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Supreme Court’s Reminder: The State Is a Trustee of Natural Resources

Supreme Court’s Reminder: The State Is a Trustee of Natural Resources

Supreme Court of India. Photo: Flickr, CC BY 2.0

  • In a recent judgement, the Supreme Court directed states to set up eco-sensitive zones at least 1 km wide around all protected areas in their territories.
  • The verdict is a reminder – and vindication for those who have been demanding it in lower courts – that states aren’t doing any good by setting up zones only a few metres wide.
  • The compliance responsibility rests with state home secretaries – perhaps the first time they have been responsible for implementing a requirement of environment law.
  • There is also a misconception that declaring an ESZ will curtail the livelihood rights of local communities, but nothing could be farther from the truth.

Last week, citizens groups around the Deepor Beel wetland in Assam protested against the state government’s failure to declare eco-sensitive zones (ESZs) around the Deepor Beel Wildlife Sanctuary.

They are not alone: for the last eight years, the Lepcha tribe of Sikkim has been litigating at the National Green Tribunal and the Supreme Court, saying that the 25-m-wide ESZ around all protected areas in Sikkim is unrealistic and won’t serve any ecological purpose. Their alternative demand is simple: expand the area of ESZs around all protected areas.

In South India, specifically in Hyderabad, concerned citizens have similarly challenged a state government decision to declare only a 7-m-wide ESZ around the K.B.R. National Park.

For the Lepcha and for everyone else, a recent Supreme Court judgement stipulating ESZs at least 1 km wide around all national parks and sanctuaries (collected under the term ‘protected areas’) is a vindication of their point that declaring ESZs a few metres wide are just meaningless.

The court is right: if ESZs are to perform the function they are meant for – to prevent ‘shocks’ from affecting protected areas – they can’t possibly be a few metres wide.

India has 680 national parks and sanctuaries, so it is imperative to understand the implication of the Supreme Court’s direction.

T.N. Godavarman Thirumalpad

On June 3, a bench of the Supreme Court read its verdict in the matter of T.N. Godavarman Thirumulpad v. Union of India – incidentally, the longest ongoing forest-related litigation in the world.

The case was originally filed in 1995 on a limited issue with regard to forest in Nilgiris in Tamil Nadu. It has since been expanded over the decades to include a range of forest- and wildlife-related issues across the length and breadth of the country.

Litigation in the matter has triggered fundamental changes in law and forest governance, and the case remains a classic example of a so-called continuing mandamus – in which the apex court not only passes directions but oversees their implementation as well. Given the complexity of the subject, the court also constituted a specialised body – called the Central Empowered Committee – to provide expert advice.

The subject of ESZs is one of many issues that the court has adjudicated on in T.N. Godavarman Thirumalpad.

Writing for the bench, Justice Aniruddha Bose directed every state government to declare ESZs at least 1 km wide within a period of three months. This was much needed given the states’ inaction to declare wider ESZs across protected areas – thus allowing ecological damage in the name of development stopping inches from the area boundary.

Indeed, today, protected areas have become islands surrounded by a sea of construction activity, for hotels, resorts, shops, residential complexes, roads, factories, colleges, aquaculture farms, etc. With such deleterious (to ecology) activity pressing on them from all sides, protected areas can’t maintain ecological connectivity.

In instances in which states have declared ESZs, the zones have been a mockery of the purpose and role of ESZs. When a few kilometres were warranted, some states conceded only a few metres – a sign that bare-minimum legal compliance was deemed sufficient and that ‘protecting the environment’ was too much.

There is a general misconception, fanned by the proponents of development projects, that declaring an ESZ will curtail the livelihood rights of local communities. Nothing could be farther from the truth. ESZs don’t affect livelihood or property rights. If there is a piece of land that already has a building, and if the land is reclassified as an ESZ, the building won’t have to be demolished.

Instead, ESZs are essentially transition zones between areas of high protection and areas of lower protection. The Union environment ministry issued a detailed set of guidelines in 2011 to help state governments declare ESZs. It includes a detailed inventory of existing rights, privileges and resource-use by local communities.

The ministry has classified activities within ESZs as ‘permissible’, ‘regulated’ and ‘prohibited’. Of these, only highly destructive and polluting activities such as mining and manufacturing facilities are listed as being ‘prohibited’. There are no restrictions on farming, rearing livestock, grazing, operation of schools, construction of homes, among other things.

The guidelines also clearly require each state government to send a “strong message to the public that the ESZ are not to hamper their day to day activities”. But misconceptions of ESZs continue to persist in the popular imagination.

It is against this background that the Supreme Court’s direction to have ESZs be at least 1 km wide must be addressed. As Justice Bose’s observation about the role of the state in matters concerning the environment, which both state and the national governments need to take seriously, goes:

The role of the state cannot be confined to that of a facilitator or generator of economic activities for immediate upliftment of the fortune of the state. The state also has to act as a trustee for the benefit of the general public in relation to the natural resources so that sustainable development can be achieved in the long term. Such a role of the state is more relevant today, than, possibly, at any point of time in history with the threat of climate catastrophe … looming large.

Of course, no judgement is without its flaws – and arguably the single most problematic part of the judgement in T.N. Godavarman Thirumalpad is the fact that, after having said that ESZs should be 1 km wide at a minimum, the court added the requirement could be diluted if there is “overwhelming public interest”. This part is partly questionable because ESZs – to quote the guidelines – don’t hamper people’s day to day activities.

This said, in letter and in spirit, the judgement is clear that the Supreme Court was cognisant of the existence of protected areas whose borders are already adjacent to already-built-up areas, including urban and industrial complexes, and in such cases it will thus be impossible to declare a 1-km-wide as ESZ. There are many examples of such cases, including the Guindy National Park in Chennai, the Sanjay Gandhi National Park in Mumbai, the Asola Sanctuary in Delhi and the Dalma Wildlife Sanctuary in Jharkhand.

Finally, the judgement also bears the imprints of a belief that India’s protected areas today face threats both from within and without, as well as that ecological security is as important as national security. Specifically, the apex court has foisted the responsibility to ensure compliance with its order on the state home secretaries, along with the principal chief conservator of forests. It is perhaps the first time the home secretary has been responsible for implementing a requirement of environment law.

The coming few months will show how serious the state governments really are about ensuring the ecological security of the nation and preventing environmental catastrophe.

Ritwick Dutta is an environmental lawyer.

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