On 26-4-2023, a three-Judge Bench of the Supreme Court passed an order in T.N. Godavarman Thirumulpad v. Union of India1 (2023 judgment) modifying its earlier directions in judgment dated 3-6-2022 in T.N. Godavarman Thirumulpad v. Union of India2 (2022 judgment) in T.N. Godavarman Thirumulpad v. Union of India3 (writ petition).
Briefly, the 2023 judgment4 was passed in respect of mining activities in eco-sensitive zones and clarifies that the direction passed in the 2022 judgment5 pertaining to prohibition of mining activities in national parks and wildlife sanctuaries (protected areas) shall also extend to an area up to one kilometre (km) from the boundary of the protected area.
The 2023 judgment6 was passed to ensure conservation of protected areas so that mining does not become a death trap for flora and fauna.
This issue arises regarding mining activities vis-à-vis eco-sensitive zones. The Guidelines for Declaration of Eco-Sensitive Zones around National Parks and Wildlife Sanctuaries (2011 Guidelines) was framed to facilitate the States/Union Territories for declaration of eco-sensitive zones around protected areas. The 2011 Guidelines enumerate activities which could be categorised as prohibited, regulated, and permitted in the eco-sensitive zones. In addition to the 2011 Guidelines, activities in eco-sensitive zones are regulated by notifications that are specific to an eco-sensitive zone. By the Wildlife Conservation Strategy, 2000 eco-sensitive zones were defined as lands falling within 10 kms of the boundaries of protected areas. The necessity to have eco-sensitive zone is to provide buffer zones around the protected areas.
The issue regarding mining activities in eco-sensitive zones came up for consideration before the Supreme Court in the below mentioned judgments/orders:
C. Judgments in relation to mining activities in eco-sensitive zones
I. The 2022 judgment
In the 2022 judgment7, the Supreme Court considered two issues. The first was in relation to mining activities in and around a wildlife sanctuary in the State of Rajasthan, known as “Jamwa Ramgarh”. The second issue was wider in scope and involved prescribing eco-sensitive zones surrounding the protected areas. The subject of mining and other related activities was also dealt in the 2022 judgment8.
In the 2022 judgment9, the Supreme Court, inter alia, issued the following directions:
(i) Each protected area must have an eco-sensitive zone of minimum one km measured from the demarcated boundary of such protected area (Direction 1).
(ii) In the event, eco-sensitive zone is already prescribed as per law that goes beyond the 1 km buffer zone, the wider margin as eco-sensitive zone shall prevail (Direction 2).
(iii) Mining within the national parks and wildlife sanctuaries shall not be permitted (Direction 3).
(iv) Further, in the event any activity was already being undertaken within one km or extended buffer zone, 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 Guidelines, such activities may continue with the permission of the Principal Chief Conservator of Forests (PCCF) 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 (Direction 4).
II. The 2023 judgment
- Eco-sensitive zones which have already been notified by the Ministry of Environment and Forest (MoEF) or the proposals for which have been received by MoEF should be exempted from Directions 1 and 3.
- Direction 1 should not be made applicable to national parks or wildlife sanctuaries which are located along inter-State boundaries.
Additionally, modify/clarify the entire Direction 4.
UoI sought the said modifications primarily on the following grounds:
- The area to be declared as eco-sensitive zone cannot be uniform and will be protected area specific.
- The directions contained in the 2022 judgment12 is causing great hardships to people residing in eco-sensitive zones. Hundreds of villages are cohabiting in eco-sensitive zones in the country. If Direction 4 is continued, then no permanent structure would be permitted to come up for whatsoever purpose.
The Forest Department will not be able to conduct eco development activities around national parks and wildlife sanctuaries.
In light of such submissions, the Supreme Court noted that the requirement of declaring eco-sensitive zones was not to hamper day-to-day activities but was meant to safeguard the protected areas from any negative impact. Therefore, the Supreme Court modified the 2022 judgment13 to the following extent:
1. Modification of Direction 1: Direction 1 shall not be applicable to eco-sensitive zones in respect of which a draft and final notification has been issued by MoEF. Further, Direction 1 shall not be applicable to protected areas located on inter-State borders and/or share common boundaries.
2. Modification of Direction 3: Direction 3 was modified to hold that mining within an area of 1 km from the boundary of the protected area shall not be permissible.
3. Modification of Direction 4: Direction 4 was modified and following directions were passed:
➢ MoEF shall strictly follow the 2011 Guidelines and the provisions contained in eco-sensitive zone notifications pertaining to respective protected area with regard to prohibited, regulated, and permitted activities.
➢ While granting environment and forest clearances for activities in the eco-sensitive zone and other areas outside the protected areas, the UoI shall strictly follow the provisions contained in the office memorandum dated 17-5-2022, issued by the MoEF.
D. Subsequent developments
Pursuant to the 2023 judgment14, an application bearing IA No. 3949 of 2016 in T.N. Godavarman Thirumulpad v. Union of India15 was filed by one M/s Puntambekar Minerals (applicant) in the writ petition, who was granted permission to execute a mining lease, sought a clarification from the Supreme Court regarding the modified Direction 3.
It was the case of the applicant that the 2023 judgment16 only prohibits mining in eco-sensitive zone within one km from the boundary of protected area. The applicant proposed to carry out the mining activity in an eco-sensitive zone, which is beyond 2.26 km from the nearest boundary of Radhanagari Wildlife Sanctuary. Resultantly, it was argued that the mining activity was more than a distance of one km from the boundary of the protected area and must therefore be allowed as per the 2023 judgment17.
In view of the above, the Supreme Court by order dated 28-4-202318, held as follows:
(i) The directions issued in the 2023 judgment19 were clear and do not require any clarification.
(ii) The 2023 judgment20 emphasises that the 2011 Guidelines and specific eco-sensitive zone notifications had to be strictly followed.
(iii) The activities prohibited by 2011 Guidelines and eco-sensitive zone notification shall not be allowed.
(iv) The law regarding mining activities in eco-sensitive zone is governed by the 2023 judgment21. The Notification dated 15-10-2020, inasmuch as it requires compliance of earlier orders, has become redundant in view of the 2023 judgment22.
(v) Even in cases where eco-sensitive zone is more than one km and mining activities are proposed in such eco-sensitive zone, the mining activity will not be permitted. The prohibition of one km from the boundary of the protected area is only with regard to cases where the boundary of eco-sensitive zone is less than one km.
† Partner, Khaitan & Co.
†† Associate, Khaitan & Co.
3. Writ Petition (Civil) No. 202 of 1995, order dated 18-5-2023 (SC)