By Ms. Meera Gopal*

This second part of the series on the law on coastal commons in India looks at the agencies involved in the protection of the coast and the status of enforcement and implementation of the CRZ Notification and whether the regulation has been able to achieve its high objectives. As mentioned in the earlier post, the main stakeholders under the institutional regime are the governmental agencies, the investors and the coastal communities.It may be reiterated that the main objective of the CRZ Notification is the protection of the coast as well as ensure livelihood security of the coastal communities.

Coastal Zone Management Authorities

The Central Government has constituted Coastal Zone Management Authorities in each coastal state under the provisions of the Environment (Protection) Act, 1986. This means that the Authorities have immense statutory powers, including, taking measures for protection and improvement of environment (Section 3); issuing directions including closure of unit, prohibition or regulation of activities etc. (Section 5); power of Entry, Inspection, Search and Seizure (Section 10); prosecution of offenders or violators of the CRZ Notification (Section 19). The CRZ Notification states that the primary responsibility to ensure implementation and enforcement of the provisions thereof lays with the State Government and the SCZMA. The State Government has been empowered to constitute District Level Committees under the Chairmanship of the District Magistrate and representation of the local communities including fishermen for the purpose of enforcement of the Notification.

In addition to the CZMAs, the district administration, town and country planning departments as well as Panchayati Raj institutions play a significant role in the enforcement of the provisions. In fact, this has been seen as one of the reasons for the weak enforcement of the notification itself due to the presence of multiple administrative authorities having overlapping jurisdictions, and each being “not responsible” or waiting for some other department to take a stand on an issue.[1]

 

Preparation of the Coastal Zone Management Plan

The preparation of the Coastal Zone Management Plan (“CZMP”) is the sine qua none in respect of enforcement of the provisions of the CRZ Notification. This plan delineates the different zones, identifies the eco-sensitive area such as mangroves mudflats, salt pans, etc.  The rationale behind the requirement of preparation of a Coastal Zone Management Plan (“CZMP”) is to ensure that development of coastal areas is permitted in a planned and regulated manner.It is on the basis of this plan that the various provisions prohibiting and regulating different activities on the coast are to be enforced.

The 2019 Notification states that every state has to update/revise their respective CZMP framed under the 2011 Notification and submit the same to the Environment Ministry (“MoEFCC”) for approval at the earliest. Until such approval is granted by the Ministry, the CZMP framed under the 2011 Notification would continue to remain in force.[2]

Detailed guidelines for preparation of the CZMP are given in the Notification. Naturally, the first step has been with respect to demarcation of the HTL and the LTL by the National Centre for Sustainable Coastal Management, Chennai. In addition to the HTL and LTL, the Notification also prescribes the demarcation of the Hazard Line[3]. This Hazard Line is to be used as a tool for disaster management plan for coastal cities and the Notification stipulates that while preparing the CZMP, the land use planning for the area between the Hazard line and HTL shall take into account such impacts of climate change and shoreline changes.

Once, a draft is prepared by the respective State, the Notification provides for public consultation before finalisation. Thus, the draft CZMP is to be put before the public by the CZMA in every district by conducting public hearing. The Notification states that draft CZMP shall be given wide publicity and suggestions and objections are to be dealt with in accordance with the provisions of the Environment (Protection) Act, 1986.Once public consultations are completed and necessary changes have been made to the draft, it is then submitted to the concerned CZMA for its recommendations and then subsequently, to the MoEF for its approval.

Status of Implementation : Regulations only in place to permit exploitation of coastal commons?

While the CRZ Notifications have successively indicated a strong framework and regulation of the coastal commons, the implementation of this strong regulation has, however, remained weak. This has been ascribed to three broad reasons: the delayed and insufficient demarcation of baselines and ecologically sensitive areas; the lack of institutional capacity; and the frequent dilution of the notification through amendments.[4]

While the process stipulated in the Notification regarding the finalisation of the CZMP seems very transparent and time bound on paper, the reality is far from either. Despite the requirement of CZMP being introduced in 1991, till date, none of the States have an actual CZMP in place. That’s almost thirty years of delay and apathy on part of the coastal states as well as the MoEFCC. In fact, in 1997, the Supreme Court had taken strict note of this huge gap in implementation by the coastal state governments and had passed strict directions to the coastal states to finalise this crucial document.[5]Most coastal states had thus prepared CZMPs under the 1991 regime. However, since then the Centre has overhauled the regulation not once, but twice. Thus, the States have to update their CZMPs to ensure compliance with the latest Notification of 2019. However, the pace of this process has been excruciatingly slow, and thus, it is not surprising that the judiciary was again approached as a last resort. Currently, the National Green Tribunal is monitoring the pace of implementation of the preparation and finalisation of the CZMPs by the coastal states. In November 2017, the National Green Tribunal had passed strict directions[6] against every coastal state to ensure that CZMPs are prepared and finalized by the Ministry of Environment Forest and Climate Change by 31st July 2018. The Tribunal had directed each of these States to not grant any Environmental Clearance for development activities which falls within the CRZ area until such plans are finalised and notified. The Tribunal noted that the purpose of undertaking the entire exercise would be defeated otherwise. (Mehdad v. MoEF)

Till date, this stay order has not been modified or vacated by the Tribunal. Since July 2018, the coastal states have been approaching the Tribunal seeking extension of the deadline on some pretext or other. In July 2018, the Tribunal noted that only five out of the thirteen states had prepared draft CZMPs and had extended the deadline to 31st August 2018. This was further extended by the Tribunal from time to time. By way of last opportunity, the Tribunal had in November 2019, extended the deadline to 31st January 2020.[7]The non-finalisation of the CZMPs have made enforcement highly inefficient in most of the coastal states, especially when large scale infrastructure projects such as coastal roads, the ambitious Bharatmala and the Sagarmala projects of the Central Government, are being pushed at a fast pace.

Traditional fishing rights in most of these coastal states are being impacted adversely due to such fast paced “development”. It is clear that the very objective of the CRZ Notification has faded into the background. In fact, fishing rights have repeatedly been jeopardised due to the consistent dilution of the restrictions of the coastal regulations in the successive CRZ Notifications. The policy makers have again and again favoured capitalist interests over the rights of fishing and indigenous coastal communities which have led to increasing conflicts in these already vulnerable areas. Instances of protests by fishing communities to large scale development projects have become commonplace now (For instance the protests against the Adani deep-water port in Vizhinjam, Kerala or the proposed port in Enayam, Kanyakumari, the protests against the coastal road in Mumbai)

It may be noted that these communities are already vulnerable to large scale livelihood loss and physical displacement due to the adverse impacts of climate change. The consistent dilutions in law as well as a weak enforcement of existing regulations have resulted in further alienation of such communities.

Another provision which has not been implemented or enforced is with respect to the Critically Vulnerable Coastal Areas (CVCAs). While the law recognises that there are several areas including the Sunderbans are “critically vulnerable”, neither have any integrated management plans been prepared as required under the Notification for such areas, nor have the needs and requirements of the local fishing and coastal communities been catered to. An example of sheer apathy towards such areas would be the plans to utilise the Sunderban waterways as inland waterways which would require intensive and large-scale dredging and would imply plying of large ships and vessels which would definitely have a negative impact on the traditional small-scale fisheries as well as the already fragile and vulnerable ecosystem of the Sunderbans. Increasingly, the fishermen have been constrained to take legal recourse by approaching the National Green Tribunal or the High Courts for protection of their rights and livelihood interests.

There is a general apathy and lethargy on part of the Government- both Central and State. However, in light of visible impacts of climate change, there is a dire need for the government agencies to focus their energies on ensuring proper implementation of the law, starting with finalisation of the CZMPs arrived at after proper public consultations. In this regard, it must be recalled that the coastal communities must have a pivotal role in decision-making in line with the objective of the law. CZMAs are endowed with immense statutory powers that are rarely being exercised, this needs to change. These Authorities need to step up in terms of their statutory duties, this would also ensure lesser instances of litigation which could be costlier and time-consuming option for the affected communities.


About the Author

*Ms. Meera Gopal is an Associate Litigator at Legal Initiative for Forest and Environment (LIFE). She pursued LL.B. from National University of Advanced Legal Studies (NUALS), Kochi, and has completed her Post Graduate Diploma in Environmental Law and Policy from National Law University, New Delhi. She has a keen interest in Environmental Law.


[1] Singh, A, “Coastal Ballads and Conservation Ironic” Economic and Political Weekly, Vol 51, Issue No. 7, 13 Feb, 2016

[2] Para 6 (i) of the Notification.

[3] The Hazard Line demarcation has been conducted by the Survey of India taking into account the extent of the flooding on the land area due to water level fluctuations, sea level rise and shoreline changes(erosion or accretion) occurring over a period of time.

[4] Dhar, P, “Contested Coasts”,  Economic and Political Weekly, Vol. 53, Issue No. 33, 18 Aug, 2018

[5]Indian Council for Enviro-Legal Action v. Union of India &Ors, (1996) 5 SCC 281

[6]M/s Mehdad v. Ministry of Environment Forest and Climate Change &Ors. (Original Application No. 424 of 2016), Order dated 22.11.2017. It may be noted that this order was challenged by the Ministry of Environment Forest and Climate Change before the Supreme Court in Civil Appeal No 6167-69/2018. However, there is no stay of proceedings before the Tribunal and the matter is pending.

[7]The matter has not come up before the Tribunal since November, 2019, therefore it is not clear as to what the current status is with respect to finalization of the CZMPs.

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