This article has been written by Arundhati Roy.
India is a country that can be called a motherlode of national parks, wildlife sanctuaries, and biosphere reserves, rich in biodiversity and consists of a broad spectrum of flora and fauna. Significantly, India is an abode of 10% of the species found in the world. Conservation International has acknowledged India as one of the 17 mega diverse countries globally, among others. In the year 1992, the Government of India had launched a scheme, ‘Project Elephant,’ sponsored by the Central Government to protect elephants, their habitat & corridors, to ensure the welfare of elephants and mitigate & prevent conflict between the humans and elephants. Till now, the Government of India has by notification created 32 Elephant reserves in India. One of such elephant reserves situated in the State of Uttarakhand is Shivalik Elephant Reserve, notified on 28th October 2002. Located near the Shivaliks is the Kansora- Barkot Elephant Corridor. Shivalik Elephant Reserve spreads over 5000sq km, comprising three protected areas: Rajaji National Park, Jim Corbett National Park, and Sona-Nadi Wildlife Sanctuary, among other forest divisions. It has to be taken into account that it is a home for the highest densities of elephants found in India.
Girded by the Shivaliks (mountain range of the outer Himalayas), the Rajaji National Park, also a Tiger Reserve, located in the State of Uttarakhand, is prominent for Asian Elephants. Formed of dense green jungles with picturesque beauty and a hearthstone for a wide range of animals such as Asian elephant, Goral, Indian Hare, sloth Bear, King Cobra, Jackal, Bengal Tiger, Striped Hyena, Rhesus Marcus, Indian Porcupine, etc. with over 500 species of birds which includes both residents and migrants species of peafowl, kingfishers, woodpeckers, etc. Interestingly, Rajaji National Park is a pre-eminent habitat of the Great Pied Hornbill, Himalayan Pied Kingfisher, and the fire-tailed sunbird. It is to be noted that the Rajaji National Park is also a part of India’s one of the 32 Elephant Reserves, the Shivalik Elephant Reserve. India’s biodiversity is resplendent for a green panther. However, this biodiversity is under severe threat of extinction due to human intervention and the rapid surge in the exploitation of forest resources for the growing population. Recently, the proposal to de-notify the Shivalik Elephant Reserve to clear the way for the augmentation of Dehradun’s Jolly Grant airport has been in controversy ever since it received the approval of the Uttarakhand State Wildlife Board under the chairmanship of Chief Minister Trivendra Singh Rawat in November 2020. The present article contemplates the pros and cons of such denotification while discussing the decision of the High Court on such a move by the State Wildlife Board.
Rajaji National Park is located at the foothills of the Himalayas and spreads over 820.20 sq. km. on both sides of the river Ganges in three districts of Uttarakhand: Haridwar, Dehradun, and Pauri Garhwal. The formation of Rajaji Wildlife Sanctuary out of the forest of Dehradun East Forest Division took place in the year 1948. The name has been bestowed upon the National Park in honor of ‘Chakravarti Rajagopalachari,’ a freedom fighter called ‘Rajaji’ and was the last Governor-General of India. As per the story, during the pre-independence days, Rajaji was visiting the forest area and was offered to shoot at one of its shooting blocks. However, he was so moved by its spectacular beauty that he declined to shoot and wanted to preserve the same. Thereafter, in 1964, the Motichur Sanctuary was formed, and subsequently, the Chilla Sanctuary came into being in 1977.
In 1983, the Rajaji Wildlife Sanctuary, the Motichur Sanctuary, and the Chilla Sanctuary were integrated into one protected area named Rajaji National Park. The objective behind this was to safeguard the forest area and rich biodiversity of the Shivalik forest. This Park is also the Northwestern Limit of Asian Elephants. Moreover, it provides shelter to the Van Gujjars during the winter season. The term ‘Van’ means forest, and Van Gujjars are one of the few forest-dwelling nomadic communities in the country found in the Himalayas region.
Two tiger reserves can be found in the State of Uttarakhand, i.e., Jim Corbett and Rajaji, which are adjoining to each other. It is pertinent to note that the highest density of tigers in the world is in Jim Corbett National Park, and in terms of the number of tigers, it is the second-highest in our country. On 18th April 2015, the Central Government notified Rajaji National Park as Rajaji Tiger Reserve. The area declared as the Tiger reserve comprises an area of 1075.17 sq km; this includes 255.63 sq km of the Rajaji National Park’s buffer zone. Noteworthy to say that the Rajaji-Corbett Tiger Conservation Unit (RCTCU) covers nearly 7500 sq km of reserve forest and consists of approximately 200 tigers along with a population of more than 1500 elephants.
- The issue arose when the proposed area for the expansion of Dehradun’s Jolly Grant Airport constituted a part of the Shivalik Elephant Reserve, which falls within the ambit of a 10 km radius of Rajaji National Park.
- This proposal was accepted by Chief Minister Trivendra Singh Rawat, who is the chairman of the State Wildlife Board of Uttarakhand.
- There have been several protests by various environmental activists as well as the local residents who participated in such protests outside Dehradun’s Jolly Grant Airport and condemned the decision of the State Government not just for accepting the proposal but also for allowing the felling of over 10,000 trees in the Shivalik Elephant Reserve, Thano forest for the airport’s expansion.
- These protests were similar to that of the Chipko movement of the 1970s, as the protestors had tied strings around the trees which were marked for cutting.
- Another concerning factor is that the proposed expansion will threaten the habitat & corridors of the elephants while endangering other species of fauna found in the Rajaji National Park.
- Pertinent to note that, according to the Earthquake Zoning Map, the State of Uttarakhand falls in the category of Seismic Zone-IV and V, and annihilating Thano forest will lead to soil erosion, a prominent factor that contributed to the worsening of the 2013 Kedarnath floods, which had made countless lives suffer.
- The proposal for the expansion of the Jolly Grant Airport project focuses only on the construction and development of infrastructure at the cost of the environment by omitting to take into consideration environmental laws & regulations.
- Further, the Uttarakhand Government was asked by the Ministry of Environment, Forest, and Climate Change (MoEFCC) to ponder over abstaining the sensitive areas of the Shivalik Elephant Reserve while analyzing the land which is apt for carrying out the expansion of Dehradun’s Jolly Grant Airport.
As per the law prevailing in India, it is requisite that the Airport Expansion Project of Dehradun must obtain the Environmental Clearance (EC), the Forest Clearance (FC), along with clearance from the National Board of Wildlife (NBWL).
Further, according to item 7(a) of Schedule I of the Environmental Impact Assessment Notification, 2006, which pertains to ‘Airports,’ the Airport Project has been mandated to ensure that it acquires EC. The Expansion Project of the Jolly Grant Airport falls within the ambit of Section 2 of the Environmental Impact Assessment Notification, 2006, which provides that expansion projects which are enlisted in the Schedule must obtain a fresh EC. It is worth noting that the enthusiasts of the expansion project have not yet applied to get an EC.
Section 2 of the Forest Conservation Act, 1980 also mandates the expansion project to obtain a Forest Clearance, as it makes an attempt to divert the use of 87.085 hectares of forest area for non-forest purposes. The land proposed for the expansion project comprises a part of the Thano Reserved Forest and imbricates with the Shivalik Elephant Reserve. Pointing on the Forest Application form, which is Form A Part I, submitted by the exponents of the expansion project on 14th May 2020, recognizes, as part of the proposed Wildlife Mitigation Plan, that the Project falls within the area of the Shivalik Elephant Reserve and is adjoining to Rajaji National Park in an extremely fragile ecological area, providing an opportunity to give rise to a conflict between humans and wildlife.
Moreover, it has been stated by the District Forest Officer (DFO) in the Site Inspection Report dated 20.08.2020 that ‘no rare/endangered/unique species of flora and fauna are found in or near the proposed Project area, and that project is recommended in the public interest.’ This statement is antithetical to the application form (Form A Part I).
On 04.09.2020 and 08.09.2020, reports have been submitted by the Chief Conservator of Forests (CCF) and Nodal Officer, respectively, wherein they have advocated that there is a public interest in the Project. Surprisingly, the reports have been made without conducting any examination of the proposed site for the project.
It can be pointed out that the recommendations proposed by the State Government are way more patterned as they suggest that the Project has been initiated in the interest of the public and raises suspicion on the assessment carried out by the authorities to weigh the impact of the Project on ecologically fragile areas. In addition to this, the Project requires the feeling of approximately 9745 trees.
Despite this, proponents of the project have not undertaken any evaluation of the cost of trees to be felled as they stated in the Forest Clearance Form that ‘no cost-benefit analysis is needed for the expansion project, as it is in the public interest.’ This act of the promoters of the project manifests sheer violation of the MoEFCC guidelines on cost-benefit analysis of projects in forest areas to ascertain whether diverting forestland for non-forest purposes is in the overall interest of the public. It is to be noted further that the Project has not yet obtained a forest clearance.
The National Board of Wildlife (NBWL) is the Apex body for wildlife conservation and their habitat. It is a statutory body that is constituted under the Wildlife (Protection) Act, 1972. NBWL consists of a 47-member committee. The Prime Minister of India is the head of the committee, and the minister of environment, forest, and climate change is the vice-chairperson. The role played by NBWL is paramount in ensuring the long-term protection of India’s biodiversity.
The airport expansion project falls within the 10km radius of the Rajaji National Park, which mandates the Project to acquire a Clearance from the National Board of Wildlife as per the provisions of the Wildlife Protection Act, 1972.
The procedure to be followed for development projects which are located within 10 kms of National Park/Wildlife Sanctuary for obtaining Environmental Clearance has been prescribed by the MoEFCC. Prior clearance of the National Board of Wildlife has been mandated for the cases wherein the Eco-Sensitive Zone (ESZ) Notification has not been notified. In the instant matter of Rajaji National Park, the proposed ESZ vide Daft Notification dated 22.05.2018 is yet to be settled.
Thus, the project promoters need to obtain EC Clearance and NBWL clearance to go ahead with the Project. However, no such initiative has been taken by the exponents of the Project to acquire EC clearance, and their application dated 11.08.2020 for procuring the Clearance from NBWL stands pending before the Standing Committee of NBWL.
As the expansion project of the airport is in violation of copious amounts of environmental provisions while possessing a threat to the biodiversity of the Shivalik Elephant Reserve as well as the Rajaji National Park, public interest litigation (PIL) has been filed by Petitioner Reena Paul challenging the decision of the State wildlife Board to de-notify the Shivalik Elephant Reserve for the proposed expansion of the Dehradun’s Jolly Grant Airport.
Not only PIL but over 80 advocates practicing at the Delhi High Court had made a representation before the Chief Justice of the Uttarakhand High Court to take suo-motu cognizance of the denotification of the Shivalik Elephant Reserve in the interest of the natural environment and conservation of wildlife and further quash the thoughtless decision of the Uttarakhand State Wildlife Board dated 24.11.2020 to de-notify Shivalik Elephant Reserve. Thereby, restore the protection which has been granted to the habitat and corridors of the wild Indian elephants in the State of Uttarakhand.
It has been stated in the representation that, “The decision prima facie appears to be hasty and short-sighted and taken without due consideration for the natural environment and wildlife conservation, despite the ongoing reality of Climate change and rapidly rising population.”
The representation further asserted that “animals have a distinct persona with corresponding rights, duties and liabilities of a living person,” while stating that the Uttarakhand High Court upheld this in the matter of Narayan Dutt Bhat v. Union of India & Ors.
On 4th January 2021, a division bench of the Uttarakhand High Court consisting of Acting Chief Justice Ravi Malimath and justice Alok Kumar Verma took suo motu cognizance of the decision of the Uttarakhand State Wildlife Board to de-notify the Shivalik Elephant Reserve for the purposes of carrying out developmental activities. The Uttarakhand High Court took this initiative after receiving representation from the Delhi-based lawyers to take appropriate action in the interest of wildlife conservation and for safeguarding the environment.
The Uttarakhand High Court had then passed an order dated 08.01.2021 by which it stayed the denotification of the Shivalik Elephant Reserve, which is the only elephant reserve of the State.
It is worth mentioning that the Uttarakhand Forest Department told the Union Ministry of Environment, Forest and Climate Change in its reply that the “part of the reserve that is being spared for the expansion of Dehradun Airport is not of high conservation value as the area has very scanty undergrowth such as grasses, herbs and shrubs and the Jhakhan river nearby is also seasonal in which water is available only during the rainy season.”
Despite the stay by the Uttarakhand High Court on 08.01.2021, the State Government of Uttarakhand had notified the de-reservation of the Shivalik Elephant Reserve.
The Petitioner Reena Paul, a resident of Dehradun, on being aggrieved by the decision of the State Wildlife Board dated 24.12.2020, had challenged the same before the Uttarakhand High Court vide Writ Petition No.05 of 2021.
It was submitted in the petition that according to Section 2 of the Forest Conservation Act (FCA), 1980, no State Government is permitted to de-notify any reserved area without seeking permission of the Central Government. In the instant matter, the Uttarakhand State Government has failed to do so and yet issued the denotification order. Thus, accordingly, the Government order per se is in contravention of Section 2 of the FCA,1980.
Moreover, notwithstanding the stay granted by the Uttarakhand High Court, the Government continued to de-notify the Shivalik Elephant Reserve. Thereafter, an interim application was filed in the Court seeking stay of the notification. The learned counsel for the petitioner had submitted that if the notification dated 08.01.2021 were not stayed promptly by this Court, “it may cause irreparable loss to ecology, environment, and to the lives of the wild elephants, who continue to enjoy the protection and conservation of the Shivalik elephant Reserve. Hence, it is imperative for this Court to step in and to control the damage that may be caused both to the wildlife and to the environment.”
The High Court took into view submissions made by both the parties and observed that “so far, there is no single piece of evidence to show that the Central Government has granted the permission to the State Government to de-notify the Shivalik Elephant Reserve.”
In view of the submissions made, the Court held that “if the notification were allowed to operate and, in case, the proposed area is diverted for the purpose of expansion of the airport, an irrevocable loss would be caused, both to the environment and to elephant population. Moreover, the irrevocable loss would be caused at the cost of violation of Section 2 of the Forest Conservation Act.”
Therefore, the High Court granted a stay which is to be operated till the next date of the case in favor of the petitioner in the light of the above circumstances.
To conclude, the decision granting stay by the Uttarakhand High Court on the denotification of the Shivalik Elephant is a small step towards conserving the environment and wildlife till the interim safeguard exists. However, the fate of the Asian elephants hangs in the balance as their safety is ensured till the matter is adjudicated in finality. It is be noted that the Indian elephant (Elephas Maximus) occurs in the Central and southern Western Ghats, North-east India, eastern India, and in some parts of southern peninsular India, and is found in Shivalik Elephant Reserve. This elephant is an endangered species as per the International Union for Conservation of Nature (IUCN) Red List and is threatened with extinction.
The Supreme Court of India had upheld the 2011 order passed by the Madras High Court on the Nilgiris elephant corridor, affirming the “right of passage of the animals and the closure of resorts in the area,” in the interest of the environment and wildlife. Though there is a need for developmental activities for the ever-increasing population of humans, it cannot be undertaken by wiping out the biodiversity, thereby causing irreparable damage to ecology as well as the wildlife. Therefore, humans are required to comprehend that the well-being of both lies in taking such decisions which will promote conservation and protection of biodiversity and wildlife.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: