India Spend:
New Delhi: Wednesday, 26 February 2020.
In
April 2018, over 3,000 fishing collectives, environmental groups and
citizens across India submitted their
objections to the draft of the Coastal Regulation Zone (CRZ) Notification, the
law that governs the development of the country’s 7,500-km coastline. Nine
months later, disregarding over 90% of representations--in violation of the
February 2014 Pre Legislative Consultation Policy--and without publishing the
draft in the official gazette as mandated, the government pushed through the
final notification, show documents reviewed by IndiaSpend.
Fishing
collectives and environment groups objected to the notification, which opened
up India’s coastline for enhanced commercial activities, primarily on the
grounds that:
No
prior consultation was held with coastal communities, especially the
fisherfolk;
The
lifting of development restrictions would be disastrous for the coastal
environment and the traditional communities that live off it;
Interfering
with ecologically sensitive coastal areas would leave them more vulnerable to
natural hazards.
The
new law lifted the prohibition on construction in the previously protected
200-metre no-development zone (NDZ) in rural areas and 100-metre NDZ along
tidal-influenced water bodies, reducing it to 50 metres for these water bodies
and densely populated rural areas (with a population density of 2,161 per sq
km). This would make way for more real estate, hotels and beach resorts,
exposing more lives and property to the danger of extreme weather conditions,
the groups argued. Amendments brought between 2014 and 2018, and retained in
the new law, also allow for activities such as mining of atomic minerals in CRZ
areas and reclamation of sea for monuments and memorials.
Sand
dunes and mangroves provide the much-needed buffer against cyclones and storm
surges. Yet "eco-tourism" constructions and activities are now
allowed in vulnerable areas, as is mining for rare earth minerals in sand dunes
and waste treatment in sensitive inter-tidal areas.
“Yeh
lokshahi nahi thokshahi hai (this is not democracy, this is governance by
force),” said Kiran Koli, general secretary of Maharashtra Machhimar Kruti
Samiti, a Mumbai-based fisherpeople's collective, about his and 352 of his
fellow members’ views being ignored by the Ministry of Environment, Forests and
Climate Change (MoEFCC).
The
CRZ notification is critical to the lives and livelihoods of the
communities--around 171 million people or 14% of India’s population--living
across 70 coastal districts, 66 in mainland India and four in island
territories. Their future, especially that of marginalised communities, is
directly linked to the health and disaster preparedness of the coasts, as
IndiaSpend reported in October 2019.
If
the ecological services of the coasts such as the maintenance of water balance,
control of erosion and waste processing are factored in, it becomes even more
important to ensure the health and resilience of coastal areas.
Upto
36 million Indians are likely to encounter coastal floods due to rising sea
levels by 2050, an October 2018 study released by Climate Central had
predicted. Urbanisation can increase the flood peaks up to eight times and
flood volumes by six times, according to the National Disaster Management
Authority (NDMA).
Allowing
intense development closer to the sea would exacerbate the risk for the coastal
infrastructure and vulnerability of coastal populations, according to a paper
released in August 2019 by the Observer Research Foundation.
Yet,
the notification allowed for higher floor space index or floor area ratio--that
is, more covered area, including all floors, in a property--for buildings in
disaster-prone urban areas. Many of these urban areas are densely populated
cities such as Mumbai, Kolkata, Vishakhapatanam and Chennai.
IndiaSpend
emailed a detailed questionnaire to the joint secretary, CRZ, MoEFCC on January
30, 2020 seeking the ministry’s explanation for these omissions. This was
followed up with two phone calls over 25 days. However, we did not get any
official response to our queries. This story will be updated if and when we
receive a reply.
3,469
objections to draft
The
MoEFCC published the draft CRZ notification on its website on April 19, 2018.
This draft was prepared on the basis of representations from coastal states and
‘other stakeholders’ and recommendations of the Shailesh Nayak Committee, set
up to review the CRZ law of 2011, the government stated.
The
draft was open for two months for public responses. The ministry received 3,833
representations, of which 3,469 were objections to the draft, documents
obtained through a Right to Information (RTI) application revealed.
The
ministry, finalising the law in January 2019, argued that the objections did
not warrant attention because they “principally” fell within the set of
concerns already addressed by the Nayak Committee, constituted in 2014. But
this panel did not meet with the public while reviewing the law, and submitted
its report in 2015.
On
the non-publication of the draft notification in the official gazette, the
ministry countered that this purpose was served by uploading the draft on to
its website. However, publication of draft laws only in the administrative
ministry's website does not facilitate the kind of discussion and engagement
such laws deserve, observed an August 2019 analysis by public policy
researchers Arun P S and Sushmita Patel.
Review
of 2011 notification
The
CRZ notification was first promulgated in 1991 for the protection of the coast.
Over the following decade and a half, the notification went through eight
reviews and 20 amendments. To compile these amendments in one document and to
address the long-standing demand of fisher communities for recognition of their
livelihood, the notification was replaced by a fresh law in 2011, according to
a blog post by Centre for Policy Research (CPR), a think-tank in Delhi.
In
June 2014, the environment ministry constituted a committee under the
chairpersonship of Nayak, the erstwhile secretary of the Ministry of Earth
Sciences.
The
panel’s scope included addressing concerns raised by the state governments,
eliminating ambiguities and simplifying clearance procedures. The committee
held consultations with the state governments over the following six months and
submitted its report to the ministry in January 2015.
While
the ministry did not make the committee report public, it started chipping away
at the notification’s progressive clauses by incorporating the changes
suggested by the panel--such as the lifting of certain restrictions on the construction
of buildings in coastal towns, allowing mining of atomic minerals even in
intertidal areas, and reclamation to build monuments and memorials.
Between
November 2014 and July 2018, 14 amendments were made to the CRZ law, four as
drafts available for public review and ten as final amendments. The 2018 draft
not only pieced together all the amendments, it also proposed further dilutions
such as reduction of the NDZ and eco-tourism structures in ecologically
sensitive areas, several stemming from the committee’s suggestions, an analysis
by CPR shows.
‘Committee
sought no public inputs’
In
an interview in 2016, Shailesh Nayak had stated that the committee had met with
the chief minister of Kerala, the chief secretary of Maharashtra and senior
government officials of all coastal states and union territories. The panel had
met with “other stakeholders” as well, the environment ministry had claimed
repeatedly. But Nayak categorically denied meeting anyone other than state
officials.
“The
committee worked in an opaque and exclusionary manner, seeking no public
inputs,” remarked Kanchi Kohli, senior legal advisor at CPR.
Nayak
also denied receiving submissions from NGOs and other groups during the review.
However, think-tanks and NGOs countered that they had made submissions with
requests for meetings. “I sent him numerous emails requesting that we be given
a hearing by his committee, and he refused to do so,” said Debi Goenka,
executive trustee with Conservation Action Trust, a non-profit organisation
based in Mumbai.
In
these consultations, state governments sought reduction in the no-development
zone, relaxations for tourism and mining activities and the extension of
existing town and country planning norms to urban constructions in coastal
areas as well, according to a summary of states’ representations prepared by
CPR. The committee turned these demands into suggestions which were eventually
made part of the new law.
“If
you look at his report, it is evident that all that his committee did was
accept almost all the demands of all the state governments to dilute the CRZ,”
Goenka said. “Concerns of coastal inhabitants, fisherfolk, NGOs, etc. were not
really relevant to his committee.”
The
committee presented its initial findings before the ministry in November 2014
and submitted its report in January 2015. Coastal communities, citizen groups,
scientists and the general public remained unaware of these developments. The
Central Information Commission had to direct the ministry to share the report
with CPR’s Kanchi Kohli, who had filed an RTI application and followed it up
with first and second appeals for a copy of the report.
But
the ministry, through its justification for ignoring the objections to the
draft, implied that the Nayak committee had “dealt with” public concerns even
before they were raised.
“It
is a travesty of justice when the ministry claims that all the objections
raised by the public in due earnestness had already been addressed and resolved
by the committee's process,” said Kohli. “The Shailesh Nayak committee report
has still not been officially made public by the environment ministry.”
Overlooked
policies and rules
As
the second consecutive term of the United Progressive Alliance government at
the Centre was drawing to a close, in February 2014, the ministry of law and
justice had promulgated the pre-legislative consultation policy. The policy was
a result of a meeting of a committee of secretaries of the outgoing regime held
in 2014. It also incorporated the recommendations of the National Advisory
Council, an advisory body created by the UPA government in 2004 that ceased to
exist under the current regime and the National Commission to Review the
Working of the Constitution.
As
a step towards “transparent government”, it suggested a set of practices to be
followed “invariably” by all ministries and departments before finalising a
legislation. Besides advising that the proposed law be published through the
internet and “other means” for a minimum period of 30 days, the policy
recommended that the summary of feedback received should be made available on
the website of the ministry concerned.
The
environment ministry did not upload the summary of comments received on the
draft CRZ law on its website. The comments were obtained through an RTI
application and made available by the CPR on its website.
For
laws that could impact a specific group of people, the policy had suggested
that the law should be made available in such a manner that it gives “wider
publicity to reach the affected people”. Also, to “enable wider
comprehensibility”, draft policies should be made available in regional
languages but it is often not the case, commented scholars Arun and Patel.
As
a good practice, the policy also recommended that the ministry concerned could
hold public consultations in addition to making the draft available in the
public domain, the degree and mode of which it could decide. This was not done.
There
were no such gaps in the process when CRZ 2011 was being drafted. Extensive
consultations were held with numerous stakeholders on several contentious
issues at the time. “In 2010, more than 10 consultations were conducted, in all
coastal states and UTs,” recalled T Peter, secretary, National Fishworkers’
Forum. “The final law of 2011 did not include everything that we sought. But it
had addressed several of our concerns.”
Clause
5 of the Environment (Protection) Rules, 1986 empowers the central government
to impose any restriction regarding the location of certain industries or
operations. It is on the basis of this provision that the environment ministry
issued laws such as the very first version of the CRZ notification of 1991 and
subsequent iterations of 2011 and 2019, and Environment Impact Assessment
Notification, 2006. Sub-clause (3) of this clause specifies that the government
can bring in such stipulations “by a notification in the Official Gazette”.
But
the ministry did not publish the draft in the gazette.
“Results
of public consultations are legally non-binding but if the draft CRZ
notification was not published in the gazette it is a violation of the
environment protection rules,” said Rahul Choudhary of Legal Initiative for
Forest and Environment, an NGO in Delhi.
The
non-publication of the draft in the official gazette may be considered an
“exceptional case”, the ministry said, as it had been uploaded on its website.
Fishing
community ignored
Of
the 3,833 representations made against the 2019 notification, over 2,000 were
from fisherpeople’s collectives, all of which rejected the draft, the
compilation of comments on the draft shows. “The Shailesh Nayak Committee did
not consult us,” said Debasis Pal, a Rajahmundry-based social activist and
general-secretary of the Democratic Traditional Fishers’ and Worker Forum,
Andhra Pradesh (DTFWF).
DTFWF
alone sent 1,500 representations rejecting the draft. “The draft did not come
in vernacular,” Pal said. “How many of the fishers are literate or can
understand English/Hindi?”
Besides
the fisher groups, another prominent actor in coastal governance was kept out
of the review process--the State Coastal Zone Management Authorities (SCZMAs).
These bodies are responsible for implementing the CRZ Notification in their
respective states/UTs. They coordinate the preparation of coastal management
plans, appraise project proposals, identify and assess CRZ violations, and take
measures for conservation of ecologically important sites.
Antonio
Mascarenhas, scientist at the National Institute of Oceanography and until 2016
a member of the Goa SCZMA, has expressed his disappointment with the CRZ review
exercise. His was one of the 3,469 submissions that rejected that draft law. In
support of his submission to the environment ministry, he provided a set of
academic papers and stated “these seven scientific papers may please be
considered so as to understand coasts need to be protected and not opened up
for indiscriminate commercial use”.
Yet,
the ministry went ahead.
“The
CRZ is a critical regulation for conservation and livelihood protection on the
coast,” said Kohli. “CRZ 2019 stands as a testimony of a perfunctory exercise
to achieve an objective that was fait accompli from the outset.”