LLM Group 6 Environment and Legal Order Biological Diversity and Legal Order 2015 Question Paper with Solutions

Biodiversity

Article 2 of the Convention on Biological Diversity 1992 defines biological diversity as the variability among living organisms from all sources, including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part, including diversity within species, between species and of ecosystems. Section 2(b) of the Biological Diversity Act 2002 adopts the same definition for India.

Its three levels

Genetic diversity is the variety of genes within a species, such as the many traditional varieties of rice or breeds of cattle. Species diversity is the variety of species in an area. Ecosystem diversity is the variety of habitats and the ecological processes within them, from forests and grasslands to wetlands, coasts and coral reefs. The definition's key word is variability: what matters is the difference between living things, because difference allows populations and ecosystems to adapt.

Part two. Conservation and protection distinguished

Conservation

Conservation is wider. It means managing biodiversity so that it continues to exist and to meet human needs, which includes protection but also sustainable use, restoration and management. The Convention treats conservation and sustainable use together, and section 2(o) of the Act of 2002 defines sustainable use as use that does not lead to long-term decline. The Explanation to section 36 of that Act defines in situ conservation as conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings, and ex situ conservation as the conservation of components of biological diversity outside their natural habitats, which in practice means institutions such as gene banks, botanical gardens and zoos. Since 1 April 2023, when the amendment of 2022 came into force, the long title of the Act of 1972 has spoken of the conservation, protection and management of wild life.

Why both are needed

Protection alone may exclude people who have long used and conserved a resource and cannot reach the resources outside protected areas; conservation alone, without firm prohibitions, may allow use to exceed what nature can bear. The law needs both: prohibitions where a species or habitat is at risk, and managed use everywhere else.

The need for that control was shown in Nature Lovers Movement v. State of Kerala, (2009) 5 SCC 373, decided in March 2009. Kerala adopted a policy of regularising encroachments on forest land made before 1 January 1977, and obtained the Central Government's approval to assign 28,588.159 hectares of forest land to the occupants; a further area of about 10,000 hectares remained unregularised. An environmental organisation challenged the policy as destructive of forests.

The Supreme Court upheld the assignment already approved, but held that after the Act of 1980 came into force no State Government or authority can assign or permit the use of any forest land for a non-forest purpose except after prior approval of the Central Government, so that any further assignment would require Central approval judged against the Act's object of conservation. The case bears on the question because it shows land-use change occurring through regularisation of what had already happened, and the need for a national check before forest habitat is permanently given up.

Driver 2: direct exploitation

The damage. Hunting, poaching, overfishing and overharvesting of plants remove species faster than they can recover, and organised trade in animal parts drives the most endangered species towards extinction.

Driver 3: climate change

The damage. A warming climate shifts the ranges of species, bleaches coral reefs, alters monsoon-dependent ecosystems and melts the Himalayan glaciers that feed rivers. Species already reduced to small populations have the least capacity to adapt.

The legal answer. Conservation now has to be reconciled with climate action, and the courts have begun to do so. In M.K. Ranjitsinh v. Union of India, 2024 INSC 280, decided on 21 March 2024, the Great Indian Bustard, surviving in small numbers in Rajasthan and Gujarat, was being killed in collisions with overhead power lines, many carrying renewable energy, and the Court had in 2021 directed that lines in its habitat be laid underground. The Union sought modification because undergrounding would impede the renewable energy transition needed to meet India's climate commitments.

The legal answer. The Water (Prevention and Control of Pollution) Act 1974 and the Environment (Protection) Act 1986 regulate discharges, and the courts have made the polluter pay. In M.C. Mehta v. Union of India, (1987) 4 SCC 463, decided on 22 September 1987, tanneries at Jajmau near Kanpur were discharging untreated effluent into the Ganga. The Supreme Court directed the closure of tanneries that had failed to set up even primary treatment plants, holding their financial capacity irrelevant and observing that although closure might cause unemployment and loss of revenue, life, health and ecology have greater importance. The case bears on the question because it shows the protection of a river's living system placed above the economic interest of the industries degrading it.

Driver 5: invasive alien species

The damage. Introduced species such as lantana in forests and water hyacinth in wetlands spread without natural controls, displacing native species and altering ecosystems.

Beyond the drivers

The drivers show why protection is urgent, but conservation also serves positive ends: food and medicine, livelihoods, cultural identity, ecosystem services and fairness to future generations. Articles 48A and 51A(g) of the Constitution make the safeguarding of forests and wild life a duty of the State and of every citizen, and India has committed to contribute to the Kunming-Montreal Global Biodiversity Framework, adopted as a decision of the Conference of the Parties on 19 December 2022, whose Target 3 sets a worldwide aim of conserving thirty per cent of terrestrial, freshwater, coastal and marine areas by 2030. The Framework is not a treaty and binds no country to that figure, so its force in India depends on the national targets and domestic law that give it effect.