Recently, the Supreme Court, while saying that it would have prevented the government from building roads and other important infrastructure in those areas, modified its 2022 order mandating a minimum 1-km eco-sensitive zone around national parks or wildlife sanctuaries. A three-judge bench of Justices BR Gavai, Vikram Nath and Sanjay Karol said that regulations about eco-sensitive zones cannot be uniform across the country and the judgment prohibiting all development activities within such sites is impossible to implement.
The Union of India in its application had asked for modification/clarification of some of the directions issued by the top court in its the order of June 3, 2022. The application focussed on two paragraphs (56.1 and 56.5) of the order.
Paragraph 56.1 states: “Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. For Jamwa Ramgarh Wildlife Sanctuary, it shall be 500 m so far as subsisting activities are concerned…”
The other paragraph (56.5) says: “In the event any activity is already being under-taken within the one kilometre or extended buffer zone (ESZ), 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 9-2-2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests 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. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.”
The clarification/modification sought in paragraph 56.1 of the order dated June 3, 2022, says that the ESZs which have already been notified by the Ministry of Environment, Forest and Climate Change (MoEFCC) or the proposals which have been received in the Ministry be exempted from the directions. The applicant also sought that the order may not be made applicable where national parks and wildlife sanctuaries are located along inter-state boundaries and/or common boundaries.
The application also sought that paragraph 56.5 of the order dated June 3, 2022, be modified/clarified in its entirety.
The government further submitted that it had already issued guidelines on February 9, 2011, for declaration of ESZs around national parks and wildlife sanctuaries. It said that the guidelines were framed after consulting the National Board for Wildlife (NBWL) and all states and Union territories. The guidelines provide a detailed procedure for submitting a proposal for declaration of areas around national parks and wildlife sanctuaries as ESZs.
The application pointed out that the guidelines detail various activities which have been categorized as prohibited, regulated or permitted. It added that the Supreme Court order of June 3, 2022, is likely to cause great hardship to those residing in the ESZs and that the Court’s direction that no new permanent structure shall be permitted to come up for whatsoever purpose within the ESZs would also cause great hardship.
It was also argued by the government that there cannot be a uniform boundary for all national parks and wildlife sanctuaries. It may be longer on one side and shorter on the other side, depending on various circumstances. In addition, various developmental activities like construction of schools, dispensaries, anganwadis, public health centres, etc., are required to be undertaken in such areas. Not only that, if the direction not to make any construction continues, the persons residing therein would not be in a position to construct or reconstruct houses on their own land. As is known, hundreds of villages are situated within the ESZs in the country. If no permanent construction is to be permitted for any purpose, a villager who is desirous to reconstruct his house would not be allowed to do so. Similarly, if there is an extension in a family and some additional construction is required, it would also not be permitted.
The government further argued that if the original June 3, 2022, order is not modified, it would be impossible for forest departments to conduct eco-development activities around national parks and sanctuaries. These activities are required for the dual objectives of protection of wildlife as well as providing benefits to the local communities. MoEFCC provides financial assistance to the states under the centrally-sponsored scheme—Integrated Development of Wildlife Habitats—which includes assistance for eco-development activities. These activities often involve construction of small structures which are permanent in nature in areas, including ESZs. There are also certain projects of national and strategic importance, such as construction of national highways, railways, defence-related infrastructure, etc.
The Court observed that insofar as direction in paragraph 56.1 of the order, dated June 3, 2022, is concerned, a perusal of various orders would reveal that the Court has not directed any minimum area from the demarcated boundary of such protected areas. The area to be declared as ESZ cannot be uniform and will be protected area specific. In some cases, it may be 10 kilometres on one side and 500 metres on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of the protected area.
As such, the Court found that the direction contained in paragraph 56.6 of the order, dated June 3, 2022, also needs to be modified. The Court also modified the direction contained in paragraph 56.4 of the order, dated June 3, 2022, and directed that mining within the national park and wildlife sanctuary and within an area of one kilometre from the boundary of such national park and wildlife sanctuary shall not be permissible.
—By Adarsh Kumar and India Legal Bureau