Reforming Mining Law

 

In a state with a tropical climate, maintaining the environment is very much essential. Water is an essential natural resource for life, which is part of the larger ecological system. Rivers are the main source of water in Kerala – for drinking as well as for agriculture. Kerala has 44 freshwater rivers which serve the need of the people. There is therefore an indisputable need to protect our rivers.

One of the problems that adversely affect the river ecology is sand mining. The sand that accrues in a river maintains its ecology. It stores water and keeps the riparian environment moist long after the river itself dries up. But sand is also building material. River sand is today being extensively used throughout the country as a building material. Indiscriminate sand mining from the river basins in recent years has started creating serious environmental problems. Excessive sand mining leads to the lowering of riverbeds and that in turn leads to the easy subsurface intrusion of saline seawater in coastal areas. The adverse impact of indiscriminate sand mining is felt in many ways: it may pose a threat to the safety of places of worship, important historical monuments, dwelling units and lands in and around river beds and it may cause depletion of water in wells located close to the riverbanks because of erosion of the side banks.

Since sand is a mineral available from all the rivers in the country the framers of the Constitution of India have found it necessary to protect it and give [i] the exclusive power to legislate on minerals to the Central Government. The Government of India enacted the Mines and Minerals (Development and Regulation) Act, 1957 which was amended several times However, sand being a minor mineral the State Governments have been given rule-making powers for the control of sand mining.

It was in 27-02-2012 Supreme Court held[1] that even mining leases of minor minerals including their renewal for an area of fewer than five hectares be granted by the States/Union Territories only after getting environmental clearance from the MoEF.

Thereafter the Ministry of Environment, Forest and Climate Change made amendments to the Environment Impact Assessment Notification, 2006 and the Kerala Minor Mineral Concession Rules, 2015 were framed imposing more restrictions to maintain sustainable mining.

In so far as Kerala is concerned the Government Order issued on 13-1-1978[2] mandated environment impact assessment for projects the cost of which is above ten lakhs.  But it was not followed and the Supreme Court had the occasion to order demolition of a restaurant building constructed on the banks Periyar River.[3]

The application for environmental clearance for the Athirampally Hydro Electric Project was under consideration before the MoEF. The public hearing was mandated for such projects from 1997. Kerala High Court[4] has declared that public hearing is required for such the said project the Electricity Board contended otherwise. The public hearing was conducted on 06-02-2002. Since the majority of the people have objected to the project the hearing panel unanimously found that the Rapid EIA prepared was incomplete and recommended for comprehensive and participatory EIA. Thereafter the report was prepared and a hearing was conducted. But this time the Report was not published and therefore the public hearing was found to be not meaningful, the Kerala High Court declared.[5]

In Kerala, a Geologist has incorporated an additional condition for the protection of the environment in the mining lease. The written law does not empower him to include such a condition. When the same was challenged before the High Court, the Geologist has taken the stand that he has done it by following the principle of Public Trust Doctrine, one of the green principles laid down by the SC. The Kerala High Court has upheld the insertion of the said green condition imposed by the geologist for the reason it is essential to protect the environment.[6]

Enactment of law and tolerating its infringement is not enacting the law at all. Environmental ethics requires the implementation of such policies at the global level. The common man who is adversely affected by the pollution was forced to approach frequently the Courts seeking directions to implement the environmental laws of the country. The judgments rendered by the Supreme Court of India for the protection of rivers, forests, hills, etc by the issuance of continuous directions is a clear example of such failure of environmental ethics. Effective implementation of environmental laws depends on its economic capacity.

 


[1] Deepak Kumar vs Union of India. AIR 2012 SC 1386 :2012 (4) SCC 629

[2] .O.(P)No. 13/78/HD, dated 13-1-1978

[3] Association for Environment Protection Vs. State of Kerala. (2013) 7 SCC 226: 2013 (3) KLT 201.

[4] Chalakuty Puzha Samrakshna Samithi vs State. O.P.Nos.1774 of 2001, dated 17-10-2001.

[5] Athirappally Grama Panchayat vs Union of India. W.P.(C)No.11254 of2005, dated 23-03-2006.

[6] Soman vs Geologist. 2004 (3) KLT 577


[i] Entry 54 in Union List. 

Comments

Post a Comment

Popular posts from this blog

  Virtual Court hearing saves judicial time – Should be made a permanent feature.   The Indian courts permitted the presentation of testimonial evidence by electronic means and telepresence of the accused much before the pandemic situation. The National Green Tribunal started using the video conferencing facility for hearing cases throughout India in 2018. At that time the Southern Zonal bench was not sitting. But lawyers can go to Court hall in Chennai and argue before the Southern Bench sitting at Delhi through the video conferencing facility arranged at the Court hall. But the Pandemic situation of 2020 made most of the Courts in India function through video conferencing. The lawyers were able to make use of their computers, laptops, iPad, and mobile phones to appear before the High Court and Supreme Court. For the last two years from Supreme Court to all mofussil courts are using the video conferencing method to hear the arguments of the parties. The experience gat...
Read more
 Coastal Regulation Zone laws why it failed in Kerala sahasram@gmail.com  Short History of the CRZ The Government of India has issued the so-called “Coastal Regulation Zone (CRZ) Notification, 1991” for the purpose of protecting the coastal ecology. Water bodies affected by tidal waters are to be marked as CRZ. Every State has to identify such areas and classify it as CRZ-I, II or III and prepare a Coastal Zone Management Plan (CZMP). It is at that time MC. Mehta approached the Hon’ble Supreme Court which issued directions to prepare the CZMP. An interim order was issued on 12-12-1994 halting all constructions upto 500 meters from the High Tide Line. This was slightly modified on 09-03-1995  permitting constructions as per the Notification. Finally when the case was disposed for directing the coastal states to finalise the CZMP and get it approved from the MOEF.  Coastal Zone Management  Plan Preparation Hon’ble Justice Kudip Singh of the Supreme Court was very ...
Read more
LINKS TO SOME WRITINGS OF JUSTICE V.R.KRISHNA IYER · A bizarre nuclear deal pursuit · A courageous voice of dissent · A democratic demand · A questionable instrument .State terrorism is no answer to combat terrorism · Accords sans accountability · Appointments and Disappointments · Article 356 should be abolished. · Contempt power and some questions · Criticism of Courts-1 · Criticism of Courts-II · Disasters of distorted urban development. Garbage crisis in Kochi and some lessons. · For a creative strategy. Peace is India’s first charge. · Hidden agenda of TRIPPS · House Privileges and Courts · In Public Interest. Activist judiciary: a pro bono fiduciary vis-a-vis operation public interest litigation. · Imperatives before the judiciary · Judges are public servants, not bosses · Judicial Appointments · Judiciary – A reform Agenda-I · ...
Read more