Call For PapersLaw School News

The Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Winter ’22 Issue of the Journal (Vol. 14, No. 2) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

 

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in world trade, international economic law,  cross-border investment, and development, among other inter-related aspects of international law, and to serve as a forum for the discussion and distribution of ideas. Towards these ends, we have published works by noted scholars such as WTO DDG Yonov F. Agah, Dr. Prof. Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law and the 10th best journal in the field of world trade for seven consecutive years by Washington and Lee University, School of Law.

Manuscripts received by August 15, 2022, pertaining to any area within the purview of international economic law will be reviewed for publication in the Winter ’22 issue.

Manuscripts may be submitted via e-mail. For further information about the Journal, please click here. For submission guidelines, please click here.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

Last Date For Submissions: 15 August, 2022

Case BriefsSupreme Court

Supreme Court: In an important case regarding environment Law the 3-judge Bench comprising L. Nageswara Rao, B. R. Gavai and Aniruddha Bose, JJ., revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem. The Court remarked,  

“…in case of doubt, protection of environment would have precedence over the economic interest.” 

Factual Backdrop  

The instant case relates to the recommendation made by the National Board for Wildlife (NBWL) for wildlife clearance for doubling of 26 km stretch of the railway line in Western Ghats from Castlerock in Karnataka to Kulem in Goa passing through Bhagwan Mahaveer Wildlife Sanctuary, subject to fulfilling certain conditions.  

The proposal is for doubling the existing railway line on the land involving 120.875 hectares of land within protected area and 113.857 hectares of land in non-protected area reserved forest 7.018 hectares.  

The recommendation of NBWL was assailed by Goa Foundation before the Central Empowered Committee (CEC) for being in violation of the order passed by the Supreme Court on 05-10-2015. The Goa Foundation contended that the project involves diversion of significant area of forest land and sanctuary land and would entail further destruction of the Sanctuary/National Park and wildlife. Further, a large number of trees will have to be felled within the Bhagwan Mahaveer Wildlife Sanctuary and also, the integrity of the protected area and wildlife sanctuary would be severely affected. The Goa Foundation also contended before the CEC that assessment of proper impact on wildlife habitat and biodiversity was never carried out before NBWL approved the project. 

Pertinently, western ghats eco-system which is one of world’s eight hotspots, which spreads across 9 National Tiger Reserves, 20 National Parks and about 68 Wildlife Sanctuaries and the landscape forms one of the largest and most contiguous Protected Area networks in the country.  

CEC Recommendation  

The CEC recommended revocation of the permission granted by the Standing Committee for NBWL for doubling the railway line passing through the ecologically sensitive Western Ghats from Tinaighat-Castlerock in Karnataka to Kulem in Goa as such permission was in violation of the guidelines issued by the Ministry of Environment, Forest and Climate Change under the Wildlife Protection Act, 1972 and the order dated 05-10-2015. 

Noticing that the proposed railway doubling line is parallel to the existing railway line which passes through same forest along the same corridor, the CEC was of the opinion that the additional line is not likely to add either to the turnaround time of the train or loco or to the speed of the train. Therefore, the CEC recommended that the permission granted by the Standing Committee of the NBWL should be revoked, some of the reasons cited by the CEC were as following: 

  • The report of the Standing Committee of NBWL did not obtain any specific recommendation on mitigation measures from the Wildlife Institute of India, Dehradun before approving the proposal in respect of the Goa portion.  
  • The opening of the forest cover in the ecologically sensitive Western Ghats along the existing line is likely to invite light-demanding invasive weeds like Mikania species which colonise fast in the open area and spread to the nearby forest canopy and destroy the natural forest;  
  • The increased number of trains and wider openings through the ecologically sensitive Western Ghats for laying the track will further fragment the habitat and will make the movement of wildlife including arboreal animals across the railway line much more difficult and dangerous and is bound to result in high casualties amongst the wildlife;  
  • The railway line cuts across the most important animal corridor in the Western Ghat landscape between Karnataka and Maharashtra through the State of Goa and will be a serious impediment to the movement of long-ranging animals like tiger and elephant.  
  • The approval by NBWL to go ahead with the project has been granted in respect of Goa Portion without first obtaining the advice of NTCA as statutorily required under section 38 (0) of the Wild Life (Protection) Act, 1972;  

Analysis and Findings 

Relying on Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647, the Court stated that the ‘Precautionary Principle’ is an essential feature of the principle of ‘Sustainable Development’. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Court reiterated that in case of doubt, protection of the environment would have precedence over the economic interest. 

Available Alternatives  

Rejecting the Rail Vikas Nigam Ltd.’s (RVNL) contention that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future, the Court, affirming the views taken by CEC stated that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal.  

The Court opined that the CEC was right in its conclusion that the proposal for the doubling of the railway line should be revoked for the following reasons:  

  • At present the Konkan railway line gives excellent connectivity to Northern and Southern parts of India.  
  • Consequent to changes in government policy to discourage import of coal there will be reduction in the coal import which currently forms more than 90 % of goods traffic from Murmagoa Port;  
  • The estimate of projected increase in traffic from Karnataka to Goa furnished by the railways is not based on facts and is without any sound reasoning and as statistics shows mostly includes empty rakes returning to Goa; 
  • There are alternative ports like Krishnapatnam in east coast available with better rail connectivity for transport of goods to and from industrial belt of northern Karnataka and the capacity of the same is yet to be fully utilized.   
  • The connectivity between Goa and Karnataka is being strengthened/improved by way of 4 laning of NH-4A along the same route and by the development of new airport. 

“In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well.”  

Further, RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals, however, in its report, the CEC submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. 

Directions to RVNL  

The Court noted that the landscape in which the railway line is proposed connects the three States of Goa, Karnataka, and Maharashtra, however, there was no viability report regarding Goa part. The Court expressed, 

“The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported.”  

Affirming the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material, the Court made following directs to RVNL:  

  • Conduct a detailed study on the viability of the project for the Goa part regarding impact of the proposed project on the biodiversity and ecological system of the protected areas under the wildlife sanctuary.  
  • Conduct an assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature, etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures, etc.), movement of trains, human-wildlife interactions before considering the project.  
  • Provide a credible data, supported by an independent and credible source for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and an explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project.  
  • Conduct an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem.  

Conclusion  

For the foregoing reasons, the Court upheld the conclusion of the CEC and revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem.  

However, the Court granted RVNL liberty to carry out a detailed analysis on the impact of the proposed project on the biodiversity and ecology of the protected areas under the wildlife sanctuary and submit a fresh proposal to the Standing Committee of NBWL which shall be considered in accordance with law.  

[T.N. Godavarman Thirumulpad v. Union of India, 2022 SCC OnLine SC 583, decided on 09-05-2022]  


Kamini Sharma, Editorial Assistant has put this report together

Call For PapersLaw School News

Gujarat National Law University publishes an interdisciplinary journal titled the GNLU Journal of Law, Development and Politics as part of the overall academic and research activity of the University. GJLDP aims to examine the inter-disciplinary aspect between Law, Development and Politics to initiate discussion and analyze the various issues that are being faced by various nations including India and propose solution for the same.

As we proceed to unveil the 9 the volume (1 & 2) issue of the Journal, we invite contribution to the journal in the form of articles, commentaries, original articles, review articles, book reviews, comments and discussion within the aim and scope of the journal.

Click HERE for more details.

law, development and politics