A.P.Singh*
Pluralist traditions of IndiaÕs socio-economic and religio-cultural life are legion. The politico-legal ordering of classical times too were equally pluralistic and flexible. Different from an overarching sovereign state system looming large over social life, providing prescriptions for social interaction and ensuring compliance with sanctions in reserve, IndiaÕs classical setting of politico-legal governance contemplated a broad delegation of regulatory functions to smaller groups like villages, guilds, castes and other such groupings. The Dharmasastras constitute fundamental prescriptive canons of Indian culture in a society where the ruler and the ruled were equally bound by them. A good Hindu king was required to protect the laws of self regulating orders of society. Legal ordering in such a seting was essentially diverse and pluralist in character. What I want to argue is that despite the onset of common law system under British domination the pluralist character of IndiaÕs legal ordering has not vanished altogether. In fact the undercurrents of indigenous thought process, the tradition of composite culture run deep in the Indian psyche. The framework of intangibles that constitute the environment of thought and belief forming a peculiar pluralist identity called Indian works behind every rule framed by the legislature or every judgement delivered by the judiciary. In such a system, governance in every arena of human activity, in order to be ethical and sustainable has to be pluralist in character and flexible enough to be accomodable in a variety of ways and in diverse situations.
A number of Indian
laws do meet this standard of flexibility and plurality at operational level.
However a large number of laws following the tradition of statism and
instrumentalism fail to meet this standard of flexibility and plurality which
hampers and sometimes distorts the very dynamic of socio-cultural and economic legal development, besides
being unethical as well. A large area of natural resource management and
environmental governance all over India can be said to be the prime example of
such inflexible and statist laws which adopt top down approach giving little
scope for local ways and folk traditions to address the dynamic of their
problems in their own way. In fact, these laws represent the continuity of
colonial mindset of our planners and executive governments. The kind of laws
that are pushed in the name of social justice or development do really serve the
vested interests of a differentialted few.
The concept of
national development in post independent India has been inbued with the
dominant development paradigm based on developmental models of western nations
and culture of colonisation. With the onset of reform process in the economic
sector in the early 1990s the process of liberalisation,globalisation and
marketisation, which is sometimes termed as the onset of neo-colonialism, the
situation appears to have worsened. The growth models now employed, emphasise
an increasing rate of growth of economic sector , mindless of the fact that
this has the potential to reduce the vast majorities to a state of deprivation
and economic subjugation. The growth driven economic models, contribute towards
economic and social diffrentiation and unthougtful exploitation of natural
resources for consumption of the differentiated few. This aggressive
developmental model has specially victimised the tribals and dalits, fisherfolks and other
ethnic minorities. In fact the history of tribals in this country has been the
history of dispossession, displacement and exploitation. The expansion of slums
in the urban sector due to increased rural urban migration increasing number of
ecological refugees, increasing frequency of natural disasters, alarming rate
of environmental degradation gene robbery, pirating of intellectual properties
and climate change are some of the other side effects of the kind of
developmental process. This is neither ethical nor sustainable in the longer run
and to my mind these kinds of developmental models and the laws sustaining them are required to be examined in a wider perspective of
human rights and issues of ecology and governance. Displacement phenomenon as a result of developmental
process, though not new, in as much as natives have historically been displaced
by settlers, invaders, rulers and now by modern developers. These forces have
displaced the people from their habitat, culture, religion, occupation, value,
systems, language and identity. Today, the development models legitimise
systematic displacement and dispossession of resources, labour and the very
means of human existence of the majority, i.e. the poor, indigenous
communities, women and children. In that respect, requisition a process of
state, serves as an instrument of colonisation. Displaced from the security of
their socio-cultural fabrics and their eco-systems the tribals and the dalits
are compelled to shift to an alien environment and are reduced to the life of
nomads, and misfits.
Culturally
uprooted they are deprived of
their, faith system religion values language and identity, throwing their
traditional life style into disarray. In a sense they are really denied the
very rights of being human. In the present paradigm of development two themes
have invariably dominated the whole dynamic of development i.e. the industrial
growth and flow of capital. The rationality and the applicability of this
paradigm to the local context and its sustainability are seldom questioned
beyond routine. The alternative paradigms have never been seriously explored.
The need appears to be to create a wider debate over developmental strategies,
their ethical appropriateness and sustainability. In the quest of becoming a
developed nation within next two decades, riding over the high of information
and computer technology the ethical issues of tribal culture, their value
system and sustainability of this paradigm are seldom questioned if at all. The
paradigm of development is dominated by intellectual colonialism to such an
extent that instead of appreciating that a conscious, articulate and rational
population is a great asset which is essential for a democratic form of
governance, every dissent on a developmental project is very often treated as
defiance and every assertion as insurrection.
Another important
issue that requires to be addressed in the present paradigm of development is
the protection of bio-diversity. Despite the fact that interest and concern
about genetic resource management has increased quickly in recent times and the
importance of bio-diversity management and governance on sustainable basis has
increased tremendously, this interest and awareness about bio-diversity has not
seeped into the policy planning and legislative process. That is the precise
reason why the top functionaries at the political level keep on talking about
mega-projects like linking of rivers and greening of deserts, without even
refering to the grave effects such project shall have on the bio-diversity
scenario. It is therefore of foremost importance to instill in the minds of
planners and decision makers the critical value of bio-diversity. It
is first of all a moral imperative to protect nature not least of all,
because we ourselves have evolved
from it, and because all speceis have a right to survive. But if this does not
convince the hard headed economist and politician, the fact is that we simply cannot do without
bio-diversity. It is the backbone of
the livelihoods of the majority of IndiaÕs population, even those that
appear to have moved away from it by adopting chemical based agriculture or
fuel wood selling for a living. It is the source of the essential ecological
functions that we all depend on including water security . It is the base of
countryÕs food security and for
diverse and effective health care
system.
The amount of concern
amongst the planners and policy makers of this country about bio-diversity can
be gauged from the fact that until
the end of last century there was no legislation on bio-diversity. It was only
in october 2001 that a law for the protection of plant varieties and farmerÕs
rights was enacted in 2001 to provide for
the establishment of an effective system for protection of plant
varieties, the rights of farmers and plant breeders and to encourage the
development of new varieties of plants. What is to be noted in this context is that bio-diversity
conservation cannot happen unless it becomes a mass movement and unless the
laws, policies, technologies, development projects and demographic trends that
are currently threatening it are tackled head on. Wildlife experts have to list
the actions relating to critically threatened plants and animals. Experts on
acquatic and terrestrial eco-systems have to analyse, whether the current
network of protected areas is adequate. The important bird area projects have to provide the priority
sites for conservation. A special focus is to be on micro-organism, otherwise
neglected in all conservation programmes. The diversity that is found in
farmerÕs fields and pastures, the perils of chemical mono-culturing agronomy
and to revive the organic
bio-diverse agriculture, should be the focus. The other critical areas that are
required to be looked into are :-
1.
The value of
biodiversity to Indian economy and society; the value of forests that protect the
reservoirs which provide a third of MumbaiÕs drinking water
or the value of east KolkattaÕs wetlands as a massive sink for the
cityÕs organic wastes and a breeding ground for flourishing fisheries.
2. Cultural aspects of biodiversity: how have Indian traditions celebrated and respected it, what changes have taken place in these, what does modernity imply for these links.
3.
Human health and
biodiversity: the contribution of
diverse traditional foods to nutrition.
4.
Technology: what forms
of traditional and new technologies are appropriate for biodiversity sensitive
development ? how risky or beneficial are the new bio-technologies ?
5.
Patent and biopiracy :
how to stop the theft of IndiaÕs genetic resources and knowledge, create
awareness and legal regimes to protect indigenous knowledge, and ensure sharing
of benefits between communities and outsiders.
6.
Current laws and
policeis related to the
environment, land use, and resource extraction/use: What are the concrete ways
of changing relevant legislation
and policy document to respect biodiversity and livelihood concerns
7.
How to educate the decision makers and urban populations
about the innovative ways of communicating, training and creating awareness
regarding biodiversity.
Another area of critical importance is mining. It is true that mining has made an important contribution by giving valuable minerals and other natural resources to the developing industrialised economy of India. However the other side of the picture has not been that bright. A brief account of adverse effects of mining activities on the component of environment may be given to find the direction of the balance sheet of profit and loss to the Indian economic development. Starting with human health of persons working in mines and living around the mines, the mining activities have caused many deseases: blood hemolysis, aveolar lipoproteinosis, lung fibrosis, tuberclosis, persistent coughing problems respiratory, opthalmic and ear drum problems, abortion still births, infertility and so on. ManÕs habitat is disturbed and particularly displacement of tribals and adivasis who are in inseparable part of nature. The greenery, flora and fauna have not been spared either and the rare species of plants and wildlife have been driven almost to the verge of extinction.
With the increasing concern about environmental issues in all walks of life, there has been a spat of legislative activity and a number of statutes have been passed which provide for stringent measures for environmental management and a separate budgetary allocation for the purpose. Enterpreneurs engaged in mining are obliged to undertake phased restoration, reclamation and rehabilitation of land affected by mining operations. They are also obliged to take precautions against ground vibrations, air pollution, noise pollution, discharge of toxic liquid and solid wastes, destruction of drainage and surface water bodies, damage to acquifers, loss of flaura and fauna etc. However on the ground, despite these legislative measures vast tracts in mining heartlands are left as permanent scar on the face of the earth, with open or hidden death pits, barren land threatened by subsidence and unsafe for habitation, polluted water, denuded forests, defiled air and degraded quality of life of the people who live and work in the vicinity. The reason for this shape of things is the singular lack of policy perspective encompassing, diverse aspects of safety, occupational health welfare, housing habitat, drinking water, sanitation , pollution and ecology.
Apart from displacement, bio-diversity and mining issues which are sequel of the present paradigm of development, sustained by the present legal regimes, there are any number of issues which require a thorough revaluation and even restructuring in view of their effect on human rights, human health, bio-diversity, ethics, sustainable development, democratic form of governance and such other basic values which need no extra justification. All this has major bearing on the sustainablility of present paradigm of development and democratic governance. Any research plan on law, governance and sustainable development, which are critical issues, not only for the third world and developing countries but even for the developed nations as well, in view of globalisation and marketisation, should address these basic issues(postulates).
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1.
East and the West : Dr. S Radhkrishnan, Rajpal and Sons New
Delhi, 1972.
2.
Eastern Religion and
Western Thought : Dr. S. Radhkrishnan, Rajpal And Sons, New Delhi. 1972
3.
Displacement and
Rehabilitation : IUB Reddy, Mittal Publications, New Delhi, 1999.
4.
Survey of The Environment,
2001 : (Hindu) Chennai, (India.)
5.
The State of IndiaÕs
Environment : The second Citizens Report, Centre for Science and Environment,
New Delhi, (1984)
6.
Mining Law Refrencer :
BRK Ranga, Rajasthan Law House, Jodhpur, (India)
7.
Surviving a Minefield,
An Adivasi Triumph: Samta, Hyderabad, 2000.
8.
A Report of the National
Symposium on the Role of Earth Sciences in Integrated Development and Related
issues, 2-4 November Lucknow (India)
9.
Environmental Law and
Policy in India : Armin Rosencranz and Shyam Diwan, Tripathi and Tripathi ,
Mumbai, (India) 1992.
* M.A.Eng (Meerut University, LL.B. (Poona University) LL.M. (Constitution) (M.D.S. University Ajmer), Ph.D. (Rajasthan University , Jaipur), LL.M. (Legal Theory) (European Academy of Legal Theory, Brussels), Lecturer of Law, Govt Dungar College, Bikaner, Researcher , Indian Institute of Comparative Law, Jaipur (India).