A legal fiasco

In an unprecedented development, flouting key tenets of the Constitution and the law on wildlife, Chief Minister B S Yediyurappa appears to have pulverized the State Board for Wildlife and cleared the ecologically disastrous Hubballi-Ankola railway line in a hurriedly convened meeting. While the ecological ramifications are widely known, it is important to unravel the bumpy path that the proposal has traversed.

The genesis of this project goes back to 1998 when the railway ministry sanctioned a broad gauge line to connect Hubballi to the coastal town of Ankola. A report of South-Western Railway cited an increase in the movement of iron ore to the west coast as justification for approval. However, the project was evaluated by statutory authorities and the Forest Advisory Committee which concluded in May 2004 that “The construction of the proposed new railway track from Hubli to Ankola for transporting mainly iron ore has not much justification. On the other hand, this will simply be a tragedy on the prime forests of Western Ghats…and irreversible effect on fragile ecosystem of Western Ghats”.

Subsequently, in August 2015, the Central Empowered Committee (CEC) recommended to the Supreme Court that “…this Hon’ble Court may consider directing the MoEF not to reconsider/approve the proposal for diversion of 965 ha of forest land (subsequently revised to 720 ha and then to 667 ha)… for construction of the new Hubli-Ankola Broad Gauge railway line and which was earlier rejected on merit by the MoEF…”

In August 2018, a three-member committee comprising officers of the Ministry of Environment and the Wildlife Institute of India conducted a detailed site inspection. The committee concluded that: “i) It is reiterated that extremely fragile ecosystems of the Western Ghats will not be able to sustain or buffer impacts… ii) The original rationale behind laying the proposed Hubballi-Ankola Railway track does not appear to be quite valid as of today since the mining and export of iron ore from the region is almost nil…v) Mitigation is not a panacea that will overcome all ill-effects of developmental projects… the Committee does not recommend implementing the project considering its wider ecological ramifications… and recommends its complete abatement.”

Notwithstanding all these, elements of the construction lobby, with deep political links across party lines, tenaciously pursued the project clearance, which was deliberated at a meeting of the State Board for Wildlife in January 2019. Due to strong opposition from some non-official members, clever bureaucrats quickly got the decision “deferred,” only to get it listed again. At a meeting on March 17, it came up for a debate and was again met with stiff opposition, leading to yet another deferment.

Three days later, another meeting of the State Board for Wildlife was hurriedly convened with this single point agenda, leading to the clearance of the railway line. The manner in which the state government is pursuing this ecologically disastrous project raises several legal and procedural questions.

First, it must be emphasized that the State Board for Wildlife is a Statutory Committee constituted under Section 6 of the Wildlife (Protection) Act, 1972. Only those officials holding positions prescribed in the Act are eligible to be members, in addition to 13 non-official members. The Chief Minister, who is the chairperson of the Board, invited some of his cabinet colleagues and an MLA with no expertise in wildlife. This is a clear violation of Rule 9 of the State Board for Wildlife Rules, 2006, which specifically provides for the chairperson to invite only such persons who have experience in wildlife conservation. Such persons are also duty bound to act as per the objects of the law, which is to protect and conserve wildlife, as provided for under Section 8. Thus, the decision of the March 20 meeting runs the risk of being struck down by the courts, if challenged, due to grossly improper procedure.

Second, as highlighted earlier, this ecologically disastrous decision was taken despite several adverse opinions recorded by statutory authorities and committees with clear recommendations to reject this controversial project.

Third, every elected government is duty-bound to act in accordance with Article 48-A of the Constitution, which mandates protection of forests and wildlife. In the Indian Handicrafts Association matter, a three-judge bench of the Supreme Court headed by the Chief Justice, observed:

“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. What is destructive of environment, forest and wildlife, thus, being contrary to the Directive Principles of State Policy, which is fundamental in the governance of the country, must be given its full effect. Similarly, the principles of Chapter IVA must also be given its full effect. Clause (g) of Article 51A requires every citizen to protect and improve the natural environment, including forests, lakes, rivers and wild life…”.

In a petition filed by Wildlife First challenging mining in Kudremukh, which resulted in a landmark judgement, the Supreme Court held that, “Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance…Therefore, there is constitutional imperative on the central government, state governments…, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measure to promote, protect and improve the environment…”

The reported decision of the State Board for Wildlife flies against these profound directives of the apex court and the constitutional imperatives that every elected government has to abide by. The chief minister and his cabinet colleagues must pause, reflect and determine if they have truly acted in accordance with the oath of office to uphold the Constitution.

(The writer is a trustee of Wildlife First and has served on the National Board for Wildlife)