Buffer Zone : Supreme Court Refers Pleas To Modify 1 KM ESZ Mandate To 3-Judge Bench

“In Kerala, the forests and cities, including Cochin, are overlapping. The High Court is itself within 200 metres of the Mangalavanam bird sanctuary, which is also a reserved forest,” said Senior Advocate Jaideep Gupta, appearing on behalf of the state of Kerala. He started explaining the repercussions of the June 2022 order, “This court’s order also said-” “That we want it to be demolished,” Justice Gavai said, in jest. “Even if that is not the effect, it means that the High Court cannot be touched in the future and must remain exactly as it is!” exclaimed Gupta.

Additional Solicitor General Aishwarya Bhati, for Central Government, told the Court that uniform mandate is not possible across the country and that the June judgment also acknowledged the difficulty.

In August last year, the Kerala government filed a review petition as well against the contentious order of the top court. “More than one modification is required, which is why we filed the review. It would not have been fair to call it a modification application,” Gupta explained, “But a similar issue was being raised by the central government in an interlocutory application, which is why we decided to intervene in this.” The senior counsel recommended that the matter be disposed of ‘once and for all’ by being placed before a three-Judge Bench.

The division bench was hearing a batch of interlocutory applications filed in the T.N. Godavarman Thirumulpad case, an omnibus forest protection matter in which the top court issued the longest-standing continuing mandamus in the field of environmental litigation. In 2002, a Central Empowered Committee (CEC) was also constituted for monitoring the implementation of the court’s orders and bringing to its attention, incidents of non-compliance. One of the most significant rulings in the case came in June, 2022, when a three-Judge Bench led by Justice L. Nageswara Rao, mandated the creation of ecologically sensitive zones of one kilometre around wildlife sanctuaries and national parks.

The court, however, observed that a one kilometre-wide ‘no development zone’ might not be feasible in all cases. Justice Aniruddha Bose wrote, “Uniform Guidelines may not be possible in respect of each sanctuary or national parks for maintaining ecologically sensitive zones. However, a minimum width of one-kilometre ESZ ought to be maintained in respect of the protected forests, which forms part of the recommendations of the CEC in relation to Category-B protected forests. This would be the standard formula, subject to changes in special circumstances.” An exception was engrafted on the general formula for, inter alia, Sanjay Gandhi National Park in Mumbai, owing to the protected forest being located in close proximity to the urban centre. This was further clarified in a subsequent order in September, in which the court held that the ‘one-kilometre ESZ’ rule would apply neither to Sanjay Gandhi National Park, nor to Thane Creek Flamingo Sanctuary after noting that separate notifications had already been issued with respect to both these protected forests. Earlier in January, Justice Gavai had indicated that the same analogy as the three-Judge Bench’s order in the Sanjay Gandhi National Park and Flamingo Sanctuary would apply in this case, but that “it can only come up before a bench of three judges”.

On Monday, Advocate VK Biju highlighted the hardships faced by people who have resided for generations in the areas which now fall within one kilometre of the protected forests. “One fine morning, the authorities are coming and trying to uproot them, saying that you are in the buffer zone. These are daily wage labourers and tea plantation workers.” In response, the amicus curiae, K. Parameshwar, explained that the categorisation of permissible activities in eco-sensitive zones would be according to the 2011 guidelines issued by the Ministry of Environment, Forest and Climate Change. “It is not as if every activity within the eco-sensitive zone is prohibited. In fact, there are not a lot of activities that are prohibited. Therefore, the presumption that the moment an area is declared an eco-sensitive zone, people will be ousted, may not be entirely true.”

Parameshwar also expressed his dismay that despite the initial goal to create an ambitious 10 kilometres buffer zone around protected forests, further deliberations have only resulted in the reduction of the proposed width. “First, it started at 10, then became five, and now, it has been set at one kilometre in the last order of this court,” he explained. Parameshwar recommended a two-pronged approach starting with the identification of the eco-sensitive zones that are less than one kilometre wide, as per the notifications issued by the ministry, and then, for the court to “take a call”. “In at least certain critical habitats, the one-kilometre rule must be followed. Otherwise, the entire judgement is rendered nugatory. The purpose of this exercise was to have some buffer. While the court should not be oblivious to the genuine problems that have come up, we should see if both interests can be preserved.”

Justice Gavai said that the buffer zone primarily intended to regulate mining activities.

After hearing the submissions made by the counsel, Justice Gavai directed the matter to be placed before the chief justice, saying, “It will be appropriate that all these modification applications are heard and decided by a bench having a strength of three judges.”

Case Title

In Re: T.N. Godavarman Thirumulpad v. Union of India & Ors. | Writ Petition (Civil) No. 202 of 1995