THERE is a legend describing the encounter between Neil Armstrong and American Indians when Armstrong and other astronauts were undergoing training in a remote moon like desert in western United States. When an old American Indian encountered the astronauts and came to know that they were planning to travel to the moon, he asked if they could do a favour for him and his tribe. The old man said that that holy spirits live on the moon and he would like the astronauts to pass on a message to them. The old man uttered something in his tribal language and then asked the astronauts to repeat it again and again till they memorized it. On being asked what it means, the old man replied, stating that it is a secret that only his tribe and the moon spirits are allowed to know.

Once they returned to their base, the astronauts found a person who could translate this secret message. After reading it, the translator could not stop laughing. On being asked by the astonished astronomers what it meant, the translator explained what was written. It meant: ‘Don’t believe a single word these people are telling you. They have come to steal your land.’

This is a legend and yet there is remarkable similarity with the reality facing both local communities and natural ecosystem across the world. The Western Ghats is no different. Every law enacted, policy formulated and institution created for protection of the Western Ghats ultimately had only one unstated purpose – finding ways and means to destroy this unique biodiversity hotspot. This article focuses on how the law and legal institutions have dealt with the Western Ghats over the last two decades.

Any discussion on the Western Ghats invariably starts with the Silent Valley movement in the late 1980s. The then Prime Minister Indira Gandhi’s strong desire to protect Silent Valley in Kerala from a hydroelectric project led to the promulgation of an ordinance – the first time ever that an ordinance was resorted to for enacting an environmental law – since the Parliament was not in session. Such was the urgency in bringing about a law. Thus was born the Forest (Conservation) Ordinance, 1980 which later became the Forest (Conservation) Act, 1980. A one-and-a-half-page law – the shortest environmental statute in India – took away the powers of state governments as absolute owners of forest lands. The people’s movement to save the Silent Valley not only led to the project being shelved, it led to the central government asserting its constitutional duty to protect and conserve forests across the length and breadth of the country.

The next milestone was in 2002, when the Supreme Court (K.M. Chinnappa vs Union of India) had to choose, in its own words, between ‘a dollar friendly approach and an eco-friendly’ approach.¹ Thankfully, it chose an ‘eco-friendly’ approach. The issue related to the iron ore mining by Kudremukh Iron Ore Company Ltd – a large profit making public sector undertaking in the Western Ghats in Karnataka within the Kudremukh National Park. The Supreme Court in a landmark decision directed for a time bound closure of the iron ore mining company. The Supreme Court judgement was unprecedented: never before was such a large state owned, profit making, export oriented corporation shut down on environmental grounds. The opening sentence of the judgment is worth quoting: ‘By destroying nature, man has committed matricide, having in a way killed mother earth.’

 

The Supreme Court’s judgement instilled hope among those concerned about the future of the Western Ghats – the top court could come to the rescue of the Western Ghats in case of any threat and more significantly it would place the Ghats on a higher pedestal. Yet, as subsequent events were to show, the Kudremukh judgement was an aberration – the Western Ghats have been betrayed not only by the government but also by the judiciary.

The Mopa plateau in Goa is at the heart of the Western Ghats in Goa. It is home to several protected species of fauna. In 2015, a species of plant – Dipcadi concanense – thought to have gone extinct was rediscovered on the Mopa plateau.² The local community regarded the plateau as sacred; it provided livelihood and sustenance to them as nearly a dozen streams and rivulets originated from the plateau. Ten Ecologically Sensitive Areas surround the Mopa plateau. The plateau had all that was required to be designated as a ‘biodiversity heritage site’. It was the interface of nature, culture and livelihood.

Yet, the state government thought otherwise. It decided around 2010 that the best use of the Mopa plateau was to set up a second international airport in Goa along with a casino complex. However, there was a problem: if the state disclosed that the area is rich in biodiversity, it is unlikely to get the necessary environmental and forest clearances. Thus, it hired a trusted agency to do the Environmental Impact Assessment (Engineers India Ltd) and overnight the dense forest with rich biodiversity became ‘few trees mainly bushes’; the sacred plateau became a ‘barren land’ and otters, gaurs and leopards were replaced with ‘dog, rat and mice’. The Goa government concealed the existence of 42 Reserve Forest areas. The state of Goa and the environment ministry even denied the existence of the Western Ghats in Goa.

 

This is not unique to Mopa. After analysing 75 different EIA reports of mining projects in Goa, Madhav Gadgil had concluded that every single report described Goa as a treeless, waterless, barren land with no hills and plateaus.³ The Ministry’s Expert Appraisal Committee, which is mandated to examine the environmental implications of the project, raised serious concerns about it, but ultimately approved it stating that in view of ‘peculiar circumstances’ the project needs to be approved. One can only guess as to what those ‘peculiar circumstances’ were.

The local community challenged the project before the National Green Tribunal. After four years of litigation, all that the people got was a one-paragraph judgement, one that dismissed their appeal. The Supreme Court on appeal found that the state of Goa and the EIA consultant had given false information to secure approval. Justice D.Y. Chandrachud who authored the judgement concluded that the state was ‘parsimonious with the truth’. Quoting from Amartya Sen, Justice Chandrachud highlighted that the concept of ‘sustainable development’ must move from a ‘need based standard’ to a ‘standard based on freedom.’⁴

 

Though the court did stop the project in 2019 for some time on the grounds of concealment of information, yet, sadly, it sought to ‘balance’ environment and development and gave its green signal in January 2020. The court took a rather conservative and ‘hand’s off’ approach by stating that ‘no process can be perfect and free from studied criticism’, and that the ‘courts must be circumspect in micro managing the decision making process.’ Unfortunately, blatant illegalities were overlooked in favour of the airport with the belief that the ecology of the Western Ghats can be compensated by 10 times compensatory afforestation. The Mopa judgement marked a new low in judicial decision making; one where the Supreme Court accepted the wisdom of the government and its experts as the gospel truth.⁵

The airport and casino triumphed over the Western Ghats. Standards based on material needs got primacy over substantive freedom. The courts and the government saw greater economic returns in making Goa an entertainment hotspot as opposed to a biodiversity hotspot. The issue of concern, however, is not only that the legal battle to save the Mopa plateau was lost, rather the fact that the legal defeat was met with deafening silence from those who have been fighting to save the Western Ghats.

 

The hard reality is that the fate of the Western Ghats depends not on climate and evolutionary processes, like many other ecosystems, but on the whims and fancies of the people who rule India. In the last decade, two committees were formed to come out with a legally enforceable action plan to protect the Western Ghats. The first, the Western Ghats Ecology Expert Panel (WGEEP), headed by ecologist Madhav Gadgil, followed a detailed consultative process and came out with a set of concrete recommendations that were submitted to the government in August 2011. The government did not accept this report, and constituted a second committee to look into the same issues.

The ‘unofficial’ mandate of the second committee – called the High Level Working Group (HLWG) – comprising of 10 members (headed by Planning Commission member K. Kasturirangan and included Sunita Narain of the Centre for Science and Environment) was to dilute the strong recommendations of the Gadgil Committee – a task it performed with a fair degree of success. It submitted its report in September 2013. Thus, while the Gadgil Committee recommended for nearly 70% of Western Ghats to be under some degree of protection, the Kasturirangan Committee reduced the area under protection to 37%.

The Kasturirangan Committee justified this by making a distinction between ‘cultural landscapes’ and ‘natural landscapes’; according to the committee, it is the ‘natural landscapes’ which require protection and not the ‘cultural landscapes’ that are under human use and occupation. This can be termed as a very draconian categorization given that nature is part of the ‘cultural landscape’ and humans are an integral part of the ‘natural landscape’. There was a basic difference in the approach of the two committees. Gadgil focused on the process – consultation with communities, preparation of numerous working papers and meetings with stakeholder. Kasturirangan focused on the outcome – how much of Western Ghats to be protected without interfering with any of the government’s ecologically destructive plan and projects.

 

In a way the Kasturirangan Committee followed the easy route – the 37% of the Western Ghats under ‘natural landscape’ were already under some kind of legal protection as National Parks, Sanctuaries and Reserve Forest. Even after accepting the Kasturirangan Committee report, the state was essentially free to do what it liked. It was a ‘business as usual’ scenario. In the end, all the Western Ghats got were voluminous reports, media articles and public discussion, while on the ground things only went from bad to worse.

The Kasturirangan Committee report led to only one action – directions were issued by the central government under the Environment (Protection) Act, 1986. This said that no new mining, quarrying, sand mining, thermal power plants, building and constructions of 20,000 sq mts area and above, township and area development with area above 1,50,000 sq mts and red category industry (highly polluting) would be allowed in areas identified as Ecologically Sensitive Areas (ESA) in the HLWG. In substance, it meant that no environmental clearances could be granted by either the environment ministry or by the state level authorities. Prima facie it seemed to be a positive legal development. However, how hollow these directions are is best illustrated by the case of the Yettinahole project.

 

The Yettinahole project involves the transfer of water of the Nethravati River located in Hassan district in Karnataka to the districts of Chikkaballapur, Tumakuru, Ramanagara, Kolar and Bengaluru Rural where water levels are low due to ‘over-exploitation’. The project involved not only deforestation but also construction of a dam to store and divert the water. According to the Karnataka Forest Department, the area where the project is proposed is ‘evergreen and semi evergreen forest of the Western Ghats with unique flora and fauna and rich biological diversity. The area is also an elephant habitat with frequent movement of elephants.’⁶

These facts were stated in the proposal for diversion of forest. The entire proposal was submitted after the directions were issued in 2013 by the central government prohibiting mining, quarrying, construction above 20,000 sq mts. Despite being located in an Ecologically Sensitive Area (ESA) of the Western Ghats, the project was approved by the environment ministry. No Environment Impact Assessment was done, nor any public consultation held. Building such a large project involves construction beyond 20,000 sq mts and digging up the earth and blasting similar to mining and quarrying. If there is a bar on having new ecologically destructive projects in ESAs of the Western Ghats, how did Yettinahole project come up? The answer is not difficult to locate. The history of environmental legislations will show that laws have been enacted not for plugging loopholes, but to create loopholes for the violators. This is exactly what has happened with the environment ministry’s direction to prohibit many destructive activities in the Western Ghats.

 

The Kasturirangan Committee report, based on which directions were issued by the central government, did not prohibit all activities. A hydroelectric dam – the reason for the save the Silent Valley movement – could still be built in the Western Ghats, provided it did an EIA and secured an environmental clearance from the Ministry of Environment. Yettinahole, despite all the attributes of a dam, designated itself as a ‘drinking water project’ and not as an irrigation or hydroelectric project. In this way it completely escaped the requirement to do an EIA. Thus, the directions issued by the central government only led to a limited prohibition on the grant of environmental clearance; there was no prohibition on the grant of forest and diversion of forest land.

Thus, today a large construction project involving diversion and felling of pristine forest in a designated Ecologically Sensitive Area is permitted simply because it is less than 20,000 sq metres. There is no requirement of either an EIA or environmental clearance; there is no legal or policy prohibition if the government wants to deforest the whole of Western Ghats. In the Yettinahole case, the environment ministry only stipulated that ‘a study on the ecological impact of the project on the downstream ecosystem may be initiated through a reputed scientific institution simultaneously so as to make a course correction on the conditions to be imposed in future’ in lieu of allowing the Yettinahole project. This effectively means that no ‘prior studies’ will be done and the impacts will be studied only when construction work starts.

 

Like, the Mopa airport, Yettinahole was also challenged before the National Green Tribunal, which upheld the decision of the environment ministry to allow for the diversion of Western Ghats. On 6 September 2019, a Supreme Court bench comprising of Justice L. Nageshwar Rao and Hemant Gupta dismissed a civil appeal challenging the NGT’s judgment by stating that ‘in view of the peculiar fact of the case, we are not inclined to interfere.’ It is interesting to note that the environment ministry’s expert committee in view of ‘peculiar circumstances’ approved Mopa airport, and the Supreme Court allowed Yettinahole in view of ‘peculiar facts’. It is difficult to guess as to what was so ‘peculiar’ about these two projects other than the fact that their edifice was on violation and disregard for the Rule of law.

The Western Ghats unfortunately did not figure anywhere in the judicial decision-making process. Today, the Kasturirangan Report and the subsequent directions issued by the environment ministry do not serve any purpose to protect the Western Ghats. The greatest shortcoming of the Kasturirangan Committee report is the fact that it did not recommend protecting and conserving the biodiversity rich forest from being diverted for ecologically destructive activities. It follows the ‘licence raj’ system – so long as you have a licence, you can destroy the Ghats.

Today, the Western Ghats does not exist as a legal entity. Notwithstanding its recognition as a UNESCO world heritage site in terms of its biological diversity, the Western Ghats remain an academic concept. It is interesting to note that none of the states where the Western Ghats pass through want to openly disclose its presence, nor are they proud of it: Kerala promotes its backwaters, Goa its beaches and Tamil Nadu its architectural heritage and ‘cultural landscape’ of Nilgiri tea gardens. In official documents and government business, the Western Ghats is like ‘contraband’ – valuable, precious and rare, but its disclosure could lead to serious legal consequences. No state or district wants to declare any part of the Western Ghats as an ecologically sensitive area – the fear being that the declaration of ‘ESA’ will hamper development.

 

This is one subject that unites all political parties, be it the BJP government in Karnataka or Left Front government in Kerala. The opposition to confer legal protection is not just limited to political parties: in Kerala, one of the most vocal opponents of both the Gadgil and Kasturirangan Report is the Church.⁷ The Congress government at the Centre went even a step further when it refused to share the Gadgil Report with the public, stating that sharing the report would hinder India’s economic growth. It was only after the Central Information Commission and the Delhi High Court directed the Environment Ministry to upload the Gadgil Report was it made public.⁸ The Kerala government appointed the Oommen V. Oommen Committee to review the Kasturirangan Committee Report. The committee submitted its report in 2015 and recommended dilution in the already diluted report of Kasturirangan.⁹

 

Do the Western Ghats have a future? The answer to this entirely depends on how much the state and people’s movement is willing to do to protect the Western Ghats. Today, the level of legal protection the Western Ghats has is no different from what it enjoyed in the 1960s and ’70s, which is practically nothing. The various committees and directions issued by the central government have had no positive impact. In any case, they were little more than half-hearted measures to protect the Ghats. The courts, including the Supreme Court, today give primacy to the wisdom of the executive as opposed to the rule of law. Infact, if there is one issue that unites all political parties, it is the collective opposition to any proactive action that would protect the Western Ghats.

The story of Western Ghats should no longer start with the Silent Valley movement. If we continue to do so, we are missing the harsh reality. The Silent Valley was the first, and a rare instance, where the central government intervened to stop the destruction of the Western Ghats. Kudremukh was an exceptional instance of judicial decision making, where the Supreme Court departed from its usual practice of ‘balancing’ environment and development and favoured the Western Ghats. It has not been repeated often. The story of the Western Ghats should rather focus on the destruction of the Mopa plateau in Goa, the Yettinahole project in Karnataka, numerous transmission lines, highways and railway line that have fragmented the Western Ghats. It should highlight the collective fai lure of the executive, legislature and the judiciary in protecting this biodiversity hotspot. Most importantly, the environmental groups must recognize the harsh reality that there is no ‘real’ people’s movement today to save the Western Ghats. Ad hoc reaction to specific projects cannot be termed an environmental movement. Infact, political parties, religious groups, corporate and business interests today form a united front to ensure that no special protection is given to the Western Ghats. The combined might of these groups have collectively ensured the continued destruction of this unique ecosystem.

 

Any discussion on law usually starts and ends with a familiar idiom: ‘law is good, but implementation is poor.’ This is not the case with regard to the Western Ghats. The political apparatus, supported by narrow corporate interests and lopsided, myopic developmental agendas have ensured that neither are laws enacted, nor institutions created, or systems put in place, to protect the Western Ghats.

The Silent Valley movement marked a major milestone in the environmental history of India. Yet, the fact is that only Silent Valley was saved, but not the Western Ghats. The rest of the Western Ghats today seem like a silent victim to the complete failure of the legislature, executive and judiciary to afford it due legal protection. But the floods in Kerala and landslides in Coorg among other such disasters should remind us that the Western Ghats couldn’t be silenced.

 

Footnotes:

1. K.M. Chinnappa and T.N. Godavarman Thirumalpad vs. Union of India and Ors, AIR 2003 SC 724.

2. Prerna Bindra, ‘Mopa Airport Risks Wildlife and Livelihoods in Goa’, Conservation India, 19 August 2016. https://www.conservationindia.org/articles/mopa-airport-risks-wildlife-and-livelihoods-in-goa

3. Kenneth Nielsen, ‘Unclean Slates: Greenfield Development, Land Dispossession and "EIA Struggles in Goa"’, South Asia: Journal of South Asian Studies, September 2017, pp. 1-18.

4. Hanuman Laxman Aroskar vs. Union of India, (2019) Supreme Court. https://www.scconline.com/blog/post/2019/03/30/environmental-clearance-for-development-of-airport-at-mopa-goa-to-be-revisited/

5. Ritwick Dutta, ‘The Many Absurdities in the Supreme Court Judgment on New Airport in Goa’, The Wire, 8 April 2020. https://science.thewire.in/environment/supreme-court-mopa-airport-moefcc-eac-environment-development-eia/

6. Ritwick Dutta, ‘The Peculiar Case of Yettinahole’, Deccan Herald, 8 October 2019. https://www.deccanherald.com/opinion/in-perspective/the-peculiar-case-of-yettinahole-767063.html

7. M.G. Radhakrishnan, ‘Kerala Church Dismisses Ministry Order on Western Ghats Report as Gimmick’, India Today, 5 March 2014. https://www.indiatoday.in/india/south/story/kerala-church-dismisses-kasturirangan-report-western-ghats-udf-oomen-chandy-183758-2014-03-05

8. Aakriti Vasudeva, ‘Delhi HC dismisses MoEF’s Petition, Asks it to Make Gadgil Report Public’, Indian Express, 21 May 2012. http://archive.indianexpress.com/news/-hc-dismissesdelhi-moef-petition-asks-it-to-make-gadgil-report-public/951744/

9. M. Suchitra, ‘Western Ghats Conservation: Kerala Panel Seeks Dilution of Kasturirangan Report, Stirs Controversy’, Down To Earth, 4 July 2015. https://www.downtoearth.org.in/news/western-ghats-conservation-kerala-panel-seeks-dilution-of-kasturirangan-report-stirs-controversy-43232