Section: A
Category: Research Paper
Paper Code: RP-BD-11
Page Number: 125 -145
Date of Publication: February 10, 2021
Citation: Bonani Deori & Mritunjoy Barman, Legal Frameworks Relating to Use of Pesticides on Horticultural Activities Vis-à-vis Climate Change, 1, AIJACLA, 125, 125-145, (2021), https://www.aequivic.in/post/aijacla-legal-frameworks-relating-use-pesticides-horticultural-activities-vis-%C3%A0-vis-climate-change.
Details Of Author(s):
Bonani Deori, LL.M (Environmental Law), Advocate, Gauhati High Court, National Law University and Judicial Academy, Assam
&
Mritunjoy Barman, LL.M (Constitutional Law), Advocate, Gauhati High Court
ABSTRACT Horticulture is a major branch of agriculture which is a science as well as an art of producing, using, and improving horticultural crops such as fruits and vegetables, spices and condiments, decorative, plantation, medicinal, and aromatic plants. Moreover, the horticulture sectors or industries rely on a multitude of chemicals, including fertilizer, pesticides, and growth hormones that are called agrochemicals. However, the use of pesticides or chemical fertilizer on crops is considered as one of the major reasons for climate change as well as the degradation of the environment. The horticultural activities contribute to climate change because it is also a source of greenhouse gases like C02, CH4, N2O. It is vulnerable to climate change because horticulture relies on an acceptable temperature range and rainfall pattern to increase plants and livestock. Agriculture along with its branches is the most essential life-sustaining of human operations: sharp reductions in all other types of well-being would be survival for most individuals if only enough food could still be cultivated and circulated. In the present scenario, climate change is considered a global challenge. The major threat to climate change occurs from air, water, and soil pollution. Soil pollution includes the use of agricultural chemicals in the food chain, groundwater contamination with preservatives and pesticides, soil erosion, urban sprawl impacts, rainforest destruction, industrial air, water poisoning, and last but not the least the effect of greenhouse gas. Combating climate change is essential relating to the promotion of sustainable development. COP 21 of UNFCCC has established the Nationally Determined Contributions that bind countries to achieve predefined mitigation and offset targets. The Intergovernmental Panel on Climate Change has noted that yield is generally expected to decline most severely in countries at lower latitudes. Agricultural activities are the most sensitive causes of the changing of climatic conditions. Smallholder farmers from rural areas are considered as the most vulnerable groups towards climate change who use to apply pesticides or chemical fertilizers in their cultivation for commercial benefits and good income especially in the developing countries. The Food and Agricultural Organization (FAO) has also recommended certain steps relating to the reduction of pesticide risks such as minimizing dependency on pesticides in agricultural practices, the need to make sure the proper use of pesticides, and implementation of proper waste management, etc. In this article, the authors have discussed the laws relating to the use of pesticides in India and analyzed the loopholes along with the interrelationships among climate change and horticulture under the umbrella of the United Nations Convention on Climate change. KEYWORDS Horticulture, Use of Pesticides, Environment degradation, Climate change, Legal frameworks “We deserve a safe future. And we demand a safe future. Is that too much to ask?” “Change is coming, whether you like it or not.” “The eyes of all future generations are upon you. And if you choose to fail us, I say- we will never forgive you.” __ Greta Thunberg
INTRODUCTION
A well-favored environment and the human beings have an implicit abstraction from an immemorial period. The existence of human beings is not possible without a natural environment. Since an immemorial period, human beings are dependent on the environment and they have been using the natural resources of the environment for living a comfortable life. Thus, the environment and human beings both are inseparable and interdependent to each other. The environment has a significant impact on civilization. Though there is a harmony between environment and human being and the environment has been providing all those necessities and natural resources which are considered as the need of their daily life to live in a comfortable zone but in this era of civilization as well as globalization people are knowingly or unknowingly destroying the of the environment and its sustainability. There are several causes of declination of the environment such as climate change, industrialization, overpopulation, deforestation, overconsumption, overfishing, war etc. One of the major causes of the degradation of the environment is global warming and rapid climate change. The word climate means circumstances of a particular place or area i.e. the temperature, wind, rainfall etc. It describes the average pattern of weather in a place over years which is a long-run pattern of weather conditions. The term change is considered as a basic characteristic of the environment. Since the glacial period to the present industrialization or urbanization age, the climate has been changing gradually. The root cause of climate change is global warming. It means the increase of Earth’s temperature because of the use of fossil fuels and other processes which are conducted in industries and that lead to greenhouse gas emission in the atmosphere. In the 21st-century climate change is considered as one of the most imperative global challenge. In general meaning, climate change means seasonal changes for a long period because of the increase of additional greenhouse gases in the environment or atmosphere.
The climate of the Earth is charismatic and changing in nature. However, in the contemporary period, the nature of the climate is changing too rapidly mainly due to human activities. Moreover, another important cause of climate change is natural calamities too. In the 19th century, the development of industrialization and urbanization by human beings has been started uses of fossil fuels for their benefits. The development of industrialization has created jobs for needy people and due to this reason people use to move from rural areas to urban areas to achieve a minimum standard of comfortable life and this reflects on the concept of urbanization. The lands which were used for vegetation before, now it has cleared to build industries, transport, consumption, etc. People use to exploit natural resources by constructing industries, transport, consumption, etc. The need for material essentials o human being leads to negligence regarding environmental awareness and it has increased several effects on the environment as well as climate such as pollution, waste, extinction of biodiversity.
Since an ancient period agriculture is deemed as the backbone of human civilization along with development. Agriculture is the largest and the oldest industry in the world which can be changed rapidly with an exciting and new outcome.[1] Agriculture is a broad concept that consists of several branches. The branches of agriculture are mainly classified into three categories as Aeroponic, Geoponic, and Hydroponic (including marine culture). One of the major branches of agriculture is horticulture. Horticulture is found to deal with the cultivation of fruits, vegetables, and ornamental crops. The term ‘Horticulture’ is derived from the Latin words ‘Hortus’ which means garden and ‘colere’ which means to cultivate.[2] In a general meaning the horticulture covers various forms of garden management. Horticulture is a culture of gardening which is a part of agriculture that includes agronomy and forestry. The horticultural food crops are consisting of a massive collection of species that are classified or grouped in different methods. The fruit crops can be identified based on their required temperature and therefore they can be defined as temperate, subtropical, and tropical. Temperate fruits are those fruits that drop their leaves in the cold season. However, the subtropical fruits are required a chilling period in case of their growth. Moreover, the tropical fruits are exceptionally cold-sensitive and evergreen. There are several significant tropical fruits are available such as banana and its plantation, papaya, mango, pineapple etc.[3]
Horticulture is a science as well as an art of producing, using, and improving horticultural crops such as fruits and vegetables, spices and condiments, decorative, plantation, medicinal, and aromatic plants. Along with this, the horticulture industry has created several support or services industries. The horticulture sectors or industries rely on a multitude of chemicals, including fertilizer, pesticides, and growth hormones. These chemicals are known as agro-chemicals. Regarding farm machinery the machinery, instruments are needed for soil preparation, planting, growing, spraying, harvesting, storing, and packaging. Engineers design and build the instruments and equipment needed for comprehensive and intensive horticultural plant manufacturing. [4]The use of pesticides or chemical fertilizer on crops can be considered as one of the major reasons regarding climate change along with the degradation of the environment. The activities related to horticulture contribute to climate change because it is also a source of greenhouse gases i.e. Carbon dioxide (CO2), methane (CH4) ad nitrous oxide (N2O). It is vulnerable to climate change because horticulture relies on acceptable temperature ranges and rainfall patterns to increase plants and livestock. Agriculture along with its all branches is the most essential life-sustaining of all human operations: sharp reductions in all other types of well-being would be survivable for most individuals if only enough food could still be cultivated and circulated.[5]
In the present scenario, the protection and conservation of the environment along with climate change is considered as a global challenge. The major threat to climate change occurs from air pollution, water resources, and soil pollution. It also includes the use of agricultural chemicals in the food chain, groundwater contamination with preservatives and pesticides, soil erosion, urban sprawl impacts, rainforest destruction, industrial air and water poisoning, and last but not least the effect of greenhouse gas. The change of climate due to human interference will cause erratic weather patterns and global warming patterns that will diminish all other problems of general significance to agriculture. However, the growth of a sustainable agroecosystem would certainly assist to minimize the contribution of horticulture to environmental instability.
Combating climate change is essential relating to the promotion of sustainable development. Moreover, the promotion of sustainable development is also essential to sustainable mitigation and adaptation of climate change. The problem of climate change is worldwide and a long term issue. It includes complicated interaction between climate, social, economic, environmental, technological, political, and institutional procedures. Agriculture’s capacity to adapt and deal with climate change relies on variables such as population development, poverty and starvation, arable and water resources, farming technology, and access to inputs. The livelihoods of people and communities are extremely dependent on these variables, and the developing countries, especially the least developed countries, are most susceptible. As the consequences of the dependence, developing countries are less willing to adapt and are vulnerable to climate change harm just as they are susceptible to other social, economic, and environmental pressures. Agriculture along with its other branches is one of the major environmental vulnerabilities towards climate change and also concerns the management of natural resources such as soil degradation, deforestation, water scarcity, and a threat to biodiversity.
As per the international perspective, there are certainly positive steps have been taken to address the impact of climate change. COP 21 of UNFCCC has established the Nationally Determined Contributions (NDCs) that bind countries to achieve predefined mitigation and offset targets. The projects regarding funding for climate adaptation and mitigation have been established through certain mechanisms such as the Green Climate Fund (GCF) to support countries in reaching their NDCs. [6]Agriculture is considered one of the most vulnerable sectors towards climate change. At the international level, the Intergovernmental Panel on Climate Change (IPCC) has noted that yield is generally expected to decline most severely in countries at lower latitudes.[7]Agricultural activities are the most sensitive causes of the changing of climatic conditions. Small landholder farmers from rural areas are considered as the most vulnerable groups towards climate change who use to apply pesticides or chemical fertilizer in their cultivation for commercial benefits and good income, especially in the developing countries.
To make clear about the issue of horticulture vulnerabilities towards climate change we can take an example of one of the major horticulture crops Banana who has a worldwide demand. The use of pesticides to control pests and diseases is extensive in banana plantations, especially in those producing for export throughout the year. Banana crops are particularly vulnerable to infestation as most of them are grown in tropical regions or favoring pest conditions. The chemical fertilizers or pesticides are used only to control various banana pests and diseases such as Panama including black Sigatoka which can reduce the yield of banana plantations.[8] Improper or excessive use of pesticides or chemical fertilizers is vulnerable towards the following:
· It causes damage to the health of workers who are engaged in cultivation.
· It can cause acute poisoning to public health.
· It can cause environmental harm including soil and water contamination along with biodiversity and wildlife.
· Reduction of yields.
· It can reduce or affect the production costs as well as export potential.
These impacts are increasingly reflected in market demands relating to pesticide use. There is a need for change for the producers regarding their production and trading systems, updating their technical knowledge and at the same time maintains the economic viability of banana farms. Therefore it is necessary to reduce the use of pesticides and to make sure their management sound and reduces social as well as environmental risks.
Moreover, the Food and Agricultural Organization (FAO) has recommended certain steps relating to the reduction of pesticides risks such as minimizing dependency on pesticides regarding agricultural practices, need make sure the proper use of pesticides and implementation of proper waste management etc. the FAO has defined Integrated Pest Management (IPM) as “the careful consideration of all available pest control techniques and subsequent integration of appropriate measures that discourage the development of pest populations and keep pesticides and other interventions to levels that are economically justified and reduce minimize risk to human health and the environment. IPM emphasizes the growth of healthy crop with the least possible disruption to agro-ecosystems and encourages natural pest control mechanism”.[9]
The use of pesticides in agricultural activities has a huge impact on the environment. The use of pesticides can pollute soil, water, turf, and other vegetation. Moreover, with regards to killing insects or pests and weeds pesticides may be toxic to other organisms or living creatures such as birds, fish, beneficial insects, and non-target plants of the entire biodiversity.[10]
LEGAL FRAMEWORK
In the pre-constitutional era in India, there was no legislation or provisions regarding the protection of the environment. However, from an international perspective, the United Nations Organizations have taken certain measures and initiatives towards the protection of the environment. The Stockholm Conference on Human Environment 1972 and the Earth Summit held at Rio De Janerio has mentioned the attempt to make the global community aware of environmental matters and make them responsible for the protection of the environment.
INTERNATIONAL LEGAL FRAMEWORK
United Nations Framework Convention on Climate Change, 1992
The term climate change which is caused by emissions of greenhouse has presented an international perspective in the year 1992 at the United Nations Framework Convention on Climate Change shortly known as UNFCCC. As mentioned above climate change is a sensitive result of human activities that are directly or indirectly harming the entire environment. Before it comes to focus at UNFCCC, in the year 1990 Assessment Report, the Intergovernmental Panel on Climate Change (IPCC) illustrated the issue of climate change in the international platform. In the Assessment report, it was reported that the emissions from greenhouse gases gradually increasing and it was causing the extensive Earth’s temperature beyond its natural occurrence. There are six major greenhouse gases with the most significant provider being carbon dioxide which are driving or leading climate change of the Earth such as Methane, Nitrous oxide, Hydrofluorocarbon (HFC-23), Hydrodluorocarbon (HFC-134a), and Sulfur Hexafluoride (SF6).
In the year 1992, there were quite a lot of principles presented by the UNFCCC regarding addressing the issue of climate change and the concept that the countries which are developed had a huge contribution to global warming should take the duty to decrease the effects of climate change which is commonly known as common but differentiated responsibilities in short CBDR. However, the parties which were signed to UNFCCC give support to the concept of adaptation of climate change, adequate measures of climate change, and developing the greenhouse gas emissions creators though these were not binding under legal examination.[11]
Kyoto Protocol 1997:
After 1992, in the year 1997, the Kyoto Protocol was signed in December. In that year the Kyoto Protocol and UNFCCC established a necessary commitment with 37 industrialized nations and European countries that there is a need of reducing greenhouse gas emissions to an average of 5%. The developed nations accepted the commitment and concurred to complete the target of reducing greenhouse gas emissions. On the other hand, some of the developing or large developing countries like India; China did not give consent or accept the commitment to fulfill the target of reducing greenhouse gas emissions at the initial round of the commitment. In that same year 1997, the senate of the United State decided to refuse any treaty of the nations that opposed to imposing the duties of reducing greenhouse gas emissions on both the developing and developed countries. However, the Protocol was signed by US President Bill Clinton. After that, the Protocol came into force on the 16th of February in the year 2005. After entering into force the Kyoto Protocol placed three types of mechanisms regarding the issue of emissions of greenhouse gas by helping the party countries to achieve the target of reducing the greenhouse gas emissions. Those three mechanisms are emissions trading, clean development mechanism, and lastly joint mechanism.[12]
Paris Agreement 2015:
With 196 parties to the United Nations Framework Conference on climate change (UNFCCC) on 12th of December in the year 2015 adopted the Paris Agreement. The Paris Agreement is a legally binding international legal mechanism to handle the issues of climate change. The Agreement is found to reflect the conclusion of six years of global climate change negotiations under the Convention 1992 (UNFCCC) and was reached under intense global pressure to prevent repeated failure of the Copenhagen Conference in 2009. According to Article 2 of the Paris Agreement is found to describe a universal legal framework for strengthening the worldwide reaction towards the threat of climate change. It is found to set out the duty of all Parties to contribute to climate change mitigation and adaptation. The Paris Agreement is found to emphasize procedure rather than established mitigation objectives. The Agreement does not formulate specific objectives or targets for greenhouse gas emissions like the Kyoto Protocol. Instead of that, the Paris Agreement has focused on voluntary contributions towards mitigation. The implementation of the Paris Agreement is based on the principle of Common but Differentiated Responsibilities (CBDR). It is found to recognize the different starting points and responsibilities of countries. According to the Paris Agreement, the developed countries are responsible to take a lead in case of mitigating climate change and also give support to the actions taken by the developing countries. According to Article 7 of the Agreement is found to create a global goal i.e. adaptation which was not mentioned in previous agreements of UNFCCC. The adaptation aims to enhance adaptive capacity, strengthen flexibility and reduce the vulnerability towards climate change. The Agreement has determined that the developing countries as well as the least developed countries must put more focus on adapting planning and parties to the Agreement should strengthen the cooperation as well as transferring funds.[13]
Koronivia Joint Work on Agriculture (KJWA):
In the year 2017, at 23rd Conference to the Parties (COP23) to the Convention, the countries have acknowledged the basic importance of agriculture with regards to climate change based on the Koronivia Joint Work on Agriculture (KJWA) decision. The work of KJWA is found to address concerns regarding agricultural vulnerabilities towards climate change. It is also found to provide an approach to concentrate on food security along with important issues regarding farmers, gender, youth, local communities as well as indigenous people. The decision of KJWA is found to call for future work to be carried out in cooperation with the Constituted bodies (CB) under the Convention. It is found to provide an opportunity for interconnections and harmonized action within the various bodies. In the year 2011, the plan on agricultural issues was first formalized under the Subsidiary Body for Scientific and Technological Advice in COP17. It was followed by five-session workshops on the status of scientific knowledge on agriculture and climate change. The rich exchanges between countries have covered the system towards KJWA. It is a joint work of 3 years on agriculture between Subsidiary Bodies (SBs) including through workshops, meetings. Therefore, the scope of the conservation extended from a scientific & technical focus to implementation. After the end of three years of the KJWA process in 2020, the SBs shall report to the COP 26 of UNFCCC on the progress achieved and possible outcomes of the discussion. Regarding the report submission, many of the parties already have stated that the three year period anticipate presently may not indicate the KJWA’s end date. However, the SBs may identify further work after the year 2020.[14]
Subsidiary Body for Scientific and Technology Advice (SBSTA):
SBSTA stands for Subsidiary Body for Scientific and Technology Advice. SBSTA is a subsidiary body under the United Nations Framework Conference on Climate Change (UNFCCC). It was established in the year August 1995 at the first conference of the parties (COP) to UNFCCC. It provides timely information and advice on scientific and technological matters relating to the Convention to the COP and as appropriate, to its subsidiary bodies.
The body is found to provide certain guidelines regarding the improvement of national communications and emissions inventories. The role of SBSTA is found defined in Article 9 of UNFCCC. According to Article 9, it is found to provide reviews of scientific knowledge regarding climate change. It prepares scientific reviews based on the effects of measure which was taken during the implementation of the Convention. It is found to identify efficient, innovative technologies and promote development and transferring such technologies. It gives certain advice regarding scientific programs and international cooperation relating to climate change and capacity building. [15]
National Action Plan on Climate Change 2008 (NAPCC):
In the contemporary period, climate change is one of the crucial global challenges. The recent events have vigorously demonstrated growing vulnerability to climate change. The impact of climate will range from affecting agriculture, further endangering food security, to sea-level rise and accelerated coastal erosion, increasing natural disaster intensity and extinction of species. In the year 2008 on 30th June India launched a National Action Plan on Climate Change (NAPCC) to mitigate and adapt to climate change. The Action Plant sets several steps regarding the development of the country and objectives of climate change. The Nation Action Plan on Climate Change (NAPCC) includes a certain measure and focuses on eight missions. One of the missions regarding agriculture is the national mission for sustainable agriculture. The NAPCC relating to this mission aims to support climate adaptation in agricultural sectors through the development of climate-resilient, expansion of weather insurance mechanisms, and agriculture practices. The Government has shown India’s commitment to address the issue of climate change by establishing NAPCC. The NAPCC has addressed a positive message to the public, industries, and civil society about the government’s concern regarding climate change. The issues related to global warming and climate change awareness among the general population and the issue of agricultural and health hazards due to climate change need to be addressed strongly and effectively.[16]
The Constitution of India 1950:
The Constitution of India came into effect on 26th November 1950. Previously, the preamble of the Constitution did not mention about environmental protection. Later on in the year 1976, the 42nd amendment of the Constitution inserted two new Articles related to the environment i.e. Article 48-A and 51-A (g) in the form of Directive Principles of State Policy (DPSP) under Part IV of the Constitution and Fundamental Duties under Part IV- A of the Constitution. Article 48-A of the Constitution of India is found deal “the state shall wildlife of the country”. Article 51-A (g) of the Constitution deals “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures”[17]
Moreover, under Part XXII of the Constitution of India in the 7th Schedule, there are three main lists i.e. Union list, State list, and Concurrent list (Article 246). Article 33 of the Concurrent List of Constitution deals “Trade and commerce in, and the production, supply and distribution of,
a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported good of the same kind as such products;
b) foodstuffs, including edible oilseeds and oils;
c) cattle fodder, including oilcake and other concentrates;
d) raw cotton, whether ginned or unpinned, and cotton seed; and
e) raw jute”[18]
Part III of the Constitution of India is found to deal with Fundamental rights under Article 14-35. There are numerous unnumbered fundamental rights in Part III and judicial activism in India has taken the lead in interpreting multiple unnumbered rights in Part III of the Constitution. Environmental protection is one of them. Article 21 of the Indian constitution ensures that all individuals have a fundamental right to life and personal liberty. Article 21 of the Constitution is the heart of fundamental rights and its meaning has expanded from time to time and there is no justification as to why the right to live in a healthy environment cannot be interpreted in it. Article 21 of the constitution ensures a basic right to life- a life of dignity to be lived in a healthy environment, free from sickness and infections. It is a fact that there is a definite connection between life and the environment.[19] In M.C. Mehta v. Union of India[20], popularly known as the Oleum Gas Leakage case the Supreme Court held that the right to live in a pollution-free environment was a component of the fundamental right to life under Article 21 of the constitution of India.
The Insecticides Act 1968:
In the contemporary period, the environment is polluted by contemporary agricultural activities. The comprehensive and excessive use of agrochemicals such as fertilizers, pesticides, and herbicides, soil conditioners, fumigants, etc. contributes to soil pollution problems that directly or indirectly affect human health and generates ecological imbalance owing to the accumulation of harmful constituent in the soil. Excessive use of these pollutants not only decreases soil fertility by reducing plant nutrients, phosphates, nitrates, and potassium components but also causes water pollution resulting in excessive loss of fish development in aquatic plants. Chemical warfare on pests has, too, back, fired with beneficial pests being wiped out and resurgence of the insect and pest population consequent to their developing resistance to pesticides already in use. Many people died in separate countries as a consequence of food poisoning caused by food contamination with a toxic organo-phosphorous insecticide Parathion. The cases from different parts of India have been reported for which the government of India appointed Enquiry Commission under the Chairmanship of Mr. Justice J.C. Shah to enquire reporting on the conditions in which foodstuffs have been contaminated and the measures to be taken against comparable occurrence in the future. The Government approved the suggestions of the commissions of inquiry. The Government then named the Inter-Ministerial Committee to propose steps to implement the Committee’s suggestions. The Inter-Ministerial Committee proposed certain long term and short term measures. The long-term steps were to formulate legislation regulating the production, sale, storage, transport, distribution, and use of insecticides including pesticides, herbicides, or fungicides in the nation. contamination of wheat flour with “trio-ortho-cresyl phosphate’ resulted from poisoning in 1958 in West Bengal Assam contamination of rice stored in bags allegedly sprayed with 5% Benzene hexachloride causing food poisoning. In the light of the knowledge acquired in implementing the Act, it is suggested that the membership of the Central Insecticide Board be extended to include individuals connected with animal husbandry, fisheries, fauna, and ecology, chemicals, air and water pollution.[21]
Section 16 of the Act is found to deal with Central Insecticides Laboratory. By notification in the Official Gazette, the Central Government may create a Central Insecticides Laboratory under the control of a Director appointed by the Central Government to carry out the tasks referred to it by or under this act:
Provided that, if the central Government so directs by notification in the Official Gazette, the functions of the Central Insecticides Laboratory shall, to the extent specified in the notification, be exercised in any institution specified therein and, accordingly, the functions of the Director of the Central Insecticides Laboratory shall be exercised to the extent specified.[22]
Section 18 of the Insecticides Act 1968 is found to deal with the prohibition of sale, etc, of certain insecticides. No individual shall sell, inventory, or display for sale, distribute such as transport, use or cause to be used by any employee on his behalf or by any individual:
· any insecticides not registered under this Act
· any insecticide that is forbidden for purchase, distribution, or use under Section 27 of this Act
· any insecticide that contravenes any other provision of this Act or any rule produced under it
No person shall, on behalf of him or her, sell, inventory, or display for sale or distribute or use for commercial post control activities any insecticide except under, and following, the conditions of license provided for that purpose under this Act.[23]
Section 27 of the Insecticides Act 1968 is found to deal with the prohibition of the sale of insecticides for public safety etc. If, for reasons to be recorded in writing, the Central Government or the Government of the State does not receive a report under section 26 otherwise, it is of the view that the use of any insecticide stipulated in sub-clause iii of Cause (e) of section 3 or any particular event thereof is likely to pose such a danger to human or animals. To make expedient or necessary to take immediate action, the Government may, by notification in the Official Gazette, prohibit the sale, distribution, or use of the insecticide or batch in that area, to the extent and for the period not more than 60 days specified in the notification pending investigation into the matter.
If the investigation is not completed within that period, the Central Government or the State Government of the State may, as the case may be, extend it by not more than 30 days in the aggregate as may be specified in the same manner.
Where, as a consequence of its inquiry or the receipt of a report from the State Government and after consolation with the Registration Committee, the Central Government is satisfied that the use of the said insecticide or batch is not likely to cause such risk, it may pass such order, including an order refusing to register an insecticide or canceling a certificate of registration, as it deems appropriate, depending on the conditions of the situation. [24]
Section 29 of the Insecticides Act 1968 is found to provide provisions for offenses and punishment. This section of the Act states that:
Whoever,
· Imports, manufactures, sells, stocks or displays for sale or distributes any insecticide considered to be misbranded under sub-clause (i) or sub-clause (iii) of sub-clause (viii) of clause (k) of section 3 of the Act
· Imports or manufactures any insecticide without a certificate of registration
· Manufactures, sells, stocks, or displays for sale or distributes an insecticide without a license
· Sell or distribute an insecticide in contravention of Section 27
· Cause an insecticide which has been forbidden under Section 27 to be used by any employee
· Obstruct an insecticide inspector in the exercise of his or her powers or performance of his or her responsibilities under the Act or the guidelines laid down therein will be punishable:
Ø For the first offense, with imprisonment for a term which may extend to 2 years or with a fine which cannot be less than 10 thousand but can be extended to 50,000 rupees or both
Ø For the second and subsequent offenses, imprisonment for a term which can be extended to 3 years or with a fine or with a fine which cannot be less than 15,000 rupees but which can be extended to 75,000 rupees or both.
· Any person who utilizes an insecticide in contravention of any provision of this Act or any provision created under it shall be punished with a fine which cannot be less than five hundred rupees but which may extend to 5,000 rupees or imprisonment for a term which can be extended to six months or with fine
· Anyone who contravenes any of the other provisions of this Act or any rule made under it or any condition of a certificate of registration or license granted under it shall be punishable
Ø For the first offense, imprisonment for a term which may extend to one year or fine not less than 5,000 rupees but which can be extended to 25,000 rupees or both
Ø For a second and subsequent offense, imprisonment for a term up to 2 years or fine which cannot be less than 10,000 rupees but which can be extended to 50,000 rupees or both
· If any person convicted of an offense under this Act subsequently commits a similar offense, it shall be lawful for the court before which the second or subsequent conviction takes place to cause the name and place of residence of the offender, the offense, and the penalty imposed to be published in such newspapers or such other manner as the court may direct.[25]
The Insecticides Rules 1971:
The Central Government has made Insecticides Rules with the consultation of the Central Insecticides Board under Section 36 of the Insecticides Act 1968 by conferred the exercise of power. The Rules came into force on the 16th of October in the year 1971. The Rules consist of eight chapters. Rule 3 of the Insecticides Rules 1971 is found to provide that the Central Insecticides Board shall have the function to advise the Central government regarding the manufacture of insecticides under the Industries (Development and Regulation) Act 1951. According to Rule 3, the Board has the function to classify uses insecticides based on their toxicity. Rule 5 of the Rules is found to deal with the functions of the laboratory. The laboratory shall have the function to analyze a sample of insecticides that are sent under the Insecticides Act. The laboratory shall have the function to investigate to ensure the conditions relating to insecticide registration. The laboratory will have the function to determine the efficacy and toxicity of the insecticides. Rule 9 of the Rules is found to provide provision for license relating to the manufacture of insecticides. Rule 10 deals with licenses for the sale of insecticides. Rule 10 A is found to deal with the disposal and segregation of expired pesticides. Rule 10C of the Rules 1971 is found to provide prohibition of selling insecticides in some specific places.[26]
The Insecticides (Amendment) Act 2000:
The Insecticides (Amendment) Act of the Parliament obtained the approval of the President on the 5th of August in the year 2000 and is hereby published for general data. This is an Act to amend the Insecticides Act, 1968. In this Amendment Act, the amendment of section 27: the words, brackets, and numbers sub-clause iii of shall be omitted in sub-section 1 of Section 27 of the Principal Act.
According to section 29 of the principal Act,
a. “In sub-section (1), for the portion beginning with the words "shall be punishable-" and ending with the words "three years, or with fine, or with both", the following shall be substituted, namely:-
Shall be punishable:
· for the first offense, with imprisonment for a term which may extend to two years, or with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees, or with both;
· for the second and a subsequent offense, with imprisonment for a term which may extend to three years, or with fine which shall not be less than fifteen thousand rupees, or with both";
b. In sub-section(2), for the words "which may extend to five hundred rupees", the words "which shall not be less than five hundred rupees but which may extend to five thousand rupees, or imprisonment for a term which may extend to six months, or with both" shall be substituted;
c. In sub-section(3)-
· in clause (i), for the words "six months, or with fine, or with both”, the words "once a year, or with fine which shall not be less than five thousand rupees but which may extend to twenty-five thousand rupees, or with both" shall be substituted.
· In clause (ii), for the words "one year, or with fine, or with both", the words "two years, or with fine which shall not be less than ten thousand rupees but which extend to fifty thousand rupees, or with both" shall be substituted.”[27]
The Essential Commodities Act 1955:
The Essential Commodities Act was passed by the Parliament of India to make sure the delivery of commodities or products and the supply of products, if barricaded by hoarding, black marketing that would affect the usual life of people. Since it has been used by the Government to control the manufacturing, supply, and distribution of a whole host of commodities it declares it vital to make them accessible to customers at reasonable rates. Various items are included in the list of the ECA Act. Those are drugs, fertilizers or pesticides, pulses and edible oils, and petroleum and petroleum products. The Centre has the power to include new commodities and also take them off from the list when the need for this arises.
The Act was enacted in the year 1955. The Act received the assent of the President on the 1st of April in the year 1955. Section 2 of the ECA Act has defied and set out a list consisting of commodities which is known as Essential Commodities. It has also described certain other terms used in the Act. According to section 3 of the ECA act the Central Government to regulate the manufacturing, supply, and distribution of vital commodities. In the same way, the Central Government is found to exercise certain powers concerning the list of issues given under the same section. Section 3(4) of the Act is found to provide that the Central Government has the power to make an order to maintain or increase the production and supply of vital commodities. This section is found to empower the Central Government to authorize an individual named Controlled to practice such control function and all other tasks as given under the list of issues referred to in this above-mentioned section. According to section 6 of the Act is found to offer a procedure for seizure of any commodities. In such case the good to be generated within a reasonable period before the District Collector. The most significant section of the Act regarding the penalty is Section 7 which provides punishment with both imprisonment and fine.
The ECA was amended in the year 2009 as the Essential Commodities (Amendment and Validation) Act. It was implemented to amend the initial Act and to provide certain significant issues not proven by the Principal Act.[28]
The Fertilizer (Control) Order 1985:
The Fertilizer (control) order 1985 was administered by the Department of Agriculture Cooperation. The Government of India has issued the Fertilizer (control) order 1985 under the Essential Commodities Act, 1955 (ECA). The Fertilizer (control) order 1985 sets down which substances quality for use in soil as fertilizers, product requirements, techniques for sampling and evaluation of fertilizers, procedure for acquiring license or registration as a manufacturer or dealer in fertilizers, and requirements to be fulfilled for trading in fertilizers, etc.[29]
The Fertilizer (Control) Order, FCO was issued in 1985 to regulate the trade, price, quality control, and distribution of fertilizers under section 3 of the Essential Commodities Act (ECA). According to clause 19 of the FCO, it is said that no person shall on his or her behalf manufacture or import for sale, sell offer for sale, stock or display for sale, or distribute any fertilizer which is not of the standard which is prescribed in the FCO.[30]Clause 25 of the FCO is found to deal with restrictions on the use of fertilizer and sale of fertilizer. Clause 25 of the order states that no individual shall sell or use fertilizer for purposes other than soil fertilizer and improving crop productivity, except with the previous consent of the Central Government and subject to such terms and conditions as may be provided by such Government.[31] The samples of fertilizers are taken periodically by state Government fertilizer inspectors to verify their quality following the parameters prescribed in the FCO. In the event of imported fertilizers, Central Government fertilizer inspectors take samples from containers. The State Governments are also empowered to take suitable administrative and legal action against those who do not comply with the provisions of the order under the FCO.[32]
The Destructive Insects and Pests Act 1914:
The Destructive Insects and Pests Act received the assent of the Governor-General of India on 3rd February in the year 1914. The Act is found to extend the whole of India. Section 2 of the Destructive Insects and Pests Act is found to provide certain definitions of crops, import, and infection. The definition of crops includes all crops, trees, or plants of agriculture and horticulture. The term import means the transportation by sea, land or air, across any customs frontier established by the Central Government. Infection stands for infection from any insect or fungus or other pests to a crop. Section 3 of the Act is found to provide that the Central Government shall have the power by notification in the Gazette of India to prohibit or regulate the import of articles that can cause infection.
Section 4 clause (a) of the Act is found to provide that by notification in official gazette, the Central Government may ban or restrict or prohibit and may control the export from a State or the transport from one State to another in India of any article or class of items that can cause infection of any plant or insect in general or any class of insects, subject to circumstances imposed by the Central Government.
Section 4 sub-clause (d) of the Act is found to provide that the Central Government shall have the power to make rules by notification in the official gazette prescribing the nature of the documents accompanying any articles or insect, the export or transportation of which is subject to the conditions laid down in Section 4A or held by the consignor or consignee thereof, the authorities which may issue such records and how the papers used provided that the said notice is put on the table of both chambers of the Parliament as quickly as possible.
Section 5 clause (a) of the Act is found to provide penalties. According to the section, any individual who knowingly imports an article or insect from a state or carries any article or insect from one state to another state within the territory of India in breach of a notice which is given under section 4(a) or any attempt to export or transport of any item or insect and any individual responsible for booking products or parcels at a railway or domestic steam vessel station who knowingly breaches the requirements of section 4(b) will liable for punishment with fine which may extend to 250 rupees and any succeeding conviction with a fine which may extend to 2000 rupees.[33]
The Indian Council of Agricultural Research (ICAR) 1929:
The Indian Council of Agricultural Research was established on the 16th of July in the year 1929. The ICAR is an independent organization under the Agricultural Research and Education Department, Ministry of Agriculture, Government of India. It is previously known as the Imperial Council of Agricultural Research. The headquarters of the ICAR is situated in New Delhi.
The Council is called the apex body for organizing, guiding, or managing agricultural research and education across the nation which also includes horticulture, fisheries along with animal science. It is one of the world’s biggest domestic agricultural systems consist of 97 ICAR institutes and 45 agricultural universities.[34] The ICAR plays a significant role in encouraging excellence in agricultural higher education. It is involved in cutting edge areas of science and technology developments and its researchers are globally recognized in their fields.
The 29th Report Standing Committee on Agriculture (2015-16):
Agriculture has been the pillar of human culture since its creation. Domestication of wild crops after the start of agriculture resulted in surplus food grain production, which in turn backed more individuals in society. The innovation in fresh forms of food production in agriculture was innovative, as it enabled fewer individuals to engage in food production. The use of chemical fertilizers or pesticides in agricultural productivity is also a revolution in the agricultural field by which we can increase the productivity of agriculture along with its branches worldwide to the point that satisfies the need for an ever-increasing population of the world. The nation is endowed with varied agro-climatic resources with huge potential for the wealthy harvesting of agricultural produce. The report has discussed improper fertilizer use and a decline in crop productivity. The use of fertilizer or pesticides in agriculture needs a scientific strategy and its implementation should be based on scientific soil testing. Only particular fertilizer should be used in the field to increase soil nutrients that are lacking or deficient. However, fertilizer use is hardly scientific in our country and it is achieved without understanding the soil requirement based on scientific soil testing. Also, the indiscrimination use of Urea is due to the Government’s subsidy policy. However, multi-nutrient deficiencies in Indian soils have resulted from over-reliance on urea and inappropriate nutrient management. In its background note, the Department of Agricultural Research and Education presented to the Committee that in the early 1960s when fertilizer reactive varieties were implemented in India, the most favorable yield could be achieved by applying nitrogen fertilizers alone. Appropriate use of soil-based fertilizers would have helped Indian Agriculture produce abundant crops without related adverse impacts. However, the lack of soil testing facilities and attempts to educate farmers, the indiscriminate use of nitrogen fertilizers has resulted in numerous issues influencing soil health and the general environment.
These are various relevant legal frameworks and policies relating to the use of pesticides and international frameworks regarding climate change.
Chemical fertilizer or pesticides are thought necessary for horticulture activities but it is directly or indirectly can cause climate change or vulnerability to the environment. The Central Government have implemented certain legal frameworks or mechanism relating to the use of pesticides or insecticides. With regards to the legal frameworks, the use of pesticides on banana cultivation or other cultivation is legally permissible. However, the use of pesticides is permissible under certain exceptions and there is a prescribed proportion or ratio regarding the use of pesticides. Moreover, according to Insecticides Rules 1971, certain provisions have emphasized on the manufacture of insecticides, sale of insecticides, restrictions on using insecticides in cultivation. Therefore, the use of chemical fertilizers or pesticides can be considered permissible by the legislation. However, the Central Government along with the Ministry of Agriculture and Farmers welfare have imposed or implemented certain legislations that have provided provisions relating to restrictions on the use of pesticides or the sale or manufacture of pesticides. Moreover, the 29th Report Standing Committee on Agriculture (2015-16) has provided a proportion or ratio of the use of pesticides on cultivation. The proportion or ratio is prescribed differently for different states. Also, the Report has talked about testing of soil in laboratory and soil health card for the welfare of farmers along with the concern towards the environment climate. However, regarding soil quality, this report has not mentioned any criteria for the State of Assam. Froman international perspective, the United Nations Framework Conference on Climate Change 1992 has taken certain steps concerning the global climate challenge. Under UNFCCC there are certain legal mechanisms are available relating to climate change and its protection from agricultural vulnerabilities. Though the Central Government as well as United Nations have imposed or implemented legal mechanisms regarding climate change and the use of pesticides on cultivation but it is not sufficient enough to combat climate challenges in the contemporary period.
CONCLUSION
In the conclusion, the authors would like to suggest that the first and foremost obligation of human beings is to respect and protect our Mother Nature. It is not only the duty of the Government or any other international organizations to give protection or take remedial measures such as mitigation and adaption but the human being mainly must take care of the environment and take such steps that cannot harm or vulnerable towards the environment along with climate change while doing any activities for their benefits. Moreover, it is obvious that for the development of human beings there is a need for industrialization for economic growth, modernization for educational as well as mental growth but while doing such developments human beings should keep in mind that the environment should not be harmed by such activities. In such cases, human beings should do these activities in a sustainable manner which can give protection to the environment as well as climate change and also preserve the environment for present as well as future generations.
[1] ENVIS Centre: Assam status of Environment and Issues. Agriculture in Assam, (Oct. 2020, 09, 01:00 PM), http://asmenvis.nic.in/Database/Agriculture_839.aspx [2] Ibid. [3] Ibid. [4] Introduction to horticulture, NCERT. [5] Ibid. [6] Louis Parker ,Clement Bourgoin, Armando Martinez-Valle, Peter Läderach, Vulnerability of the agricultural sector to climate change: The development of a pan-tropical Climate Risk Vulnerability Assessment to inform sub-national decision makin, Plos One 27th March 2019, (Oct. 2020, 12, 08:12 PM), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0213641. [7] Id. [8] World Banana Forum, Pesticide Management in the banana industry, Food and Agricultural Organization of the United Nations, (Oct. 2020, 15, 02:34 PM), http://www.fao.org/world-banana-forum/projects/good-practices/pesticide-management/en/ [9] Ibid. [10] Md. Wasim Aktar, Dwaipayan Sengupta et.al., Impact of pesticides use in agriculture: benefits and hazardous, IT, 2009 March, (Oct. 2020, 15, 07:38 PM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2984095/. [11] Science Daily, United Nations Framework on Climate Change, (Oct. 2020, 18, 06:27 PM), https://www.sciencedaily.com/terms/united_nations_framework_convention_on_climate_change.htm. [12] Summary sheet, Kyoto Protocol, International Institute of Refrigeration, (Oct. 2020, 18, 07:12 PM), http://www.iifiir.org/userfiles/file/webfiles/regulation_files/Kyoto_EN.pdf. [13] The Paris Agreement Summary, Climate focus Client Brief on the Paris Agreement III, 28th December 2015, Climate Focus, (Oct. 2020, 22, 09:00 PM), https://www.climatefocus.com/sites/default/files/20151228%20COP%2021%20briefing%20FIN.pdf. [14] Paper review Koronivia Joint work on Agriculture: summary of submission on topics 2(B) and 2(C), Food and Agriculture Organization of the United Nations, (Oct. 2020, 23. 05:12 PM), http://www.fao.org/3/ca5064en/CA5064EN.pdf. [15] Subsidiary Body for Scientific and Technology Advice of the UN Framework Convention on Climate Change, United Nations System-Wide Earthwatch,(Oct. 2020, 23, 08:45 PM), https://www.un.org/earthwatch/about/docs/scpFCCC.htm. [16] Harshal T. Pandve, India’s National Action Plan on Climate Change. IJOEM 2009 April, (Oct. 2020, 25, 08:22 PM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2822162/. [17] A.K. Tiwari, Environment Laws In India, Deep & Deep Publications Pvt. Ltd. [18] P.M. Bakshi, The Constitution Of India, Universal Law Publishing Co. (11th edin.). [19] P Leelakrishnan, Environmental Law In India, LexisNexis, (3rd edin., 2018). [20] M.C. Mehta v. Union of India AIR 1987 SC 982. [21] Gurdip Singh, Environmental Law, Eastern Book Company (2nd edin.). [22] Ibid. [23] Ibid. [24] Id. [25] Id. [26] Insecticides Rules, 1971, Pesticides & Law Regulation of Crop Health and Plant Protection Products in India, (Oct. 2020, 26, 07:35 PM), https://www.pesticidelaw.in/acts-rules/insecticides-rules-1971/. [27] The Insecticides (Amendment) Act , 2000, (No. 23, Acts of Parliament 2000). [28] The Essential Commodities Act 1955, (No. 10, Acts of Parliament 1955), Lawyerslaw.org All About Law, February 15, 2015, (Oct. 2020, 29. 05:34 PM), https://lawyerslaw.org/the-essential-commodities-act-1955/. [29] Government of India Department of Fertilizers, What is Fertilizer Control order, (Oct. 2020, 29, 09:22 PM), http://fert.nic.in/what-fertilizer-control-order. [30] Id. [31] Ministry of Agriculture and Rural Development (Department of Agriculture and Cooperation) New Delhi, dated 25th September 1985 The Fertiliser (Control) Order 1985,( Oct. 2020, 30, 08:43 PM), http://krishi.bih.nic.in/Acts-Rules/Fert_Order_1985.pdf. [32] Ibid. [33] The Destructive Insects and Pests Act 1914, (No II, Act of Parliament 1914), (Oct. 2020, 30, 05:10 PM), http://plantquarantineindia.nic.in/PQISPub/docfiles/dip_act.htm. [34] India Council of Agricultural Research, Omics International, (Oct. 2020, 30, 07:15 PM), https://www.omicsonline.org/universities/Indian_Council_of_Agricultural_Research/.