A coral reef off Havelock island in the Indian Ocean. Photo: Ritiks/Wikimedia Commons, CC BY-SA 3.0
India is a mega-biodiverse nation. It is home to 7-8% of the recorded species of the world. Its marine ecosystems are equally biodiverse: of the 32 animal phyla known to science, 15 are found in the marine ecosystems of India.
In consequence, illegal trade in marine species in India is rampant.
The primary Indian law protecting wildlife, including marine wildlife, is the Wild Life (Protection) Act 1972 (WLPA). It prohibits the hunting of animals listed in its six schedules (lists) and regulates trade in such animals and their parts. It also provides for the declaration of protected areas within which human activities are restricted.
These two approaches – banning hunting of and regulating trade in species by listing them in the schedules, and designation of protected areas – have found some success in protecting terrestrial wildlife. However, their efficacy in protecting marine ecosystems is questionable.
Marine ecosystems, terrestrially oriented policies
The WLPA, in its original form, was oriented terrestrially. For almost 20 years after its enactment, it did not contemplate protected areas in terrestrial and marine ecosystems separately. The Act did not lay down any separate procedure for the declaration of marine-protected areas, and its Schedules listed very few marine species. However, in light of international developments in marine conservation, the Ministry of Environment, Forests and Climate Change of India (MoEF&CC) has superimposed the existing terrestrially-oriented policies on marine ecosystems. Over 30 marine protected areas (MPAs) have been declared in peninsular India and over 100 in the Indian islands. In addition to the crocodiles and turtles that found a place in the WLPA schedules during its initial years, a number of elasmobranchs, coelenterates and molluscs, which together constitute a majority of the marine species protected under the legislation, have been added to its schedules since 2001.
Of the 41 marine species protected under the WLPA, most are listed in Schedule I. Animals listed in Schedule I, along with those listed in Part II of Schedule II, receive the highest degree of protection under the WLPA. Hunting of animals listed in these schedules is prohibited and licenses to hunt them are granted only in exceptional circumstances. Dealing in, transporting, and buying of such animals is also prohibited. In contrast, dealing in animals listed in the other Schedules is regulated through a licensing regime.
It is unclear whether this approach has effectively reduced illegal trade in marine animals, especially those in Schedule I and Part II of Schedule II. For instance, 173 species of sea cucumbers are found in Indian waters and, of these, around 20 are considered commercially important. In 1982, the MoEF&CC banned the export of all sea cucumbers less than 3 inches in size. Later, in 2001, all sea cucumber species were listed under Schedule I of the Act resulting in an absolute ban on their trade. Despite this, India remains a global hotspot for sea cucumber poaching and smuggling. In a press release, the MoEF&CC described sea cucumbers as some of the major species being smuggled through Indian airports as recently as May 2019. Besides sea cucumbers, protected marine species like sea cows and marine turtles are also widely caught and traded for their meat, blood and carapace in India.
That trade and hunting of these animals is rampant despite their inclusion in the Schedules to the WLPA can be attributed to two reasons.
Firstly, the Schedules lack direction and are not truly representative of the actual status of species in Indian ecosystems.
Originally, the Schedules were organised on the basis of the importance of species as ‘Game.’ The hunting of animals in Schedule I was banned. Those in other Schedules could be hunted after obtaining special game hunting licenses, big game hunting licenses, or small game hunting licenses. Since then, the Act has been amended several times. In his analysis of the schedules over four amendments, S.S. Bist, former Principal Chief Conservator of Forests & Head of Forest Force for the Government of West Bengal, observed that the amendments “had not followed any criteria and resulted in making the Schedules unwieldy and unstable.”
Further, until 2001, the schedules did not contain any fish species. Even after 2001, fishes have not been adequately protected under the WLPA. A significant reason has been the lack of adequate scientific data.
Management of resources
Secondly, even though marine animals are listed in the schedules for protection, they become subject to a policy that is more suited to the protection of terrestrial wildlife. This policy of complete prohibition on hunting and strict regulation of trade in such animals disregards their role in the lives of fishing communities. Although the MoEF&CC cited the dependence of fisherfolk on marine life as an inhibiting factor until the inclusion of fishes in the Schedules, no special provisions were added in the WLPA to address these concerns when fishes were included.
This transposition seems uninformed by key socio-ecological differences between terrestrial and marine systems. Indian coasts are far more densely populated than its forests. In many fishing villages, poverty is acute and infrastructure is abysmal. Fishing communities are heavily dependent on marine resources for their livelihood and sustenance. Most importantly, even as communities move towards modern forms of fishing, they are known to have traditionally adopted sustainable fishing practices. These include spatial and temporal regulations like fishing zones, seasonal bans, and regulation of type of fishing gear and vessels.
In stark contrast to these practices, the WLPA is based on dualist ideas of humans versus wildlife. It attempts to demolish dependence regimes. The inclusion of marine species in the schedules is rarely preceded by successful drives to provide alternate sources of livelihood to dependent communities. In addition to causing social unrest, this has caused illegal trade in species to flourish. For instance, before the ban in 2001, sea cucumbers served as a source of livelihood for around 2,00,000 fisherfolk in the Ramanathapuram and Thoothukudi districts of Gulf of Mannar and the Ramanathapuram, Pudukottai and Thanjavur districts of Palk Bay. After the ban, the trade value of sea cucumbers rose substantially as the ban reduced supply but demand in the international market remained high. Since wildlife smuggling is a low-risk, high-profit offence, trade in sea cucumbers continued to flourish underground and became unaccounted for as well as more lucrative. The ban consequently became ineffective.
Alternate strategies have been advocated by experts. Vardhan Patankar, head of the marine programme at Wildlife Conservation Society-India (WCS-India), based on his analysis of stakeholders’ knowledge of and attitudes towards the WLPA in the Andaman Islands of India, has suggested the use of regulation, preventive community-based policing, constructive engagement with fisherfolk, and the promotion of alternative livelihoods for fishing communities instead of a ban. Similarly, while analysing strategies for conservation of sea cucumbers in India, the Central Marine Fisheries Research Institute, suggested regulatory methods for conservation supported by proactive measures like resource enhancement of populations through sea ranching in place of a total ban.
Besides the species-centric approach represented by the schedules, the Act also adopts a habitat-based conservation mechanism. It provides for the declaration of four types of protected areas: sanctuaries, national parks, conservation reserves, and community reserves. These are meant to be land parcels with minimal human disturbance that promote in situ conservation of habitats and species. As one moves closer to protected areas, human activities become increasingly regulated. Within 10 kilometres of any sanctuary or national park, any person possessing arms is required to register themselves. At the border, entry without a permit or entry with a weapon is prohibited. Within protected areas, destruction, exploitation or removal of any wildlife is prohibited.
These restrictions affect sizeable communities that are dependent on the areas for sustenance. India has 3.57 million marine fishers spread across 3,305 coastal villages. However, the management of MPAs is marked by a lack of community involvement.
The declaration of sanctuaries or national parks outside territorial waters is preceded by a dialogue over community rights. The government first settles claims to any rights over the area. If a claim is accepted, the land is either excluded from the limits of the sanctuary or the subsistence of rights within the sanctuary is allowed. However, sanctuaries or national parks that do fall within territorial waters, can be simply declared through a notification to this effect without any claim settlement process.
This ignores the reality of the fisherfolk of India. Take the Gahirmatha Sanctuary in Odisha for example. It was notified by the state government in 1997 off the coast of Kendrapara district. The sea off the Gahirmatha coast provided business to over 43,000 fishers in 90 villages. A considerable portion of this population lived below the poverty line. Despite this, decision makers did not consult or involve the affected communities in the management plan for the Gahirmatha Sanctuary. At the same time, restrictions on fishing that followed the declaration of the Sanctuary, such as the reduction in fishing days from 240 to less than 100, were not matched by clear evidence of positive ecological impacts.
Unsurprisingly, many communities have objected to such approaches that deny local communities’ control over and access to resources. This lack of local acceptance has led preservationist policies to fail. Efforts to exclude trawlers from the Gahirmatha Sanctuary, for instance, failed due to resistance from trawling communities. In fact, conservationists have since accepted that the exclusion of trawlers is not the most effective method of conserving the sanctuary’s turtles and that certain kinds of fishing in the area may be benign.
Stakeholder participation, flexible laws
Implementing the WLPA without an assessment of its likely socio-economic implications is impractical, especially when communities carry a sentiment of alienation from the process. While communities are expected to participate in implementation, they are not participants in the formulation of management strategies. Thus, fishing communities must be integrated into the implementation as well as formulation of these laws. Fisherfolk should be included in the management bodies of protected areas so they may introduce traditional, sustenance-oriented fishing practices in these areas. From within the system, they can keep policies abreast with traditional knowledge. In respect of modern fishing practices, they can proffer information regarding areas where their adoption is crucial for the sustenance of fishing communities, areas in which they may be harmful or benign.
Flexible laws would be a consequence of community involvement. The current rigid structure of laws based on the exclusion of humans from natural habitats is grounded in the idea that economic activities and wildlife conservation are antithetical to each other. In part, this is due to the idea, often advocated by conservationists, that fishing communities live in absolute ‘traditional harmony’ with wildlife. In reality, communities themselves are now demanding modern development. Once these developments are accounted for, conservation laws can be designed to vary with landscape in a manner informed by perspectives of fisherfolk. This is likely to develop an ethic that combines utilitarian and conservationist ideas.
Thus, the application of the WLPA to marine ecosystems must be guided by scientific data that correctly identifies species that need protection; a regulatory, as opposed to a proscriptive, approach; and sociological impact studies of protected areas.
Shivani Swami is a law officer with the Counter Wildlife Trafficking team of Wildlife Conservation Society-India.
This article was originally published by Mongabay-India and has been republished here under a Creative Commons license.