Public Trust Doctrine must in sand mining governance: Jus. Madan Lokur at IRW 2020

Justice (Retd) Madan Lokur of the Supreme Court of India graced the Annual function of India Rivers Week 2020[i] on Nov 28, 2020, and gave his key note address on the theme of IRW 2020: “Is River Sand Mining Killing Our Rivers?” The annual function also included announcements of Bhagirath Prayas Samman and Anupam Misra Memorial Medal[ii] as also a panel discussion[iii]. We are happy to publish here what he spoke at the meeting as we feel it will benefit many more people.

Amita Bhaviskar (Moderator, introducing Justice Madan Lokur) It gives me great pleasure to invite Justice Madan Lokur, retired from Supreme Court of India, presently a Judge of the Supreme Court of Fiji. Justice Lokur has been a friend of the India Rivers Forum for a long time. We have found his support and his wisdom to be a major help as we try and negotiate through this difficult terrain and we are happy and privileged that he has been able to join us on this occasion as well. I would now like to request Justice Lokur to deliver the key note address for this year.

Justice Madan Lokur Thank you Amita! Well it has been a wonderful session that you had so far and I am sure there will be a lot of questions on the various presentations that have been made. I would like to thank to the India Rivers Forum for giving me this opportunity to be able to share my thoughts on sand mining killing our rivers.

I just want to go back to a few years when I was in Andhra Pradesh. This was sometime in 2012 perhaps in April or so. Earlier that year in February the Supreme Court had given a decision in the case of Deepak Kumar v/s State of Haryana & others where they said that even if the sand mining has to be carried out in an area less than 5 ha; you would still need an environmental clearance. So this just happened in sometime in April, a case came before me about sand mining problem, I don’t remember what the exact problem was.

But then the judgement of Deepak Kumar was cited and we came to the conclusion that yes since Deepak Kumar was quite explicit in this and that you need environment clearance. Well sorry but the mining cannot go on because it didn’t have an environment clearance. So we passed an order prohibiting sand mining.

And about a week later, I read in newspapers and I was quite taken aback when two people were killed by sand miners. And when I made some inquiries as to what is happening, I was told that there is some mafia, where everybody is involved in illegal sand mining. The police and the other officials are trying to stop it but these people are so desperate that they don’t mind even killing people. So that kind of shook me up, and I realised the magnitude of problem and the stakes that are involved.

Later when I came to different parts of the country, I used to keep an eye open to see if we were crossing a river and whether any sand was being mined over there. On several occasions in several parts of the country when visited the Judicial Academies for example, I found that in almost every river, except where river had plenty of water, in almost every river sand mining was going on to some extent or the other. Even at night, it’s not that it was happening in daytime, even at night sand mining was going on 10 o’clock 11 o’clock at night. It was something just like business as usual kind of thing.

I am rather surprised you know when Mr. Rajshekhar said that something like 50,000 trucks are used. Well it’s a huge huge number but it gives an indication of the magnitude of the problem.

Now, the other thing which I came across as part of some case was how do you identify the area where the sand mining has been permitted by the authorities. Now you can’t put a fence over there and say this is the boundary, two fences or three fences that this is the boundary where you can do sand mining. What can you do to prevent somebody from saying that, I can mine sand six feet further away because that’s the area that is allotted to me.

Violence in River Sand Mining These are law and order issues which can be tackled only by the State. Unless the State does something about it, these law and orders problem will continue and we will have, people like Sumaira and so many others getting attacked and unfortunately, people getting killed.

I remember seeing an article, a couple of days ago which said that between January 2019 and 15th of November this year, 193 deaths have taken place because of sand mining. Journalists have died, officials have died, activists have died,  farmers have died, persons who were doing the sand mining– they have died because of the collapse of the sand dunes. As recently as eighth of November 2020, some person (policeman) was killed in Agra. [SANDRP is glad to note that Justice Lokur was basically referring to the figures from this SANDRP report: https://sandrp.in/2020/11/22/193-dead-in-river-sand-mining-incidents-in-india-in-2019-20/, published here, quoting SANDRP report: https://www.newindianexpress.com/nation/2020/nov/23/193-deaths-caused-during-illegal-sand-mining-operations-in-twoyears-report-2226869.html.%5D

So this is a huge huge problem and unless the State appreciates, things are just going to continue as they are. One of the things, that we must realise, is that it’s not as if it’s in a couple of areas as in Maharashtra or Andhra or in Odisha or some other place, it is just about  everywhere. Even in Rajasthan, we had occasion to deal with this. Something like 82 sand mining licences or approvals had to be stopped by us because of the illegal sand mining going on.

When miners dug up entire land below railway line Apart from sand mining I would like to tell you how desperate some of these guys can become, we had a case of limestone mining or granite mining or some stone mining. You would not believe it, under the railway tracks, a distance of about may be 20 feet or something; they had dug up and you know mined that granite, or marble or limestone or whatever it was. The result was the railway track had to be abandoned. Because there was nothing between the railway track and ground. And what is that the State do, the Railway said, we shift the railway track. Not that, who has done this, who has dug up, below the railway tracks. But they said, no no no, will shift the railway track and will have a new route and, so on and so forth.

The point I want to make is that, we, we meaning our representatives in the legislature, the officials have to appreciate that we are facing a serious problem. They have to understand the magnitude of the problem, the kind of problem that you have apart from law and order problem.

We have been told about, Himanshu has mentioned about sand economy, which results in deaths. So it is it a problem that, we need to really focus on and bring it into the lime light. So that some action is taken.

Implementation The second thing that I would like to talk about is the implementation of laws. This was also discussed during the presentations and also by Himanshu. Now we had the guidelines in 2016 and we have the guidelines in 2020. How these guidelines were arrived at? Who were the people who were consulted?  Ritwick just mentioned that you know many of these laws are defective. I am sure you can find some loopholes in these guidelines as well.

One of the reasons you find these loopholes is because there is minimal consultation. It is just saying, ok the law says you do this; we will do it. For example, like this public hearing through zoom. The law, it’s a good law that you must have a public hearing but then how do you do a public hearing. Let’s do it through zoom, how many people, will come and speak. It does not matter. We have done our job.

So really, it’s a twofold aspect. One is related to the framing of the law or the framing of guidelines or the framing of rules and regulations. They have to be crafted very carefully and in consultation with the stakeholders, with the activists, the persons are at the ground level, with the local communities. They have to be involved. So unless you do that, you are going to have defective laws, defective schemes, defective guidelines and then the implementation of the guidelines becomes a problem.

With a State which is not very keen on protecting the environment, any aspect of their environment whether its rivers, whether its wildlife; whatever, you are going to find these loopholes coming up like the public hearing through zoom.

Policy decisions vs Implementation And then you have the third problem of the courts saying well this is the policy decision what can we do? Now these are not policy decisions, these are implementation of policy decisions. The policy decision may well be that I will permit sand mining.

Perhaps the court near me not be able to interfere given a particular situation but how do you implement that policy that is what is important and I think, we need our lawyers like Ritwick and so many others who have been mentioned earlier, to tell the courts, to tell the NGT that listen these are not policy issues. These are issues that are affecting everybody, the stakeholders the immediate stakeholders. If you’re talking about fish, then you are talking about fisherman; if you’re talking about construction; you are talking about construction workers; if you are talking about society you talking about people like us.

So, I think these things have to be forcefully put across to the courts; whether it’s the High Courts, whether it’s the NGT or whether it’s the Supreme Court, that rethink the entire thing, don’t just say that everything is a policy issue. Everything is not about the policy issue. There are things about implementation which needs to be looked into.

Importance of engaging the local communities The third thing that I would like to emphasize on I have mentioned about engaging the local communities. When you talk about a green economy; you talk about a community cohesion. Earlier we talked about public participation….very very important. Many of these movements starting right from the Chipko Andolan in 1973 have been successful to a very large extent, of course there have been some failures also undoubtedly. But many of these have been successful only because the public was aware, the people were aware, the local communities were aware. They were the ones who were saying that what are you doing, you are going to finish our way of living but that apart you are going to harm the entire society.

Now the moment you have something like this and you have an unsympathetic State, you are going to have a backlash which is so severe that you won’t know how to tackle it. Take to very recent example of the Metro car shed Aarey in Mumbai. The day the interim order, the interim stay was lifted; overnight whatever trees they wanted to cut, some 4000 or 5000 or whatever the number was. They did it overnight and next morning the court is told no, we don’t need to get any more trees. Whatever we wanted to cut we have already cut.

So, on the one hand you have the State which is not wanting to do anything; on the other hand you may have a state which is going with all guns blazing against activist, against the people.

I saw on the chat box that what is to be done. I think probably Shialja Deshpande has mentioned. What is to be done because there could be a threat. Yes, there could be a threat certainly. But all the strategies have to be planned out properly, you have to take the entire community into confidence. It’s not just, twenty-thirty people, who will carry out a march or carry out a protest or say something. You have got to get everybody involved. And hope that the State is a little responsive otherwise the Chipko Andolan for example, they could have very well killed all these women. But fortunately that State did not do that. There was no backlash in that sense. So it’s long haul. I know it’s easy to talk about it. But we have to make a beginning at some point of time.

Need to use Public Trust Doctrine Finally the last thing that I just want to mention about is something called the Public Trust Doctrine. You will remember many years ago Mr. Kamal Nath was at that time the Minister for Environment and Forest. He had a resort. I think it was in Manali. What did he do for the comfort of the people who come to his resort and to make his resort very active. He diverted the river Beas so that it would flow pretty close to the resort and somebody challenged it. They said what this all is going on. You can’t divert a river just because you happen to be a Minister. Even otherwise, you can’t divert a river because you want to divert a river. Then you are just taking the laws in your own hands.

The Supreme Court said there is something call a Public Trust Doctrine where the State holds the resources as a Public Trust of the people. The State is the one which is going to look after the resources in which the public has interest. So you could have waterways; you could have resources, mineral resources; you could have sand, you could have groundwater, nobody owns them. I don’t own groundwater under my house. Nobody owns the groundwater. Nobody owns the sand. Whose sand is it? Sumaira asked. It’s our sand. Now who are we; we are the people of the country. 

So the State holds it in Public Trust and that I think is a Doctrine which must be used, we have talked about Precautionary Principle; we talked about Polluter Pays and all that for environmental issues. We have not talked so much about Public Trust Doctrine and when we are talking about natural wealth, natural resources, I believe that the Doctrine that we have to try and engage the State with, that you our elected representatives, you who are the bureaucrats who are running the country for us; we trust you. We have that trust and you have, the trust of the national natural resources for the benefit of the people.

It’s a long long way. It’s not something that, we can manage so easily but let’s continue our efforts. All the recipients over the years congratulations to all of them. Congratulations to the ones who have got the awards today. You are doing excellent work, you know, excellent work. And all of us need to support each one of us. Its only then that we can make some headway. So thank you very much and all the best to all of you and congratulations once again to all the awardees. Thank you!

Amita Bhaviskar: Thank you so much Justice Lokur for reminding us that what we are talking about is indeed the public trust and what is held in public trust is not held by the state alone but involves vigilance and unceasing actions from all sort of people, communities, journalists, activists, lawyers everyone coming together, joining hands in order to protect what is so important and yet so neglected. So thank you Justice Lokur for your thoughts which draw upon your huge experience as a Judge presiding over cases involving all sorts of complex environmental matters including sand mining with its powerful interest behind it.

Justice Madan Lokur: Thank you!

Questions answered by Justice Madan Lokur during the Q & A session.

Manu Bhatnagar: Another questions from Dr. Rakesh Agarwal, he says there are many violations of the regulations imposed by the MoEF for sand mining. So how we could build up our case to approach the court in these cases.

Justice Madan Lokur: I am speaking from experience. I am not speaking as a lawyer. The CEC which Mr. Shashi Shekhar had referred to, Central Empowered Committee (CEC), they have been doing a lot of good work through intensive study. It’s not that they come out with a report, just because you have to come out with some kind of a report. When the problem arises, they do a lot of study, a lot of time is taken over it and they come out with something which is so helpful to the court that it becomes difficult even for the, other side to try and counter what the CEC has said.

So to answer the question, I think, you need to be very very sure about your documentation. You need to be very sure about your facts. Be clear about the inferences that you draw that should be reasonable inferences and whether you go to the NGT or you go to any court, it becomes a sort of cast iron case which then become very difficult to counter. Really many of these public interest litigations fail because somebody just comes and says because I have read about in a newspaper. But the newspaper report may be wrong. So it requires a lot of study and perfect documentation and you will succeed.

Manu Bhatnagar: Justice Lokur Sir, here is another question for you by Krishna that why do the Courts not factor in cumulative impact of environmentally destructive sand mining projects in the entire river Ganga basin including its impact in Nepal and Bangladesh? Will Courts ever factor in the right of the river over her own sand? So lot of big issue have been raised including the rivers being the living persons.

Justice Madan Lokur: It’s a very interesting topic to which I don’t have any clear answer. But yes in some countries Ecuador, Bolivia, Bangladesh, New Zealand rivers have been likened to human beings they have rights. Okay, we also, there has been a judgement which says that the Ganga and Yamuna are the living beings. So they also have rights. You can’t equate them with humans, in that sense but certainly you can, provide some rights to them like you do for animals, you have animals rights as well. You can’t say that I am going to put a barbed wire, somewhere electrifying barbed wire so that if animals come over there and animals get electrocuted.

I think, we need to think in terms of looking at a river not necessarily as a human being but as something which is a provider of the life in some sense and also is a living being in some sense. A river for example provides life to fish, may be to a gharial, to plants. So it is a provider of life. And it needs life for it to survive. I mean if you have a river without any fish or without any plant or anything, it is as good as a sewage drain or something. So I don’t have a clear answer but it is something which needs to be thought of. And time has come to recognize that rivers are important, and what is the extent of importance that we have to give to them is really something which needs to be discussed thoroughly. But it’s, like I said, it’s a very interesting topic and debatable, not debateable in that sense but worth discussing and pondering over. Thank you!

SANDRP (ht.sandrp@gmail.com)

END NOTES:

[i] https://indiariversforum.org/indiariversweek2020/

[ii] For details see: https://sandrp.in/2020/11/29/india-rivers-week-2020-key-highlights/

[iii] For full details of the National Dialogue, see: https://sandrp.in/2020/12/04/irw-2020-national-dialogue-on-river-sand-mining/