Legal imprints

Riverbed mining continues unabated in the country despite directions of the courts and repeated assurances from State governments.

Heavy equipment being used to mine sand from the Tamiraparani river at Thonithurai near Palayamkottai.

IT was a little over three years ago that the Supreme Court of systematically recorded how India’s rivers and its riparian ecology had been severely affected owing to the “alarming rate of unrestricted sand mining”. The court’s order, issued on February 27, 2012, clearly recognised that while small-scale mining of minor minerals from riverbeds was an important economic activity, excessive in-stream sand and gravel mining had caused the degradation of rivers, leading to environmental impacts. This is extrapolated from the fact that there is an increased demand for sand in the building and construction sector as it continues to expand.

This issue is just as relevant today as regular reports on the implications of illegal sand mining across the country show. The Ministry of Environment, Forests and Climate Change (MoEFCC) has announced that it will soon introduce a new policy on “sustainable” sand mining. At the same time, the National Green Tribunal (NGT) continues to hear applications relating to this issue and is awaiting remedial action from various State governments. On the one hand, this is a clear acknowledgement that sand mining remains an important environmental, legal and regulatory issue to be dealt with. And, on the other, it throws up deeper questions on whether new or existing policies, laws and judicial directions are enough to remedy the problems arising out of this sector.

impacts of riverbed mining Riverbed mining in India is carried out for a variety of purposes—for boulders, fine sand, clay and minor minerals like silica, and so on. While the extraction of sand and gravel from riverbeds has been carried out for generations, truckloads of materials have been extracted with the upscaling of the construction and real estate sector in the country. Sand is an important ingredient in the making of concrete, which is the mainstay of the construction industry.

The scale at which these operations are carried out reveals that riverbed mining is no longer only for floodplain management or use of materials for household purposes. Such extraction is not devoid of its environmental impacts. It is known to cause erosion of the riverbeds and often leaves river-plains increasingly vulnerable to flooding, with the loose landmass being swept away, especially during the monsoons. It is also stated to have salinity intrusion into rivers, damaging the riverine ecosystem.

The order in Deepak Kumar vs State of Haryana (2012) 4 SCC 629 made detailed observations on how sand mining was damaging the entire river ecosystem, including fish-breeding areas, affecting the conservation of bird habitats and increasing salinity in the rivers. The order said it also affected the safety of bridges and weakened riverbeds.

According to the Geological Survey of India’s (GSI) guidelines titled “Impacts and methodology of systematic and scientific mining in the riverbed material”, there are seven major hazards of sand and gravel extraction. These broadly include the impact on the in-stream flora and fauna and vegetative cover, riverbed erosion, degradation and pollution of groundwater, lowering of the water table, and degradation of land (http://www.portal.gsi.gov.in/gsiDoc/pub/riverbed_mining_guidelines.pdf).

Small in scale, not small in damage An important aspect of the Supreme Court’s judgment was its direction to seek “environment clearance” under the Environment Impact Assessment (EIA) Notification, 2006, for the mining of minor minerals in a lease area less than five hectares (12.5 acres). No sand mining was to be allowed without such approval, it said.

The Supreme Court order expanded the scope of the EIA Notification and brought within its regulatory purview mining of minor minerals even under five hectares, which was not the case with the regulation earlier. Only mining areas above five hectares needed to go through the environmental clearance process. The Ministry of Environment and Forests (MoEF) issued a circular to this effect on May 18, 2012, following the Supreme Court’s orders clarifying the requirement. With this, all mining for minor minerals, which mostly sand mining activity is, could only be done with a proper environmental clearance.

The reasoning behind this was that one could not discount the fact that the EIA Notification was being flouted by breaking a homogeneous area into pieces to circumvent the law. The extent of environmental and ecological damage from this also needed to be determined, and the EIA process was to help address this.

NGT and illegal riverbed mining It was not that the impact of sand mining or illegalities of the trade was not known earlier. However, since 2012, this issue has gained significant legal prominence. The directions of the Supreme Court have also been the basis for regular directions and follow-up by the NGT since August 2013, where the tribunal has reiterated the restriction on mining activity in riverbeds without environmental clearance.

In 2013, the NGT Bar Association filed an Original Application (OA No.171 of 2013) seeking the tribunal’s intervention in the illegal sand mining being carried out across many riverbeds, in particular those of the Yamuna, the Ganga, the Chambal, the Gaumti and the Revati. It highlighted that the removal of minerals from riverbeds was causing serious threat to the flow of rivers, to nearby forests and to the overall environment. It also invoked the Supreme Court judgment in the Deepak Kumar case.

On August 5, 2013, the NGT’s Principal Bench passed an order restraining the removal of minerals from riverbeds across the country until requisite approvals by the MoEFCC and the State-level Environmental Impact Assessment Authority (SEIAA) concerned were obtained. These agencies regulate the grant of approvals (popularly known as “environment clearance”) and monitor the non-compliance of EIA Notification under which these approvals are granted.

As a follow-up of the earlier directions, on August 14, 2013, the NGT made strong observations regarding non-compliance of its orders by State governments. The bench emphasised that rampant illegal mining of riverbeds continued despite the directions of the higher judiciary and directed all State governments to respond to seven critical issues. Among other things, all State governments were to give information to the NGT on what steps they had taken to implement the Supreme Court judgment along with details on the number of sand mining proposals they had approved or rejected.

Rahul Chaudhary, counsel for the NGT Bar Association, says there are peculiar issues emerging from the manner in which riverbed mining is still being carried out even after the judicial directions. He said that in a case filed by the Noida Lok Manch before the NGT, “ there is an issue of sand mining taking place in one State and the supply of the extracted material in another State. While the riverbed is being mined in Faridabad in Haryana, the supply is to Noida in Uttar Pradesh .” Some such instances of the follow-up of the tribunal’s directions are discussed below.

Non-compliance with NGT’s orders Rahul Chaudhary iterates that “ there have been several miscellaneous applications and new cases that have been filed in the NGT following the August 2013 order. The NGT has been directing the State governments and especially the regulatory agencies to take strict action against violators and ensure that no illegal mining is carried out .”

A closer look at the orders reveals that there are many instances where Miscellaneous Applications (MA) are filed by individuals and organisations seeking action against illegal sand mining in particular contexts. For instance, according to the orders of the NGT on February 3, 2015, a specific MA No. 1109/2013 asking for action of the District Magistrate (DM) against illegal sand mining in Bijnore district of Rajasthan was heard. This was almost 19 months after the NGT’s August 5, 2013, directions were issued.

Counsel for the Rajasthan State government assured the tribunal that its orders would be complied with, and the MA was disposed of. On the very next stay in another case (MA No. 584/2014), the NGT summoned the Superintendent of Police (SP) and the DM of Bijnore district in the light of the local Commissioner’s report, which showed rampant illegal mining being carried out despite the order of the tribunal.

Applications have also been filed before the NGT seeking a waiver of the compensation to be paid on account of illegal sand mining as directed by the NGT. In one of the cases heard on February 3, 2015, the applicant from Uttar Pradesh, who admitted to carrying out mining of “4,500 cubic metres of boulder (gitti) and 15,487 cubic metres of sand”, sought an exemption from the payment of compensation. The argument was that the applicant had already paid a royalty of Rs.16,93,902 as compounded fee. This was not agreed to and the NGT directed the payment of another Rs.3,50,000 according to Section 15 of the NGT Act. This had to be done within two weeks.

The NGT also refused to admit pleas against imposing a blanket ban on sand mining. One such application (MA No.587/2014) sought a ban on mining in the Ganga in Haridwar district of Uttarakhand. The NGT’s order dated February 4, 2015, did not grant this relief and mentioned that removal of sand from riverbeds is an “established and time-tested practice”. What is prohibited “is unregulated, illegal and unsustainable mining activity on the riverbanks”. Further, the order added that what was required was a limited and scientific removal of sand while maintaining the ecology and biodiversity of the river.

In another judgment of the NGT dated January 13, 2015, it has yet again been emphasised that even existing mining lease holders need to get environmental clearance and they have been given three months’ relief for the same. This judgment, though issued in Himmat Singh Shekhawat vs State of Rajasthan (OA No. 123 of 2014 and MA No.419 of 2014), relating to a particular instance of bajri mining, brought together several applications from the governments of Madhya Pradesh, Himachal Pradesh and Rajasthan seeking exemption and exception for mining activities that were already on. It has once again been directed that no mining should be carried out without environmental clearance.

While some individual applications are being disposed of invoking previous directions, several others are pending before the NGT. These include the Original Application where the tribunal continues to seek responses and status reports from various State governments on whether sand mining is being carried out with due regulatory approval.

The case is now listed for July 28, 2015, before the NGT’s Principal Bench in New Delhi. At the same time, regional benches of the NGT have also issued judgments in site-specific matters and directed State governments to come up with enforcement mechanisms for regulating sand mining. This direction was passed for the Maharashtra State government in a detailed judgment issued by the Pune bench of the NGT in Application No. 44/2014 (WZ).

The MoEFCC’s report in August 2013, following an inspection in Gautam Buddh Nagar in Uttar Pradesh, acknowledged the existence of rampant and unscientific riverbed sand mining and recommended a “ cluster approach” to be adopted for collection of baseline data, which shall adequately cover every single lease area under consideration before seeking environmental clearance ”. Such an exercise needs to emphasise various aspects of the transportation of the mined materials, including pollution load due to transportation, available infrastructure, and rate of sedimentation. However, this recommendation is yet to be taken forward.

The MoEFCC’s cluster-mining approach was also referred to in the March 2010 report of a group constituted by the Ministry under the chairpersonship of the Secretary. This was done with the purpose of evolving guidelines for sustainable mining of minor minerals. Among other things, this group recommended in its report of March 2010 that given the nature of occurrence of minor minerals and the difficulties in monitoring small-scale mining, mining of these minerals should be done through the creation of clusters. These clusters of small-scale mining activities could operate together, have collective processing and crusher zones, and be monitored likewise. State governments and mine owners’ associations were to facilitate the development of environment management plans for these clusters.

Whether or not these recommendations were complied with is yet to be reviewed either through administrative or through judicial processes or through both. An understanding will also need to be developed on whether such a cluster approach will actually resolve the key problems with riverbed sand mining. These include both those relating to the environmental impact and the challenges of being able to actually restrict illegal mining and over-extraction beyond the permitted amount.

Riverbeds continue to be under threat This is a telling story of ongoing directions of the courts, repeated assurances from State governments and continuing enforcement lapses in the matter of regulating riverbed sand mining in the country. What falls within the cracks of this conversation is whether the available safeguards and mandatory legal requirements with those relating to the environment are only one of the facets of this regulatory framework for mining rivers. At the same time, the mafia, which extracts the riverbeds, is known to have strong and far-reaching political connections.

It is three and a half years since the apex court issued clear directions. One has to just take a walk next to a river anywhere in the country and see that the massive excavation of the riverbed is a routine, everyday exercise. Asking a question on whether the operation is in compliance with the law is then either anybody’s guess or surely somebody’s risk.

Kanchi Kohli is a researcher working on law and environment justice.