Coastal Ballads and Conservation Ironic: Understanding Implementation Slippages of the CRZ Law

Abstract

The passage and progress of the Coastal Regulatory Zone law from 1991 until today has carried it through a number of environmental and developmental challenges. This law applies to the conservation of fragile ecology and ecosystems surrounding all water bodies such as rivers, creeks, lagoons, estuaries, coral reefs, mangroves, swamps and backwaters. The need for considering environmentalists of the stature of Madhav Gadgil and the Kasturirangan report for preparing a report on the Western Ghats and then succumbing to the populist resistance which followed against their recommendations suggests a need to raise one pertinent question before expanding development into fragile eco-zones: Can the fragile ecology of riverbeds and coasts be preserved without substantive land-use restrictions over them? This chapter attempts to find answers to this question and to demonstrate that the gap which is created due to state failure in acting as a custodian of ‘environmental resources’ has placed the judiciary in a powerful position with immense freedom to interpret the CRZ regulations. This has weakened the spirit of law by reducing the scope and effectiveness of regular administrative agencies expected to implement the law and conservation requirements. This chapter highlights that any wavering on implementing CRZ law will push the fragile vicinity of water bodies into increased vulnerability to disasters, leading to massive socio-economic destruction and loss of lives.

This paper was published as a Special Article in Economic and Political Weekly, Vol. 51, Issue No. 7, 13th Feb. 2016 and is being reproduced here with an authorized permission from EPW.

The passage and progress of the Coastal Regulatory Zone law from 1991 until today has carried it through a number of environmental and developmental challenges. This law applies to the conservation of fragile ecology and ecosystems surrounding all water bodies such as rivers, creeks, lagoons, estuaries, coral reefs, mangroves, swamps and backwaters. The need for considering environmentalists of the stature of Madhav Gadgil and the Kasturirangan report for preparing a report on the Western Ghats and then succumbing to the populist resistance which followed against their recommendations suggests a need to raise one pertinent question before expanding development into fragile eco-zones: Can the fragile ecology of riverbeds and coasts be preserved without substantive land-use restrictions over them? This chapter attempts to find answers to this question and to demonstrate that the gap which is created due to state failure in acting as a custodian of ‘environmental resources’ has placed the judiciary in a powerful position with immense freedom to interpret the CRZ regulations. This has weakened the spirit of law by reducing the scope and effectiveness of regular administrative agencies expected to implement the law and conservation requirements. This chapter highlights that any wavering on implementing CRZ law will push the fragile vicinity of water bodies into increased vulnerability to disasters, leading to massive socio-economic destruction and loss of lives.

What Is a Coastal Zone Land and the Land Called Riverbed?

A coastal zone is the land area from the low tide line in the sea waters to the area that the sea water reaches during high tide. This covers the land around rivers, creeks, lagoons, estuaries, coral reefs, mangroves, swamps and backwaters which is affected by tidal action. Coastal zones provide and sustain diverse ecosystems which produce goods and services that can never be substituted even by the best government provisions. The United Nations Ecosystem Assessment Report of 2005 provides a detailed study of the value of these goods and services to human beings. In 1993 a Writ Petition (No.664 of 1993, decided in 1996) from the Indian Council for Enviro-Legal Action raised a grievance against the Central Government for not enforcing the implementation of CRZ Regulations by state governments, leading to ‘continued degradation of ecology in the coastal areas’. The Writ Petition also challenged the validity of the 1994 Notification which sought to amend and ‘defeat the intent of the main 1991 Notification’. Following this, the Hon’ble Supreme Court directed the states to set up State Coastal Zone Management Authority (CZMA) which would formulate a Coastal Zone Management Plan (CZMP) to implement CRZ Regulations. This directive from the court demonstrated that this land area of coasts and riverbeds was different from the rest of the district land area and is governed by a different set of rules. It also indicated that the special and exclusive attention which this land area requires may not be within the capacity of district land monitoring and developmental agencies such as the District Town and Country Planner or the Municipal Corporation. The states were monitored for compliance and the Chief Secretaries of the non-compliant states were issued notices to explain and show cause. This strict action by the Supreme Court led the states to activate conservation efforts in the CRZs.

Riverbed area has been a politically contested zone. A legitimate understanding emerged¹ on the issues raised by Justice Gita Mittal in the Case of Commonwealth Games Village² in 2009, which stated, ‘The river, riverbed, river basin, the flood plain of the river is not within the meaning of the expression land and consequently its change of user is not permissible’. The learned judge referred to earlier orders³ of May 2005 and 2003 to emphasize that ‘…river Yamuna its bed, basin and flood plain is a water body, is not land and can be utilized only as a water body’. However in 2009, a three-judge Supreme Court bench of Justice B.S. Chauhan, K.G. Balakrishnan and P. Sathasivam reversed this normative and ecological understanding to a new institutional explanation quoting scientific literature and global opinions which do not treat riverbeds as a water body but as land which can be constructed upon. Similar fuzziness was created when builders started occupying biodiversity-rich spaces of backwaters for constructing holiday resorts. There is no mandatory ecological or sensitization training of judges and bureaucrats managing the environment as they advance in their institutional hierarchy, consequently restricting the scope for ensuring environmentally sound and sustainable development in the country.

Land Use in Fragile Areas

The protection of the fragile⁴ ecology of riverbeds and coastal zones makes land-use restrictions indispensable. The National Centre for Sustainable Coastal Management (NCSCM), which comes under the Union Ministry of Environment, Forest and Climate Change, recently concluded a study on India’s coastal zones to highlight that in the last 50 years more than 40% of the coastal area has eroded.⁵ Repeated and frequent climate change-related disasters in the form of floods, hurricanes, cloudbursts and landslides have increased ecological and environmental vulnerability, which, when coupled with incessant, ambitious and unregulated urbanization, destroys sustainable ecosystems forever. Water bodies such as lakes, ponds and underground aquifers have become garbage dumps, construction sites or golf courses. However, this serious policy failure has repeatedly been ignored and rejection of the Gadgil Committee Report on the Western Ghats only adds to the list.

The need for land-use restrictions around coasts, rivers and other water bodies led to the Coastal Regulation Zone Notification 1991. In exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules 1986, the Central Government declared the coastal stretches of seas, bays, estuaries, creeks and backwaters which were influenced by tidal action (in the landward side) up to 500 m from the High Tide Line (HTL)⁶ and the land between the HTL and the Low Tide Line (LTL) as the Coastal Regulation Zone and imposed restrictions on its use for setting up industries and other operations. An incremental approach was used to restrict activities on the landward side of the HTL. The regulation of activities over land was ensured through a fourfold classification of CRZ: CRZ-1, CRZ-2, CRZ-3 and CRZ-4. The Notification further added that no construction (including temporary constructions and fencing or other such barriers) would be permitted within 200 m (in the landward side) of the HTL and also within the area between the LTL and HTL. This area is designated as a ‘No Development Zone’ (NDZ).⁷ The declaration of the NDZ brought down the guillotine over hoteliers and industrialists who had become more ambitious due to the global flow of capital and professionals into India. Therefore amendments made to the CRZ Notification in 1994 exempted new construction and developmental activities in the NDZ. The Notification also reduced the distance from 100 m of the HTL to 50 m. If this was allowed to move further it would have caused massive devastation but due to an alert and timely petition in the Supreme Court by the Indian Council of Enviro-Legal Action vs. Union of India and others⁸ this legal overreach was immediately struck down.

The 1991 Notification has, however, regulated land use for developmental activities up to 500 m of the HTL on the landward side. Annexure I to the Notification deals with coastal area classification and development regulations, but it also draws attention to the fragile ecology of these coasts, as in the case concerning Vembanad Kayal backwater⁹ adjoining Vettila Thuruthu and connected lagoons and filtration ponds in which the Kerala High Court referred to the area as a Critical Vulnerable Coastal Area (CVCA). This generated increased attention of courts toward land utilization restrictions for the greater public good.

The biggest hurdle which courts encountered in imposing land-use restrictions came from an argument on the loss of livelihood. CRZ is an area which generates livelihood for local inhabitants by providing goods and services to the whole region. This area serves as a common property resource of villages which provides free ecosystem services benefiting the poorest of the poor, who survive in close proximity to nature. Some of the estimates emerging to calculate the cost of ecosystem services have confused those who thought it was a free asset. The study highlighted that:

We have estimated the current economic value of 17 ecosystem services for 16 biomes, based on published studies and a few original calculations. For the entire biosphere, the value (most of which is outside the market) is estimated to be in the range of US$16–54 trillion (1012) per year, with an average of US$33 trillion per year. Because of the nature of the uncertainties, this must be considered a minimum estimate. Global gross national product total is around US$18 trillion per year. (Costanza et al. 1997: 253)

Thus the price of ecosystem services was calculated as almost the double the total world economic output in 1997 when Costanza and colleagues attempted to estimate this amount. More recently in 2012, John Dearing’s (2012) study highlighted the deleterious effects of human-induced land-use and land cover changes leading to the transformation of landscapes and the greatest loss to biodiversity and environmental balance. The study strongly demands robust action against unchecked development.

The 12th Plan objective of investing in the prevention and mitigation of environmental disasters with a focus on resilience building of ecologically fragile and environmentally sensitive regions suggests a step toward recognizing the vulnerability of local populations. Communities inhabiting ecologically sensitive areas such as fisherfolk, Sabai grass workers, and forest or mountain tribes are becoming increasingly vulnerable due to intrusive development and irregular construction in their areas. The need for livelihood security is linked to conservation in para 1 of CRZ Notification 2011 where reference has been made to sub-section (1) and clause (v) of sub-section (2) of the Environment (Protection) Act 1986, through which the Central Government has been conferred the responsibility of ensuring sustainable livelihood security for fisher communities and other local communities living in the coastal areas. In doing so, it legitimately imposes many land-use restrictions such as the setting up or expansion of industries; operations, processing and manufacture, handling or storage, or disposal of hazardous substances as specified in Hazardous Substances (Handling, Management and Transboundary Movement) Rules 2009; or any construction activity. In many instances the Supreme Court has even set aside High Court permissions for construction which violated the CRZ conditions for land-use diversion¹⁰ and appointed Expert Committees to prepare an Integrated Island Management Plan for an appropriate and sustainable development of the area.

Since environmental protection is recognized as a fundamental right, environmental degradation becomes a violation of the fundamental right to life under Article 21 of the constitution. On several occasions since its most explicit approval in the Dehradun Quarrying Case (AIR1988, SC 2187), even the judiciary has admitted that the right to a wholesome environment is indispensable for sustainable human well-being. This has subsequently featured in the judgments delivered in the infamous Oleum Gas Leak Case (AIR 1987, SC1086), Arvind Textiles v. State of Rajasthan (AIR 1994 Raj.195) and AP Pollution Control Board v. M.V. Nayudu (AIR 1999, SC 812). Thus environmental protection in an eco-sensitive region such as backwaters creates heightened responsibility for both the Central and state governments toward greater fairness and eco-centric conservation.

CRZs protect and sustain livelihood as much as the coastal ecosystems do. In going back to the history of CRZ regulations one would situate the National Fishworkers Forum (NFF) as the pioneers of this conservation milestone. Distressed with depleting fish catch due to industrial, oil and sewage pollution, combined with ambitious dredging and reclamation activities, the NFF marched through Kanyakumari in 1989 demanding pollution-free coasts. Their slogan was ‘Protect Water and Protect Life’ as they highlighted the link between all water bodies from the sea to the lakes and rivers. It was then that the government responded by bringing in the 1991 CRZ Notification. The recent defiance of CRZ by builders and local authorities has once again brought into focus the NFF under the well-coordinated platform of the Kerala Swatantra Malsyathozhily Federation. Their slogan throughout the fishing harbor route from Mangaluru to Thiruvananthapuram was ‘Protect Sea, Coast, Inland Water Bodies and Fish Resources’. The value of interlinked water bodies is better understood now than ever before.

Bittu Sehgal, member the Coastal Task Force and founder of India’s premier wildlife magazine, Sanctuary, has indicated that

land developers around the country are working overtime with state government officials to encash literally thousands of crores of rupees worth of public lands. There is a similar move afoot for forestslands and together the attack on coastal belts and forest belts will alter the survival ecology of over 300 million people within the next three to five years. To my mind this represents a more serious threat than any other development project or anti-people initiatives ever initiated on the Indian subcontinent in the past 50 years. (1998, in correspondence with Mr. Vishvanath Anand, Addl. Secretary at the Ministry of Environment and Forests)

Inconsistent Judicial Interpretation of Land-Use Restrictions

Fragile ecosystems of water bodies have not been appropriately located in many judgments delivered in the last two decades. The approach to CRZ law has been inconsistent and has led to incomplete solutions to the problem of fragility in riverbeds and along coasts.¹¹ Whenever these contestations are pulled into the courtroom there are claims and counterclaims over the nature of ecosystems, state responsibility and the rights of local people. There exists enormous disparity in legal claims presented before the judges in interpreting both the ‘resources’ and ‘public welfare’ on different occasions.

Inconsistent judicial interpretations can be demonstrated to revolve around three pillars: the CRZ land-use restrictions, public trust doctrine, and the irresponsible and unaccountable governance institutions:

• In the CRZ land-use restrictions judges have sought various definitions for defining coasts and land-use diversions. At times courts have diverted the onus of decision making to the CZMA¹² and in some cases have allowed CRZ violation.¹³On the issue of land reclamation the High Court of Kerala did not find any serious impairment to aquatic resources, ecology and environment in the land reclamation demanded by the Goshree Project,¹⁴ and even declared that the land proposed does not come under the CRZ area. The judiciary has interpreted the land reclamation in different ways as well. In the case of the Institute of Social Welfare vs. State of Kerala (1996 (1) KLT 718 = AIR 1997 Ker.45) only such land reclamation as would disturb the natural course of seawater was prohibited and the court even insisted that any neglect of the aforementioned interpretation may lead to unregulated constructions of various kinds. However, two years later the court applied a relatively liberal interpretation to the above decision and allowed the Goshree Project to reclaim 25 hectares of land near Marine Drive. This led the Courts to incline toward soft decisions and dismiss clear action, as was initiated by Justice A V Ramakrishna Pillai¹⁵ when he ordered the demolition of buildings which encroached upon backwaters. Moreover, it was only after the country’s top accountability body CAG exposed the defiance of CRZ regulations by builders that government bodies and the Courts sprang into action. There is a need for revisiting regulations which regulate land use around coastal and catchment zones. The fundamental guiding principle of coastal conservation is best expressed by Justice A V Ramakrishna Pillai, who ordered demolition of DLF construction around the Chilavannoor backwaters in Ernakulam: ‘Nature, which is the property of the nation, cannot be allowed to be scrambled by a minority violating all laws’.¹⁶ Ironically, the division bench of the Kerala High Court comprising Justice Thottathil B. Radhakrishnan and Justice Babu Mathew P. Joseph passed the order granting a three-month stay on an appeal filed by the DLF¹⁷ against the single bench order and granted a three-month stay to demolish the DLF apartment complex for violating the CRZ notifications. As CRZ law applies equally to the riverbed and catchment zones, this discussion could include the battle over the Yamuna riverbed for the construction of the Commonwealth Games Village in 2010. The controversy over whether or not the construction was actually on a riverbed became an argument for allowing the construction. As already mentioned, while a number of judgments treat riverbeds as a waterbody which cannot be used for construction, a Supreme Court Bench headed by the Chief Justice himself declared the riverbed as ‘land’ and therefore open for construction.

• The doctrine of public trust is a symbolic but logically explainable understanding between the state and citizens under natural law. The Hon’ble Supreme Court in M.C. Mehta v. Kamal Nath and Others (1997, SCC 388) articulated the doctrine of ‘public trust’, the theoretical thrust of which was elaborated as ‘certain common properties such as rivers, seashores, forests and the air are held by the Government in trusteeship for their free and unimpeded use of general public. Following the judgement in the above case, the State and High Court shall endeavor to protect and improve environment’.¹⁸ Much of this law is guided through Article 48A and Article 51A inserted in Part IV of the Constitution through the 42nd Constitutional Amendment Act 1976. While the former places a responsibility on the state, the latter emphasizes citizens’ duty to protect the environment. An important but terse message which emerges from the doctrine of public trust is to reject and condemn private ownership of environmental resources as complete defiance of natural justice. This suggests that forests, water bodies and air belong to people and the state is merely a custodian of this ‘people’s property’ as a trustee. Writing on the relationship of public trust doctrine and environmental conservation, Sax¹⁹ suggests that ‘[o]ur contemporary concerns about ‘the environment’ bear a very close conceptual relationship to this venerable legal doctrine (of public trust)’ (1970: 164). It is primarily due to the doctrine of public trust that courts tend to recognize the doctrine of legitimate expectation²⁰ whereby the government is expected to demonstrate some form of regularity, predictability and an assurance rather than a drastic turn-around from an expected procedural and substantive system of functioning. It is an unwritten code of standard behavior which the citizen expects from the state.

• Governance of CRZ has been tarnished due to the presence of multiple administrative authorities and each being ‘not responsible’ or waiting for another department to take a stand on an issue. There are many decision makers on CRZ such as the Ministry of Environment, Forest and Climate Change (UNEFCC), the State Coastal Zone Management Authority (KCZMA), the State-Level Environment Impact Assessment Authority (SEIAA), the State Expert Appraisal Committee (SEAC), the Port Trust (PT), the Fisheries Department (KFD) and the Municipal Corporation. On November 3, 2011, in exercise of the powers conferred by sub-section (3) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) and in pursuance of the Government of India in the Ministry of Environment, Forest and Climate Change notification number S.O. 1533 (E), dated September 14, 2006, the Central Government constituted SEIAA and SEAC in Kerala. The overlapping jurisdictions of Central and state government on one hand and of hierarchies of state agencies and departments on the other, inappropriate standardization of jurisdictional boundaries and a loose time frame without clear penal action have dispersed the norms of accountability within the whole state’s administrative framework. Justice Ramakrishna Pillai’s demolition orders on DLF encroachments on Chilavannoor Road, Ernakulam backwaters, highlights the administrative quagmire as well as their lethargy. The builders found ample negotiating space to obtain all clearances for construction in the CRZ. The Town Planning Standing Committee made the city corporation issue permits, a basic requirement to obtain an electricity connection, but even where these permits, approvals and occupancy certificates were not given, all buildings, even the 7- and 20-story apartments, were found to be lit with electricity and had working elevators.

The Three Major Deficits of Governance: Study of the Kerala Backwaters Case 2014

• First: Accountability for granting clearances was not fixed

  The process for approval is tough, and begins with the Municipal Corporation allocating land for construction. The KCZMA then approves the plan through environmental clearances from the Ministry of Environment, Forest and Climate Change. The departments of the District Development Commissioners and District Planning Officers are part of the urban local body which gives environmental clearances to projects in CRZ areas.

• Second: Monitoring and Reporting agencies have no power to stop non-compliant projects immediately

  The urban local body as part of District Administration and Town and Country Planning failed to enforce land-use and municipal laws, building structural plans and floor size regulations. The Vigilance and Anti-corruption Bureau (VACB) made surprise raids at the construction sites of ten municipalities only after CAG reported violations in its report. When the Corporation sent notices to some of them it was more a ritual administrative exercise to be on the right side of the law rather than any commitment to stop illegal construction.

• Third: Lack of respect for internal procedures and EIA.

  In most of the violations it was found that the Municipal Corporation gave permission for construction without addressing and insisting on the need for obtaining even the required mandatory approvals from the CZMA and the Central Ministry (MOEFCC). CZMA later informed the corporation about the ongoing construction of 13 buildings but the corporation sent notices to only one construction company to stop work. The role of the corporation secretary also vacillated between different options. The Electricity Board overlooked the mandatory requirement of possessing Occupancy Certificates from the Municipal Corporation for obtaining electricity connections for the buildings.

For coastal and catchment zone protection there are three major statutory bodies managing encroachments: the CZMA, the SEIAA and the SEAC. Their relationship with one another and their coordination with other statutory bodies, that is, the District Town and Country Planning Department, the State Industrial Corporation, the Urban Development Authority and most of all the local Panchayat Authorities, have become increasingly unaccountable. This sometimes pushes fragile regions into greater vulnerability. A recent trans-disciplinary study (Auerbach et al. 2015: 1–5) by scholars from the social sciences and earth sciences has revealed that much of what administrators do in preventing floods and promoting environmental conservation actually exacerbates these conditions and has even led to sea level rise and flooding.

Addressing the Overload of CZMA

CZMA was created by the Central Government under the powers conferred through sub-sections (1) and (3) of section 3 of the Environment (Protection) Act 1986. Its mandate stretches from livelihood security to disaster risk reduction policies:

… in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act,1986 (29 of 1986), the Central Government, with a view to ensure livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming, does hereby, declare the coastal stretches of the country and the water area upto its territorial water limit, excluding the islands of Andaman and Nicobar and Lakshadweep and the marine areas surrounding these islands upto its territorial limit, as Coastal Regulation Zone (hereinafter referred to as the CRZ) and restricts the setting up and expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazardous substances as specified in the Hazardous Substances. (Handling, Management and Transboundary Movement) Rules, 2009 in the aforesaid CRZ…

Principal Secretaries and Secretaries from the key state departments such as science and technology, revenue, local self-government, fisheries, environment and industries are appointed as members for a tenure of three years. Members are not ‘just anyone’ representing that particular department of the state government, but are selected because they are heading these departments, which makes all the difference in CRZ implementation. By virtue of being the head of their own department the additional charge of CZMA brings an overload of additional responsibilities. These additional and also secondary assignments are often treated as avoidable, aside from attending meetings called by the Member Secretary from time to time. Most Member Secretaries complain about the difficulties of getting everyone together and also getting everyone to rise above narrow departmental boundaries, and about uncompleted homework expected from each of them on a case-by-case basis mentioned in the agenda. Most of these Secretaries are transferred much before completing the tenure of three years, and the next incumbent is not completely aware of the sensitivity of most projects outside the regular departmental responsibilities. Moreover, the unspoken tension which rips apart any committed administrative action is the lack of attention given by the new incumbent to the decisions and projects attended to by the previous one.

Conclusion

The law of conservation is not inherently weak. However, what makes it weak is the combination of the failure of state leadership, administrative and judicial corruption, and lack of ecological awareness. There are many factors which prevent sensitization, resonance and rigor in environmental governance. The most important one is the need for public feedback (and the application of the audi alteram partem rule to expect all parties to be heard appropriately before taking a decision) and a regular supervisory and evaluation committee which can best be arranged through the central ministry (MEFCC). In the Case of protecting CRZ of Kerala Backwaters, Justice A.V. Ramakrishna Pillai observed,

The purpose of these laws is to preserve nature for posterity. If the violation of the laws is allowed to become the order of the day, the existence of life would be at peril. Right to life guaranteed by the Constitution takes innumerable rights, including the right to enjoy nature in the present form. Indiscriminate invasion of nature to the detriment of others is an invasion of right to life.

All this can be achieved if public institutions perform as custodians of the trust property rather than agents of its destruction and a cause for disaster.