Page 6 - Environmental Governance Architecture for India - Suggestions
P. 6
Discussion Paper
in the Central and Concurrent Lists, along with • an Advisory Committee is created in the
State level laws ( under article 246(3) or even Ministry of Environment & Forest ( MoEF)
under article 252 as has been done in respect of to advise it on grant of clearance and also on
the Water Act) for matters in the State List. matters of conservation of forests (Section 3).
Before proceeding further, it is clarified that for • the Central Government to frame Rules to
purposes of this Discussion Paper, the focus is more operationalize the provisions of the Act, which
on the ‘environmental governance’ aspect. Though shall be laid before Parliament (Section 4).
‘forests’ and ‘wildlife’ are related to the environment,
this paper does not go into depth (except with respect The Rules of 2003 (in supersession of the Rules of
to the FC Act) for the reason that the approach to 1981, and as amended in 2004) made in pursuance
the governance framework here is already largely of the FC Act, 1980, provides that every user agency
settled by the specific mention of the subject in the wanting to use forest land for non-forest use must
Seventh Schedule: initially in the State List, and now in apply to a Nodal officer of the State Government
the Concurrent List, and the body of laws going back concerned. The State Government after being
to the Forest Acts of 1865 and 1878 and the current satisfied that it is justified, recommends the proposal
Act of 1927. As a caveat, it must be added that issues to the Central Government for its prior approval. In
of community ownership and management of forests respect of areas comprising 5 ha or less (other than
including traditional rights may need a relook separately. for mining) the approval is given by the Regional office
of MoEF. In respect of areas from 5 to 40 ha (other
4. The current governance architecture than mining) the approval is accorded by a Regional
Empowered Committee of MoEF. In respect of areas
The National Environment Policy, 2006, includes in measuring 40 ha or more and all mining proposals,
its Objectives ‘vi. Environmental Governance: To the advice of the Forest Advisory Committee in the
apply the principles of good governance (transparency, MoEF is taken by the Central Government. The Rules
rationality, accountability, reduction in time and costs, provide that the Forest Advisory Committee shall
participation, and regulatory independence) to the consist of 4 senior officials of the Central Government
management and regulation of use of environmental and 3 non-official experts.
resources.’ This section of the Discussion Paper
analyses the current legislative provisions with respect The MoEF has also issued Guidelines, from time
to their management, regulatory and accountability to time, relating to eligibility for grant of approval
functions, and the extent to which they incorporate to different non-forest activities, including ‘general
the principle of subsidiarity within a federal context approvals’ and ‘standard conditions’.
and address issues of transparency and reporting, and
community and civil society involvement. Judicial pronouncements on the FC Act:
In Writ Petition (Civil) 202 of 1995 titled T.N.
The Forest (Conservation ) Act, 1980 Godavarman Thirumulpad vs Union of India
The Forest Conservation (FC), Act, 1980, flows from &Ors, on 26 September, 2005 the Supreme Court
entry 17A of List III (Concurrent List) of the Seventh made the following observation:
Schedule.
The main architecture of the Act is as follows: “Natural resources are the assets of entire nation.
It is the obligation of all concerned including Union
• the State Government can dereserve or put Government and State Governments to conserve and not
forest land to non-forest use only with the waste these resources. Article 48A of the Constitution
prior approval of the Central Government of India requires the State shall endeavour to protect
(Section 2). and improve the environment and to safeguard the forest
and wild life of the country. Under Article 51A, it is the
6 FEBRUARY 2016
in the Central and Concurrent Lists, along with • an Advisory Committee is created in the
State level laws ( under article 246(3) or even Ministry of Environment & Forest ( MoEF)
under article 252 as has been done in respect of to advise it on grant of clearance and also on
the Water Act) for matters in the State List. matters of conservation of forests (Section 3).
Before proceeding further, it is clarified that for • the Central Government to frame Rules to
purposes of this Discussion Paper, the focus is more operationalize the provisions of the Act, which
on the ‘environmental governance’ aspect. Though shall be laid before Parliament (Section 4).
‘forests’ and ‘wildlife’ are related to the environment,
this paper does not go into depth (except with respect The Rules of 2003 (in supersession of the Rules of
to the FC Act) for the reason that the approach to 1981, and as amended in 2004) made in pursuance
the governance framework here is already largely of the FC Act, 1980, provides that every user agency
settled by the specific mention of the subject in the wanting to use forest land for non-forest use must
Seventh Schedule: initially in the State List, and now in apply to a Nodal officer of the State Government
the Concurrent List, and the body of laws going back concerned. The State Government after being
to the Forest Acts of 1865 and 1878 and the current satisfied that it is justified, recommends the proposal
Act of 1927. As a caveat, it must be added that issues to the Central Government for its prior approval. In
of community ownership and management of forests respect of areas comprising 5 ha or less (other than
including traditional rights may need a relook separately. for mining) the approval is given by the Regional office
of MoEF. In respect of areas from 5 to 40 ha (other
4. The current governance architecture than mining) the approval is accorded by a Regional
Empowered Committee of MoEF. In respect of areas
The National Environment Policy, 2006, includes in measuring 40 ha or more and all mining proposals,
its Objectives ‘vi. Environmental Governance: To the advice of the Forest Advisory Committee in the
apply the principles of good governance (transparency, MoEF is taken by the Central Government. The Rules
rationality, accountability, reduction in time and costs, provide that the Forest Advisory Committee shall
participation, and regulatory independence) to the consist of 4 senior officials of the Central Government
management and regulation of use of environmental and 3 non-official experts.
resources.’ This section of the Discussion Paper
analyses the current legislative provisions with respect The MoEF has also issued Guidelines, from time
to their management, regulatory and accountability to time, relating to eligibility for grant of approval
functions, and the extent to which they incorporate to different non-forest activities, including ‘general
the principle of subsidiarity within a federal context approvals’ and ‘standard conditions’.
and address issues of transparency and reporting, and
community and civil society involvement. Judicial pronouncements on the FC Act:
In Writ Petition (Civil) 202 of 1995 titled T.N.
The Forest (Conservation ) Act, 1980 Godavarman Thirumulpad vs Union of India
The Forest Conservation (FC), Act, 1980, flows from &Ors, on 26 September, 2005 the Supreme Court
entry 17A of List III (Concurrent List) of the Seventh made the following observation:
Schedule.
The main architecture of the Act is as follows: “Natural resources are the assets of entire nation.
It is the obligation of all concerned including Union
• the State Government can dereserve or put Government and State Governments to conserve and not
forest land to non-forest use only with the waste these resources. Article 48A of the Constitution
prior approval of the Central Government of India requires the State shall endeavour to protect
(Section 2). and improve the environment and to safeguard the forest
and wild life of the country. Under Article 51A, it is the
6 FEBRUARY 2016
