Precaution discarded, Kasturirangan report does not recognise importance of Western Ghats

SuhasaniRao_RainmakerfacultyIn April 2013, the Kasturirangan Committee constituted by the Ministry of Environment and Forests (“MoEF”) submitted its report on the Western Ghats, sparking much political debate about the fate of this mountain range, which runs parallel to the western coast of India, almost contiguously from the lower reaches of Gujarat to the tip of the Indian peninsula. A unique geological and ecological marvel home to the greatest concentration of biodiversity in the world, hosting about 325 globally threatened species in an area roughly forty-three times the state of Goa, they are a UNESCO World Heritage Site and a key component in regulating the south-west monsoon cycle that forms the basis of the subcontinent’s rainfed agriculture. Not only do they provide a natural barrier to the rain-laden winds, the topography of the Ghats has, over millennia, become the natural habitat for thousands of species of flora and fauna that live in delicately balanced ecosystems throughout the ranges. As the Kasturirangan Committee report accepts, only concerted efforts to study it over decades will provide a full appreciation of the value of this exceptional phenomenon.

Western Ghats biodiversityGiven that it spans the six states of Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu, it is vital that state governments and the Union government work with each other to preserve this unique ecosystem. Remember, that since the protection of wildlife and the regulation of forests are subjects in Entries 17A and 17B of the Concurrent List of Schedule VII of the Constitution of India (“Constitution”), the Union and the State governments have to co-ordinate conservation efforts.

In August 2011, the Western Ghats Ecology Expert Panel, (“WGEEP”), headed by Madhav Gadgil, had submitted to the MoEF, a report (“the Gadgil Committee Report”) containing recommendations for the preservation of the Western Ghats. It recommended the formation of a Western Ghats Ecology Authority under Section 3(3) of the Environment Protection Act, 1986 (“EPA”) to exercise greater control over environmentally damaging activities in the Western Ghats as well as to oversee conservation efforts in the region.

The WGEEP had been required to “demarcate ecologically sensitive zones and suggest measures to conserve, protect and rejuvenate the ecology of Western Ghats region.” Based on the feedback of the different stakeholders and the recommendations of the Gadgil Committee Report, the MoEF constituted a High Level Working Group to provide suggestions for “an all-round and holistic approach for sustainable and equitable development while keeping in focus the preservation and conservation of ecological systems in Western Ghats.” The HLWG was headed by Dr. K. Kasturirangan and it came out with the Kasturirangan Committee Report.

What is the debate all about?

KKasturirangan_MadhavGadgil.jpgThe western region of India has traditionally had a high density of human population. In recent years, monoculture plantations (such as spices and bananas in the Kodagu region of Karnataka), poaching, and livestock grazing have added to the pressure on the land. Over the last two decades, mining and extraction of sand, in particular, have led to large-scale degradation in places like Goa, where the mining industry contributes a major chunk of the state’s revenues. This ever-increasing threat and the need for sustainable solutions prompted the Union government to institute the Gadgil and subsequently, the Kasturirangan committees. Both sets of recommendations have run into rough weather.

The Kasturirangan Committee report recognised that almost 60 per cent of the region of the Western Ghats is under human habitation, leaving only about 37 per cent of it – close to 60,000 square kilometres in area – under uninhabited forest cover. The report recommended that all such land be declared an Ecologically Sensitive Area (“ESA”) and that a prohibitory and regulatory regime be implemented in ESA regions including a complete ban on mining, quarrying, and sand mining. Obviously, this has attracted a lot of political debate and is now the subject of negotiations between the Union and the state governments that will be affected if this recommendation is to be legislated.

In a bid to strike a balance between conservation efforts and continued sustainable human development, the report also recommended incentivising green growth and proposes spurring growth of the inhabited regions of the Western Ghats through grant-in-aid projects funded by the Union Government. It envisaged increased expenditure by the Union government towards state debts in a way that will boost the productivity of forest-reliant livelihoods.

“This is a mechanism whereby part of the outstanding debt of a State is swapped for new constructive initiatives by it to protect its natural resources. A part of these payments be retained by the State Governments and a part be used to finance local conservation trust funds (as in several countries), which disburse grants to community projects for improving forest productivity and ensuring sustainable forest based livelihoods in ESAs.”

EnvLaw-GIFWhile the idea of sustainable economic development is a good one in theory, considering the amount of pressure that is already exerted on a fragile and fast-shrinking ecosystem, it may not be the most pragmatic approach. The report in fact follows through to propose two extreme and contrasting views. At one end of the spectrum are the strictly regulated and cloistered regions under the ESA category with zero-tolerance for any human activity. At the other end, the rest of the Western Ghats are under threat of turning into an open forestry industry, where almost every environmental resource is potentially tapped for its economic value.

In its report, the Gadgil Committee had recommended the stricter monitoring and implementation of the applicable environmental laws to maintain and possibly achieve, a greater level of conservation of the Western Ghats. Seeing how these would be difficult to achieve, the Kasturirangan Committee broke the area down into components. Madhav Gadgil’s open letter to Dr. Kasturirangan was scathing; he said the latter set of recommendations would result in “maintain[ing] oases of diversity in desert of ecological devastation”.

Precaution, sustainability

GadgillCommittee_KasturiranganCommittee_ComparisonThe precautionary principle, first articulated in Principle 15 of the Rio Declaration of 1991 (“Rio Declaration”), demands the exercise of caution in carrying out human activities, the effect of which on the environment are not clearly known at that time. This principle has been a part of Indian law since the Supreme Court emphasised the need for scientific inputs before decisions could be made regarding the environment in A.P. Pollution Control Board v. M.V. Nayadu. It recognises the need to protect the natural world for its intrinsic value and not just for its potential benefits for human civilisation. Our knowledge of the ecosystems and the ecology of the Western Ghats is quite limited and to base our long term decisions on our inadequate comprehension is not just an error but an example of bad governance. The principles of sustainable development, which were read into Indian law by the Court in the case of Vellore Citizens’ Welfare Forum v. Union of India, and which through the Rio Declaration, require nations to achieve developmental goals without irreversibly compromising the capacity of the environment to sustain present and future generations, are also at play.

Given the role of these concepts in Indian law, the Kasturirangan Committee failed to grasp the importance of the Western Ghats to the geography of the Indian subcontinent as well as the role they play in the lives of those who inhabit them. We need to do away with short-term solutions and focus on developing a better understanding of the region to achieve a more robust framework of laws and processes that will facilitate better conservation in the region.

(Suhasini Rao is part of the faculty at


Are my forests going to be cut?

Kanchi KohliRecently, I received a query from Madhya Pradesh about whether a mining company was allowed to lop off branches and demarcate trees in a forest area. Such queries are common in many parts of the country where forest land is sought for “non-forest use” like industries, dams, roads, mines, and ports.

Confusion reigns, both among community organisers and affected people, about where the buck really stops, especially on what constitutes a “final” diversion of forest land and how the legality of some particular activity on forest land can be questioned. Legal aid practitioners (both formal and voluntary), affected people, and government agencies need to come out of this lack of clarity, illustrated in this case from Madhya Pradesh. The villagers, who had organised themselves into a sangharsh samiti (struggle committee) and had been resisting coal mining operations in the area, had seen the representatives of a mining conglomerate enter the Sal forests typical of this area. When asked by the villagers if they had permission to lop branches off and demarcate trees, these representatives reportedly responded that they had the approval of the Divisional Forest Officer (“DFO”) to enter the forest for such work. They also said that they had recently received permission from the Ministry of Environment and Forests (“MoEF”) to divert the forest land. The villagers should also be aware that it was only a matter of time before the company would be allowed to start mining activity.

On the other hand, local social activists had informed the protesting villagers that the MoEF’s approval was not enough for any mining company to start operations. With this information in hand, the villagers asked the companywallahs whether they had the permission in writing to enter the forest, and they were not able to provide any.

Laws applicable to diversion of forest land for non-forest use

The Indian Forest Act, 1927 (“IFA”), its corresponding state laws, and the Forest Conservation Act, 1980 (“FCA”) apply to the issue of diversion of forest land for non-forest use. In the Indian constitutional scheme, both the Union government and the state governments can make law on the subject of forests.

Anyone who wants to use the forest, whether it is a government department, or a private agency, or an individual, needs the permission of the relevant forest department, and the DFO in particular, to divert the forest land. The DFOs needs to inspect the site, prepare a report based on a series of criteria, and forward their recommendation on whether the forest should be given away for non-forest use. Based on the DFO’s recommendation, the Principal Chief Conservator of Forests (“PCCF”) should forward the proposal to the MoEF. This practice of taking prior approval from the MoEF by the state government was institutionalised through the FCA in 1980, when the Union government felt that the country’s uncontrolled and unprecedented rates of deforestation required central regulation.

At the MoEF, for cases like this, a Forest Advisory Committee (“FAC”) reviews the proposal and gives its recommendations. During this process of review, the FAC can call upon experts, take additional site visits, and seek any amount of additional information. In this case, the FAC had (as documented here) already reviewed the proposal thrice and had refused permission on the grounds that diversion would cause the loss of forests of a very good quality and that the coal from mining coal in the area would only last for fourteen years.

The Panchmarhi valley (left) in Madhya Pradesh and a coal mine in Dhanbad in Jharkhand.
Both images are from Wikimedia Commons. CC BY-SA 3.0 and CC BY 2.0 respectively.

After extensive political and bureaucratic lobbying however, this company received approval in two stages — first in October 2012 and then in February 2014. In accordance with the MoEF’s practice, they received the first (in-principle) approval with a wide list of conditions including the recognition of the rights of tribal and forest dwelling communities under another critical national law, ensuring land is made available for compensatory afforestation, and carrying out a whole range of studies related to the cumulative impact of the mines on water and other resources. The approval at the second stage came amidst even more controversy.

Through this period, the affected community and local activists protested against the fact that the due procedures of law had not been followed, especially those related to forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”). Before the final diversion takes place, the process under the FRA, including taking the necessary permission from the Gram Sabha (village assembly), needs to be complete.

The villagers, now armed with the relevant legal provisions with some help from local and national activists and legal empowerment practitioners, complained to the District Collector and the Minister of Tribal Affairs. Tools such as the Right to Information Act, 2005 were important for them to be able to procure panchayat records and verify the signature of the villagers. The company had and government had claimed that the process under FRA was complete as villagers had signed on their claims at a gram sabha meeting. Information accessed using the RTI Act revealed that many of the signatures were forged. What the company had hoped would be behind them, is now an issue that remains unresolved and open to a formal enquiry.

With the final approval from the MoEF, the coal mining company had entered the area to initiate the lopping and demarcation work. They still did not have the approval of the state government. They had applied to the State Forest Department for diversion, but without the permission required from the state government under Section 2 of the FCA and the corresponding provisions of the IFA, they cannot move ahead, especially if the forest is a “Reserved Forest”. At the time of writing this article, there is no information in the public domain that the state government has given its approval. The state government is waiting for the release of compensatory afforestation land in Sagar district of Madhya Pradesh before giving its permission. At the same time, the District Collector, based on the complaints of the villagers, has set up an enquiry on the process under the FRA and has been quoted in the media saying that his enquiry will only be completed after the national elections of 2014.

Now, the villagers have also filed a complaint with the MoEF and the state forest department. In their letter, they have said that the activity carried out by the company’s representatives was in contravention of the law and that action should be taken. While they are yet to receive any formal reply, the complaint has deterred the company from carrying out any further activity.

It is only a matter of time before the land required for compensatory afforestation is found and the collector’s report is finalised. The legal action might then move from the administrative and regulatory arena to the wisdom of the judiciary. All the build up till now, will then be the evidence, which is critical in any such situation to prove and illegality. In some of the future articles in these series, we will delve upon the nature of evidence in environmental law and challenges in being able to collect it and present it before a regulatory agency or judicial forum.

Many similar cases involving the issue of diversion of forest land for non-forest use may be developing across the country. Understanding the law and practice of forest diversion and recording illegalities will be critical for all concerned. Each case will be peculiar and as practitioners, we will need to delve deeper and work with the affected community to build evidence around it. Even when it comes to the environment, the law is best invoked when backed up with proof.

Kanchi Kohli ( is an independent researcher and writer.


International Tiger Day in the forty-first year of the Wildlife Protection Act

The tiger has lost almost 93% of its original habitat in the last 100 years and the greatest threat to the big cat population has come from human beings. Despite being listed as an endangered species by the IUCN, poaching (illegal hunting) continues to threaten tiger populations everywhere.


In 1972, the Wildlife (Protection) Act outlawed the hunting of animals for sport or shikar, which had become a British pastime in India. Trophies like tiger skin however, remain prized and the demand for various body parts for traditional Chinese medication practices means that the tiger continues to be hunted. Between 1994 and 2003, the Wildlife Protection Society of India recorded 684 cases Environmental-Lawof tiger poaching in India. Today, on the 3rd International Tiger Day, India has already reported 46 tiger deaths this year. That is only 26 fewer than the total number of deaths recorded last year. In the forty-first year of the law, India looks poised to touch a new high in the number of tiger deaths. Where did we go wrong?


(Image above is originally from kohlmann.sascha’s photostream on Flickr here and has been published here under a CC-BY SA 2.0 license.)

(Suhasini Rao-Kashyap is part of the faculty on


Mumbai Rising – Proposed amendments to the CRZ Notification will improve housing in Mumbai

The Coastal Regulation Zone Notification (“the Notification”) of 1991 imposes restrictions on construction activity along the coastline of India and is often cited as the reason housing in Mumbai has not kept pace with economic development and increased population. It divides the coastal stretch of India into four types of Coastal Regulation Zones, depending upon such factors as the distance of the area from the high and low tide lines and ecological sensitivity. Until 2009, the coastal stretch was classified into the four zones without any exception. Among other things, restrictions were placed on the Floor Space Index (“FSI”), also known as the Floor Area Ratio (“FAR”), the ratio of the total floor area of a building on a certain piece of land to the size of the land on which such building stands. It was frozen to the cap, as it existed in 1991, when the Notification first came into force. The proposed relaxation contemplated in the draft 2010 amendments to the Notification aim to treat Mumbai as a special case. The draft of the amended Notification is undergoing a process of public consultation. All amendments, if finally approved, will come into force after the public consultation period of 60 days.

Mumbai skyline from Nariman Point. Photograph by Jayaram Kowta.
Mumbai skyline from Nariman Point. Photograph by Jayaram Kowta.


The city of Greater Mumbai had a major portion of the island falling within Coastal Regulation Zones I and II. In 1991, the Government of Maharashtra, exercising its powers under the Maharashtra Regional and Town Planning Act, notified the Development and Control Regulations for Greater Bombay. These regulations prescribe FSI for the ‘Island City’ as 1.33 subject to certain exceptions. The CRZ regulations reduced the supply of land and floor space, which can be built and, together with the low FSI, were responsible for the low floor space consumption of the middle class and the poor living in Mumbai. While the population of Mumbai grew continuously with the economy, the height of the buildings remained constant. Perhaps as a result, slums in Mumbai spread at a very high rate.

There are also dilapidated buildings with FSI greater than 1.33, which were constructed before 1991. These buildings cannot be reconstructed as any new construction will have to adhere to the FSI of 1.33 and this would be economically unfeasible. As a result of this a large part of Mumbai’s population is being forced to live in buildings that are unsafe.

An increase in FSI is often associated with an increase in density of population. It is true that an increase in FSI, if applicable only to a few individual plots, would result in a higher density on the affected plots. On the other hand, it can be argued that a blanket unfreezing of FSI through the removal of CRZ norms for Mumbai would mean a large increase in the floor space available and hence, spreading out of population, leading to lower density and lower real estate prices.

The potential for further ecological damage to Mumbai, which has already developed up to the shoreline, is very little. While CRZ regulations make great ecological sense in rural areas, it will only be an impediment to cater to the basic human need for housing in a city like Mumbai. Further, the public interest involved in developing affordable housing is far greater than the public interest involved in the case of development of Navi Mumbai Airport or the Bandra-Worli Sea Link, for which regulations had been relaxed.

The Swaminathan Committee had been set up to review the Draft Coastal Management Zone Notification, 2008 and the comments received on the notification. The Notification of 2010 is a consequence of the report of this committee, which also provided the background for why Mumbai is being considered as a special case. The Committee had also suggested that the government should try and resolve issues regarding the development and redevelopment of Mumbai through location-specific amendments. Even though the Committee suggested that a higher FSI may be permitted for buildings, it also advised public funding for rehabilitation and reconstruction projects.

Taking the lead from the report, the Ministry of Environment and Forests has put up a draft of the amended version of the Notification on its website on September 13, 2010. The draft notes that in the Greater Mumbai area, lakhs of families reside in large slum clusters and in deplorable living conditions. Civic agencies are not able to provide basic amenities such as drinking water, electricity, roads and drainage because slums come up in an unplanned and congested manner. It also notes that these areas are at great risk in the event of cyclones, storm surges, or tsunamis because of the difficulties in providing rescue, relief, and evacuation services.

To remedy this problem, the draft Notification prescribes the initiation of slum redevelopment schemes by the relevant state authorities. It further provides that the FSI for such redevelopment schemes should be in accordance with the Town and Country Planning Regulations prevailing on the date on which the project is granted approval by the competent authority.

The draft Notification also acknowledges the large number of old, dilapidated, and unsafe buildings in the CRZ areas of Greater Mumbai, which, because of their age, are extremely vulnerable and disaster prone, and notes that there is an urgent need for the redevelopment or reconstruction of these buildings. It provides for redevelopment and reconstruction projects to be taken up by private developers or through the involvement of the owners of these buildings. The applicable FSI / FAR has been de-frozen from the 1991 levels and has been kept in consonance with the relevant town and country planning regulations prevailing as on the date on which the project is granted approval by the competent authority.

Shantanu Jindel and Shivani Chugh are lawyers with RDA Legal