Dated 02/11/2015

To,
Shri. Ashok Lavasa
Secretary to the Government of India
Ministry of Environment, Forest & Climate Change
Indira Paryavaran Bhavan
Jor Bagh, Ali Ganj Road,
New Delhi - 110003.

Sir,

SUB:-Objections to the Draft Notification No. S.O.2435(E), published in Indian Gazette- Extraordinary, Part II, Section 3, Sub-Section (ii) on 4th September 2015.

References:-
1) Environment Protection Act 1986, No.29 of 1986 dated 23rd May 1986.

2) Gazette of India –Extraordinary (Part II section 3, sub-section (ii) SO 1533. Notification of Ministry of Environment and forest Dated 14/09/2006.

3) Office Memorandum No. 3/1010/2012 Dated17/09/2012of the Ministry of Commerce & Industry, Department of Commerce (Plantation Division).

4) Report of HLWG (Headed By Dr. K. Kasturirangan) Vol. I & II dated:15/04/2013.

5) Gazette of India –Extraordinary (Part II section 3, sub-section (ii), No. SO 733 (E)Notification of Ministry of Environment and forest Dated 10/03/2014.

6) Report of the Expert committee constituted by Government of Kerala.

7) Letter (Report) submitted by Government of Karnataka, through Additional chief Secretary for Forest, Ecology and Environment department vide letter no FEE 33 FLL 2014 dated 24/04/2014.

8) Gazette of India –Extraordinary (Part II section 3, subsection ii, No. SO 2435 (E) Notification of Ministry of Environment and forest Dated 04/09/2015.

Referring to above said subjects and references, we who are likely to be affected by implementing the above said Notification No. SO 2435 (E) Dated 04/09/2015, fearing possible great hardship submit our objections and suggestions to your

good office, with the belief that we may get the Exclusion of the Cultural landscape, Plantations (coffee, tea, rubber, pepper, spices, Areca nut etc.) and regular cultivable farming areas, from the notified Eco-Sensitive Zones, as recommended in the above said notification.

Western Ghats is one of the Eight Biodiversity-Hotspots of the world. Around 27% of all species present in India are found in the Western Ghats, consisting of various varieties of crops such as Pepper, Cardamom, Spices, Areca ,Mango, Jack Fruit and Banana. Several rivers and water bodies which are sources for drinking and irrigation purposes for about 250 million people also originate from the Western Ghats. The Western Ghats substantially influences the climatic conditions/changes of India. The destruction and pollution of the Western Ghats can never be permitted, at the same time, the livelihood and the habitat of people who live in the Western Ghats areas involved in activities such as farming for generations need to also be protected. As such we hereby bring to your kind notice the following lapses that have occurred in preparing the above said Notification based on the wrongly formulated HLWG Report. We are also greatly concerned about its Negative Impact on the Farmers and Inhabitants of the Western Ghats region and also to promote co-existence of Human and of the Western Ghats Bio-Diversity.

The 42nd Constitution (Amendment) Act, 1976, brought explicitly in the Preamble Socialist and Secular concepts in Sovereign democratic republic of Bharat with effect from January 3,1977. The Preamble was held as part of Constitution in His Holiness Kesavananda Bharati Sripadagalavaru vs. State of Kerala [1973 Supp. SCR 1]. The provisions of the Constitution including Fundamental Rights are alterable but the result thereof should be consistent with the basic foundation and the basic structure of the Constitution. Republican and democratic form of Government, secular character of the Constitution, separation of powers, dignity and freedom to the individual are basic features and foundations easily discernible, not only from the Preamble but the whole scheme of the Constitution. In S.R. Bommai vs. Union of India [(1994) 3 SCC 1], it was held that Preamble of the Constitution is the basic feature. Either prior to 42nd Constitution (Amendment) Act, or thereafter, though the word "socialist" was not expressly brought out separately in the main parts of the Constitution, i.e., in the Chapters on Fundamental Rights or the Directive Principles, its seed-beds are right to participation in public offices, right to seek consideration for appointment to an office or post; right to life and right to equality which would amplify the roots of socialism in democratic form of Government; right to equality of status and of opportunity, right to equal access to public places and right to freedoms, protective discrimination, abolition of untouchability, its practice in any form an constitutional offence, as guaranteed in Part III & IV i.e., Fundamental Rights and Directive Principles which to every citizen are Fundamental Rights. In Minerva Mills Ltd. & Ors. vs. Union of India & Ors. [(1981 (1) SCR 206 = AIR 1980 SC 1789], the Constitution Bench had held that the Fundamental Rights and the Directive Principles are two wheels of the chariot in establishing the egalitarian social order. Right to life enshrined in Article 21 means something more than survival of animal existence. It would include the right to live with human dignity [vide Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi & Ors. (AIR 1981 SC 746 para 3); Olga Tellis vs. Bombay Municipal Corporation vs. D.T.C. Mazdoor Congress [AIR 1991 SC 101 para 223,234 and 259 = (1991) supp. 1 SCC 600]. Right to means of livelihood and the right to dignity, right to health, right to potable water, right to pollution free environment and right to life. Keeping these basic of our Constitutional scheme it would be most appropriate to consider the following:

Lapses in the report submitted by the HLWG headed by Dr.Kasthuri Rangan.

1) The Kasthuri Rangan Committee has divided the Western Ghats area in to two different Landscapes such as: The Natural Landscape-which includes biodiversity rich ecosystem and The Cultural Landscape-which includes human inhabited areas. But for the purpose of demarcation of the Western Ghats Area into Cultural and Natural Landscapes, the Committee has adopted satellite mapping as a tool (Vol. I, page 52, 53 Methodologies), which the Kasthuri Rangan Committee itself has pointed out that this kind of a demarcation may have some defects. (Page 96 of the report).

Another very important observation of the Committee is that till date there is no accurate and acceptable definition of the Western Ghat boundary. Hence, there is no consensus on what constitutes the Western Ghats. The problem is further compounded by the fact that there are a number of eastern and western spurs, which originate from the main mountain chain thus making it difficult to arrive at a precise boundary’ (Ref-Pdf Page.No.106 Vol – ii) Thereafter the Eco-sensitive Zones have been demarcated taking in to consideration of the Western Ghats which is itself Unscientific and unacceptable, which has not used any justifiable and appropriate method of assessment of the ground realities. 

2) The recommendations on agriculture sector will have direct impact on the plantation sector crops in the Western Ghats region. Practicing organic farming over the entire area and phasing out all Chemical fertilizers, Pesticides, Fungicides would make plantation crops unviable as there will be substantial decline in productivity in the plantations. Coffee cultivation in the Western Ghats is not going to affect the biodiversity, flora and fauna of the region, as these are not polluting the environment as feared in the Report. The Working Group has also taken note of the environmentally friendly practices in coffee plantations in Kodagu and cardamom plantations in Idduki and Wyanad, where integration of natural landscapes with human settlements exists.

3) About 60,000 km2 of natural landscape (approximately 37% of the total geographical area of Western Ghats Region) has been identified as Ecologically Sensitive Area (ESA) by HLWG, which represents more or less a contiguous band of vegetation oriented areas, extending over a distance of 1500 km across 6 States of the Western Ghats region, which includes Protected Areas and World Heritage Sites. The demarcation unit of ESA is a village in its entirety as a single unit. IRS LISS III derived spatial layers on vegetation type and landscape level indices (with a fine spatial resolution of 24 m) were used as the basis for identification of ecologically sensitive areas (ESAs). (Refer Page No. xiii Vol - I), The Concept of considering VILLAGE as a Unit of demarcation for ESA is totally unscientific, since the villages may have both Cultural and Natural vegetation, which needs to be practically identified.

4) The most important objective stipulated by the Government of India while entrusting the job to HLWG is not at all addressed by the committee, that was to ensure the rights, needs and developmental aspirations of the local and indigenous People, Tribes, Forest dwellers and most disadvantaged sections of the local communities, while balancing equitable economic and social growth with sustainable development and environmental integrity. (ref Chapter 1, Page 2 & 3 vol I)

5) The Committee itself acknowledges that the vegetation maps derived by using remote sensing equipments are not without limitations. For example under-story plantations (for eg. cardamom) or naturalized forest plantations cannot be seen or identified. The natural landscape identified, however, are still conservative (Ref Chapter 5 page No 95 & 96), it also admits that HLWG also recognizes that the cultural landscape is biologically rich. For instance, the coffee plantation areas of Kodagu have high biological diversity in the cultural landscape. The sacred groves of many settlements are scattered and so not detectable through remote sensing. But these groves are the most abiding symbols of people’s belief in the protection of nature. HLWG has rightly recommended policies to incentivize these practices so that growth across the Western Ghats can be environmentally sound. (Ref Chapter 6 page no 100 vol I).

6) The most important Comment of Mr.Pranab Sen and others in the Committee of the Planning Commission of India is clearly that ‘The committee knew that the eco-sensitive areas identified by it would receive protection under the Environment (Protection) Act, 1986 (EPA). This awareness had two major implications. First, a balance had to be struck between the protection of ecologically sensitive areas and the needs of national development, particularly in the context of a country like India, with low levels of income & high levels of poverty. Therefore the parameters had to be selected and defined in such a manner that they represented only the critical elements of ecological preservation and did not impinge unduly on the process of development and efforts at eradication of poverty.’

“The nuances of ecological sensitivity are such that excessive rigidity on this count could defeat the very purpose of this exercise, which seeks to strike a balance between preservation of our ecological endowments and the needs of development.” The PranabSen etc. has stressed the importance of “wide public consultation on the nature and manner of regulation of economic activities in the identified areas” before notifying the areas under the EPA, 1986. “In view of the limited knowledge base that exists at present, it is preferable to err on the side of caution and be liberal” in notifying sensitive areas.” This aspect has not been addressed by the HLWG and there is no specific suggestions pertaining to this comment. A reference may be drawn to the following:

In R. Chandevarappa and Ors. v. State of Karnataka and Ors. [(1995) 6 SCC 309] (to which two of us, K. Ramaswamy and B.L. Hansaria, JJ., were members) this Court was to consider whether the alienation of Government lands allotted to the Scheduled Castes was in violation of the Constitutional objectives under Article 39(b) and 46. It was held that economic empowerment to the Dalits, Tribes and the poor as a part of distributive justice is a Fundamental Right; assignment of the land to them under Article 39(b) was to provide socio- economic justice to the Scheduled Castes. The alienation of the land, therefore, was held to be in violation of the Constitutional objectives. It was held thus: "In fact, the cumulative effect of social and economic legislation is to specify the basic structure.

Moreover, the social system shapes the wants and aspirations and its citizens come to have. It determines in part the sort of persons they want to be as well as the sort of persons they are. Thus an economic system is not only an institutional device for satisfying existing wants and needs but a way of creating and fashioning wants in the future. The economic empowerment, therefore, to the poor, dalits and tribes as an integral constitutional scheme of socio-economic democracy is a way of life of political democracy. Economic empowerment is, therefore, a basic human right and a fundamental right as part of right to live, equality and of status and dignity to the poor, weaker sections, dalits and tribes. The prohibition from alienation is to effectuate the constitutional policy of economic empowerment under Article 14, 21, 38, 39 and 46 read with the Preamble of the Constitution. Accordingly refusal to permit alienation is to effectuate the constitutional policy. the alienation was declared to be void under sections 23 of the Contract Act being violative of the constitutional scheme of economic empowerment of accord equality of status, dignity of persons and economic empowerment."

7) All the comments received by the Committee from State Governments, Expert Committee of State government, Stake holders, Central Ministries are not addressed in a proper manner or adopted by the HLWG Committee, which seems to be a one sided Pr-determined Report, that intends to undermine the roots of our Farmers, Tribes, Forest dwellers and most disadvantaged sections of the local communities of the Western Ghats Region.

Wherefore we are constrained to vehemently insist to oppose/object that the Notification No. SO 2435 (E) Dated 04/09/2015 is most Unviable & Unscientific as the same may become the law of our land in the due course of time, as the same which predominantly depends on such erroneous reports which itself has no credibility nor any reliable information about rich culture and livelihood of the citizens of western Ghats region.

Objections to the Notification:

1. The boundary of Eco- sensitive area of western Ghats region as mentioned in the Notification has no validity, since the/a whole village is considered as a Single Unit and not specifically identified actual natural landscape. The methodology adopted to demarcate the Natural and Cultural landscape itself has limitations and is erroneous hence we strongly demand for reconsideration and realigning the boundary demarcated by HLWG.

2. A complete ban on Quarrying and Sand mining to be imposed in ESA, will halt all developmental works including building of schools and hospitals, etc, which would adversely affect even construction of mere toilets, this is a clear violation of the fundamental rights and against the spirit of our democracy. A mere statement to exclude hospitals, residential buildings and schools as stated in the notification will not serve the purpose which seems to be a highly contradictory remark.

3. The Notification is clearly in concurrence with the earlier Notification SO 1533. Dated 14/09/2006 which states that any project or activity specified in Category ‘B’ will be treated as Category A, if located in whole or in part within 10 km from the boundary of: (i) Protected Areas notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as notified by the Central Pollution Control Board from time to time, (iii) Notified Eco-sensitive areas, (iv) inter-State boundaries and international boundaries. (Ref General Conditions) This unjustifiable hidden law will greatly hamper all developments in all the towns coming within the Western Ghats which automatically falls within 10 Km from the boundary of so called ESA.

4. The Entire Notification is oriented towards the protection of the Eco-Sensitivity of Western Ghats, without any consideration for promoting the coexistence of Human beings and their basic fundamental interests, which could result in major constitutional breakdown, leading to possible affect the integrity of our great nation itself in future.

5. The Notification is Non-implacable, Unjustifiable, Unilateral and Non-democratic, since this notification is based on a most erroneous report consisting of a minority opinion, submitted by a small Committee.

6. Karnataka being the most affected state compared to all the other five states, our present and previous governments have failed to represent and address the issue and it has miserably failed to submit a detailed scientific and realistic report to the Union government, which has caused an ambiguity to people of Karnataka. Ground realities have been checked and no physical verification done in our state. Officers mislead the entire democratic state government and kept the folks in dark regarding this most dangerous law.

 Suggestions by WESTERN GHATS CITIZEN’S RIGHTS PROTECTION FORUM & the Karnataka Anti-Graft & Environmental Forum ® are based on the observations of Dr. V.K.R.V Rao, one of the eminent 

economists of India who in his "Indian Socialism - retrospect and prospect" has stated that equitable distribution of the income and maximisation of the production is the object of socialism under the Constitution to solve the problems of unemployment, low income and mass poverty and to bring about a significant improvement in the national standard of living. He also stated that to bring about socialism, deliberate and purposive action on the part of the State, in regard to production as well as distribution and the necessary savings, investment, use of human skills and use of science and technology should be brought about. Changes in property relations, taxation, public expenditure, education and the social services are necessary to make a socialist State under the Constitution, a reality. It must also bring about, apart from distribution of income, full employment as also increase in the production” and availability of reasonable opportunities.

1. Immediate withdrawal of the Notification S.O.2435(E) dated 04/09/2015.

2. Boundary of Western Ghats shall be demarcated as per physical verification in Co-ordination with local inhabitants.

3. Eco-Sensitive zones may be accordingly demarcated considering the actual map prepared after proper physical verification and approval of the concerned Gram Sabhas.

4. All forest areas including the Protected forest. Reserved forest and wild life sanctuaries in Western Ghats be declared as Eco-Sensitive Area and if possible any further human interference should be.

5.

6. Form an Expert Committee at various levels to study and evaluate the exact boundary of the Western Ghats and the ESA, to also Co-ordinate with the local inhabitants to scientifically recommend the action plan for the conservation and protection of Bio-diversity.

7. A Committee shall be constituted by both Union and State governments comprising all sections of society, with eminent Scientists, Environmentalists, Stake holders, NGOs (which are not funded internationally), Social workers, Political representatives, DCs of Respective Districts, Forest and Survey officers.

8. A balanced favourable law may be formulated to promote eco-friendly agricultural practice which can be more productive than the currently used obsolete methods of agriculture.

9. Initiate necessary steps for bringing in a controlling Law which can prevent absurd growth of towns and cities, without interrupting basic infrastructure projects.

10. Since plantation crops such as Coffee, Tea, Rubber, Pepper, Spices, Arecanut etc form the backbone of the Western Ghats region, which also greatly contributes to the biodiversity of the region, these plantation crops shall be ensured of required promotion with all financial aids, without imposing any immediate ban on using of fertilizers and pesticides with less residual toxicity.

11. Controlled sand mining in reservoirs and water bodies may be permitted, subject to expert opinion and sand auditing. Eco-friendly technologies should be allowed to be used for such sand mining. The sand thus excavated by Govt. agencies OR with the consent of the Govt. agencies should be allowed to be sold to the needy at a reasonable price, which will further increase the water holding capacity of the reservoirs.

 Regards, with hopes of a fruitful and positive response in Public Interest keeping in mind the observations in Consumer Education & 

Research Centre & Ors. v. Union of India & Ors. [(1995) 3 SCC 42], wherein a Bench of three Judges (to which one of us, K. Ramaswamy, J., was a member) had stated that “considering right to life under Article 21, its meaning, scope and content, this Court had held that the jurisprudence of personhood or philosophy of the right to life envisaged under Article 21 enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality. The expression "life" assured in Article 21, does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure.

Ms.Sharin Subbiah Chodumada
President
Western Ghats Citizen’s Rights Protection Forum ®
& President
Zilla Panchayath
Madikeri Abraham T.J
President
Karnataka Anti-Graft & Environmental Forum ®