Amarpal_singh@rediffmail.com

 

                              Law Governance and Sustainable Development

                                 

                                                                                                              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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Bibliography

 

 

 

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).