the importance of Mangroves in protecting coastal ecology from natural calamities like cyclones, hurricanes and tidal waves. Further this task force suggested establishing a National Mangrove Genetic Resource Centre in Orissa to assist conservation of the threatened and endangered species of mangroves. Further this centre would contribute to research and development in the area of mangrove conservation. It also aims at afforestation and regeneration of mangroves. 8.3. National Environment Policy, 2006. Conservation of environmental resources is one of the main focuses of the National Environment Policy. The prime object of the conservation is to ensure that people who dependent on particular resources should get better livelihoods from the fact of conservation, than from degradation of the resource.65 The National Environment policy recognizes the importance of the mangroves. Poorly planned human settlements, inadequate institutional capacities for and participation of local communities in, formulation and implementation of coastal management plans, lack of consensus on
64 65
. Ibid. . See the National Environment Policy, 2006 preamble
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means of provision of sanitation and waste treatment are some of the important factors66 that threatens the existence of mangroves forest So as to evade, the following further actions will be taken up: In order to overcome the above mentioned problems it would be necessary to mainstream the sustainable management of mangroves into the forestry sector regulatory regime, ensuring that they continue to provide livelihoods to local communities. It is imperative to disseminate available techniques for regeneration of coral reefs, and support activities based on application of such techniques. The sea-level rise and vulnerability of coastal areas to climate change and geological events shall be explicitly considered in coastal management plans, as well as infrastructure planning and construction norms. A comprehensive approach to Integrated Coastal Management by addressing linkages between coastal areas, wetlands, and river systems, in relevant policies, regulation, and programs has to be adopted. Development of strategy for strengthening regulation, and addressing impacts, of ship-breaking activities on human health, and coastal and near marine resources are to be made.67
Further this National Environment Policy puts obligations on the part of the National Forest commission to review the policy, legislative and institutional basis for the management of management of mangrove forest. Especially it envisages the National Forest Commission to focus the public investments on the enhancement of the density of the Mangroves forest.68
8.4. Management Action Plan
Wetlands, mangroves and corals are considered as dynamic ecosystem which can be easily influenced by the human factors as well as natural factors. So as to ensure the maintenance of biodiversity and productivity and to allow wise use of their resources, an overall agreed in regard to various sectors involved for their management. The management planning process is called „Management Action Plan‟ (MAP). 66
. See the National Environment Policy, 2006 Para 5.2.7 . Ibid., 68 . Ibid.,Para 5.2.3. 67
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The Central Government gives 100% assistance for research on Mangroves as well as for the implementation of approved MAP. This financial assistance shall be made available to the various components69 which will help the conservation and management of mangroves. Currently approved MAPs are being implemented in 38 mangrove areas and 4 coral reef areas all along the Indian coastline. New mangrove/coral reef areas can be identified by State Governments for their inclusion in the management action plans. 70
In addition to the above said administrative measures, Government of India and Mangroves for the future (MFF) 71 have jointly taken measures to protect and improve the mangroves. They have jointly prepared a (draft) National Strategy and Action Plan which gives more focus on the conservation of Mangroves. 72
8.5. Non-Governmental Organizations
Other than these Administrative measures, there are non-governmental organizations doing research for the conservation of mangroves. Usually they are doing research in collaboration with the government organizations. M.S.Swaminathan research Foundation is one of the non-governmental research institutes which has undertaken research programmes in collaboration with the various government organizations. 73
69
. Admissible Components for Assistance: The Ministry provides assistance on 100% grant basis for the following components: a) Survey, Assessment and Demarcation b) Capacity Building: Staff Training and Skills c) Shelter Belt Development d) Protection & Monitoring e) Restoration and Regeneration Measures f) Alternate and Supplementary Livelihoods g) Community Participation h) Mangrove Afforestation/Plantation (Degraded areas and open mud flat coverage by plantation) i) Biodiversity Conservation j) Sustainable Resource Development k) De-silting l) Weed Control m) Pollution Control n) Environmental Education & Awareness o) Impact Assessment through Concurrent & Terminal Evaluation. 70 . See revised draft National Strategy and Action Plan, India. (Executive Summary) Page 33. 71 . Mangroves for the Future (MFF)” is a regional initiative, being coordinated by United Nations Development Programme (UNDP) and International Union for the Conservation of Nature (IUCN). The main aim of the MFF is to improve and conserve the coastal ecosystem in the six tsunami-hit countries including India. Under this conservation scheme. 72 . See revised draft National Strategy and Action Plan, India. (Executive Summary) page 1. 73 . MSSRF stared its first research programme for the conservation of mangroves on 1991 in some Asian Countries. This research programme resulted some training programmes for the conservation of the mangroves. Mangrove Ecosystem Information Service was developed as a part of this programme. On the basis of this MEIS, Global Mangrove Ecosystems Information Service of International Society for Mangrove Ecosystem, Japan came out.
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Between 1993 to 1996, the M.S.Swaminathan Research Foundation execuited a research programme on the mangroves in Tamil Nadu. This is the first programme which was done with the active participation of the local community. Noting the ecological significance of mangroves and its positive role in reducing the damage caused by MSSRF has done various research programmes in collaboration with the Tamil Nadu Forest Department for the conservation of mangroves. It is also doing some on-going projects.74 Tsunami accelerated the spreading of awareness about the significance of the mangroves and the drawn up executive programmes in tune with the pro-development and management concept rather than the old regulatory concept. Though the policy measures we have seen are trying to protect and improve the mangrove forests absence of legal guidelines for the effective management of the mangroves is conspicuous.
9. Judicial attitude towards the protection of mangroves In the realm of environment protection, Indian judiciary has played very significant role. In the mid 1970s, the scope and ambit of the Article 21 75 was widened through Maneka Gandhi case76. In the 1980s courts took a very favorable stand for the filing of public interest litigations (PIL). The concept of Locus standi has also been expanded.77 Further courts have reduced the hurdles in the filling of PIL and simplified the PIL filling procedures.78 These important factors have brought considerable changes in the environment protection. As a result of above said changes in the legal scenario, so many pro-environment PIL have been filed before the Supreme Court as well as various High Courts. Through these PIL Courts held that pollution free environment is also part of right to life as
74
. See accessed 28 May 2010 . Constitution of India, article 21 reads as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. 76 . See Maneka Gandi v. Union of India, AIR 1978 SC 597. 77 . See Dr. Upendra Baxi v. State of UP, 1983(2) SCC 308 and People’s Union for Democratic Rights v. Union of India, AIR 1982 SC. 1473. 78 . Even a single post card was accepted as a writ petition under article 32 of the Constitution. 75
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envisaged in article 21. 79 This is the way in which environmental rights have been recognized as a part fundamental right. While interpreting the fundamental rights provisions of our constitution, courts incorporated international environmental laws80 and international environmental doctrines such as sustainable development concept;81 polluter pays principle, 82 precautionary principle83 and etc… In most of the cases, courts have recognized the importance this third generation human right.84 With respect to mangroves forest protection, Judiciary has recognized the importance of the mangroves and need for their protection have been stressed in Jagannath85 case. In this case, a PIL was filed by the petitioner for the enforcement of Coastal Regulation Zone Notification dated February 19, 1991 issued by the Government of India, stoppage of intensive and semi-intensive type of prawn farming in the ecologically fragile coastal areas, prohibition from using the waste lands/wet lands for Prawn farming and the Constitution of a National Coastal Management Authority to safeguard the marine life and coastal areas. In this case court referred the status report on mangroves of India published by the Ministry of Environment and Forests (GOI, 1987). The report showed that vast areas of mangrove were destroyed for agriculture, aquaculture and other uses. Some of the evidences relating to the destruction of mangroves in Krishna and Guntur Districts of Andhra Pradesh for construction of shrimp farms were produced before the Court. In this case the Court directed the Central Govt. to constitute an authority u/s 8(3) of the Environment (Protection) Act, 1986 and also directed to give necessary powers to protect ecologically fragile coastal areas, sea shore, water front and other coastal areas and specially to deal with the situation created by the shrimp culture industry in coastal States Union Territories. In addition to this, the Court held: 79
. See for the same M.C. Mehta. v. Union of India. (1987)1 SCC 395. M.C. Mehta. v. Union of India. (1987)4 SCC 463 and M.C. Mehta. v. Kamal Nath (2000)6 SCC 213. 80 . See Vellore Citizen Welfare Forum v. Union of India, (1996)5 SCC 647. 81 . Ibid. 82 .See Indian Council for Enviro Legal Action v. Union of India, AIR 1996 SC. 1468. 83 . See Vellore Citizen Welfare Forum v. Union of India, (1996)5 SCC 647. 84 . Shobana Rammasubramaniyam v. Member Secretary, CMDA, AIR 2002 Mad 125 85 . S. Jagannath v. Union of India and others AIR1997SC811
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“The agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of the shrimp culture ponds”. Therefore it is possible to come to a conclusion that through this case, the judiciary regulated the shrimp culture activities which pose serious threats to the mangroves life and regulated the exploitation of the all the coastal resources including mangroves. In another case, Bombay High Court banned construction activities within 50 meters of mangroves and also prohibited to convert the mangrove forest for the development purposes.86 From these two cases, we can see the role played by the judiciary in the conservation of mangroves. Though the judiciary showed its pro-mangroves attitude, in these cases, the effectiveness of these directions are not guaranteed. However, it gives a hope of a sprout of protection of mangroves. 10. Conclusion From the above discussion it is very clear that even though there is no specific legislation for the protection of mangroves protection, some of the administrative measures indicate that there is considerable increase in the area of mangroves in the end of the 20 th century. Even judiciary has showed concern against the destruction of mangroves. Even though there is no express international obligation on India to protect mangroves, one could possibly interpret the provisions of the Stockholm Declaration, Rio Declaration, etc., Protection of mangroves cannot be done separately because most of the mangroves are situated either in the Coastal Zones or in the forests. Therefore there is need for interdisciplinary approach towards the protection of mangroves. However some specific considerations need to be given for the protection of mangroves because of its significance and special features. Therefore these mangrove vegetations should be protected by special type of legislation which should focus on the multiple factors. In addition to this, some of the mangroves are used by local communities for their lively hood. In such cases, their rights should be recognized. Through this way, it is possible to
86
. See Lyla Bavadam, A Breath for Mangroves, accessed 5 May 2010.
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ensure their active participation in the conservation of mangroves. Because most of the local communities have realized the importance of the mangroves. Therefore they will not overexploit the mangroves.
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