Supreme Court Modifies ESZ Order: Relief for Residents Near National Parks (26 April 2023)

Date of the Judgment: 26 April 2023

Citation: 2023 INSC 358

Judges: B.R. Gavai, J., Vikram Nath, J., and Sanjay Karol, J.

Can a blanket rule for Eco-Sensitive Zones (ESZs) around national parks and wildlife sanctuaries cause more harm than good? The Supreme Court of India recently addressed this critical question, modifying its earlier order that mandated a uniform one-kilometer ESZ. This decision brings significant relief to millions of residents living near protected areas and clarifies the process for establishing ESZs. The bench comprised Justices B.R. Gavai, Vikram Nath, and Sanjay Karol, with the majority opinion authored by Justice B.R. Gavai.

Case Background

The case originates from a writ petition filed in 1995 concerning forest conservation. Over the years, the Supreme Court has issued various orders regarding mining and environmental protection around national parks and wildlife sanctuaries. In an order dated 3rd June 2022, the Court mandated a minimum one-kilometer ESZ around all protected forests, with specific directions for managing activities within these zones. This order led to significant concerns from the Union of India and various state governments, prompting the filing of the present Interlocutory Application (I.A.) seeking modifications.

Timeline:

Legal Framework

The legal framework for this case is primarily based on the following:

• The Environment (Protection) Act, 1986: This act empowers the Central Government to take measures to protect and improve the environment. Section 3(v) of the 1986 Act allows the government to restrict areas where industries or processes can operate.
• The Environment (Protection) Rules, 1986: Rule 5 of these rules outlines the procedure for imposing restrictions on industries and operations in specific areas, including the declaration of ESZs. It mandates a notification process, including public consultation.
• The Wild Life (Protection) Act, 1972: This act provides for the protection of wild animals, birds, and plants. Sections 18 to 25A deal with the settlement of rights of people residing in protected areas.

Specifically, Rule 5 of the 1986 Rules states:

“5. Prohibition and restriction on the location of industries and the carrying on of processes and operations in different areas.—(1) The Central Government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas:
(i) Standards for quality of environment in its various aspects laid down for an area.
(ii) The maximum allowable limits of concentration of various environmental pollutants (including noise) for an area.
(iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the Central Government to be relevant to the protection of the environment in an area.
(2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down.
(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may, by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so.
(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the location of the industries and carrying on of processes or operations in that area.
(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication in the notification in the Official Gazette.
(d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may [within [seven hundred and twenty-five days [, and in respect of the States of Assam, Meghalaya, Arunachal Pradesh, Mizoram, Manipur, Nagaland, Tripura, Sikkim and Jammu and Kashmir in exceptional circumstance and for sufficient reasons within a further period of one hundred and eighty days,]] from such date of publication] impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area:
[Provided that on account of COVID-19 pandemic, for the purpose of this clause, the period of validity of the notification expiring in the financial year 2020-2021 and 2021-2022 shall be extended up to [30th June, 2022] or six months from the end of the month when the relevant notification would have expired without any extension, whichever is later.]
[(4) Notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause ( a) of sub-rule (3).]”

Arguments

The primary arguments presented were:

• Union of India:
  • The mandatory one-kilometer ESZ is impractical and causes hardship to citizens residing in these zones.
  • ESZs should be based on site-specific conditions, not a uniform standard.
  • Existing guidelines of 9th February 2011, which were framed after consulting the National Board for Wildlife (NBWL) and all State and Union Territory Governments, provide a detailed procedure for submitting a proposal for declaration of the areas around National Parks and Wildlife Sanctuaries as ESZs and categorize activities as prohibited, regulated, and permitted.
  • The direction to obtain permission from the Principal Chief Conservator of Forests (PCCF) for ongoing activities within ESZs is cumbersome and impractical.
  • The prohibition on new permanent structures within ESZs would severely impact residents and development activities.
  • Many ESZs already have notified boundaries, and these should be respected.
  • The order dated 3rd June 2022 is in conflict with the existing guidelines.
  • The issue in I.A. No. 1000 of 2003 was restricted to prohibition of mining activities in and around Jamua Ramgarh Wildlife Sanctuary and prescribing ESZs for the said Wildlife Sanctuary only and various State Governments did not have an opportunity to address this Court.
• Amicus Curiae and State Governments:
  • Supported the Union of India’s arguments, emphasizing the need for flexibility in ESZ boundaries.
  • They argued that a uniform boundary for all National Parks and Wildlife Sanctuaries is not feasible.
  • They highlighted the need for developmental activities like construction of schools, dispensaries, anganwadis, public health centers etc. in ESZs.
  • They also pointed out that the procedure prescribed for obtaining the permission of the PCCF is very tedious.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the directions in paragraphs 56.1 and 56.5 of the order dated 3rd June 2022 require modification/clarification.
2. Whether a uniform one-kilometer ESZ is necessary for all protected forests.
3. Whether the procedure for obtaining permission from the PCCF for ongoing activities within ESZs is practical.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on its previous orders regarding mining activities around protected areas, particularly the order in Goa Foundation v. Union of India and Others [ (2014) 6 SCC 590 ]*, to emphasize the need for a one-kilometer no-mining zone.
• The Court upheld the validity of the Guidelines dated 9th February 2011, noting that it had previously found them reasonable.
• The Court recognized the detailed procedure prescribed under Rule 5 of the Environment (Protection) Rules, 1986 for notifying ESZs.
• The Court acknowledged the importance of the Office Memorandum dated 17th May 2022, which requires consideration of the NBWL for projects in ESZs.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Practical Difficulties: The Court recognized that the uniform one-kilometer ESZ and the requirement for PCCF permission were causing significant practical difficulties and hardships for residents in these zones.
• Site-Specific Needs: The Court acknowledged that ESZs need to be site-specific, considering the unique characteristics of each protected area and the surrounding human settlements.
• Existing Notifications: The Court respected the existing draft and final notifications for ESZs, recognizing the detailed procedures followed in their formulation.
• Balance between Conservation and Development: The Court sought to strike a balance between the need for environmental conservation and the developmental needs of the local communities.
• Adherence to Procedure: The Court emphasized the importance of following the prescribed procedures under Rule 5 of the 1986 Rules and the 2011 guidelines for notifying ESZs.

Fact:Law Ratio

Logical Reasoning:

The Court’s reasoning was based on a careful analysis of the practical difficulties arising from its previous order, the existing legal framework, and the need to balance conservation with the developmental needs of the local communities. The Court emphasized that a uniform approach is not suitable for all protected areas and that ESZs should be determined based on site-specific conditions and the detailed procedure prescribed under Rule 5 of the 1986 Rules.

The Court quoted from the guidelines:

“The said Guidelines emphasize that the State Government should endeavour to convey a very strong message to the public that ESZs are not meant to hamper their day to day activities, but instead, are meant to protect the precious forests/Protected Areas in their locality from any negative impact, and also to refine the environment around the Protected Areas.”

The court also observed:

“As already discussed hereinabove, the necessity to have ESZs is to provide a buffer zone around the Protected Areas. The rights of the villagers residing in the Protected Areas are required to be settled in accordance with the provisions contained in the 1972 Act and such villagers are rehabilitated outside the Protected Areas. However, no such settlement of rights is available to the villagers residing in the ESZs areas. As stated in the said Guidelines, the purpose of declaring ESZs is not to hamper the day to day activities of the citizens. If the direction as issued is continued, it would certainly hamper the day to day activities of the citizens residing in ESZs. As such, we find that the said direction needs to be modified.”

The Court further stated:

“Insofar as direction in paragraph 56.1 of the order dated 3rd June 2022 (supra) is concerned, a perusal of various orders would reveal that this 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 meters 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. In any case, a detailed procedure is required to be followed as prescribed under Rule 5 of the 1986 Rules which we have already referred hereinabove. We find that once such a notification is issued after following the procedure prescribed under the 1986 Rules, the ESZs will have to be as per the said notification.”

Key Takeaways

• Relief for Residents: Residents living near national parks and wildlife sanctuaries will no longer be subjected to a blanket one-kilometer ESZ.
• Site-Specific ESZs: ESZs will now be determined based on site-specific conditions and the procedure under Rule 5 of the 1986 Rules and 2011 guidelines.
• No PCCF Permission: The requirement for obtaining permission from the PCCF for ongoing activities within ESZs has been removed.
• Mining Restrictions: Mining within national parks and wildlife sanctuaries and within one kilometer of their boundaries is prohibited.
• Adherence to Guidelines: The MoEF & CC and all State/Union Territory Governments must strictly follow the 2011 guidelines and ESZ notifications.
• Public Consultation: Wide publicity must be given to draft notifications for ESZs, and a 30-day period is provided before final notifications take effect.
• Environmental Clearances: Environmental and forest clearances must adhere to the Office Memorandum dated 17th May 2022.

Directions

The Supreme Court issued the following directions:

• The directions in paragraph 56.1 of the order dated 3rd June 2022 would not be applicable to ESZs for which draft and final notifications have been issued or proposals have been received by the Ministry.
• The Central Government must give wide publicity to draft notifications under Rule 5 of the 1986 Rules.
• Final notifications will not take effect for 30 days from the date of issuance.
• Any person aggrieved by a final notification can approach the Supreme Court directly.
• The direction in paragraph 56.1 of the order dated 3rd June 2022 would not be applicable where National Parks and Sanctuaries are located on inter-State borders and/or share common boundaries.
• Mining within national parks and wildlife sanctuaries and within one kilometer of their boundaries is prohibited.
• The MoEF & CC and all State/Union Territory Governments must strictly follow the 2011 guidelines and ESZ notifications.
• Environmental and forest clearances must adhere to the Office Memorandum dated 17th May 2022.

Development of Law

Ratio Decidendi: The ratio decidendi of this case is that Eco-Sensitive Zones (ESZs) around national parks and wildlife sanctuaries should be site-specific, based on the procedure prescribed under Rule 5 of the Environment (Protection) Rules, 1986, and the Guidelines dated 9th February 2011, and not a uniform one-kilometer zone. The Court emphasized the need to balance environmental conservation with the developmental needs of local communities and to respect existing ESZ notifications.

Change in Law: The judgment modifies the previous position of law established in the order dated 3rd June 2022, which mandated a uniform one-kilometer ESZ. The Court has now clarified that such a uniform approach is not feasible and that ESZs should be determined on a case-by-case basis, following the established legal and procedural framework.

Conclusion

The Supreme Court’s decision to modify its earlier order on Eco-Sensitive Zones (ESZs) is a significant step towards a more practical and balanced approach to environmental conservation. By rejecting a uniform one-kilometer ESZ and emphasizing site-specific assessments, the Court has provided much-needed relief to millions of residents living near protected areas. The judgment underscores the importance of following established legal procedures and guidelines while ensuring that conservation efforts do not unduly burden local communities. This ruling will likely have a lasting impact on how ESZs are determined and managed across India.