Recently, the Supreme Court, while saying that it would have prevented the government from building roads and other important infrastructure in those areas, modified its 2022 order mandating a minimum 1-km eco-sensitive zone around national parks or wildlife sanctuaries. A three-judge bench of Justices BR Gavai, Vikram Nath and Sanjay Karol said that regulations about eco-sensitive zones cannot be uniform across the country and the judgment prohibiting all development activities within such sites is impossible to implement.

The Union of India in its application had asked for modification/clarification of some of the directions issued by the top court in its the order of June 3, 2022. The application focussed on two paragraphs (56.1 and 56.5) of the order.

Paragraph 56.1 states: “Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. For Jamwa Ramgarh Wildlife Sanctuary, it shall be 500 m so far as subsisting activities are concerned…”

The other paragraph (56.5) says: “In the event any activity is already being under-taken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.”

The clarification/modification sought in paragraph 56.1 of the order dated June 3, 2022, says that the ESZs which have already been notified by the Ministry of Environment, Forest and Climate Change (MoEFCC) or the proposals which have been received in the Ministry be exempted from the directions. The applicant also sought that the order may not be made applicable where national parks and wildlife sanctuaries are located along inter-state boundaries and/or common boundaries.

The application also sought that paragraph 56.5 of the order dated June 3, 2022, be modified/clarified in its entirety.

The government further submitted that it had already issued guidelines on February 9, 2011, for declaration of ESZs around national parks and wildlife sanctuaries. It said that the guidelines were framed after consulting the National Board for Wildlife (NBWL) and all states and Union territories. The guidelines provide a detailed procedure for submitting a proposal for declaration of areas around national parks and wildlife sanctuaries as ESZs.

The application pointed out that the guidelines detail various activities which have been categorized as prohibited, regulated or permitted. It added that the Supreme Court order of June 3, 2022, is likely to cause great hardship to those residing in the ESZs and that the Court’s direction that no new permanent structure shall be permitted to come up for whatsoever purpose within the ESZs would also cause great hardship.

It was also argued by the government that there cannot be a uniform boundary for all national parks and wildlife sanctuaries. It may be longer on one side and shorter on the other side, depending on various circumstances. In addition, various developmental activities like construction of schools, dispensaries, anganwadis, public health centres, etc., are required to be undertaken in such areas. Not only that, if the direction not to make any construction continues, the persons residing therein would not be in a position to construct or reconstruct houses on their own land. As is known, hundreds of villages are situated within the ESZs in the country. If no permanent construction is to be permitted for any purpose, a villager who is desirous to reconstruct his house would not be allowed to do so. Similarly, if there is an extension in a family and some additional construction is required, it would also not be permitted.

The government further argued that if the original June 3, 2022, order is not modified, it would be impossible for forest departments to conduct eco-development activities around national parks and sanctuaries. These activities are required for the dual objectives of protection of wildlife as well as providing benefits to the local communities. MoEFCC provides financial assistance to the states under the centrally-sponsored scheme—Integrated Development of Wildlife Habitats—which includes assistance for eco-development activities. These activities often involve construction of small structures which are permanent in nature in areas, including ESZs. There are also certain projects of national and strategic importance, such as construction of national highways, railways, defence-related infrastructure, etc.

The Court observed that insofar as direction in paragraph 56.1 of the order, dated June 3, 2022, is concerned, a perusal of various orders would reveal that the Court has not directed any minimum area from the demarcated boundary of such protected areas. The area to be declared as ESZ cannot be uniform and will be protected area specific. In some cases, it may be 10 kilometres on one side and 500 metres on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of the protected area.

As such, the Court found that the direction contained in paragraph 56.6 of the order, dated June 3, 2022, also needs to be modified. The Court also modified the direction contained in paragraph 56.4 of the order, dated June 3, 2022, and directed that mining within the national park and wildlife sanctuary and within an area of one kilometre from the boundary of such national park and wildlife sanctuary shall not be permissible.

—By Adarsh Kumar and India Legal Bureau

The Uttarakhand High Court directed the Union Government to consider declaring elephant corridors in the Jim Corbett National Park/ Ramnagar Forest eco-sensitive zones under the Environment Protection Act.

The Division Bench of Chief Justice Vipin Sanghi and Justice R.C. Khulbe heard a  Public Interest  Litigation (PIL) filed by  Independent Medical Initiative Society to save the Elephant Corridors near Corbett National Park, namely, Malani-Kota, Chilkiya–Kota and South Patlidun–Chilkiya Elephant Corridors, to prevent any kind of disturbance in the movement of wild elephants using the said Elephant Corridors.

Dushyant Mainali, the counsel for the petitioner,  placed before the High Court the judgment of the Supreme Court in “Hospitality Association of Mudumalai versus In defence of Environment and Animals and  others etc., dated 14.10.2020, in Civil Appeal Nos.3438- 3439 of 2020 along with several other appeals. The Supreme Court upheld the judgment of the Madras High Court which had upheld the validity of the Tamil Nadu Government Notification G.O.(Ms.) No.125, dated 31.08.2010, by which an Elephant Corridor had been notified in the Sigur Plateau of Nilgiris District, and a further direction was issued to resort owners and other private landowners to vacate and hand over vacant possession of lands falling within the notified Elephant Corridor to the District Collector, Nilgiris within three months from the date of the judgment. In the course of its discussion, the Supreme Court in this judgment observed as follows:-

“34. At the very outset, it must be noted that the Wildlife Trust of India terms elephants as a “keystone species” because their nomadic behavior is immensely important to the environment. Herds of roaming elephants play several important roles in the ecosystem: 
(i) Landscape architects: Elephants create clearings in the forest as they move about, preventing the overgrowth of certain plant species and allowing space for the regeneration of others, which in turn provide sustenance to other herbivorous animals. 
(ii) Seed dispersal: Elephants eat plants, fruits and seeds, releasing the seeds when they defecate in other places as they travel. This allows for the distribution of various plant species, which benefits biodiversity. 
(iii) Nutrition: Elephant dung provides nourishment to plants and animals and acts as a breeding ground for insects.   

(iv) Food chain: Apex predators like tigers will sometimes hunt young elephants. Further, elephant carcasses provide food for other animals. 
(v) The umbrella effect: By preserving a large area for elephants to roam freely, one provides a suitable habitat for many other animal and plant species of an ecosystem. 
Elephant corridors allow elephants to continue their nomadic mode of survival, despite shrinking forest cover, by facilitating travel between distinct forest habitats. Corridors are narrow and linear patches of forest which establish and facilitate connectivity across habitats. In the context of today’s world, where habitat fragmentation has become increasingly common, these corridors play a crucial role in sustaining wildlife by reducing the impact of habitat isolations. In their absence, elephants would be unable to move freely, which would in turn affect many other animal species and the ecosystem balance of several wild habitats would be unalterably upset. It would also eventually lead to the local extinction of elephants, a species which is widely revered in our country and across the world. To secure wild elephants’ future, it is essential that we ensure their uninterrupted movement between different forest habitats. For this, elephant corridors must be protected. 
35. Legal intervention in preservation of these corridors has been necessitated because wildlife corridors are threatened by various social, economic and anthropogenic factors, as noted above. Commercial activities such as running of private resorts and construction of new buildings with barbed and electric fences within elephant corridors pose a serious threat of fragmentation and destruction of habitats. The long-term survival of the species depends on maintaining viable habitats and connecting corridors which maintain variance in the  species’ gene pool and avoid other risks associated with habitat fragmentation and isolation of species. 
36. Overtime, several environmental legislations including the Indian Forest Act, 1927 and the Wildlife Act have been enacted to provide for the protection of forests and wild animals, with a view to ensuring ecological balance and preserving natural habitats including such corridors. The object of the Wildlife Act was interpreted emphatically by this Court in State of Bihar v. Murad Ali Khan 1 in the following terms: 
”8. … The policy and object of the Wild Life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological-imbalances introduced by the depredations inflicted on nature by man. The state to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible. 1988 (4) SCC 655 The preservation of the fauna and flora some species of which are getting extinct at an alarming rate, has been a great and urgent necessity for the survival of humanity and these laws reflect a last-ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks to mankind that go with the deterioration of environment.               xxx xxx xxx 
10. … Environmentalists’ conception of the ecological balance in nature is based on the fundamental concept that nature is “a series of complex biotic communities of which a man is an inter-dependant part” and that it should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the “civilized man” operating directly through excessive commercial hunting or more disastrously, indirectly through invading or destroying natural habitats.” (emphasis supplied)  

Considering the same, the High Court held that the situation is that the natural habitat of wild elephants in the area aforementioned, has been encroached upon and obstructed with the construction of a road and resorts on revenue land along the Kosi river. The natural movement of elephants which is a nomadic breed, and must move from one place to another in search of food and water, has been obstructed.   

The counsel for the petitioner has drawn the attention of the High Court to a satellite image and explained that on either side of the Kosi River, there are forest areas. The elephants come to the river to meet their water requirements, and also cross the river to go to the other part of the forest. However, on account of construction of road as well as resorts along the river, the movement of the elephants has been obstructed and there have been numerous instances, where man and elephant conflict has taken place. Some of them have been tabulated by the petitioner. Due to construction of the resorts, the corridors, traditionally used by the elephants, have been obstructed. 

“Elephants are intelligent animals and they have also tried to adapt to the changes which have come about in the topology. They have started using areas, which are still available as a corridor for movement to cross-over the river and move from Jim Corbett National Park to the forest falling  in Ramnagar Division, and vice versa. On account of the heavy traffic in Ramnagar Mohaan Road during the day, they have started crossing the road mostly in the night,” the Court observed.

In light of the aforesaid judgment of the Supreme Court and the facts taken note of hereinabove, the High Court directed the respondent authorities as follows:- 
(i) The Court directed the Union Government (Director Project Elephant Ministry of Environment Forest and Climate Change) to consider declaring the elephant corridors in the Jim Corbett National Park/ Ramnagar Forest as ‘Eco-sensitive zones’ under the Environment Protection Act. 
(ii)  The Court directed   the respondent-authorities not to allow construction in any form like hotels, resorts, restaurants etc. which fall within the identified elephant corridors in the area in question. 
(iii)  The Court  further directed the respondent-authorities to protect the already identified elephant corridors in the area. 
(iv)  The Court directed   the respondent-authorities to depute competent and sufficient staff on either side of the elephant corridors to ensure safe passage to the elephants in the night hours between 10:00 PM to 04:00 AM through the identified elephant corridors. 
(v)  The Court further directed  the respondents not to allow, or undertake, any further road construction which cuts   across the identified elephant corridors without providing adequate infrastructure to allow unobstructed and safe movement of wild elephants across such roads. 
(vi) The Court has already directed the respondents not to use chilli powder to prevent movement of elephants in their corridors. “The said direction shall continue and the respondents are also restrained from using any other obstructive methods to prevent movement of wild elephants in the corridors by using gun-shots and electric fence. “
(vii) The Court directed the state government, if necessary, to take steps to acquire land falling in the revenue area to maintain the identified elephant corridors. 
(viii) Each of the respondent, which is charged with the responsibility to implement the aforesaid directions, and each of them shall ensure strict compliance of the same. 
(ix) The respondents are directed by the High Court to file their compliance report on or before 08.12.2022.

The matter has been listed on  08.12.2022 for further hearing.

The Kerala government has decided to file a modification petition in the apex court in connection with the Court’s June 3 order that said all protected forest tracts and wildlife sanctuaries in the country should have eco-sensitive zones (ESZs) of one kilometre from their boundaries. With Kerala having 24 wildlife sanctuaries, the proposal has raised concern among lakhs of individuals dwelling inside such areas, especially farmers living along the Western Ghats.

After a high-level meeting convened by Chief Minister Pinarayi Vijayan, an official communication from his office said that the advocate-general had been entrusted with looking into whether the state can make legislation in this regard to bypass the apex court directive.

This comes amid rising protests that every human settlement be exempted from the proposed ESZ rule. The protesting farmers have been backed by both the ruling CPM and the Opposition Congress.

The issue came into focus recently after the ruling CPM’s students wing, the SFI, vandalised Congress MP Rahul Gandhi’s office in Wayanad in protest against “his inaction’’ to allay the people’s fears in the matter. The Opposition has blamed the CPM for the present crisis. Opposition leader VD Satheesan said the government had failed to apprise the Supreme Court of the state’s concerns. The earlier Congress-led government of Oommen Chandy had decided to avoid all human habitats from ESZs, he said, adding that in 2019, the Left Democratic Front government had decided to create buffer zones of one kilometre from the boundaries of protected forests. Had the government decided to altogether avoid human settlements from the buffer zone, the state would not have faced the present situation, Satheesan said, after the Opposition walked out of the assembly.

The authorities are now determined to take up the state’s issues with central authorities, in addition to the Central Empowered Committee (CEC). Details of the existing civic infrastructure and construction activities within the ESZs will be furnished before the apex court. Besides, a draft notification demanding that human settlements be exempted from the zone rule shall be submitted to the centre.

On June 3, a three-judge bench of the apex court in its order said that national parks, wildlife sanctuaries and such protected forests must have an ESZ of a minimum 1-km from their boundaries. The Court said the guidelines issued by the Ministry of Environment, Forest and Climate Change (MEF & CC) in 2011, which have either banned or regulated a bunch of activities within ESZs, should be strictly adhered to.

The proceedings that led to this order originated from a 1995 PIL moved by TN Godavarman Thirumulpad, a native of Nilambur in Kerala’s Malappuram. He sought protection of forest lands in the Nilgiris district of Tamil Nadu. Subsequently, the scope of that writ petition was enlarged by the Court to protect such natural resources throughout the country.

The apex court held that in case any national park or protected forest already had a buffer zone extending beyond one km, that would prevail. In case the question of the extent of buffer zone was pending a statutory decision, then the Court’s direction of a one-km safety zone would be applicable until a final decision is arrived at under the law. The Court directed that “mining within the national parks and wildlife sanctuaries shall not be permitted”. It further directed that no permanent structure will be allowed within the ESZ. If the existing ESZ goes beyond the 1-km buffer zone or if any statutory instrument prescribes a higher limit, then such extended boundary shall prevail, it said.

A set of guidelines for declaration of ESZs around national parks and wildlife sanctuaries was formulated by MoEF&CC on February 9, 2011. In the present order, the Court held that these guidelines were “reasonable”.

The following were the directions issued:

(a) Each protected forest that is a national park or wildlife sanctuary must have an ESZ of a minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the guidelines of February 9, 2011, shall be strictly adhered to. For Jamwa Ramgarh wildlife sanctuary (Rajasthan), it shall be 500 m so far as subsisting activities are concerned.

(b) In the event that the ESZ goes beyond the one kilometre buffer zone, the wider margin as ESZ shall prevail. If such a wider zone is proposed under any statutory instrument and is awaiting final decision, till then the ESZ shall be maintained.

(c) The principal chief conservator of forests as also the home secretary of each state and Union Territory shall be responsible for proper compliance of the Guidelines. The former shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZs and a report shall be furnished before the Court within three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.

(d) Mining within the national parks and wildlife sanctuaries shall not be permitted.

(e) In case any activity is already being undertaken within the one kilometre of the ESZ, as the case may be, of any wildlife sanctuary or national park, these continue with the permission of the principal chief conservator of forests of each state or UT and the person responsible for such activities shall obtain the necessary permission within six months. Such permission shall be given once the principal chief conservator of forests is satisfied that the activities do not come within the prohibited list and were continuing prior to passing of the order in a legitimate manner. No new permanent structure shall be permitted.

(f) The minimum width of the ESZ may be diluted in overwhelming public interest but for that purpose the state or UT shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, the Court shall pass an appropriate order.

(g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having a special interest in environmental issues considers it necessary for maintaining a wider or larger ESZ in respect of any national park or wildlife sanctuary, he/they shall approach the CEC. In such a situation the CEC shall be at liberty to examine the need of a wider ESZ in consultation with all stakeholders, including the state or UT concerned, MoEF&CC and the Standing Committee of National Board of Wildlife and then approach this Court with its recommendations.

(h) As for those sanctuaries or national parks for which the proposal of a state or UT has not been given, the 10-km buffer zone as ESZ, as indicated in the order passed by the Court on December 4, 2006, in the case of Goa Foundation (supra) and also contained in the Guidelines shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision is arrived at.

—By Adarsh Kumar and India Legal Bureau

New Delhi (ILNS): Reacting to a challenge by the State of Jharkhand of the Centre’s coal block allocation, allegedly near eco-sensitive zones, The Supreme Court today overruled the Centre’s objections and decided to form an expert committee to look into the issue.

The court also made a small observation in which it said:

“We are thinking of passing an order on the lines that any proposed mining block about 50 km (from any eco sensitive zone) will not be auctioned for mining.”

In the suit filed under Article 31, Senior Advocate Fali S Nariman appeared for the State of Jharkhand before the bench headed by Chief Justice SA Bobde. He requested for an early date, saying suits under Article 131 are to be dealt with expeditiously and that no oral evidence or cross-examination is required.

The CJI recorded that parties do not intend to give oral evidence or to cross-examine persons who have filed affidavits.

The CJI suggested the names of Dhananjay Mohan and Ajay Desai for constituting a committee to assess the effect of mining on the ecosystem in the area.

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When Attorney General K K Venugopal said that these allocations should be allowed, because these are important for industries and for development, the CJI said:

“We do not want to stop the development of this country, but we cannot allow the natural resources to be eroded. We want an expert to say that it is safe that’s all. The government can wait till the committee submits its report within a month.”

-India Legal Bureau