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Conflicting Rights and Competing Claims: Biodiversity Litigation in India

The examination of multiple court cases in India reveal the conflicting rights of species, forest-dwellers, and biodiversity. These competing claims to forest and biodiversity conservation shed light on how courts can develop a nascent jurisprudence of balancing them.

By Arpitha Kodiveri

“If you ask us what the biggest problem we experience living in the forest areas, then it has to be the monkeys, the tigers, and the forest department,” said the forest-dwellers of the Lilunda village in the Sariska Tiger Reserve in Northern India.[1] Biodiversity conservation in India’s forests is plagued with the difficult questions of securing the rights of forest-dwellers, the forest, and the species that inhabit them. These rights can conflict with each other, as described by the forest-dweller in Sariska. The declaration of the area in Sariska as a “tiger reserve” means that the forest-dwelling community who live there have been under the constant threat of relocation.

The courts in India have been the site where these contestations of species rights, rights of forest-dwellers, and biodiversity conservation all play out. Currently, the courts have yet not developed a cohesive jurisprudence of balancing these rights, but a few significant judgements have started to address what such a jurisprudence could look like.

Courts and Conflicting Rights

Environmental governance in India is a complex maze of multiple authorities with overlapping jurisdictions that has been plagued with regulatory failures. Regulatory failure specifically caused by inaction from governing bodies is a pervasive issue experienced in the regulation of pollution to biodiversity loss.[2] The courts have then been asked to step in to ensure that the executives fulfill their obligations. Thus, courts have become an important component of the ecosystem of institutional actors engaged in environmental governance in India. They are described as levers of change to combat the issue of regulatory failure.[3]

What emerges in over 50 cases concerning biodiversity conservation in India is that the courts are seen privileging the rights of species and development projects to the exclusion of the rights of forest-dwellers. There are two specific cases where the courts amplified the contestations in biodiversity conservation in India starting with the landmark case of the conservation of the Asiatic lion and the case of the Narmada dam.

In the Asiatic lion case, the rights and protection of the specific species were recognized and the court changed the language of biodiversity jurisprudence to include an ecocentric approach. The court stated:

Biodiversity and biological diversity include all the organisms found on our planet i.e., plants, animals, and micro-organisms, the genes they contain, and the different ecosystems of which they form a part. The rapid deterioration of the ecology due to human interference is aiding the rapid disappearance of several wild animal species.[4]

However, what is lesser known is that the forest-dwelling communities who live in Gir in the state of Gujarat were asked to relocate in order to make way for the protection of the Asiatic lions. Here the court is seen privileging the rights of the specific species, in this case the Asiatic lions, over the rights of the forest-dwellers.

Similarly in the Narmada dam case, the Supreme Court ruled in favor of the construction of the mega dam despite the protests by Adivasi and forest-dwelling communities who were set to lose their land across the Narmada valley, in both central and western India. Here the Supreme Court allowed for the construction of the dam on the grounds of it being a national interest, being able to minimize the environmental damage, and recognizing the resettlement of the forest-dwelling community. In a situation where biodiversity conservation is pitted against development, what can be seen as an outcome is the privileging of the development project over the environment and the rights of people.

Courts and Balancing Rights

The jurisprudence of conflicting rights exists alongside the emergence of a jurisprudence of balancing these competing rights. Though nascent, it offers interesting jurisprudential pathways to see how conflicting rights can be reconciled with the objective of biodiversity conservation in mind. The next two cases show how the rights of forest-dwellers or local communities can come together with the rights of species to overcome the entrance of extractive capital.

In the case of the Niyamgiri Hills, Odisha Mining Corporation aimed to mine bauxite to be processed by Vedanta Resources Private Limited in order to produce aluminum. For the Dongria Kondh community, these hills were considered sacred. The Supreme Court—in recognition of the sacred rights of the indigenous Dongria Kondh community—decentralized decision-making power on the alienation of the hill to the local village assembly. The Dongria Kondh community decided against the diversion of these forests to mining. This is an example of how recognizing the rights of forest-dwellers as stewards of these forests accompanied with the biodiversity of the area came together to prevent the entrance of extractive capital.

In the case concerning Adani renewable energy company, a solar park was being established in Rajasthan in an area which was home to the great Indian bustard, a species on the brink of extinction. The local farming community pushed back against the establishment of the solar park on the basis of the loss of their livelihoods as well as loss of biodiversity. The High court of Rajasthan stayed the transfer of land to Adani on the grounds of protecting the great Indian bustard and the livelihood of the agrarian community.

In conclusion, this nascent jurisprudence where the conflicting rights of forest-dwellers and specific species are read together in an effort to restrict the expansion of extractive capital marks an interesting direction in biodiversity jurisprudence in India; one that moves beyond privileging rights to balancing competing claims with the objective to conserve As the courts work slowly to balance competing rights, the forest-dwelling communities in the Sariska Tiger Reserve continue to face uncertainty with the threat of possible relocation and lack of recognition of their forest rights.

 

[1] Interview by Arpitha Kodiveri in May 2014.

[2] Lele, Sharachchandra, et al. “A Structure for Environment Governance: A Perspective.” Economic and Political Weekly, vol. 45, no. 6, 2010, pp. 13–16.

[3] Sahu, Geetanjoy. “Public Interest Environmental Litigations in India: Contributions and Complications.” The Indian Journal of Political Science, vol. 69, no. 4, 2008, pp. 745–758.

[4] Centre for Environment Law, WWF-I v. Union of India, (2013) 8 SCC 234 at para 48 and para 49.

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