The government’s controversial revamp of the Central Empowered Committee raises questions about its autonomy.
On May 9, 2002, the Supreme Court of India (SC) directed the setting up of the Central Empowered Committee (CEC) that would advise the apex court on technical issues pertaining to the protection of forests and biodiversity. According to the Order, the Chairman of the CEC would be nominated by the Ministry of Environment & Forest (MoEF) in consultation with the amicus curiae. In addition, there would be one nominee of the MoEF, two nominees from NGOs who would be nominated in consultation with the amicus curiae, and a Member Secretary, who would be a serving officer in the MoEF. The CEC would report directly to the SC.
On September 5 this year, the MoEFCC (the MoEF was reconstituted as the Ministry of Environment, Forest and Climate Change in 2014) issued a revised notification for reconstituting the CEC. The new-look CEC would comprise solely of bureaucrats, retired or serving, and would report to the MoEFCC and not to the SC. Since the MoEFCC itself is the root cause of almost all the problems that the CEC was originally set up to deal with, this has reduced the entire exercise into a farce.
Let us look at some of the important issues that the CEC has had to deal with in the past.
The Kudremukh iron ore mines issue, the rampant and illegal iron ore mining at Bellary, the protection of the Aravalli hills, the issue of compensatory afforestation, and determining the value of the ecological services provided to forests (that led to fixing the Net Present Value (NPV) and which further led to the creation of the CAMPA funds, the illegal saw mills in Tansa WLS that led to the jailing of a serving Minister and a high-ranking bureaucrat of the Maharashtra government—these were some of the landmark issues that the CEC has dealt with since 2002.
There is little doubt that in the initial years of its formation, the CEC has done yeoman service to the cause of protecting our environment. The CEC brought into place a much-needed Authority that could critically examine decisions taken by the MoEFCC and its various agencies, and submit its independent report directly to the SC without worrying about the fallout from the MoEFCC. Supported by a judiciary that was genuinely concerned about safeguarding the environment, the CEC was confidently able to take on a wide gamut of issues.
Unfortunately, this happy state of affairs did not continue. Within the conservation circuit, there were apprehensions expressed over the manner in which the CEC was functioning. Also, the pick-and-choose approach of the CEC in deciding which cases it would take up also became controversial.
Some of the many issues that attracted controversy were the manner in which the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) funds were managed, and how the thousands of crores of rupees that were meant originally for compensatory afforestation collected through the NPV process were allowed to be used for other purposes. The efforts of the MoEFCC to take control of the huge amount of money made matters worse. The e-auction system that was put into place after the Bellary iron ore mines were allowed to be reopened also raised eyebrows. It became apparent that the CEC itself would have to be watched.
One of the issues raised by the CEC was the issue of notifying a 10-km buffer zone around all the Protected Areas (PAs), that is, national parks, sanctuaries, and tiger reserves. As per the National Wildlife Action Plan, a 10-km buffer zone was required to be declared around each PA. The Eco-Sensitive Zones (ESZs) were to be notified not under the Wildlife Protection Act, which is very inflexible, but under the provisions of the Environment Protection Act, which allowed for each ESZ notification to be tailor-made to deal with the problems facing the PA.
Unfortunately, instead of ensuring that the SC’s orders were implemented by the MoEFCC and the State governments, the CEC recommended that the 10-km distance be reduced on a case-by-case basis. Perversely, the CEC recommended that smaller PAs should have smaller ESZs and that larger PAs should have larger buffer zones.
The CEC’s recommendations were made after Valmik Thapar, the only wildlife expert on the originally constituted CEC, had been summarily removed. As a result of these recommendations, which were gladly accepted by all the State governments, the ESZs have been reduced in some cases down to zero, and in many cases, the 10 km distance has been reduced to 100 metres. In Mumbai, the beneficiaries of this largesse are mainly builders and developers.
The approach of the CEC in the Private Forests Case was also perverse. Instead of upholding the validity of the Maharashtra Private Forests Acquisition Act, the CEC questioned its applicability. And instead of insisting that lands that had been notified as Reserve Forests under the provisions of this Act continue as such, the CEC started looking for loopholes that would allow builders and industries to use land that was notified as Reserve Forests for construction activities.
Ultimately, after numerous hearings, the CEC recommended that these Reserve Forests could be used by builders provided they paid enhanced NPVs. So even when land values in Mumbai were as high as Rs.10 crores per acre, the builders got away with paying lakhs as NPV.
Another deplorable practice was the manner in which CEC picked up issues that did not lie within its domain. As environmental lawyer Ritwick Dutta wrote in The Hindu a few months ago: “The practice of seeking the Supreme Court’s approval even in the absence of specific orders manifested in proceedings in 2022 as well. In December, a bench approved tree-felling on 0.82 hectares of forest land in Thanjavur district to widen a road and felling of 940 trees in Salem district to upgrade a road. Why does the top court’s approval have to be sought to cut trees in less than a hectare of forest land, outside national parks and sanctuaries, or to upgrade a road when no such direction of the Supreme Court exists?... Similarly, in November, the court allowed diamond-mining in Panna, Madhya Pradesh, on an application moved by the mining company… It bears repeating that these decisions are not outcomes of any adjudication involving opposing parties or a PIL filed by concerned individuals. Instead, they are a case of user agencies, mining and power companies, and the government approaching the court directly seeking approval by filing applications — sometimes even before statutory authorities have examined a project.”
To sum this up, instead of waiting for proposals for the diversion of forests to be submitted by the use agencies to the Forest Department (FD), and the FD then submitting approved proposals to the MoEFCC, the statutory process was bypassed by the CEC, and the projects were endorsed by the Supreme Court without statutory approvals in place.
The recent move to reconstitute the CEC is also cause for concern. The draft notification proposing to reconstitute the CEC was prepared by the MoEFCC under the provisions of the EPA. Instead of inviting suggestions and objections from the public, the draft notification was shown to the Forest Bench of the SC, which approved it across the bar.
One suggestion made by the amicus that the CEC should be audited by the MoEFCC was immediately accepted by the learned Solicitor General. The effect of this change is that the MoEFCC will audit the performance of the subsidiary body that is supposed to audit the MoEFCC’s forest clearances. It is not clear whether the final notification was issued incorporating this change.
Another toothless entity?
According to Kedar Gore, director of the Corbett Foundation, this decision jeopardises the “autonomy” of the CEC, which was its “biggest strength”. The September 5 notification makes no mention of non-governmental organisations and non-governmental independent experts in the constitution of this committee, stated Gore. “There is a strong likelihood that the CEC will henceforth have only serving government officials. The biggest concern is whether this new CEC will cease to function independently, as the previous CEC did when it reported to the SC, and may take decisions under the influence of the government.” Now, it remains to be seen whether we have perhaps created yet another toothless government-run committee or a strong body that will take bold decisions and question government policies that are not in the interest of the environment and nature, added Gore.
The manner in which the SC has dealt with this notification now poses a problem—can this notification be challenged in a High Court? Or will it have to be challenged before a five-judge Bench (since it has been approved by a three-judge Bench?)
Also, if we factor in the recently passed amendments to the Forest Conservation Act that completely undermine the Supreme Court’s landmark judgment in the T.N. Godavarman case, it effectively means that the Forest Bench of the SC will no longer be required to deal with numerous appeals arising out of its past orders in the Godavarman case itself. It does seem that the government has once again been successful in reducing the role and influence of the SC, helped perhaps by a self-goal.
Debi Goenka is the executive trustee of the Conservation Action Trust.
Disclaimer: The writer has had the opportunity to interact with the CEC on numerous occasions over the past two decades in a number of cases.