Why Biodiversity Must Be Protected
Chapter Ten
Syllabus topic 1, "Bio-diversity"
Pages 28 to 30 of 818
In one line
Biodiversity must be protected because its loss is irreversible, because human life depends on it, because the Constitution says so, and because India has promised the rest of the world that it will.
In exam wording: the need for the conservation and protection of biodiversity rests on four grounds: the ecological ground, that living systems supply the processes on which human survival depends; the economic ground, that biodiversity is the source of food, medicine and material; the ethical and intergenerational ground, that extinction is irreversible and forecloses the choices of those not yet born; and the legal ground, that Articles 48A and 51A(g) of the Constitution and India's obligations under the Convention on Biological Diversity 1992 make protection a duty rather than a preference.
Why this is the most examined question on the paper
Seven of the eight papers this book has read ask for the need, in one wording or another. The reason is that everything else in the syllabus is machinery, and machinery has to be justified. An answer that lists statutes without saying why they exist is an answer about plumbing.
The four grounds, broken down
1. Ecological. Living systems perform processes that no substitute performs at the scale required: pollination of crops, formation of soil, cycling of nutrients, regulation of water and of local climate, decomposition of waste. Remove enough species and the process fails, and the failure is felt by people who never used the species.
2. Economic. Direct dependence: crops and their wild relatives, medicinal plants, timber, fibre, fish, fuelwood. Indirect dependence: the same regulating processes, expressed as avoided cost.
3. Ethical and intergenerational. Extinction cannot be undone. A species lost is a set of options closed to everyone who comes afterwards. This is the argument the law calls intergenerational equity, and it is the first limb of sustainable development.
4. Legal. Two constitutional provisions and one treaty. Article 48A directs the State to endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A(g) makes it the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. India ratified the Convention on Biological Diversity 1992 and enacted the Biological Diversity Act 2002 under Article 253 to implement it.
What the courts have actually held
A right, not only a policy. In Subhash Kumar v. State of Bihar (1991) 1 SCC 598 the Supreme Court held that the right to life in Article 21 includes the right to the enjoyment of pollution free water and air, and that a citizen may move the Court under Article 32 for its removal.
Why Biodiversity Must Be Protected
Principles with the force of law. In Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647 the Court held that the precautionary principle and the polluter pays principle have been accepted as part of the law of the land, reasoning from Article 21 and from Articles 47, 48A and 51A(g).
A standard for a single species. In Centre for Environmental Law, World Wide Fund for Nature-India v. Union of India, decided on 15 April 2013, the Court quashed a decision of the Ministry to introduce African cheetahs into Kuno as arbitrary and in violation of the Wild Life (Protection) Act, and directed urgent steps to re-introduce the Asiatic lion, because the whole surviving population lives in one place and a single epidemic could end the species.
A constitutional right against climate harm. In M.K. Ranjitsinh v. Union of India, decided on 21 March 2024, the Court held that Articles 14 and 21 yield a right to be free from the adverse effects of climate change, in a case about power lines killing the Great Indian Bustard.
Worked example
A State proposes to lease a stretch of coastal mangrove for a port. The file records revenue and employment and nothing else. Draft the four grounds of objection in the order a court would take them.
Ecological. The mangrove is a nursery for fish stocks landed by the fishing villages nearby, a barrier against storm surge for the town behind it, and a store of carbon in its sediment. Removing it transfers the cost of storm damage to the town and the cost of lost fish to the villages.
Economic. Quantify what can be quantified: the annual landings attributable to the nursery, the avoided cost of a sea wall of equivalent effect, and the tourism receipts. State clearly that the option value of the mangrove's genetic material is unquantified rather than nil.
Ethical and intergenerational. The mangrove cannot be recreated. Compensatory planting elsewhere produces a plantation with a different species composition and does not restore the nursery function for a generation.
Legal. Article 48A and Article 51A(g); the precautionary principle as applied in Vellore Citizens' Welfare Forum v. Union of India, which places the burden on the proponent to show that the balance will be maintained; and, if a sanctuary or national park is affected, section 29 or section 35 of the Wild Life (Protection) Act 1972, under which no permit may be granted unless the State Government is satisfied that the activity is necessary for the improvement and better management of wildlife.
The order matters. A court hears the legal ground last and decides on it, but it will only reach it if the first three have established that something real is being lost.
Why Biodiversity Must Be Protected
What beginners get wrong
Writing the need as a list of adjectives. "Biodiversity is precious, valuable and important" is not an argument. Each ground has to name what is lost and who bears the loss.
Treating Article 48A as enforceable on its own. It is a Directive Principle and is not enforceable by any court by virtue of Article 37. Its force comes from being read with Article 21, which is how Vellore Citizens' Welfare Forum v. Union of India used it.
Forgetting the international ground. India's obligations under the Convention of 1992 are the reason Parliament could legislate at all, through Article 253.
Quick revision
- Four grounds: ecological, economic, ethical and intergenerational, legal.
- Article 48A binds the State; Article 51A(g) binds the citizen; neither is directly enforceable alone.
- Article 21 is the enforceable route, through Subhash Kumar v. State of Bihar.
- Vellore Citizens' Welfare Forum v. Union of India made the precautionary and polluter pays principles part of the law of the land.
- M.K. Ranjitsinh v. Union of India, 21 March 2024, recognised a right to be free from the adverse effects of climate change.
- Extinction is irreversible, and irreversibility is the strongest single argument.
Test yourself
1. Why is irreversibility a stronger argument than cost? Because a cost can be paid later and a loss of a species cannot be reversed at any price. It converts the question from one of balance to one of precaution, which is why the burden of proof shifts to the person proposing the change.
2. Can a petition be founded on Article 48A alone? No. Article 37 makes the Directive Principles not enforceable by any court. Article 48A is used by reading it with Article 21, which is enforceable under Article 32 and Article 226.
3. Which case recognised a constitutional right connected with climate change, and on what facts? M.K. Ranjitsinh v. Union of India, decided 21 March 2024, in proceedings about overhead transmission lines killing the Great Indian Bustard in Rajasthan and Gujarat. The Court held that Articles 14 and 21 yield a right to be free from the adverse effects of climate change, while warning that other rights, including the right against displacement, must be weighed with it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.