1 Wetlands division, WWF-India
The law and policy for coral reefs in India is virtually non existent. There are a few laws in the Country that can be activated for the protection of coral reef areas such as the Environment (Protection) Act, 1986 and the Coastal Regulation Zone Notification of 1991 issued under the broad EPA as well as the Wildlife (Protection) Act, (WPA) 1972 since all coral reef areas in India are protected areas declared under the Wildlife (Protection) Act 1972. The other laws that would have a bearing on coral reef areas are the Indian Forest Act, 1927, the Forest Conservation Act, 1980 and the Indian Fisheries Act which is of vintage origin. Various state fisheries acts would be relevant for conservation and management of coral reef areas. It must, however be noted that even under the WPA, coral reef areas have, no separate legal status and short comings of the WPA in affording protection to coral reef areas is discussed subsequently. The Marine national parks which have coral reefs come under the charge of the Ministry of Environment and Forests. However, the national laws that are applicable to coral reef areas involve various departments of the government agencies (state forest departments, fisheries departments and most recently the state coastal management authority at the state level). The laws are inadequate as they are not area specific and do not distinguish coral reef areas from other islands, coastal and marine areas.
The only law that explicitly outlaw, coral mining is the CRZ. notification of 1991. The CRZ-notification of 1991 issued under the Environment (Protection) Act 1986 places restrictions on industries, operations and processes in the CPZ areas (which extend up to 500 m from the High Tide line and the land lying between the Low Tide Line and the High Tide Line). Some of the, prohibited activities in the CRZ are listed below
· setting up of new industries and expansion of industries in the CRZ areas.
· manufacture and handling or storage or disposal of hazardous substances.
· setting up or expansion of fish processing units including warehousing (excluding hatchery and natural fish drying)
· land reclamation, bunding or disturbing the natural course with similar obstructions except those required for control of coastal erosion
· mining of lands, rocks and other sub-strata materials.
· Harvesting or drawal of ground water and construction of mechanisms, within 200 Mts. of HTL in the 200 mts;-500 mts it shall only be permitted when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries,
· construction activities in ecologically sensitive areas as specified in Annexure 1 of the notification,
· any construction activity between the LTL and HTL except facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil gas and similar pipelines under this Notification.
Areas that are ecologically sensitive and important such as national parks, Sanctuaries, reserve forests, wildlife habitats, mangroves, corals coral reef areas; areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding beauty/areas rich in genetic diversity, areas likely to be inundated due to rising Sea level consequent upon global warming and such other areas, as may be declared by the Central and State Government at the State or Union territory level from time to time.
ii) Area between low Tide Line and the High Tide Line,
Category II (CRZ-II)
Areas that are already developed up to or close to the shoreline.
category III (CRZ-III)
Areas that are relatively undisturbed and are those that do not belong to either category I or II, These include coastal zones in the rural areas (developed and under developed) and also areas within municipal limits or in other legally designated urban areas which are not substantially built up.
Category IV (CRZ-IV)
Coastal stretches in the Andaman and Nicobar, Lakshadweep and small islands except those designated as CRZ I, CRZ II, CRZ III
The relevant norms for regulation of activities are as follows:
For CRZ-I: No new Construction shall be permitted within 500 meters of the High tide Line. No construction activity except as listed under 2 (ix) will be permitted between the Low, Tide Line and the High Tide Line.
For CRZ-III: The area up to 200 meters from the High Tide Line is to be earmarked as " No development zone". No construction shall be permitted - within this zone except for repairs, agriculture, horticulture, gardens, pastures, parks, play fields, forestry and salt manufacture from sea water.
For CRZ-IV (Andaman and Nicobar Islands)
I) No new construction of buildings shall be permitted within 200 Mts of the HTL.
IV) Corals and sand from the beaches and coastal waters - shall not be used for construction and other purposes.
V) Dredging and under water blasting in and around coral formations shall not be permitted.
VI) Further, in some islands, coastal stretches may also be classified into categories CRZ I or II or III with the prior approval of the Ministry of Environment and Forests and in designated stretches, the appropriate regulations given for respective categories will apply.
Lakshwadweep and small islands:
i) For permitting construction of buildings, the distance from High Tide Line shall be decided depending on the size of the islands. This shall be laid down for each of the islands, in consultation with experts from the MoEF keeping in view the land use requirements for specific purposes vis-a-vis local conditions including hydrological aspects, erosion and ecological sensitivity.
iv) corals and sand from beaches and coastal waters shall not be used for construction and other purposes;
v) dredging and under water blasting in and around coral formations shall not be permitted and
vi) in some islands coastal stretches may be classified into categories CRZ 1 or II or II or with the prior approval of the MoEF and in such designated stretches the appropriate regulations given for respective categories will apply.
Thus the CRZ notification has recognised the significance of corals and coral reef areas and includes these as CRZ I i.e. areas that are ecologically sensitive and important. However, apart from banning new construction within 500 meters of the High tide Line and specifying that no construction activity except as listed under 2 (xii) the notification does not specify that even pearl culture or coral digging for limestone shall be prohibited in these coral areas. Thus the notification is not area specific and function/use specific. It depends on the Coastal Zone Management Authority to ensure the enforcement of Notification and not allow coral digging in the CRZ 1 areas as identified in the Coastal Zone Management Plans (CZMPs). However even the requirement of CZMPs by the state governments and union territories was not achieved until the Supreme Court of India acting on a petition filed by the Indian Council for Enviro-Legal Action verses Union of India (JT 1996(4) S.C 263-285) issued notices to the respondent coastal states, of Andhra Pradesh, Gujarat, Kamataka and Kerala had not (even after the issuing of the notice by the Court) submitted their plans and were asked by the Court to show cause as to why appropriate action against non-compliance should not be taken against them.
However since in our country, the four major coral reef areas are declared as protected areas, the provisions of the Wildlife (Protection) Act, 1972 (last amended in 1991) (hereafter referred to as the WPA) would apply. Ironically while the definition of "wildlife" in the WPA includes any animal, bees, butterflies, crustacea, fish and moths and aquatic or land vegetation which forms part of any habitat, corals do not figure in any of the schedules to the Act. The definition of "wild animal" given in section 2, clause (36) says "wild animal" means any animal found wild in nature and includes any animal specified in Schedule I, II, III, IV, wherever found'. Thus corals would be included in the definition of "wild animal" since this definition is inclusive and not exclusive. Further section 39 of the Act states that Wild Animals, etc. are Government property
a) wild animal, other than vermin which is hunted under Section 11 or sub sec 35 or kept or bred in captivity or hunted in contravention of any provision of this Act or any rule or order made there under, or found dead, or killed by mistake
b) animal article, trophy or uncured or meat derived from any wild animal referred to in CI (a) in respect of which any offence against this Act or any rule or made thereunder has been committed,
c) ivory imported into India and an article made from such ivory in respect of which any offence against this. Act or any rule or order made thereunder has been committed
d) vehicle, vessel, weapon, trap or tool used for committing an offence under the provision of the Act. shall be the property of the State Government and, where such animal is hunted in a Sanctuary or National park declared by the Central Government such animal, trophy, uncured trophy, or meat derived from such animal or any vehicle, vessel, weapon, trap or too/that has been used in such hunting, shall be the property of Central Government.
Further section 39 clause (3) reads
"No person shall, without the previous permission in writing of the Chief Wildlife Warden or the authorised officer
a) acquire or keep in his possession, custody, or control or
b) transfer to any person, whether by way of gift, sale or other wise or
c) destroy or damage such Government property".
Section 29 of the Wildlife (Protection) Act essentially concerns Destruction, etc. in a sanctuary prohibited without a permit.
It states that " No person shall destroy, exploit or remove any wildlife from a sanctuary or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such sanctuary except under and in accordance with permit granted by the Chief Wildlife Warden and no such permit shall be granted unless the State Government is satisfied that such destruction, exploitation or removal of wildlife from the sanctuary is necessary for the improvement and better management of wildlife therein, authorises the issue of such Permit".
Similarly section 35 clause (6) states that No person shall destroy, exploit or remove any wildlife from a National Park except under and in accordance with a permit granted by the Chief Wildlife Warden and no such permit shall be granted unless the State Government, being satisfied that such destruction exploitation or removal of wildlife from the National Park is necessary for the improvement and better management of wildlife therein, authorises the issue of such permit.
Thus in a protected area i.e. a National park or a Sanctuary the illicit removal of coral would be illegal vide section 29 and section 36 clause (6) since corals in the Park/Sanctuary would be the property of the Government.
However as corals are not included in the Schedules to the said act, Chapter V-A which essentially addresses Prohibition of trade or commerce in trophies, animal articles, etc. derived from certain animals cannot be made applicable to corals. Therefore section 49-B that deals with prohibition of dealing in trophies, animal articles, etc. derived from Scheduled animals cannot be made applicable to corals. It must be mentioned here that the Wildlife (Protection) Act does not speak of trade in "wild animals" i.e. an animal found wild in nature and thus extraction of corals for lime stone kilns or curios cannot be prevented outside the sanctuary or National park limits. This would inevitably cause problems for the management of coral reef area, (even within Sanctuaries or National Parks), It is significant that the Ranjit Singh committee instituted by the Ministry of Environment and forests has in the draft amendment to the Wildlife Protection Act included several species of coral in Schedule IV of the Act, There is an urgent need to revise the Wildlife (Protection) Act and include coral in the schedules and make the provisions of the WPA, 1972 more region specific (since the same provisions apply to marine national parks where there is substantial presence of coral).
As discussed earlier the WPA, 1972 only applies to protected areas and in most of the marine national parks in the Andaman and the Gulf of Mannar, the final notification of the sanctuary or the national park has not been achieved. In a recent case filed by WWF India (CEL, WWF-India versus 'Union of India and Ors W.P © No 337/95) the Supreme Court took cognisance of the fact that further steps (after declaration of a sanctuary, or National Park under S18 and 35 respectively) envisaged by the Act i.e. Under section 21 and other procedure contemplated by the Act, have not been taken. The Court ordered that the further steps under section 21 be taken with respect to sanctuaries and National Parks by the concerned state governments Union Territories within two months and complete the process of determination of rights as contemplated by the Act, within a period of one year. Thus in Marine National parks as well, the final notification and the determination acquisition of rights as laid down in the WPA, has to he done within the time limit set by the Apex Court.
Interestingly while the CRZ notification is applicable to coastal areas (500 m, from the high Tide Line and the land lying between the Low Tide Line and the High Tide Line and corals, coral reef areas would be included in CRZ 1, it is telling that the restrictions imposed in CRZ 1 (ecologically sensitive and important areas) and CRZ IV (Andaman and Nicobar and other islands) apply only to the land ward side. However the sea ward side of those areas (CRZ 1 or IV) do not enjoy any protection under this notification or any other national law. The boundaries of the Marine National Parks may not be accurately or appropriately defined, therefore there is a need to give these coral reef areas a special legal status, in order to regulate activity and prevent harmful activity, and marine pollution in the surrounding areas. One option would be to declare these areas as ecologically sensitive under the environment (Protection) Act, 1986, This would enable the agencies responsible for management of these coral reef areas to extend protection beyond the protected area limits and towards the seaward side and also be able to restrict ecologically harmful activity like mechanised trawling in areas close to corals and coral reefs. Certain types of activity could then be out rightly banned in these ecologically sensitive areas. This, would be the only way to restrict environmentally harmful activity in the these areas. India is also a party to several international Conventions, like the UNCLOS, the Ramser Convention, the CITES and the CBD. Under Section 56 of the United Nations Convention on the, Law of the Sea (UNCLOS) which formally came, into force in July 1995, coastal states may exercise sovereign rights to living resources within 200 nautical miles of their, shores. Thus there is an overall responsibility on Coastal states to ensure that living marine resources within their EEG's, are not over exploited and foreign fleets operating in the EEG (with the due permission of the coastal state) must abide by conservation measures as well as respect the national laws and policies of the concerned country. In fact Article 61(3) of the INCLOS requires coastal states to consider the effects of fishing upon associated and dependent species but does not specify the scope of this obligation (Pusch, 1996). Our country must keep in mind the international obligations under UNCLOS and CITES and the CBD and therefore must bring about much needed changes in the domestic legislation like the Wildlife (Protection) Act to adequately protect corals. Further the broad Environment (Protection) Act, I986 (EPA, 1986) could be activated to suitably designate these coral reef areas (and surrounding areas) as ecologically sensitive and regulate and restrict industries, operations and processes in these, ecologically important areas. Although the central Ministry of Environment and Forests, has a National Committee on Wetlands, Mangroves and Coral Reefs, the committee has yet to formulate a sound and coherent National policy for Coral reef areas or even wetlands. It would be extremely useful if such a policy could be formulated in order to enable sound and sustainable management of these areas.
The recommendations for law reform and policy making for coral reef conservation and management in the country essentially concern amending the Wildlife (Protection) Act 1972 to include species of coral, in the Schedules and specifically state that the extraction of coral is prohibited under the provisions of Chapter V-A of the WPA, Since the CRZ notification essentially covers coastal areas extending 500 Ms from the High Tide Line and the land lying between the Low Tide Line and the High Tide line in the landward side, the areas extending beyond corals and coral reefs on the sea ward side, remain unprotected. Thus the major coral reef areas (and adjoining areas) could be declared as ecologically sensitive under the Environment (Protection) Act, 1986 and restrictions could be imposed on environmentally dangerous industries. Operations and processes in these areas. The legal status of ecologically sensitive areas would help in ensuring that activities like the plying of mechanised fishing trawlers could be banned and restricted in these areas close to the protected areas. A national level policy especially focusing on wetlands and corals is imperative in order to take up and guide conservation efforts by Government agencies as well as; local communities who are residing in close proximity of these ecologically sensitive areas and who are dependent on these ecosystems for their livelihood.