Updated: Jul 14, 2020
Bengaluru: It will barrel through lush forests around a tiger reserve, a hornbill reserve, many wildlife corridors used by elephants, tigers and myriad other species and destroy thousands of trees in one of the world’s eight “hottest hotspots” of biological diversity.
That is the devastation experts predict if a 168-km railway line is built in the Western Ghats in Karnataka, connecting the western towns of Hubballi and Ankola. On 20 March 2020, the Karnataka State Board for Wildlife (KSBWL) cleared the line, reversing within 11 days a unanimous Board rejection of the project.
That volte face was made possible by six “special invitees” to the KSBWL—many with interests in conflict with wildlife and forest protection—who strongly lobbied for the project, ignoring the ecological destruction the railway line will cause.
Behind this reversal lies a two-decade governmental effort that ignored a 2006 stop to work—started without any clearance—by the Supreme Court, a 2018 rejection by India’s National Tiger Conservation Authority and, in approving the project, endorsed violations of a host of Indian laws and procedures.
On 18 June, the Karnataka High Court directed that “no further steps shall be taken on the basis of the impugned decision taken on 20 March 2020 in the 14th meeting of the State Board for Wild Life.”
“Within a span of 11 days, [the] unanimous decision taken by [the] state board on March 9 meeting was completely changed,” noted Karnataka High Court Chief Justice Abhay Shreeniwas Oka and Justice Nataraj Rangaswamy. They noted that ministers who were not part of the Board were allowed to address it, and that the decision-taking process “calls for closer scrutiny”.
The Hubballi-Ankola line, which runs parallel to a 50-km line to the north, from Hubballi to Margao in Goa, illustrates how India is opening up its wildlife sanctuaries and national parks to roads, railways, mines and industries by weakening its own environmental laws and procedures. At risk are the country's last forests, natural resources and the health of its people, as stories carried in Article 14 (here, here, here, here and here) have explained.
An examination of the permission to the rail line—granted by the body supposed to protect the state’s forests—reveals violations of the Wildlife Protection Act (WLPA), 1972, the Forest Conservation Act (FCA), 1980 and the Constitution of India, 1949. The consent, said wildlife experts, also undermines the purpose of the KSBWL, its national counterpart, the National Board for Wildlife, and processes meant to protect India’s beleaguered forests.
A Railway Through One Of the World’s ‘Hottest Hotspots’
The Hubballi-Ankola rail line is scheduled to cut a 10-km-wide swath through the “eco-sensitive zone”—areas surrounding protected areas, such as national parks and sanctuaries—of the Kali Tiger Reserve in the Western Ghats, a chain of low mountains older than the Himalayas and inscribed in 2012 on a World Heritage List.
The Ghats are “recognized as one of the world’s eight ‘hottest hotspots’ of biological diversity”, an area of “immense global importance”, according to a United Nations Educational, Scientific and Cultural Organization (UNESCO) factsheet. “The forests of the site include some of the best representatives of non-equatorial tropical evergreen forests anywhere and are home to at least 325 globally threatened flora, fauna, bird, amphibian, reptile and fish species.”
The rail line is expected to swallow 595.64 hectares of Western Ghats forest and, apart from cutting through forests around the Kali Tiger Reserve, will slice through the Hornbill Conservation Reserve, an area linking the two and many wildlife corridors used by elephants, tigers and many other species, according to experts.
How permission was given by the state’s wildlife board for a rail line through pristine forests is a story of a manipulative clearance process by the government, centred around six “special invitees” who on 20 March sat in a KSBWL meeting and lobbied for the project, despite opposition from the Board’s expert members.
Thanks to the special invitees, the 20 March meeting reversed a unanimous KSBWL decision to reject the rail line.
How A Rejected Proposal Was Approved
The minutes of the 14th meeting of the KSBWL show that the special invitees spoke at length in support of the project.
There were six special invitees: Karnataka’s Minister of Large and Medium Scale Industries (Except Sugar), Jagadish Shettar, Minister of Labour and Sugar, Shivram Hebbar, R V Deshpande, Member of the Legislative Assembly (MLA) from the Haliyal constituency (in the rail line falls), Chief Secretary T M Vijay Bhaskar, Additional Principal Chief Conservator of Forests (Wildlife) Subhash K Malkede, and Additional Principal Chief Conservator of Forests (Project Elephant) G V Ranga Rao.
Here are some of their arguments:
The then Prime Minister Atal Bihari Vajpayee had laid the foundation of this railway line… the project is necessary “because when the development of an area is to be considered, one has to give importance for infrastructure related projects”.
In Uttara Kannada district [through which the line will pass], forests are abundant and protected well, “therefore it is not correct to oppose the development in [the] district.”
“Double the forest area can be used for afforestation in lieu of the forest area utilised for the project.”
Even though expert members of the KSBWL, such as wildlife biologist Sanjay Gubbi, and those with wildlife expertise like the state’s Chief Wildlife Warden, who is also member secretary of the SBWL, objected to the project, the Chairman of the Board, Karnataka Chief Minister B S Yediyurappa, recommended the project to the NBWL.
Yediyurappa’s decision can be challenged, according to a legal precedent set in 2017, when the National Green Tribunal ruled that the chairperson of the NBWL cannot overrule the views of expert members of the NBWL.
In the 14th meeting of the SBWL, i.e., the meeting where the railway line was finally approved, Gubbi pointed out that the project was earlier rejected by the National Green Tribunal and the National Tiger Conservation Authority (NTCA) and so, it would be “legally correct to drop the project”.
Gubbi also pointed out that the Board ought to take note of recent landslides in Kerala and Karnataka’s Kodagu district while considering such projects in ecologically sensitive areas.
In this same meeting, Sanjay Mohan, then member secretary of the SBWL and former chief wildlife warden, pointed out that the Karnataka Forest Department was not consulted when the Centre for Ecological Sciences at the Indian Institute of Science, Bengaluru, prepared a report that essentially cleared the project, suggesting “mitigation measures”, such as afforestation, barricades at eco-sensitive regions and strengthening the local forest department.
"If you want to take such a project through our forests, the forest department should have been consulted in the mitigation plan [prepared by IISc]," Mohan told Article 14.
In the 13th meeting of SBWL on 9 March 2020, 23 members of the Board—all were not present at the meeting, which regarded the decision as unanimous—requested a rejection of the rail line for a host of ecological reasons. These included the need to conserve pristine forests and the wildlife within, the fact that the project falls in the catchment areas of the Kali river, a major source of water for the Uttara Kannada district, and that railway lines through other protected areas nationwide have regularly killed wildlife.
The Chairman of the Board, Yediyurappa, noted these concerns and rejected the project, a decision he reversed, as we said, 11 days later.
The WLPA does not allow a SBWL to review its own decision after “completion of a statutory process”, said Praveen Bhargav, a former member of the NBWL.
In other words, Yeddyurappa’s approval was an illegal act.
How The 48-year-old Wildlife Protection Act Was Violated
Steered through Parliament by former Prime Minister Indira Gandhi, the WLPA was established to protect and conserve various species of plants and animals and their habitats. The law was meant to protect “wildlife and statutory bodies, like the SBWL, created under this statute have to conform to this object”, Bharghav said.
The WLPA clearly states that the duty of the SBWL is to frame policies for the protection and conservation of wildlife. “So, there is a duty cast on members of the Board and other special invitees to act in consonance with the statute,” Bhargav said.
The special invitees who attended the KSBWL on 20 March clearly did not act in consonance with the law.
They knew that the NTCA in 2018 had rejected the rail line. The Authority had then said that economic development “need not and should not happen at a greater cost to the forest, wildlife of the Western Ghats landscape”. Without conservation of biological diversity of the Western Ghats landscape, the NTCA said, “the economic growth and prosperity of the region will not be sustainable in the long-run”.
The NTCA, according to Section 38-O (g) of the WLPA, had primary jurisdiction in deciding the project. Under the law, it must ensure tigers reserves and other protected areas must stay linked and are not used for “ecologically unsustainable uses, except in public interest and with the approval” of the NBWL and on the advice of the NTCA.
“The NBWL is bound to act on the advice of NTCA and since NTCA has already rejected this project saying it will cause [ecological] damage, NBWL had no authority to process the proposal further” said Ritwick Dutta, an environmental lawyer and founder and Managing Trustee at the Legal Initiative for Forest and Environment (LIFE), an environmental advocacy.
After the proposal was rejected by the NTCA, the NBWL sent the proposal for consideration to SBWL. This, experts said, was a violation of the law.
“NBWL committed an illegal act because it has no power to confer jurisdiction on a statutory board like SBWL,” Dutta said. “Unlike administrative bodies, statutory bodies like SBWL and NBWL are bound to act within the four corners of the statute under which they are constituted.” As for the SBWL, it has no jurisdiction to consider a proposal forwarded to it by NBWL. Section 8 of the WLPA says the Board shall “advise” the state government on wildlife conservation and management.
“The state board has to advise the state government on matters referred to it by the state government,” said Dutta, who likened the manner in which “the Karnataka State Board has acted is as good as CBSE [Central Board for Secondary Education] giving approval for a railway line”.
Why The Rail Line Goes Against The Constitution Of India
The SBWL decision violates Article 48-A of the Constitution Of India, which requires state governments to ensure protection of forests and wildlife.
“All elected representatives are under a constitutional obligation to protect forests and wildlife and political leaders invited to the meeting were under an oath to uphold constitutional provisions, including Article 48-A, which has been upheld by the Apex Court as ‘fundamental in the governance of the country’,” said Bharghav, the former NBWL member. “How, then, did they give a go-by to Article 48-A?”
In 2003, the Supreme Court, a case called the Indian Handicrafts Emporium And Others vs Union Of India And Others case had held: “We cannot shut our eyes to the statements made in Article 48-A of the Constitution of India, which enjoins upon the State to protect and improve the environment and to safeguard the forests and wildlife of the country.”
Bhargav said the minutes of the meeting make it clear that the sole aim of the special invitees was to ensure clearance for a project that is hugely detrimental to wildlife.
In addition, rule 9 of the Karnataka State Board for Wildlife Rules, 2006, states that the chairperson of the Board may invite “any person or persons having experience in the wild life conservation to attend any meeting of the State Board.” None of those from industry had any discernible background in wildlife conservation.
A Fait Accompli And Violation Of Forest Conservation Act
In May, 2000, Atal Bihari Vajpayee, the then prime minister, laid the foundation stone for the Hubballi-Ankola project, even though it did not have environmental clearances.
Construction began illegally and continued until 2006, when it was stopped by a Central Empowered Committee (CEC) constituted by the Supreme Court.
“Laying of foundation stones by the biggest political powers of the country sends signals that all approvals should easily follow,” said Kanchi Kohli, a researcher who works on environment, forest and biodiversity governance with the Centre for Policy Research, a think tank based in Delhi. “Such signalling can undercut due assessments and appraisals, both from the social and ecological point of view.”
An August 2015 report of the CEC noted that the South Western Railways attempted to force a fait accompli by starting work on the railway line on a 40-km stretch of land outside the forests and 1.1 km within, violating the FCA.
“What they [project proponents] do is that they start work on the non-forestland, and once money is sunk into it, they say ‘give us the forestland’,” said Dutta, the lawyer, who appeared before the CEC.
FCA guidelines say that in case of projects involving both forest and non-forest land “work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been obtained”.
The Supreme Court in the 2011 Lafarge judgement (which laid down guidelines for environmental governance) directed that “the guidelines are required to be given so that fait accompli situations do not recur,”Bhargav said.
“We need a regulatory system that creates a deterrence against violations, penalises non-compliance and discourages any attempt to create fait accompli by initiating construction activity without assessments and approvals,” said Kohli. In recent years, she said, both the judiciary and the executive have, at most, issued fines, but this “has not held back the routine disregard of environmental laws” and the practice of “deliberately creating the grounds for post-facto approvals”, meaning condoning a violation because it is done.
(Rishika Pardikar is a freelance journalist from Bengaluru)