Protecting Coastal Environment in India: Reading Laws in the Context of Climate Change

Introduction

India’s battle against climate change is full of colourful anecdotes. Before the dawn of this century, when the world was just becoming sentient about the perils of climate change, India boldly offered its own version of the climate solution, essentially self-contained in nature—develop climate resilience strategies domestically and shy away from any time-bound climate obligation. Since then, India has firmly maintained this unpretentious stance. Today, we have come to terms with the unsettling truth that the initial international initiatives had failed to break the intimidating spell of climate change. As a result, our planet is still warming, and increased temperature is continuously melting enough ice in the polar regions, only to elevate the sea level alarmingly all over the world. With that comes the foreboding dark shadow over marine ecosystems as the ocean chemistry is relentlessly getting altered. Devastating storms are brewing too frequently because of excessive ocean surface temperature.

However, even after three decades of the first celebrated global climate treaty, United Nations Framework Convention on Climate Change (UNFCCC), the sincere hope for turning the clock back is still alive, perhaps with more intensity, and the role of India has increasingly become crucial. Meanwhile, the weather systems emanating from the oceans surrounding India continue to threaten its long coastal stretches that harbour dazzling ecosystems. Other than any direct negative impact on coastal ecology, the livelihoods of marginal coastal communities, largely depending on the marine resources, are also critically affected. In addition, every year, extreme weather events are displacing a large number of people, that are adding to India’s misfortune. ¹ Already being a populous country, India, this is continuously adding pressure on its cities as homeless people move there for survival that in turn puts enormous pressure on cities’ infrastructure and services.

Thus far, steps taken by India to confront the problems of climate change are not beyond doubt. There are noticeable gaps between India’s climate policies and environmental laws that matter most, and the critical environmental issues related to coastal areas, including conservation of marine biodiversity, are also not attended to satisfactorily. The primary law, relevant for Indian marine conservation along with safeguarding the coastal communities’ life and livelihood is Coastal Regulation Zone (CRZ) Notification, issued under Environment (Protection) Act, 1986. The Notification came into being in 1991. Since then, it has been amended several times only to lose most of its shine. This, nevertheless, has been a common phenomenon in India for the last decade. The rich legacy in environmental law, fashioned by the Indian judiciary during the 1990s, is fading fast. The environmental laws in India at present carry an accommodative heart in favour of economic development that, at the core, is bleeding slowly. More disturbingly, the concept of sustainable development is almost out of balance when we notice the number of unnecessary dilutions made in important environmental laws. ² Surely, these attenuations cannot be offset by simply promoting anything that has the slightest connection with the ‘green’.

This article focuses on India’s response to protect its coastal environment amidst the looming threat of climate change. We will posit that India, in spite of its initial promise, has faltered to maintain a balanced climate stance that, in turn, may jeopardize the environment around its coastal stretches in days to come. The article supports the view that India’s environmental laws relevant for the conservation and protection of its coastal regions and climate policies are required to be integrated in an inclusive manner. In other words, any effort towards the conservation of coastal and marine environment must be seen in the light of how India is faring in other allied environmental laws.

The article is divided into seven parts. Part I introduces the article explaining the area of focus and nature of the problem. Part II deals with the laws that are relevant for protecting and conserving India’s marine environment in general. The brief discussion clearly reveals that with a sufficient number of laws in operation, the environment in Indian coastal regions is supposed to get better by the day. Instead, the thinning of protective layers in those laws is amply visible, and we see overlapping provisions and intersecting jurisdictions. In Part III authors bring out the shortcomings of two specific laws central to coastal protection. Part IV then connects the challenges emanating from the dilution and poor implementation of these two laws with India’s climate obligation. Part V discusses a few important judicial decisions that are relevant in the context. Part VI then offers a closing thought on the topic. The argument advanced in the article leads to the uncomfortable inference that India’s current environmental policies and laws do not sync with the larger vision that India envisages. Part VII concludes the article. We posit that considering vital environmental laws as impediments to economic development is not an accurate form of policy prescription such approach will make India’s sensitive coastal region further vulnerable. Instead, India’s sustainable future depends on maintaining right balance between strong laws and offering enough incentives for those who hunger for unabashed development.

The Guardian Angels of India’s Coastline: Laws and Regulations

The curse of climate change produces some of the most devastating effects in the coastal areas across the globe. By this time, the continuous rise of the sea level is threatening many coastal communities, resulting in displacements and causing enormous loss of properties. But the impact on the marine environment is more alarming because the damage takes place unremittingly and most of the time away from our regular surveillance. All these impacts of climate change are in addition to other persistent threats to the coastal and marine environment, such as oil spills (operational and accidental both), mining activities (for oil and other valuable minerals) and various other land-based sources of marine pollution (including the dreadful plastic pollution).

According to IPCC’s 6th Assessment Report, Climate Change 2022: Impacts, Adaptation and Vulnerability, ³ India is one of the most vulnerable countries in terms of the rise in sea level. The effects are likely to be grim. More land will be submerged. The salinity of the soil and groundwater will make agriculture increasingly difficult other than what can be the loss of crop production because of extreme weather events. Fish stocks will deplete further as the marine plankton and other nutrients continue to perish because of the drastic change in ocean chemistry. It, thus, makes sense to assess India’s response towards these imminent risks.

India’s environmental jurisprudence comprises a good number of laws, regulations and important notifications. Some of these laws contain provisions that are vital for the protection and conservation of coastal zone and the marine environment. These laws are the Wild Life Protection Act, 1972, the Forest (Conservation) Act, 1980, to be read with Indian Forest Act, 1927, Biological Diversity Act, 2002, Environment Impact Assessment (EIA) Notification and the CRZ Notification. Let us briefly take a look at these laws. ⁴

The Wild Life Protection Act, 1972 (WLPA) ‘provides for the protection of wild animals, birds, and plants and for matters connected therewith or ancillary or incidental with a view to ensuring the ecological and environmental security of the country’. ⁵ It primarily regulates the hunting of animals listed in its schedules, along with regulating trade in those listed animals and their parts. Besides this elaborate framework, the WLPA also deals with the identification and establishment of protected areas, including Marine Protected Areas (MPAs). The WLPA was late to recognize the importance of separately dealing with terrestrial and marine species. Even today, MPAs are primarily notified as either ‘national parks’ or ‘wildlife sanctuaries’. However, the key to the protection of marine life under WLPA is to include species within its schedules. A two-pronged strategy is envisaged. The most vulnerable and endangered species (listed in Schedule I) are protected irrespective of their location. For other species listed in Schedules II, III and IV, protection is accorded as they are found in any specific location covered under protected areas.

The Indian Forest Act, 1927, which categorizes forests into reserve forests, village forests, protected forests and private forests, is mainly aimed at exploiting the forest resources. ⁶ Because it failed to address conservation issues adequately, the Forest (Conservation) Act of 1980 came into being. Yet, both these legislations do not contain any definition of forest land. ⁷ Nonetheless, the area identified as protected areas under these legislations may have significance if they are set up in the vicinity of MPAs.

Biodiversity Act, 2002, also does not contain any specific provision that can be used against climate change or marine conservation. Technically, though, the understanding emanating from the Act can be extended for the protection and conservation of any biodiversity found in India’s coastal areas. Besides, the regulatory framework related to biosphere reserves, established under UNESCO’s Man and the Biosphere (MAB) Programme, can also be read within the general framework of biodiversity protection in India.

Several agencies are responsible for implementing these laws. Ministry of Environment, Forest & Climate Change (MoEF & CC) is obviously the central nodal agency responsible for the environment all over India. With that, there are the Ministry of Science and Technology and the Ministry of Agriculture which carry out research activities on coastal and marine ecosystems. Similarly, in territorial waters, the Department of Defence and Ministry of Defence, through coast guards, look after MPAs to a certain extent. The Department of Fisheries is currently responsible for executing programmes that are aimed at the sustainable development of fisheries in India. ⁸ The Centre for Marine Living Resources and Ecology (CMLRE) of the Ministry of Earth Sciences (MoES) is continuously monitoring the marine living resources within the Exclusive Economic Zone of India to provide necessary data.

What we get in the end is a unique province where there is no shortage of laws and agency involvement. But no common approach within these assorted groups of legislations can be found. Wildlife law is singularly focused on illegal hunting activities and the trade of species. The methodology of protection is to statutorily fence an area where rights and liabilities are to be decided by government officials. It is a historical record that in India, forest laws have disproportionately favoured exploration and exploitation of forest resources in designated areas. Biodiversity law, on the other hand, lacks teeth and fails to generate strong implementation persuasion. Till date, the law on biodiversity in India is seen as an extension of the wildlife and forest laws. Besides, both wildlife and forest laws have been the continuous sources of conflicts between poor forest dwellers, the government and large corporate houses. There are hardly any provisions in those laws that can influence firms’ environmental decision-making in a positive conservation-friendly manner. The overall guiding policy for implementation of these laws stands on unflinching paternalism and thus far, ignores the imperative requirement to alter the demand and consumption pattern by nudging. ⁹ In other words, we lack an ambience where laws governing the firms can be effectively mandated, incentivized and prohibited where necessary purely on environmental reasons. In the current form, various laws that do not have any connection with conservation ethos override important environmental legislation implicitly under-insulated overarching authorization.

There is hardly any synergy among these laws that may shrink spaces for manipulation by those who are seduced only by profit-maximizing motives. Overlapping provisions often cause unnecessary delays in implementing laws, leaving gaps through which illegal activities thrive. Also, there is no single agency that can be held accountable for lapses. Nonetheless, among all the laws and regulations, CRZ Notification and EIA Notification are the most important for the conservation of the coastal environment in India. We focus on these two legislations in the next segment.

A Brief Discussion on CRZ & EIA Notification

The CRZ notification embraces within its fold nearly 6,000 kilometres of diversity-rich Indian coastline. This long coastal stretch has been a fiercely contested zone simply because of the enormous prospect it offers. The poor fishing communities that live along the coast were forced to fight for their livelihoods on numerous occasions ¹⁰ while the government historically had offered unbending harsh treatment to them by simply overlooking their basic needs. Alongside, the government has never been shy to allow concessions to businesses that are essentially carried on coastal resources, leading to a gradual erosion of the coastal ecology.

CRZ Notifications are framed under Section 3(2)(v) of the Environment (Protection) Act, 1986, which allows the central government to impose restrictions on areas where any industry, operation or process, or class of industries, operations or processes may be carried out. ¹¹ The Notification has gone through several amendments. ¹² Originally introduced first time in 1991, CRZ notification has always been considered a key legal instrument for the protection of coastal ecology. Based on distinct ecological features, the Notification divides the coastal areas into four categories. But the government keeps on altering these categories. Under the 2011 Notification, ¹³ CRZ-I comprises the most ecologically sensitive areas such as mangroves, coral reefs and sand dunes, and intertidal zones. Ideally, except for defence purposes, the area cannot be used for tourism and infrastructure development.

However, the 2019 CRZ Notification changed that by further categorizing CRZ-I into CRZ-IA, within which eco-tourism activities such as mangrove walks, tree huts and nature trails, are permissible. Other activities such as sea links, salt harvesting and establishment of desalination plants, and construction of roads on stilts are also allowed in CRZ-IA. ¹⁴ Under the CRZ Notification, some areas are called Critical Vulnerable Coastal Areas (CVCA). CVCA is supposed to be managed by the local community, including the fisher folks, and an Integrated Coastal Management Plan (ICZM) is required to be prepared in consultation with these local communities. ¹⁵ In its accurate form, ICZM should provide the opportunity to allow policy orientation and the development of management strategies that will reduce the impacts of human intervention in sensitive coastal areas. It should also address the conflicts over coastal resources by developing institutional and legal frameworks. ¹⁶ The Indian version of ICZM, ¹⁷ as proposed by MoEF & CC, is to be implemented in three states—Gujarat, Odisha and West Bengal. ¹⁸ The foremost goal is to achieve sustainable development in the coastal areas and develop special mentioning in the planning across fragile coastal ecosystems. ¹⁹ The appeal of ICZM lies in its dynamic characteristic that can constantly push the social and spatial boundary with time and ideally that should meaningfully integrate all components that matter most for the conservation of coastal regions.

In addition to this framework, with the 2019 Notification government unveiled the Draft Environmental and Social Management Framework (ESMF) as a part of ICZM. ²⁰ ICZM is to be seen as a continuous process rather than a one-off investment action. The idea is to build upon and draw from the experience of the ongoing World Bank-supported Integrated Coastal Zone Management Project, while linkages between coastal conservation, climate resilience and poverty reduction will be explored further. The edifice of examination is, of course, sustainable development as the Draft recognizes that

the project initiatives such as coastal protection measures, waste management, tourism infrastructure, livelihood support interventions, development of smart villages, etc. are likely to result in positive and negative impacts on the project area during their construction, operations and maintenance phases. These impacts would assume importance when the project locations are in the proximity to sensitive areas. Hence, there is a need for systematic safeguards management with the pre-defined framework for risk mitigation. ²¹

In essence, the success of the entire strategy rests upon the proper integration of environmental and social aspects at the planning, design and implementation stages. Needless to mention that the precautionary principle must be strictly followed, especially in sensitive areas. The Draft itself explicitly recognizes that in several contexts. Also, the entire planning must adhere to CRZ notification. ²²

From an overall conservation standpoint, it is important to read CRZ Notification with EIA Notification which is the central instrumentality to examine the impact of industry and big business on India’s environment. In India, the need for environmental impact assessment was felt during the 1980s, and the first EIA Notification was issued under Section 3(3) of the Environment (Protection) Act, 1986. EIA Notification cover activities that are required to meet the prescribed threshold. In principle, to start any project or the expansion of any existing project, the project proponents are required to take prior permission from the MoEF & CC or from any state nodal authority. The idea is to evaluate the environmental and social impacts of the proposed projects. Public consultation and public hearings are the two salutary components of EIA that project proponents must ensure to receive clearance.

This regulatory hurdle laid down by the EIA was initially tough, and a number of disruptive projects failed to get through. Then between 2006 and 2020, the government brought 50 amendments to the EIA notification, relegating it to a mere formality. Among all these amendments, the last one brought in March 2020 is the most aggressive because of two controversial aspects—post-clearance compliance and post-facto clearance of projects. Under the post-clearance compliance, project proponents must ensure environmental safeguards and, therefore, are required to follow certain rules once a project gets approved. This offers very little challenge to the project owners as they are simply required to abide by certain standards that have periodically got diluted under previous amendments. The post-facto clearance is even more a bizarre notion that now has opened the possibility of granting post-approval to those projects that had failed to take environmental clearance beforehand.

A major difficulty in this entire process is the diminishing importance of public participation, which originally was an indispensable component of EIA. It is simply just not possible to argue that the essence of the true EIA can be maintained if the interests of all the stakeholders are not considered ahead of clearance. In that sense, the amendment is also in contradiction to the overall objective of the Environment (Protection) Act, 1986, which is socially beneficent legislation. No socially beneficial purpose possibly can be achieved by elbowing space for the post-facto clearance. ²³ It also feels apparent that India’s obligation to address the problems of climate change is further getting uncomfortably qualified by this flurry of amendments.

Adding insult to the wound, on January 17, 2022, the MoEF & CC came up with another directive when by an office memorandum, it introduced a rating system of State Environment Impact Assessment Authorities (SEIAA). The faster the appraisal with clearance of any project, the higher the rating for the state agencies. This has been done by the government to promote the ease of doing business in India. Unfortunately, the onus, which was originally on the project proponents, is now on the authority as they are expected to clear the projects in a hurry to receive a higher rating from the Ministry. ²⁴ This is completely an inverse application of the EIA as it was originally envisaged. It is difficult to see how this process can address the problem of social cost that rouge industries often impart on us in the absence of strong environmental regulation.

It should be clear, therefore, that India’s once esteemed environmental jurisprudence has gradually become permeable. It is, however, not difficult to see why India has chosen this path. We shall get back to the theme later. At this point, it feels imperative to shed some light on India’s climate commitments.

Understanding India’s Climate Obligations

In 1992, India became a party to the UNFCCC and subsequently supported the basic idea laid down in its Kyoto Protocol. However, India always maintained that it would not take any binding greenhouse gas reduction target. Rather, it emphasized the financial and technological support from developed nations to grow domestically. This disclaimer allows India to remain an important marketplace for carbon trading whereas keeping the pressure on those countries that are primarily responsible for global warming. Simultaneously, India has started to put in place the policies for decarbonization which include setting targets to achieve better energy efficiency and a gradual shift toward renewable energy sources. ²⁵ Yet for India, the choice continues to lie between traditional non-renewables or renewables simply because the energy demands are enormous and with the current technological limitation it is just not possible to fulfil all that demand from renewable sources.

India introduced National Action Plan on Climate Change (NAPCC) during 2008. NAPCC has eight sectoral missions administered by ten Union ministries. ²⁶ Although the progress under NAPCC is difficult to trace, it provides the formal structure that allows the government to come up with strategies for the mitigation and adaptation of climate change. Later, under the Paris Agreement, 2015, India successfully summitted its first Nationally Determined Contribution (NDC) which was compatible with the Agreement’s target. ²⁷ The Paris Agreement supports the view that India itself advances, that is, developing countries still can afford itself more time in terms of global greenhouse gas reduction. Hence, future climate negotiations must continue to adhere to the principles of equity and sustainable development in favour of vulnerable countries.

Naturally, at COP 26, held in the Scottish city Glasgow last year, much was expected from India. But while reiterating its earlier stand, India came up with two very questionable announcements. India said that it would try to reach its net-zero target by 2070. ²⁸ But at the same time, India made it clear that it would continue to exploit its coal reserves. These two decisions do not go down well with the commitments given by some other countries to end international public finance for oil, gas and coal production by the end of 2022.

In general, the net-zero idea offers an uncomplicated premise—set a target for the future and put a plan in place to achieve it. The process to achieve the target should be an integral part of this vision. But as of now, except for promoting renewable energy sources in some specific sectors (such as the automobile sector), India’s plans and strategies appear to be uncertain as they largely depend on constantly changing natural and market variables.

But there is another normative concern. India’s love for the Common but Differentiated Principle (CBDR), used in the good effect during climate talks to claim more carbon space, becomes questionable because, in principle, CBDR does not support dilution of domestic laws to facilitate development, thereby deferring net-zero goal by 2070. This also may be argued that CBDR as a principle of international law should be interpreted with the overall framework of the Paris Agreement under which India’s domestic mitigation onus is supposed to be reflected through its NDCs, which is an obligation of conduct and not strictly a result-oriented responsibility. At the same time, the amount of dilution in environmental laws India has made in recent times does not go well with the normative strength of the Paris Agreement. For the same reason, India’s call for more carbon finance does sound weak when we look at its gritty refusal to commit upon the phasing-out of domestic fossil fuel use.

Response from Indian Judiciary

The debate over the conservation of coastal ecology cannot be completed without discussing the role played by the Indian judiciary. A complete discussion of the judicial trend will be beyond the scope of this article. Yet, we can have some of the honourable mentions. Today, no one disputes the fact that the courts in India contributed enormously to shaping environmental jurisprudence. On countless occasions, courts streamlined the short-sighted executive actions and gradually recognized the right to the environment as an indispensable part of the fundamental right. ²⁹ The conservation issues related to the coastal regions also featured within the environmental litigation landscape, and the Supreme Court of India noticeably found the necessary balance to maintain coastal ecology.

For instance, Pollution regulation in India’s coastal areas was the common theme in the Indian Council for Enviro-Legal Action v. Union of India (CRZ Notification Case) ³⁰ and S. Jagannath v. Union of India (Shrimp Culture Case) ³¹ where the Supreme Court developed a sound jurisprudence. In CRZ Notification Case, the Court reminded the central and state authorities about the importance of preparing CZMPs along with stopping the central government to dilute CRZ Notification to allow beach-front resorts to develop. The impact of the case was seen in the 2011 CRZ Notification that provided the detailed process for preparing CZMPs. In Shrimp Culture, the Supreme Court established the right balance between the economic need of the people engaged in aquaculture industries and the necessary conservation measures.

The Apex Court maintained this non-compromising attitude even in the decades following. In Vaamika Island (Green Lagoon Resort) v. Union of India, ³² there were allegations against a resort to violate CZMP. The resort was already being constructed. The Kerala High Court initially passed the order of demolition that the Supreme Court upheld. The coastal conservation issue has resurfaced recently when the Supreme Court, hearing an appeal filed by an NGO against the order passed by the Bombay High Court, ³³ issued notice to the Centre. The challenge is against the constitutional validity of the CRZ Notification, 2019. Just like post-facto clearance of projects under the controversial EIA Notification, MoEF & CC by a separate memorandum permits the grant of CRZ clearances retrospectively.

In this context, the decision of the Supreme Court in Alembic Pharmaceutical v. Rohit Prajapati ³⁴ becomes important. In that case, the Court taking note of post facto environmental clearance observed that environmental law cannot countenance the notion of an ex post facto clearance as it goes against the basic principles underlying environmental law and policy. But later, the Ministry inexplicably relied upon the part-observation of the Supreme Court judgment in Alembic Pharmaceutical where it said that ‘the closure of the industries was not warranted’ and ‘issued the order for payment of compensation as a facet of preserving the environment in accordance with the precautionary principle’. ³⁵ This, even in a very modest way to express, is offensive to the core notion of the polluter pays principle. Principle 16 of the Rio Declaration neatly sums up the idea. ³⁶ The polluter should bear the cost of pollution, but the national government also has the responsibility to promote the internalization of environmental costs. Cost internalization is the fundamental idea behind the devotion to market mechanisms in the environmental policy—domestically and internationally. One crucial aspect is too often ignored by the government, that is, internalization should only apply to externalities under two strict conditions—first, the activity generating the externality is socially desirable, and the second, the negative externality remains within the bounds of what can be considered as tolerable or less than ‘significant’ damage. Past the edge of ‘significant damage’, determination of which itself is quite difficult, it should no longer be a matter of cost internalization and henceforth, be a part of the market mechanism. Rather, it should be one of prevention for which variety of regulatory techniques, including suspension of the activity or even elimination, can be applied. Recognition of this difference in environmental policy is imperative. We may be effectively admitting that ‘any’ cost, including human lives and irreversible damage, can be internalized or, in other words, that there are no limits to pollution as long as it is paid for. ³⁷

Hence, the Ministry’s interpretation of Alembic is clearly a perverse application of the polluter pays principle. This raises serious questions about the government’s intent to treat CRZ notification as a process unique to the ecological sensitivity of a particular zone. Although, in article such treatment is clearly intended in dividing the coastal zones into several distinct areas. This can very well be tragic for marine ecology found in coastal areas as there will hardly be any incentives available to the project proponents to care for the environment at the early stage, which in turn will upset the much-needed process of internalization of environmental externalities. ³⁸

The Final Reflection

As we can see, India’s efforts to mitigate the effects of climate change and maintain the ecological balance in the coastal areas are fragmented. Its environmental laws either do not cover the issues entirely or, when covered, fail to provide adequate solutions.

For example, WLPA could have been an important Act to regulate the exploitation of marine species. Especially, preservation of the fish stock is important for coastal communities. However, the schedules appended to WLPA do not have any fish population listed, thereby leaving it to an open determination about the allowable catch of fish populations found in any particular locality. Much depends on the availability of data which often is inadequate. Most importantly, WLPA does not contain any climate change-related provision that may be used to extend protection to any marine species found in any MPAs or listed in any of its schedules purely based on climate resilience or vulnerability. India’s climate policy is, by default, extends to the domain of ecosystem or species protection framework under WLPA. But there is no synergy between the two.

Similarly, Indian forest laws have blemishes too. Till the enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), forest land was not defined in any of the legislation. Rather, the focus was to exploit forest resources by establishing controlled areas such as reserve forests and sanctuaries. Finally, FRA defined ‘forest land’ as the ‘land of any description falling within any forest area and includes unclassified forests, un-demarcated forests, existing or deemed forests, protected forests, reserved forests, and Sanctuaries and National Parks’. ³⁹ At the outset, it may look pithily worded provision. But the Section must be read with the more expansive definition of forest rights given in Section 3 of the Act, which includes a ‘big bucket’ of rights for forest dwellers. Section 3 of the Act provides that forest-dwelling Scheduled Tribes and other traditional forest dwellers shall have ‘right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for a livelihood by a member or members of a forest-dwelling Scheduled Tribe or other traditional forest dwellers’. ⁴⁰ They should also have the ‘right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use’. ⁴¹ But most importantly, they have the ‘right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity’. ⁴² Surely, these extensive rights over forest and forest produce under FRA should be construed together with other laws that deal with forest and wildlife-related issues. Indeed, Section 4 of the FRA deals with the recognition and vesting of forest rights in forest-dwelling Scheduled Tribes and other traditional forest dwellers. The Section starts with a non-obstante clause which makes it mandatory to read any other related laws with it. ⁴³ The broad right-based structure provided under FRA had made development-mongers edgy from the very beginning and ever since FRA’s enactment, efforts have been made to loosen the knot by almost routine de-reservation of forests for non-forest purposes and simultaneously to accommodate economic activities rejecting legitimate claims of the forest dwellers.

There is hardly any doubt that the 2019 CRZ notification made the path for violators easy. There is no provision to address past violations. For example, earlier notification notifications prohibited the establishment of salt harvesting and desalination plants in eco-sensitive zones. But 2019 Notification has omitted such prohibition. The Notification also abolished the requirement to conduct the Social Impact Assessments (SIA) for setting up desalination plants. There is no clarity about what will happen to those plants previously set up in eco-sensitive intertidal areas without conducting SIA. Similarly, under CRZ 2019, land reclamation from the sea for ‘strategic projects’ are allowed. Again, no clarification is given by the government on what can be called ‘strategic projects’. ⁴⁴

As we have seen already, the same has happened to the EIA Notification as well. More alarmingly, neither EIA nor CRZ Notification contains any salutary provision related to climate change. In CRZ, 2019, the impact of climate change is considered only in the portion in the Guidelines for Preparation of Coastal Zone Management Plan. According to it, with a view to reduce the vulnerability of the coastal communities and ensure sustainable livelihood, while drawing the CZMP, the land use planning for the area between the Hazard line and HTL shall take into account impacts of climate change and shoreline changes. ⁴⁵ There is no further mention of how to achieve and adjust such planning with changes that are the direct or indirect result of climate change. With zero accountability provision in the Notification, it will not be an outlandish claim that India dearly misses an opportunity to fortify its stand before the international community to mitigate the effects of climate change. These notifications are excellent opportunities to elaborate upon the basic tenets of EPA. However, none of these two important delegated legislations does any justice to the object of the principal statute.

This then brings us to the question—Does India misunderstand its international climate obligation? Its impervious insistence on not committing to unfair mitigation burden has been put under the scanner in recent times. Paying deaf ears to the criticism, the government is continuously diluting important environmental laws to allow commerce-oriented activities. However, it cannot be said that in India, there is utter disregard for climate obligation. But simultaneously, it also cannot be claimed that India is doing satisfactorily in fulfilling its obligation. Even though, under the umbrella of the Paris Agreement, state parties enjoy significant freedom to strategies their domestic measures, the efforts must not offer conflicting ideology in terms of weakening important legal regimes, which clearly India is guilty of.

But on the other hand, India is better placed in terms of its NDC commitment. ⁴⁶ If India meets its current national policy of unsung renewables for 40% of energy needs, the emission will be at a lower 4,935 MTCO2e per annum. However, lockdown in India has led to sharp reductions in emissions, and at the current rate, India is expected to emit even lower 3,837–4,066 MTCO2e per annum, which is Paris complaint (1.5 degrees centigrade). ⁴⁷ Hence, it is tempting to take self-righteous steps as it is happening with India now with large concessions given to coal mining and coal production along with the dilution of several important laws. It then feels obvious to inquire whether India is reading its NDC commitment correctly, which is a continuous process? For the purpose of this article, a more pointed enquiry should rather be connected directly to the need for construing NDC with marine conservation strategy.

Daniel Bodansky argues that Paris Agreement allows countries to include policies to conserve or enhance blue carbon in their coastal waters in their NDCs. ⁴⁸ In order to be reckoned under the Paris framework, blue carbon mitigation is required to meet the same accounting and review standards applicable to other mitigation actions. Although currently there are measurement uncertainties, blue carbon mitigation should be treated the same as other mitigation actions under the Paris Agreement and should be qualified for credits under the market mechanism established by Article 6.4, which could provide an important source of funding going forward. ⁴⁹ On the adaptation front too, marine ecosystems (especially mangroves) can play a unique role, and their timely protection may come with a host of other co-benefits such as spawning grounds for commercial fish, water purification, and, therefore, supplementing local livelihoods. ⁵⁰ This is where India’s CRZ notification comes in, and as we have discussed before, any dilution in there will certainly not fit within India’s overall obligation towards Paris Agreement. India has seen marine ecosystem conservation as an outlying objective within its overall environmental programmes. Hence, we observe the lack of coherency within its laws, policies and strategies.

Conclusion

India is one of the key players in Asia when it comes to setting the climate strategy of the region. Because the threats from climate change have aggravated unprecedently in recent times, for both India and its neighbourhood, any procrastination in relation to adaptation or mitigation goals can prove to be tragic. At present, challenges are exceptionally complex. The fluid geopolitics have made the Bay of Bengal, the Arabian Sea and the Indian Ocean regions the places of attention where diverse interests of several nations run into each other. The narrative, especially the one related to conservation, has the potential to influence the environmental security of the region as well. Hence, India’s response to alleviate the vulnerability across its long coastline, including its marine environment, can be a vital strategic precursor for future ocean governance.

At the international level, currently, steps have been taken to develop a global treaty to address the environmental issues on the high seas. In 2017, the UN General Assembly (UNGA) decided to develop a treaty that will specifically address the issues related to the conservation and sustainable use of marine biodiversity in Area Beyond National Jurisdiction (ABNJ). There is a consensus that regional legal measures can further supplement the negotiation process to develop this ambitious ocean treaty.

Therefore, it is important for the Indian government to remain vigilant about not putting mere economic interest ahead of environmental benefits, which inter alia includes the fundamental right to livelihood of poor coastal communities. Today, it is possible to explore avenues like climate change litigation to remind the state about its climate responsibilities. But judicial overseeing of environmental matters meets halfway through the constitutional mandate, and it is likely that the disagreements between the legislature, enforcement agencies and the courts in environmental controversies will further pave the way for the more irrational application of sustainable development in India. There is no reason to believe that encroachment upon the rights of poor coastal communities will give us a better habitat conservation model in the future. Rather the model must be inclusive in nature. In that respect, science, technology, policy and the law must be integrated to the maximum possible extent.