Centre Trying to Create ‘Rubber Stamps’ for Faster Wildlife Clearance, Says Parliamentary Panel

News Click | Ayaskant Das | 24 May 2022
Experts say amendments proposed to Wildlife (Protection) Act, 1972 are part of a policy to promote ease of doing business.

New Delhi: A Parliamentary panel headed by former Union Environment Minister Jairam Ramesh has criticised an attempt by the Narendra Modi-led government to tweak India’s wildlife protection laws. The changes are being made to secure definitive approvals for industrial projects in ecologically fragile areas rich in flora and fauna, the panel said.

In a report recently submitted to the Parliament, the panel has noted that committees constituted for wildlife clearances at the state level, as envisaged by the central government, might end up as mere “rubber stamps” if independent members are not included in them.

The panel, a 29-member Parliamentary Standing Committee on Science and Technology, Environment, Forests and Climate Change, recommended the inclusion of at least three institutional members and the Director of Wildlife Institute of India into these committees. In its evaluation of the Wildlife Protection Amendment Bill 2021, the panel expressed apprehension that the state-level panels that have been proposed “will be packed with official members, and may end up being a rubber stamp for faster clearances of projects.”

Conservationists and experts have, at the same time, cast aspersions on the draft Bill for its potential to enable corporates extraction of precious natural resources of the country after sidelining local communities.

The panel has recommended the inclusion of at least one-third of all non-official members of the respective State Boards of Wildlife (SBWL) into the aforementioned proposed state-level committees. Through the amendment Bill, which was introduced in Parliament in December 2021, the central government has sought to empower each SBWL to constitute its own Standing Committee for the purpose of “exercising certain delegated powers and duties”. However, as per the Bill, these standing committees will consist of the vice-chairperson and member-secretary of the respective SBWL. A maximum number of ten additional members can be inducted into the Standing Committee by the vice-chairperson from amongst the members of the SBWL, the Bill further suggested.

“The Bill again envisages that each Board or its Standing Committee will be free to create various committees, sub-committees or study groups from time to time for the proper discharge of functions. It is necessary that the respective SBWL approves all recommendations or decisions by these committees or sub-committees before implementation,” said Debi Goenka of the Mumbai-based environmental organisation Conservation Action Trust. He further said, “But firstly, over-arching powers proposed to be assigned to the vice-chairperson of respective SBWLs in the appointment of Standing Committees should be curtailed. Members of each Standing Committee should either be appointed by the National Board for Wildlife or the respective SBWL.”

The proposal to constitute standing committees of state-level wildlife boards, by amending the Wildllife (Protection) Act, 1972, comes in the backdrop of the fact that the National Board for Wildlife (NBWL) has not met even once after the formation of its Standing Committee in the year 2014. As per the Act’s provisions, this central-level Board has to mandatorily meet at least twice a year. Immediately after being elected to power following the massive victory of the Bharatiya Janata Party in the general elections of 2014, one of the first tasks undertaken by Prime Minister Narendra Modi was to reconstitute the composition of the NBWL and constitute a Standing Committee for the purpose of conducting appraisals of infrastructure projects located in areas rich in wildlife.

“We have further suggested imposition of a ban on the use of mechanical earth moving equipment within protected areas, for example, wildlife sanctuaries or reserved forests, except in exceptional circumstances like natural disasters. This is intended to discourage civil works within the protected areas which seem to be proliferating because of liberal availability of funds with forest departments for the purpose of compensatory afforestation,” Goenka further added.

The Bill has also been criticised for the attempt to reduce the number of Schedules – containing lists of protected species of plants and animals – from the original Act.

At present, the Act has six Schedules in all; one is devoted exclusively to specially protected plants and four are dedicated to specially protected animals, while another schedule contains a list of vermin species. (Vermin refers to parasitic animals that carry disease or destroy food).

However, the amendment Bill seeks to reduce the total number of schedules to four: the number of Schedules for specially protected animals has been sought to be reduced to two, with one containing a list of species that need greater protection. The Bill completely eliminates the Schedule containing a list of vermin species and instead seeks the introduction of a new Schedule for specimens listed in the Appendices under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

A number of environmental organisations, including the Conservation Action Trust, have recommended a separate Act to implement the CITES provisions, which is a multilateral treaty to regulate the international trade of species of endangered plants and wildlife to ensure their survival. However, the Jairam Ramesh-headed panel, on its part, recommended an amendment to the Biological Diversity Act, 2002, to implement the provisions of CITES in India.

“The [Parliamentary Standing] Committee [has] observed that amending the Biological Diversity Act, 2002 would be the most appropriate way of implementing CITES, as the mandate of CITES is sustainable use of biodiversity. It also observed that the approach under the Bill will make the principal Act complicated and might introduce contradictions,” the panel noted in its report.

As the name suggests, the Biological Diversity Act, 2002 contains provisions to conserve biological diversity in India, sustainable use of its components and equitable sharing of benefits from biological resources.

In its present form, the Wildlife (Protection) Act, 1972 entrusts the responsibility of controlling, managing, and maintaining wildlife sanctuaries with each state government’s respective Chief Wild Life Warden. The Bill envisages the discharge of these responsibilities according to sanctuary-specific management plans. These plans will be prepared as per guidelines of the central government after due consultation with concerned Gram Sabhas in areas with predominantly tribal populations; in such places, provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 – known popularly as the Forest Rights Act, 2006 – are applicable.

“Interestingly, the Bill speaks about local self-governance in Schedule 5 areas with respect to Gram Sabhas under Forest Rights Act but omits mention of the PESA Act [Panchayat (Extension to the Scheduled Areas) Act, 1996],” Rebbapragada Ravi of MM&P (mines, minerals and PEOPLE), an alliance of individuals and communities affected by mining, told the Newsclick. Ravi added, “It is a fact too well known that areas rich in wildlife in India are also those that not only have a pre-ponderance of various Scheduled Tribe communities but are also rich in rare and precious natural resources like minerals. This move is indicative of the trend to concentrate power with the central and state governments and make it easy for the mining industry to acquire and expand their operations under the policy of ease of business. The central government is paving the way for corporates to easily exploit minerals in the country, by a series of amendments to the environmental and mining regulatory regime in India,”

The PESA Act is a law enacted by the Union government to ensure local self-governance through traditional Gram Sabhas for people living in Scheduled Areas of the country. Scheduled Areas are notified under the Fifth Schedule of the Constitution of India for their economic backwardness and predominance of the Scheduled Tribe population.

The move to amend the Wildlife (Protection) Act, 1972 comes close on the heels of largescale changes to laws governing forest conservation in the country as proposed by the central government. The Centre has proposed to do away with several regulatory requirements needed to divert forestland for non-forest use in a draft amendment to the Forest (Conservation) Act, 1980, which was released in October last year.

Conservationists had earlier flagged amendments proposed to forest laws on the ground that it was intended to benefit corporates in the ease of doing business.

Don’t divert funds meant for mines-affected community: Odisha govt to collectors

Hindustan Times | May 01, 2022
The District Mineral Foundation Funds scheme in Odisha has been beset with allegations of misuse and diversion of funds .
Amid allegations of misuse and diversion of District Mineral Foundation (DMF) funds for works in non-mineral bearing areas, the Odisha government has asked all departments and district collectors of the state to ensure that no fund meant for mining-affected communities is transferred in any manner from the DMF to the state exchequer or any state level fund or Chief Minister’s Relief Fund, according to a new directive.

In a letter to all the departments and district collectors, development commissioner PK Jena wrote that the September 2021 circular of the Ministry of Mines on the DMF funds use as per section 9(B) of the MMDR Amendment Act, 2015 be strictly adhered when it comes to utilisation of money from the special fund.

The central government started the District Mineral Foundation Funds scheme in 2015 as a benefit-sharing scheme with the mining-affected communities under which the mining companies pay 30 percent of the royalty amount for leases granted before 2015 and 10 percent for the leases granted through the auction mechanism post-2015. DMF funds are non-profit and independent trusts linked to the Pradhan Mantri Khanij Kshetra Kalyan Yojana. DMF implements various welfare programmes for the mining-affected communities and the environment. At least 60 percent of the DMF funds should be utilised for high-priority areas.

However, the scheme has been beset with allegations of misuse and diversion of funds in Odisha, that has collected the largest amount of funds since the scheme started. Till January this year, Odisha collected ₹16,952.64 crore under DMF, around 28.7 per cent of the total DMF funds collected in the country. Though it has spent ₹8,515.71 crore, a or a little more than half of the amount, a study by the Centre for Social and Economic Progress on the use of District Mineral Foundation Funds published in January this year found that the state ranked at No. 5 when it came to Utilisation Index, a measure of how well the funds have been spent across various sectors. Odisha was ranked behind Chhatisgarh, Gujarat, Telangana and Karnataka.

Political leaders and NGO workers in the mining-affected districts said though Odisha has spent half of the funds it collected, most of the money was being diverted to projects which do not meet the criteria.

In March last year, the state cabinet approved the State Level Sports Infrastructure Development Project worth ₹356.38 crore for expansion of Kalinga Stadium Sports Complex in Bhubaneswar and construction of a new international hockey stadium in Rourkela for the 2023 Men’s Hockey World Cup, half of which would be spent from the DMF funds. In the mineral-rich Keonjhar, the district administration in 2019-20 sanctioned works for a handball stadium from the DMF funds. In January 2020, Sundergarh district administration bought 25 cars with the DMF funds for use as patrolling vans by Rourkela police. In 2017, the Jharsuguda district administration sanctioned ₹20 crore from the DMF funds for the Jharsuguda airport.

“The provisions of Section 9(B) of the MMDR Act would be strictly adhered to in respect of utilisation of funds by the District Mineral Foundation. No sanction or approval of any expenditure out of funds of the District Mineral Foundation would be done at the State level by the State Government or any state level agency. The above of government of India are to be followed scrupulously and only such projects sanctioned by the District Mineral Foundation Trust Boards for the respective District are to be implemented in accordance with the provisions of Odisha District,” Jena wrote.

Bharatiya Janata Party (BJP) MLA in Keonjhar, Mohan Majhi said the latest directive from the government to the district collectors may just remain another letter without its implementation. “The DMF fund is supposed to cater to a specific developmental need of mine-affected areas that can’t be dealt with in regular budgeting. But what we are seeing in Keonjhar is the use of the funds for mega drinking water projects which can be funded by normal budgeting. The Keonjhar medical college and hospital being built now has been funded by DMF which can easily have been funded by routine funds from central and state government schemes,” said Majhi.

Noted environmental lawyer Sankar Pani said though DMF funds are supposed to be used for minimising adverse impacts during and after mining on the environment, health and socio-economics of people in mining districts and to ensure long-term sustainable livelihoods for affected people in mining areas, none of the aims have been achieved in any of the districts. “In a district like Keonjhar where 30 per cent of the area has been mined for minerals like iron ore and manganese, the tribals at the receiving ends of the pollution can’t get treated in any of the dispensaries started by the mining companies. The first point of treatment in the district is a PHC which remains non-functional. What is the point of building a medical college and hospital far away from the mining areas which the poor tribal can’t reach,” asked Pani.

BJP MLA in Sundargarh, Shankar Oram said the people in the mining areas had high hopes that DMF funds would help better their lives. “From Hemgiri to Koira, a number of mining activities involving coal, iron ore, manganese, lime stone are going on. But people in these areas are still deprived of primary education, primary health, drinking water, road connectivity and electricity,” he said.

BOCW Act: Applicability on factories?

Lexology | March 24, 2022
Introduction:

The article discusses the applicability of Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (‘BOCW Act’) to factories wherein construction activity for the purpose of expansion or constructing godowns is being undertaken.

Definition of ‘building or other construction work’:

The term, ‘Building or other construction work’ has three limbs:

First limb deals with the different activities which are to be undertaken, namely, construction, alteration, repairs, maintenance or demolition.
Second limb covers those buildings or works in relation to which the aforesaid activities are carried out.
The third limb contains the exclusion clause i.e., any building or other construction works to which the provisions of the Factories Act, 1948 (‘Factories Act’) or the Mines Act, 1952 apply instead.
It is worthy to note that construction in a factory will get covered within the first two limbs of the definition.

On the other hand, on a plain reading of the exclusion clause, one can also take the view that since expansion or construction of a godown or any other place will take place inside the factory, which is subject to the provisions of Factories Act, therefore, said exclusion will apply to such construction.

A legal scrutiny of the above exclusion clause is required from the perspective of the Factories Act which is as follows:

‘Factory’ means any premises where manufacturing process is carried on with or without the aid of power.
‘Worker’ covers a person who is employed in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process.
The activity of undertaking construction of a godown, or any other place or for expansion of the factory, is not a manufacturing process.
In light of the above, the building constructed, as a godown or as a part of expansion of the factory, will not be treated as a factory since no manufacturing process is being carried out.

Consequently, workers engaged in the construction of said building by the contractor will also not be treated as workers for the purpose of Factories Act.

Accordingly, one can take a view that the provisions of Factories Act apply when the manufacturing process in the building which is being constructed has commenced and not to the activity of construction of the project itself. Therefore, the exclusion from the definition of ‘building or other construction work’ will not be available.

In case any contrary view is taken, there is a possibility that the workers engaged in the construction of building will get excluded from both the welfare legislations i.e. BOCW Act as well as the Factories Act.

Who is liable to pay cess?

The employer, in relation to an establishment, means the owner and the contractor. The contractor includes a sub-contractor.

Building and Other Construction Workers Welfare Cess Act, 1996 (‘Welfare Cess Act’) provides for the levy and collection of a cess on the cost of construction incurred by an employer. The cess levied shall be paid to the cess collector by the employer within thirty (30) days of completion of the construction project, or within thirty (30) days of the date on which assessment of cess payable is finalised, whichever is earlier.

Different mechanisms are prescribed for payment of cess for building and construction work (a) of a Government or of a Public Sector Undertaking, and (b) where approval from a local authority is required.

In case of building and construction work of private companies, the employer is to pay cess to the cess collector. The question arises as to who is liable to pay cess i.e., whether the employer of the establishment or the contractor, as the definition of employer covers both the owner and the contractor.

It is worthwhile to note that the Supreme Court has held that, as per the BOCW Act and the Welfare Cess Act, the liability to pay cess falls not only on the owner of a building or establishment but also on the contractor. It is to ensure that the cess is collected at source from the bills of the contractors to whom payments are made by the owner. The burden of cess is passed on from the owner to the contractor.

Accordingly, one can take a view that the contractor is to collect cess and make payments to the collector.

There are certain provisions in BOCW Act which cast the welfare related responsibility of the workers on the employer of the establishment such as for canteens, accommodation, creches, and first-aid.

On a concluding note, while paying and collecting cess, the impact of the BOCW Cess read with Welfare Cess Rules should be appropriately dealt with by businesses.

Visakhapatnam: 13-year-old girl rescued from brick kiln at Padmanabham

The Hindu | Staff Reporter | 13 Feb, 2022

Action will be taken against brick kiln owner, say officials

Members of Childline Services, Labour Department officials and the city police conducted raids on a brick kiln industry and rescued a 13-year-old girl who was allegedly made to work at the industry at Krishnapuram village under Padmanabham Police Station limits here on Sunday.

The teams conducted raid based on the complaint received by the District Collector, Child Welfare Committee (CWC) members and the city police from Visakhapatnam-based NGO Samata and Odisha-based NGO KBK Resource Centre.

According to Coordinator of Childline (1098) services David Raju, it was alleged that a four-year-old and 13-year old girl, daughters of one Raju, were made to work at the brick kiln industry. Raju is from Nandupala village of Balangir district of Odisha. “In the investigation, we found that only 13-year-old girl was made to work. The Labour Department as well as police officials are initiating action against the owner of the brick kiln industry as per law,” he said.

‘No molestation’
Meanwhile the Childline officials also ruled out the allegations of molestation against the wife of Raju and his minor daughters. “We have spoken to the wife of Raju. There were no such incidents,” Mr. David Raju said.

With the help of the Police Department, the family is being sent to their native place in Odisha.

Visakhapatnam: NGOs allege child labour and molestation at a brick kiln

The Hindu | Special Correspondent | 13 Feb, 2022

‘A middleman brought the family from Odisha to the kiln last year’

Odisha-based NGO KBK Resource Centre and Visakhapatnam-based Samata have lodged a complaint with the city police, District Collector and Child Welfare Committee on an alleged child labour and child molestation case at a brick kiln at Krishnapuram village in Padmanabham mandal of Visakhapatnam district on Saturday.

They alleged that a family from Nandupala village of Balangir district of Odisha, was trafficked to the kiln by a middleman, in October, last year.

The victim Raju Jal (40) had come to the kiln with his wife and three children, including two girl children, all aged between 4 and 13 years of age.

According to Sushant Panigrahi of KBK, Raju was not paid as promised and when he had asked he was not only allegedly assaulted but also denied payment. But he managed to escape and reach home, but his family members are being allegedly kept as hostage and even his four-year-old son is being made to work.

Mr. Sushant also said that Raju’s wife had spoken to them and had complained that the kiln owner’s son and his friends have been allegedly sexually molesting her and her minor daughters, every night under inebriated condition.

‘Prompt action promised’
“We have sent e-mail complaints to all the departments and have also spoken to them on Saturday, including the RDO and DCP (urban). We have been assured of prompt action,” he said.

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