Eco-Sensitive Zones of National Parks and Sanctuaries – A Saga of State Inaction and Judicial Deference

Two recent Orders (here and here) passed in the Godavarman case regarding identification of ‘Eco Sensitive Zones’ (ESZs) exemplify the complicated and unwieldy development of some aspects of the environmental law due to State’s inaction.

The Government has the power to declare certain areas as ESZs under Section 3(v) of the EPA and Rule 5(viii) and 10 of the EP Rules, which empower it to prohibit or restrict the location of industries or carrying on of processes and activities in areas by taking into consideration their proximity to, inter alia, a sanctuary or wildlife park.

The Union’s Guidelines of 2011 recognize that ESZs act as “shock absorbers” for protected areas and enable transition from high protection areas to areas involving lesser protection.

A broad, non-exhaustive sketch of the judicial action taken to ensure the demarcation of ESZs plainly depicts the State’s inaction:

• As early as 04 December 2006, the Supreme Court (Court) noticed that State Governments had not responded to the Union’s request to initiate measures for identification of ESZs. The Court directed that if the States do not respond to the Union’s request within four weeks, it would declare an area of 10 kilometres from the boundaries of sanctuaries and national parks as ESZs.

• The CEC, in a report to the Court dated 20 September 2012, outlined the importance of ESZs and made recommendations regarding identification of ESZs.

• More than twelve years later, the Court, in its Order dated 11 December 2018, noted the Union’s submission that out of a total of 662 national parks and wildlife sanctuaries (Parks) in the country –

  a) in re. 21 Parks, no proposals for constituting ESZs had been received,

  b) in re. 146 Parks, proposals were pending consideration;

  c) in re. 206 Parks, draft notifications had been issued and

  d) only in respect of 298 Parks, ESZ had been notified.

  In other words, notifications had been issued in less than fifty percent of the Parks (43.72 percent, to be precise) 12 years after the Court granted 4 weeks to States to respond to the Union’s request regarding identification of ESZs.

  The Court, despite this, depicted judicial restraint (belying criticism of an overly activist Court), by issuing directions to declare ESZs to the extent of 10 kilometers around the 21 parks for which no proposals had been received as ESZ whilst leaving it to the State to deal with the remaining parks where notifications are yet to be issued but some action has been taken.

• Nearly five years later, on 26 April 2023, the Court noted updated statistics:

  a) notifications had been issued to declare ESZs in re. 474 Parks;

  b) draft Notifications had been issued in re. of 102 Parks; and

  c) proposals were pending in re. 73 Parks.

  Assuming that the number of Parks had not changed, that would mean in re. 13 Parks, proposals had still not been readied.

• The Order of 26 April 2023 was made on an application for clarification of the Court’s order of 03 June 2022, where the Court had directed that all Parks must have an ESZ of an extent of minimum 1 kilometre around the park. The Court, by the April 2023 Order, relaxed the 1 kilometre requirement, leaving it to the authorities to determine what the area of the ESZ for each park should be, on a case-by-case basis.

It is apparent, from this course of events that the very foundational action – demarcation of ESZs around the Parks – remains to be completed nearly twenty years since the Court first took notice of the imperative to create these buffer zones, in 2006. This lapse of time means not only the restorative and regenerative benefits that accrue once buffer zones are notified and implemented are lost, but also implies that significant further harm may have been caused by economic activity in these areas in the interregnum.

Substantial confusion has also accrued due to the State’s inaction. The MoEF has, in a series of Official Memoranda and Notifications spanning from 2009 until 2022, taken the view that where ESZs are not notified, activity within ten kilometres of a Park will require approval / clearance from the Standing Committee of the National Board for Wild Life. This requirement is in the teeth of the Ministry’s own stand before the Court that a uniform prescription of ESZ to an extent of 10 kilometres distance from each Park is unworkable and ought not to be prescribed. There also appears to be no statutory or legal basis to impose such a requirement – several of the notifications and memoranda issued by the Ministry refer to the proceedings before the Court but fail to recognize that the Court has, itself, categorically said that it has not issued such a mandate. There is much doubt, also, whether the Ministry can impose such a requirement by way of executive fiat, but that is a separate matter and beyond the scope of this Note.

Despite all this, and as noted above, the Court has consistently shown restraint and deference to the Executive. It has only made two Orders declaring certain areas as buffer zones ; in 2018, when it declared that ESZ will span 10 kms around the 21 Parks in respect of which States had taken no steps whatsoever to create buffer zones, and in 2022, when it mandated that every Park must have an ESZ of at least 1 km around it. Even this latter Order has now been diluted by the clarification of April 2023.

As is apparent from the foregoing, there is utter confusion that prevails due to the State’s inaction. For instance, we are engaged by a client who has been asked to secure approvals from the SC-NBWL on the premise that they are within 10 kilometres of a national park. Challenges to such a demand, apart from being cumbersome and time consuming, are fraught with uncertainty. Consequently, citizens are compelled into compliance, despite the legality of the very requirement to comply being in grave doubt. It is, therefore, high time that the Executive complete this exercise, even at this late stage. This will not only ensure ease of compliance and doing business, but also go a long way to achieve the environment protection goals that engaged the Court’s attention way back in 2006.

Aditya Narayan is a Partner at Saakshya Law.