Striking a balance

Print edition : April 15, 2000

A Supreme court order asserts the ecosystem values of the Narayan Sarovar sanctuary in the Kutch region of Gujarat.


THE Supreme Court's judgment in February restricting mining in the vicinity of the Narayan Sarovar sanctuary has opened a new chapter in the saga of the sanctuary. The order has significant implications for the nascent and much misunderstood movement for the conservation of natural ecosystems in India.

This arid thorn-forest habitat of the chinkara (Indian gazelle), appearing a gleaming dull white-gold and stretching across vast areas of limestone-embedded soil, had been designated a sanctuary. Narayan Sarovar was the preserve of the last remaining str etches of the thorn forest habitat, although this was not deemed a critical issue. Denotified in July 1993 to allow the mining of limestone, lignite and bauxite and other industrial additives, the Narayan Sarovar area had seemed an ideal location for a c ement factory. Accordingly, the country's, arguably even Asia's, largest cement manufacturing unit was planned there.

A notification, which circumvented the legal process prescribed in Section 26 A of the Wildlife Protection Act, was issued by the Gujarat Government at the initiative of Congress(I) Chief Minister Chimanbhai Patel in order to release for industrial use l and that was protected by law. Work on the cement plant began, but even as the mineral exploitation of Narayan Sarovar was in progress, the denotification was challenged through a public interest petition. In July 1995, the Gujarat High Court declared th e denotification ultra vires. Consequently, the State Government was forced to go through the process all over again. Although the Bharatiya Janata Party was now in power in the State, the agenda had not changed. The government led by the party pu shed the denotification process through the Assembly, though for the first time there was dissent on the floor of the House as independent members protested against the disregard for conservation that this move reflected.

There were major differences over not only the process of denotification but in what it actually accomplished. A refixing of the boundaries of the sanctuary in 1993 was evidently intended to leave it in tatters. The total extent of the ribbons of land, w hich were not even connected to one another, was no more than 94 sq km (the original area was 765.79 sq km). Owing to a long-drawn-out battle between environmentalists and the industry-government combine, which also saw the beginning of a process of disc ussion on issues that were until then considered non-negotiable, the sanctuary finally came to retain an area of 444 sq km (Frontline, September 8, 1995).

Wetlands inside the Narayan Sarovar Sanctuary.-

Work on the cement factory continued and mining operations began. Dredging of the mangrove areas was carried out in the vicinity of a new port, provoking fresh protests from development organisations based in Bhuj. The Cements Division of Sanghi Industri es Limited defended the moves. The local population wavered between acceptance and protest, trying to tread the fine line between two difficult options.

The destruction caused by existing mines in the vicinity of the sanctuary is today clearly visible. Open-cast mining by the state-owned Gujarat Mineral Development Corporation (GMDC) at Panandro has devastated the land and scattered the wildlife. People in favour of mining and industrial development felt that the survival of a "few chinkara" was not significant when seen against human livelihood issues. As opposed to this trivialisation of real concerns, conservationists talked for the first time about the value of the wilderness and the need to conserve the integrity of ecosystems in which the chinkara was a key element. Emphasis was laid both on the non-living elements in the original landscape and the biota it housed.

The struggle reached a new pitch when the construction of a jetty - which the Cements Division of Sanghi Industries Limited needed in order to ship the finished product to markets in West Asia - was given the go-ahead after a petition against it was dism issed by a court. An interim order in May 1997 permitted the company to prospect for limestone in a compact block which will also be close to the boundary of the sanctuary. The company was allowed to extract limestone within a 250-hectare area on conditi on that the limestone thus extracted would not be sold. The company was asked to furnish a bank guarantee for Rs. 50 lakhs in order to ensure the payment of compensation for any damage caused in the area.

(A spokesperson for Sanghi Industries Ltd from the headquarters of the company in Ranga Reddy district of Andhra Pradesh said in answer to a query that the company is in the process of setting up an export-oriented cement project at Bennoti village and t hat the project is in an advanced stage of implementation. The cement project, he said, is outside the sanctuary. For its raw material requirements, the company has been allotted a mining lease in Jadwa village, which is in the periphery of the original limits of the Narayan Sarovar sanctuary but outside the present limits, according to the spokesperson.

(The company claimed that it would be mining the limestone through the eco-friendly method of ripping. The company said it would implement all environmental safeguards while mining so that the impact of the operations on the surroundings would be negligi ble. The company plans to undertake extensive plantations in the area which it hopes would help improve the environment. The company said it has planned for efficient air pollution control equipment for the cement plant in order to keep emission levels t o the minimum.)

Various expert committees set up by the Gujarat government pronounced their opinion that the movement for the preservation of the environment of the area was a case of much ado about nothing. Some wildlife experts are known to have recorded their dissent on the matter, but the argument that gained ground was that there was not much vegetation or wildlife to protect in Narayan Sarovar. The Supreme Court found that the committees had not considered all the relevant aspects of the issue and a new committee of the Central government was asked to undertake another survey of the original sanctuary area to see if the area had sufficient "ecological, faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wildlife and its environment".

The baton was thus passed from committee to committee, all of which relied on the same pool of information, which was admittedly shallow and inadequate. The Central government-appointed committee, chaired by P.K. Sen, visited the area in June 1999 and su bmitted its report in August 1999. Meanwhile counsel for the Public Interest Legal Support and Research Centre (PILSARC) raised the issue of the need to protect an ecosystem in its entirety, thus broadening the scope of the case filed by the Consumer Edu cation and Research Centre (CERC) in the Supreme Court. "It was a long and strenuous fight," says Rajiv Dhawan of PILSARC. "I used the Environment Protection Act of 1986 to get the court to declare this a protection-worthy ecozone. The judgment shows th at even where there is a regime of permissions and prohibitions established by the government, we - no less the courts - need to look at the ecosystem as a whole."

While the court pointed out that the process of denotification followed the letter of the law and was not contestible in itself, its decision to appoint yet another committee to go into the ecological impact of mining showed that it was interested in doi ng justice to the spirit of the law. There is very little in terms of scientific documentation of the ecological values of the sanctuary although there are some studies of individual species such as the Houbara bustard carried out by organisations such a s the Bombay Natural History Society (BHNS) and the Wildlife Institute of India (WII), which do document the ecological values of the area. In fact, one study of the area by the WII revealed that even parts of the old sanctuary that were excluded from th e new notification had high ecological values that merited a reappraisal of the manner and pattern of the denotification.

Dr. R.N. Athavale, a senior hydrologist and Director of the National Geophysical Research Institute (NGRI), Hyderabad, which functions under the Council of Scientific and Industrial Research (CSIR), has expressed grave misgivings about the ecological imp act of mining in this fragile and arid area. The new monitoring committee is expected to be set up soon with experts including Athavale being nominated by public interest organisations such as the CERC, which have continued to fight the battle for Naraya n Sarovar since it was first denotified. K.K. Chhabra, legal adviser to the CERC, in a letter dated March 7, 2000, urged the Chief Secretary of Gujarat to take steps in accordance with the Supreme Court judgment.

The Supreme Court states that the proper course to be adopted in this case is to permit restricted and controlled exploitation of the mineral wealth, watch its effects for about five years and conduct a comprehensive study of the notified and denotified areas from the environmental point of view.

The critical role played by water bodies in the region seem to have been consistently ignored.-MUKESH ACHARYA

Accordingly, the directives of the court are that mining in the area be restricted to one year while the studies are in progress. Any expansion of the area under mining would require an intervention by the Supreme Court. The court has asked the Governmen t of Gujarat to constitute a committee headed by a retired Judge of the Gujarat High Court and consisting of experts in hydrology, soil erosion and related disciplines to study the relevant environmental issues. The committee is also expected to study th e effect of running the cement plant set up outside the old sanctuary area. The court has specified that the committee shall, for this purpose, visit the area twice a year, before and after the monsoon, and submit its report to the State government and t o the court.

This is a departure from the general practice of such committees visiting the area in the peak of summer when even rainforests are wont to appear wan - a common ploy used to downgrade the ecological value of the area. The idea of nature being represented only in greenery is hard to understand for people who are aware of the methods and management priorities of conservation attempts at an international level. The Yellowstone National Park in the United States, for instance, protects a largely desert ecos ystem. Yet it is protected and has a higher annual conservation budget (close to $100 million) than the sprawling Great Barrier Reef of Australia (under $40 million).

The Government of Gujarat is restrained by the court from allowing other groups to carry on any mining operation or put up a cement plant within 10 km of the periphery of the old sanctuary area without prior clearance from the court. The court has also o rdered the State government to monitor the air and water quality in the area every three months and submit a report. After considering the reports the government shall take steps to control and improve the situation. The State government will also submit an annual report to the court on action taken by it. The Gujarat State Pollution Control Board (GPCB) has also been instructed to monitor pollution levels in the area every three months.

Understandably, the State government is not too thrilled about the judgment. G.L. Mehta of the CERC says: "The judgment has not been appreciated by the State government. But they will have to act." As monitoring the sanctuary will be a major task, he say s that appropriate solutions must be sought.

The current concern centres on the composition of the new committee. An informed source in the State government, who did not want to be identified, said: "The Supreme Court was not satisfied with the previous committees and does not trust the State gover nment to set up competent committees in the future. It therefore insisted that the new committee be headed by a retired Judge of the High Court."

The impact of the judgment on industrial activity in the area is hard to gauge. The CERC, when asked what the implications were for the mining industry, responded with some ambivalence. Mehta said: "Industrialists are not worried about sanctuaries. They are professionals... there are valuable minerals in the sanctuary and nothing can prevent other industries from coming in. The judgment only affects the people of Kutch as people would have expected certain public services when major industries are set u p." He added: "While everywhere, industrialists think about the environment, in India industrialists think that environment (protection) is an extra cost. This is wrong. They should also think of preserving the environment."

At the GMDC, the response was understandably mixed. The top management has read the court order as a vindication of the State government's stand. General manager S.V. Vora said: "The judgment is good as it has upheld the decision taken by the State gover nment. It has confirmed the earlier decision to reduce the size of the sanctuary. It is not necessary that mining will be banned. But it will take some extra effort to get permission (from the Supreme Court) for mining." He denied that the Sanghis have a bandoned their mining plans. "There is some sort of development near their site," he said.

However, another senior official, who requested anonymity, disapproved of the court order. "The old sanctuary area is full of minerals. Development will be finished. People will be affected. Actually the GMDC is strongly opposed to this judgment. This is green terrorism by environmentalists. The people of Gujarat need to be more aware and raise their voices against these so-called environmentalists. This (order) can affect ceramic, brick, textile and other industries which are lignite-based. As lignite is the cheapest fuel, its use controls production costs. The development of Gujarat will surely suffer. The GMDC is investing Rs. 1,300 crores for the power project which is going to be based on lignite production from the Narayan Sarovar area. The entir e lignite area is reserved for the GMDC and this judgment will close down mining. Mining of all other minerals will also be stopped."

Indeed, statistics on the extent of mineral reserves and their location in northwestern Kutch show that a significant part of it will become out of bounds as a consequence of the judgment. Interestingly, the production of lignite peaked at 51 lakh tonnes in 1996-97, the year of the denotification of the sanctuary, and dropped to 49 lakh tonnes the next year. The latest estimate of lignite production is 50 lakh tonnes in 1998-99.

Mining in progress in the sanctuary, a file photograph.-

Kanjibhai Patel, Minister for Environment and Forests, and G.A. Patel, Chief Conservator of Forests, Wildlife, Gujarat, both felt that the order was an interim one. They denied that any company was interested in mining in the Narayan Sarovar area and tha t the Sanghis were mining here. However, the Minister and the official said that there should be a balance between considerations of environment protection and development, as Kutch was a very backward area. The CCF mentioned that in the last few years m ost protected areas in Gujarat actually registered an increase in the population of many wildlife species as a direct result of the Forest Department's conservation efforts.

The emphasis laid on the significance of the sanctuary's old boundaries by the judgment conveys the impression that the court has all but dismantled the denotification of the sanctuary by the State Assembly in 1995 although the court has been careful to point out that the process was legally correct and acceptable.

Prof. Manubhai Shah of the CERC says wryly: "Frankly speaking, I am not sure how many people understand the implications of this kind of a judgment where on the face of it it may appear that the CERC has lost the appeal and that the courts are reluctant to interfere in the resolutions passed by the Assembly. The very fact that the committee has to be constituted, that it will supervise the operations and also that the Supreme Court has extended the interim order passed by it on May 8, 1997 under which t he Sanghis were required to furnish a bank guarantee for Rs.50 lakhs for the purpose of compensating for the damage caused to the disputed area and meeting the obligations flowing from any order that may be passed later on shows that the judgment is not what it appears to be."

He does not believe that the Sanghis would withdraw from the area, although he agreed that they had incurred heavy losses and may need to reorganise their strategy. On the whole he feels that the efforts of the CERC and other non-governmental organisatio ns have served to establish the tenacity of conservation organisations to carry on their struggle in the courts over long periods and that this will deter industries that wish to disregard the need to ensure that development projects are also ecologicall y sustainable.

The arid thorn-forest habitat, home to the Indian gazelle or chinkara.-MINU SESHSHAYEE

H.S. Singh of the Gujarat Environmental Education and Research (GEER) Foundation says that the judgment "recognises the facts raised by the petition while respecting the decision of the Legislative Assembly. The judgment, he says, mainly seeks to assess the impact of mining and other development works in the area over a period of time so as to develop guidelines on the extent of mining that can be permitted in other areas. He feels that this has been a step in the right direction. "Although local people , especially tribal communities, will be adversely affected (by the restrictions that conservation programmes bring), in the long term they will also benefit, once conservation programmes are implemented," he said.

H.S. Singh also pointed out that many decisions, however harsh they may be, needed to be made in the interests of sustainable development. He cited the case of the Marine National Park. "Unlike the forest ecosystem, the marine environment is quite differ ent, making many of the provisions of the Indian Forest Act (which was developed with a terrestrial ecosystem in mind) difficult to implement. Special provisions need to be made specifically for such areas." He ruled out the advisability of large-scale i ndustrial development in the Marine Park area, while asserting his belief that "there is a need to provide total protection to Protected Areas as in the prevailing situation, if any scope is provided, it can distort the provision of the court at the cost of the degradation of the sanctuaries and national parks, which is happening in most places in the country." The fact that Protected Areas are too fragile and too few to survive commercial threats is something that decision-makers find difficult to unde rstand in a situation where development needs clamour for attention and resources are limited and increasingly scarce.

Sandeep Virmani of the Bhuj-based Forum for Planned Industrialisation of Kutch (FPIK) said: "We have been of the view that the sanctuary's boundaries should have been altered to include in it all good grasslands, as these are so important for animal bree ding and wildlife in the region." He cites a recent survey by Sahjeevan, which revealed that just the bullock trade (excluding buffaloes, each of which commands a sale price of Rs.20,000) of 38 small villages in Kutch this year was worth Rs.1.5 crores. L ooking at the obvious economic value and income-generating potential of these animals that are bred in the endangered grasslands of Kutch, Virmani added that the judgment would have done better if it devolved more powers to local institutions and civic s ociety rather than merely added to the executive responsibilities of the judiciary. He pointed out that the new judgment did not examine the critical role played by the rivers in the region - a factor ignored by both the old and new sanctuary limits. Vir mani said that the river-bank ecosystems and the West Mangrove Reserve Forest, into which the rivers drain, needed to be considered as they would be affected by mining in the area.

The FPIK voices the concerns of the people of Bhuj regarding the ultimate impact of the Supreme Court order. "It almost seems that the court agreed that the Assembly took the decision to reduce the size of the sanctuary without a proper assessment of its consequences but decided not to overrule it... giving the old boundary a somewhat quasi-reserved status. But, in our opinion, this was a wrong decision as the court has no mechanism of following up such a judgment efficiently. It was a wrong decision be cause the courts are again wanting to play an executive function, thereby not placing faith in the Environment Ministry."

A group of gypsies in the sanctuary area.-

A stronger governing role for the Environment Ministry would provoke a reaction from the bureaucracy, which must contend with the conflict of interest between the conservation concerns promoted by the Ministry and the commercial interests that operate at the State level. The failure of the higher-ups to protect and reward courageous and dedicated officers has further affected the efforts to conserve Protected Areas and their resources. Informed sources, who do not wish to be named, are unequivocal about the plight of some dedicated officers who have worked for conservation in the State. One such source said: "Everyone knows that some bureaucrats and politicians adopt unprofessional and unethical approaches to facilitate the use of resources within prot ected areas. Owing to the erosion of ethical values in society, upright, sincere and hardworking officers are sidelined..."

However, Virmani, who argued for the empowerment of the Environment Ministry, points out that the Ministry needs to change its tactics in order to become more effective. "The Ministry needs to be far more democratic and involve civic society in decision- making and play only a governing role itself. The court could have bound the Ministry to the decisions of a committee - that must have local people on it besides experts - by which the companies need to get their Environment Impact Assessments (EIA) appr oved. By merely adding a new mechanism for approval they will only succeed in increasing red tape and corruption and not in safeguarding the sanctuary and its environment."

Kartikeya Sarabhai, Director of the Centre for Environment Education (CEE) Ahmedabad, says: "The real need of the hour is for a local initiative that will amalgamate stakeholder interests through a multisectoral approach that looks at conservation in the context of sustainable development. We are currently working at an ecosystem-based approach to integrating development and conservation concerns in the fragile area of Kutch where natural and cultural parameters must govern the choice of development pat terns." This initiative will bring together experts from all related sectors and from a variety of organisations to pool their expertise and present a set of development approaches for the region. "It should ideally set the stage for a process of informe d debate on what kind of development solutions would be appropriate for Kutch," says Sarabhai.

REGARDLESS of the degree to which the latest Supreme Court order has satisfied conservationists, there is no denying the fact that the process of general enlightenment has begun. The order says: "The Forest in the notified and denotified areas is an edap hic thorn forest. It has been designated as a potential site for a biosphere reserve by an expert committee constituted by the Ministry of Environment and Forests. It has been put in the 'Rich Area category' from the biodiversity point of view by the Guj arat Ecology Commission. Even the Union of India in its affidavit has stated that the denotified area includes many areas of high and very high floral and faunal value..." It further spelt out the need to "balance the environment with the need of economi c development and forgo prohibition for the safer principles of 'protection' and 'polluter pays' while keeping in mind the principle of sustainable development and the principle of intergeneration equity." Clearly, by taking this principled stand the cou rt hopes to serve conservation interests in a more informed way although the manner in which it seeks to accomplish this objective is considered questionable in certain quarters.

This development, by and large, should come as a relief to environmental educators, who have been trying to explain the concept of ecosystem health to a seeminly uncomprehending set of movers and shakers who include policy-makers and, as events have reve aled, even the occasional high-profile environmentalist. The Supreme Court has issued a series of directives/interim orders that interpret rightly the spirit of the laws that uphold the conservation of biodiversity. It is now incumbent on the government machinery to carry out the orders and directives. An earlier judgment prevents the removal of dead, dying and diseased trees, grass and other forest produce from Protected Areas, which was recommended for years by environmental educators such as Lavkumar Khacchar of Gujarat.

The implications of this judgment could spell trouble for industry prospecting in the vicinity of Protected Areas anywhere in the country. The Marine National Park is one such area. Somehow the unthinkable is happening. The court is laying down the begin nings of a tougher interpretation of the law on conservation of natural ecosystems, one that is as controversial and unpopular as it is progressive. The process is expected to throw up some guidelines on the difficult task of maintaining an apparent bala nce between conservation and development and will also hopefully generate a much-needed database of information for future decision-making. Despite the sugar-coating on the apparent acceptance of the validity of the denotification of 1995, the Supreme Co urt would appear to have actually reinstated the old boundaries of the sanctuary, thereby administering a pill that will be rather bitter for the government of Gujarat to swallow. The fact remains that those in search of the mineral riches of Narayan Sar ovar will now need to contend with the watchful eye of the Supreme Court - rather like that of the mythical serpent that sits alert, the shadow of its raised hood protecting ancient treasures that belong to the earth.

Prithi Nambiar, a development economist by training, is Programme Coordinator, Media Initiatives for Sustainable Development, at the Centre for Environment Education, Ahmedabad.

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