Those examining the effectiveness of India’s environmental laws are often troubled by its “implementation curse”. While the legislature has time and again promulgated laws and laid down extensive guidelines to ensure protection of the environment from capitalistic exploitation, there seems to be a massive failure on part of the Executive to strictly enforce these environmental laws...
Those examining the effectiveness of India’s environmental laws are often troubled by its “implementation curse”. While the legislature has time and again promulgated laws and laid down extensive guidelines to ensure protection of the environment from capitalistic exploitation, there seems to be a massive failure on part of the Executive to strictly enforce these environmental laws and guidelines. Resultantly, the issue often falls within the domain of an overburdened Judiciary to ensure that the law as it stands is implemented to the letter. A case in point is the regular failure by the State authorities across various states in India in preparing the District Survey Reports which must be mandatorily issued before floating tenders for granting sand mining leases.
The Law:
On 15.01.2016, the Ministry of Environment and Forests issued a notification by which the Environment Impact Assessment Notification of 2006 was amended. The amendment provided for a preparation of a District Survey Report (“DSR”). The purpose of preparing a DSR was to identify areas of aggradation and deposition where mining can be allowed. The DSR was also supposed to identify areas of erosion, proximity of mining areas to infrastructural structures and calculate the rate replenishment where mining was taking place with the main objective being identification of areas where mining should be prohibited or restricted to prevent further erosion and protect the environment. Subsequent, to the notification of 15.01.2016, various guidelines have also been brought into effect to ensure that sand mining takes place within the contours of “environmental protection”. These guidelines include Sustainable Sand Mining Guidelines, 2016 (“SSMG 2016”) & EnforcementMonitoring Guidelines for Sand Mining, 2020 (“EMGSM 2020”).
The Implementation failure & the litigation:
According to EMGSM 2020, a DSR for sand mining shall be prepared before the auction/eauction/grant of the mining lease/Letter of Intent (LoI) by mining department or department dealing the mining activity in respective states. Further, a DSR must be prepared following a public-consultation process. The draft DSRs are to be prepared by the sub divisional committees consisting of the Sub Divisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer.
Various States over the years have either failed in preparing a DSR altogether or have prepared a DSR without taking into account a proper public consultation process or have failed to regularly update the DSR as required by law. The State of Bihar is one such case in hand wherein the government had been issuing e-auction, tenders for sand mining without having a valid DSR in place.
In Bihar, mining was taking place in the Banka district based on an interim DSR which was never finalized. Interestingly, the Interim DSR for Banka district stated that there was 226 hectares as the total area of Sand Ghat for sand mining purposes, however, the e-tender notice was seeking to auction the mineable area of over 946 hectares. By issuing tenders without even having any valid DSR in place, the State was putting the cart before the horse.
The gross violation led to litigation before the National Green Tribunal (“NGT”) in Pawan Kumar v. State of Bihar wherein it was held that the interim DSR based on which the State was issuing notice inviting tenders was invalid as the same was not prepared following the SSMG, 2016 and was prepared without conducting “requisite studies”. The NGT finally directed the State to undertake preparation of a fresh DSR.
The State challenged the judgment of the NGT before the Supreme Court, where the Supreme Court affirmed the findings of the NGT and further took note of the fact that EMGSM, 2020 which had then been recently brought into effect were to be followed while preparation of DSR. It is pertinent to note that both SSMG, 2016 & EMGSM, 2020 envisaged replenishment studies as well as a public consultation process both of which have barely been followed.
The continuing Implementation failure:
Despite the Judgment of the Supreme Court in State of Bihar v. Pawan Kumar, the implementation in preparation of a valid DSR seems to be lacking throughout the country. In the State of Madhya Pradesh, there has been protracted litigation pertaining to preparation of DSR wherein the NGT, Central Zone, Bhopal Bench has time and again held that the DSR has to be prepared before issuance of notice inviting tenders and it must be prepared following the guidelines envisaged in SSMG, 2016 and EMGSM, 2020.
The fact that there is a massive failure by the State in preparation of DSRs can be seen from the judgments of Prabhat MohanPandey v. MPSEIAA and RamBabu Gour v. State of Madhya Pradesh passed by the NGT’s Central Zone, Bhopal wherein it has been reiterated that the State while preparing a DSR ought to follow the principles laid down in the judgment of Pawan Kumar (supra). Recently, in October 2022, the NGT in the case of AjithKumar v. State of MP has again passed directions against the State of Madhya Pradesh holding that notice inviting tender cannot be issued prior to issuance of a valid DSR.
Despite such long and detailed judgments passed by the Supreme Court as well as by different benches of the NGT, there seems to be a failure on part of State authorities to implement the law.
The Road Ahead
Clearly, despite having a crystal-clear law, there seems to be a complete failure on behalf of Executive in implementing it. This calls for additional reforms such as imposing high punitive costs on state officials for blatant non-complaince with already existing rules and regulations.
The responsibility of appraising the mining projects for EC after the grant of auction lies with the State Environment Impact Assessment Authority (“SEIAA”). An effective way to ensure that sand mining does not commence without a valid DSR is to hold SEIAA accountable for issuing EC’s in the absence of DSR.
A possible solution is to establish a specialized compliance oversight committee for monitoring the preparation of the DSR as well as for auction and grant of Environmental Clearance (“EC”) to the project proponents.
The author is a lawyer practicing before various Courts and Tribunals in Delhi. Views are personal.