Buffer Zone:No Easy Way Out

Adarsh Balachandran

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When Kerala was about to welcome Onam in 1972, the Lok Sabha concluded its debate on the 'Wildlife Protection Bill 1972'. It was to be a remarkable piece of legislation that upheld India's tradition of protecting its wildlife population. While moving the bill Professor Sher Singh, then Minister of state in the government quoted Prime Minister Indira Gandhi: 'Man's wild spirit has been the creator and destroyer. Now with the possibility of destruction so starkly real, we must concentrate on the art of preservation'. The opposition raised a protest demanding the bill be moved to a select committee for detailed scrutiny. Lok Sabha passed the bill neglecting opposition cries on 21st August 1972. Little did the legislators present in the house realize that this single bill would form a continuous point of contention between humans and wildlife.

When the Wildlife Protection Bill was passed in the Lok Sabha in 1972, the forests which the bill was supposed to govern were under the state list. Although an act made by Parliament can override the state legislature, there were lots of administrative inconveniences. In order to overcome these hurdles, the constitution (forty seconds) amendment act of 1976 was passed. This act inserted clauses 17(A) forests and 17(B) protection of wild animals including birds into the concurrent list. This enabled the government of India to easily regulate activities related to forests in India.

Kerala's forests

The total forest area under the administration of the forest department of Kerala is 11521.993 km at the close of the year 2019-20 and forms 29.65% of the total geographic area of Kerala. Amongst the total forest area under administration, 6450.839 square kilometers constituting 55.99 percent of the total forest area fall under reserved forests. Protected areas that constitute national Parks and wildlife sanctuaries constitute 3066.184 square kilometers constituting 26.61 percent of the total forest area of the state. The wildlife parks are declared by the Union Government in consultation with the state government as per Section 26A of the Wildlife protection act and National parks are notified by the Union government as per section 35 of the wildlife protection Act.

Eco-Sensitive Zones

The Wildlife Protection Act of 1972 is concerned with the creation of protected areas. Section 3 of the Environment protection rules gives power to the Central Government to take all measures that it feels are necessary for protecting and improving the quality of the environment and preventing and controlling environmental pollution. However, the Environment (Protection) Act, of 1986 does not mention the word 'Eco-Sensitive Zones'. Rule 5(1) of the Environment Protection Act 1986 states that the central government can prohibit or restrict the location of industries and carry on certain operations or processes based on certain considerations. To meet this objective, the government can restrict areas in which any industries, operations, or processes or class of industries, operations, or processes shall be/ not be carried out subject to certain safeguards. However, Section 3(2)(v) of the Act, says that the Central Government can restrict areas in which any industries, operations, or processes or class of industries, operations, or processes shall be carried out or shall not, subject to certain safeguards. This prompted the government to formulate the concept of Eco-Sensitive Zones. The Gadgil committee and the Kasturirangan committee constituted thereafter to study the Western Ghats went on to elaborately classify the region based on the eco-sensitive zones. However, both reports were found to be unacceptable to a vast number of people in Kerala.

T N Godavarman Thirumulpad Vs Union of India and Ors

The crisis facing Kerala arose from judgment concerning the W.P(Civil) No 202 of 1995 ( T N Godavarman Thirumulpad Vs Union of India and Ors). This landmark petition conserving the unique ecology of Western Ghats is a seminal case study for legal scholars. The main objective of the writ petition was to safeguard and protect the forest land of the Nilgiris as it was exploited through deforestation by unlawful timber activities. The main highlight of this case was that it was to conserve the forest ecosystem of the Western Ghats and to highlight the importance of the trusteeship doctrine. However, the Honourable court considered the petition along with various related petitions and finally declared its verdict in June 2022. Based on various interventions of the court, a set of Guidelines for the Declaration of EcoSensitive Zones (ESZ) around National Park and Wildlife Sanctuaries had been formulated by the Ministry of Environment, Forest and Climate Change (MoEF&CC) of the Government of India on 9th February 2011 [F. No.19/2007 WL - I (pt)]. This set of guidelines stipulates the necessity of having the 'Eco-sensitive zones' around protected areas of the country as a 'shock absorber'. These guidelines also say that the eco-sensitive zones can be ten kilometers in length across the protected areas differing from one protected area to the other. The annexure to these guidelines entrusted the chief wildlife warden to group the activities in these eco-sensitive zones into three categories. 1 Prohibited, 2 Restricted with safeguards 3 Permissible.

The Honourable Supreme court in its verdict said that the guidelines issued in 2011 were just and in order. It also directed that a 1-kilometer mandatory buffer zone shall be maintained from the boundaries of all protected areas and activities prescribed in 2011 guidelines categorizing them into prohibited, restricted with safeguards, and permitted shall be strictly adhered to. The Supreme court also said considering larger public interests, if there were any objections to this 1-kilometer rule then that can be diluted, and for which the Central Empowered Committee and Ministry of Environment Forests and Climate change shall give their recommendations to the court based on which court shall pass appropriate order.

Kerala Government's haste

There was total confusion in the government of Kerala as soon as the verdict was out. This resulted in a hasty decision to conduct an aerial survey of the areas surrounding the protected areas. The job was assigned to a state agency Kerala state remote sensing and environment center. The survey was conducted based on google maps and was highly unscientific. The survey has shown large areas of inhabited land under the purview of the proposed buffer zone. People have protested against this unscientific response of the government. Fearing large-scale protests, the government has decided to appoint Justice Thottathil Radhakrishnan to look into the issues of the people and to oversee the preparation of a new map regarding the buffer zone. The committee which is proposed to have finalized the report has counted nearly 70158 structures in Eco-sensitive zones. Of these 70158 structures counted by the committee, 52376 are residential units, 13000 units are infrastructure amenities, 7000 units are civic amenities and infra, 519 are educational institutions, 40 are banks and 6000 units are other infrastructure categories. The committee is expected to submit the report this week.

The way out

The solution to the crisis lies with the government of Kerala alone. As the first step, the state government must persuade the Union government to include more permissible activities in the guidelines issued in 2011. The permissible activities should totally be exempted from the purview of the forests and wildlife department. All activities barring mining and constructions that harm the natural environment must be moved to the list of permissible activities. Kerala should then recommend to the Union government for a change in the boundaries of protected areas. This is possible for the state government after consultation with the National Board of Wildlife. A unique resolution or a bill in this regard must be introduced in the state legislature. This when passed by the legislature must be brought before the National Board for Wildlife. Such an alteration of the boundary doesn't mean diminishing the total area of the protected area, but rather extending the protected area to reserved forests by excluding human habitations. Once such a bill or resolution is passed by the assembly the urgency of such a measure can be brought before the Union Government through the National Board for wildlife. With the permission of the National Board of wildlife the boundary of protected areas can be altered.

The state should also at the same time submit its suggestions through a central empowered committee before the Supreme court of India informing its intention to exclude human habitations within the buffer zone ambit. Since the issue affects a large number of states, Kerala must try to bring in uniformity of opinion in this regard. The Southern zonal council can be used as an effective venue to formulate a common opinion on this matter. Kerala must seek the support of like-minded states while filing revised petitions regarding the fixation of buffer zones. Nationalization of forest resources is a good possible move that can significantly help the country in the long term. However nationalization should also include the reserve forests under state government. This will help us curtail illegal mining. Nationalization will mean that only the centre can grant mining licenses and other licenses related to forest products. The mining rights should be based on feasibility studies of the region and geological survey should be entrusted to study the location before granting the mining contracts. The states are bound to raise its objections since forests form a larger portion of the non tax revenue for the state government. The revenue from forest and wildlife was approximately Rs 236.8 crores in 2020-21 for the government of Kerala. Hence the state government will definitely object to such a move . All these actions require enormous political activism guided by political acumen from the state government. The state must be willing to work hand in hand with the centre in this regard. Considering the difference in ideologies at the Centre and the state, it is easier said than done.

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