A first person account on the legal struggle to save the Dehing Patkai forest of Assam by the advocate who filed the Public Interest Litigation (PIL) against illegal coal mining in the forest.
Mrinmoy Khataniar
It is but natural for humans to have an affinity towards Nature, after all, we are the products of Mother Nature. All life forms follow laws of nature but, it’s only us humans, who have totally disregarded these laws in our never-ending quest for development. In this pursuit of a ‘developed’ life, we have literally and physically accelerated the process of killing our natural environment.
It was during the Covid-19 lockdown which started in India towards the end of March’ 2020, that I found myself stuck at home with only social media as my primary means of connecting with my friends and colleagues, when I had an epiphany on my long career as an advocate. I am just another lawyer working on the mundane litigation cases, and not stepping out of my comfort zone. I am not an environmentalist, conservationist, climate-change warrior and neither any animal-rights activist. But, I have always felt the need to do something for my homeland Assam, in a much more proactive manner than I have done so far and I was certain that one day I shall come across a moment in time when I can contribute something for the welfare of my state.
During the protracted Covid-19 lockdown, I came across a news article in May 2020, about Coal India Limited (CIL) illegally mining in the Saleki Proposed Reserve Forest (PRF) under Tikok Open Cast Mining project (OCP), which is part of the larger Dehing Patkai Elephant Reserve. This lush forest is one of the only sub-tropical low land forest in the entire Northeast and is popularly known as the Amazon of Assam. Assamese people are well aware about illegal mining rampant in different parts of the state, especially in the Dehing Patkai region. However, I was shocked to see news after news about the illegal mining being actually carried out by a central government agency, the Northern Coalfields Limited, which is a subsidiary of CIL. Amidst the reportage on this blatant flouting of all rules by a government agency, there were also some news articles which countered the allegations against the CIL and asserted that proper permissions were obtained to mine in the area. But, I was not convinced about the veracity of these claims regarding the issuing of permissions. As someone who has seen the system operate closely in Assam, I am skeptical of any attempt that appears to whitewash illegal or corrupt conduct. After all, it is not a big thing for some form of illegality transforming into something legal here, in due time.
The circulation and broadcast of these news articles immediately led to a massive social media movement on raising awareness about the issue and the forest under the hashtag #SaveDehingPatkai and brought about a heated discourse on the issue as well. I found friends also calling me and defending the actions of CIL in Saleki PRF. This spurred me as well to research on Dehing Patkai. I was curious to know about the required permissions related to this mining activity. I first tried to locate the approval granted via a video conference to CIL on 7 April’2020 by the National Board of Wildlife (NBWL). This particular document stated that the approval to mine ‘is accorded subject to feasibility report from Forest Department and the Environment Mitigation Plan of Coal India for reclamation of the land after mining’. On further research, I found that CIL had mined in the area on the basis of a lease deed of thirty years from 1973 to 2003. This was an important detail and I did not see anyone raise any question about it so far. If the lease ended in 2003, how was CIL then able to continue mining till now, in 2020?
The Forest: Dehing Patkai
There are five national parks and fifteen wildlife sanctuaries in Assam. Dehing Patkai is the largest tropical low land rainforest of India and falls under the Indo-Burma biodiversity hot-spot. The name Dehing Patkai is derived from the river Dehing which runs through the rainforest and the Patkai foothills, which literally in the Tai Ahom language means ‘to cut chicken’, on the southern part that connects this region with the Eastern Himalayas. The forest is located in upper Assam and covers Tinsukia, Dibrugarh and Sivasagar districts and also shares its southern borders with Arunachal Pradesh. The total area of the Dehing Patkai rainforest is 937 sq. kms. The rainforest is a combination of three rainforests – Jeypore, Upper Dehing and Dirok rainforests.
The climate here is of a tropical monsoon rainforest which is characterised by heavy monsoon rainfall. The rainforest contributes to the flourishing wildlife in Assam and it also affects the micro-climate of entire Assam. Dehing Patkai has a rich and vibrant ecosystem with hundreds of species of plants and trees. The variant flora include various species of orchid, climbers, wild banana, hollong, mekai, dhona, udiyam, etc. The hollong tree or Dipterocarpus Retusus is the state tree of Assam.
There is also a rich fauna which includes forty-seven species of mammals, fifty species of snakes, thirteen species of lizards, some rare and endangered species of turtle, and around 350 species of butterflies. Dehing Patkai is also famous for its seven species of primates namely, the Rhesus Macaque, Assamese Macaque, Northern Pig-tailed Macaque, Stump-tailed Macaque, Slow Loris, Capped Langur and Western Hoolock Gibbon. The rainforest is also home to several tigers, leopards, clouded leopards, leopard cat, golden cat and marbled cat. It also has globally threatened mammals like Asian elephant, Gaur, Chinese pangolin, Himalayan black bear, and the Himalayan giant squirrel.The forest is also home to about 400 species of birds. Apart from being home to the state tree hollong, Dehing Patkai is also home to our state bird, the white-winged wood duck; the state flower, foxtail orchid; and the national animal, the Royal Bengal Tiger.
The issues related to Dehing Patkai are not just limited to illegal coal mining. There are other issues too, which if one scratches the surface of, can realise how they all come together to uphold the illegal activities being perpetrated in the space. For instance, the forest consists of several elephant corridors and in 2003 the forest was designated as the Dehing Patkai Elephant Reserve, which also included the towns of Margherita and Digboi and their surrounding villages. However, the marking of this space as an elephant reserve seems to be arbitrary as there are no rules on how elephant habitats are to be protected. By just declaring the whole area as an elephant reserve without any proper demarcation to exclude urban area and without any strong definition about what is an animal corridor or about the rules of an elephant reserve which will actually protect the habitat and the animals, was very vague. The only law that concerns elephants is the colonial era The Elephants Preservation Act (1879) which deals with mostly prohibiting the killing and capture of wild elephants randomly and only allowed that through a licence obtained from the colonial government. This notification of the elephant reserve appears to be done ostensibly to weaken the voices which were exposing the real situation, so that public interest on the issue is diverted thereby giving the illegal coal mining a shot in the arm.
An area of 575 sq. kms. was initially demanded by conservationists in 1994, led by the NGO Nature’s Beckon, to be named as a wildlife sanctuary by the name of Joy Dehing Wildlife Sanctuary. However, in the year 2004, an area of 111.19 sq. kms. was declared as the Dehing Patkai Wildlife Sanctuary by the Government of Assam. This selective rendering of just one small part of the forest as a wildlife sanctuary is highly problematic as the whole area is a contiguous part of the rain forests. Since, the other parts were left out of protection under the wild life sanctuary, these parts are susceptible to be exploited for industrial activities in the future if the same is not protected now by declaring the entire forest as a wildlife sanctuary. The Assam government expressed its decision to declare this wildlife sanctuary as a national park just last year, close on the heels of the huge protest movement that was generated against coal mining in the forest. But, except for this notification issued by the government, no step has been taken so far in executing this decision.
Apart from the Dehing Patkai Wildlife Sanctuary, the Dehing Patkai rainforest also consists of several Reserve Forests (RF) and Proposed Reserve Forests (PRF). One of such PRF is Saleki.
Illegal Mining Histories of Government Agencies
The mining operations of CIL in the mines of Assam is carried out by North-Eastern Coalfields (NECF) which is directly under the control of the CIL. As mentioned earlier, CIL received the lease for coal mining in 1973 for a period of thirty years. They were allotted certain locations within Dehing Patkai to carry out open cast mining. One such mining lease was the four square miles lease within which falls the Tikok OCP. This lease, in turn, falls under the Saleki PRF. The Tikok OCP is situated in the northern slopes of the Tikok hill. This OCP has an identified area of 98.59 hectares under Saleki PRF. The Government of India (GoI) enacted the Forest (Conservation) Act in 1980. Section 2 of this Act provided that ‘for the use of any forest land or any portion thereof for any non-forest purpose, prior approval of the Central Government shall be obtained’. Thus, post-1980, CIL was required to obtain prior approval of the Indian government before carrying out mining activities in a forest land after expiry of their lease. As CIL’s lease expired in 2003, they had to renew the lease before carrying out any more mining operation in Saleki PRF.
It is also pertinent to note that apart from Tikok OCP, CIL also had mining leases in several other locations such as Lekhapani OCP and Namdang Coal Grant which too had expired in 2003.
Prior to 2003, the NECF had already broken up 12.93 hectares of forest land within the Tikok OCP out of the total 98.59 hectares. After the expiry of their lease in 2003, the NECF ought to have stopped all mining activities in the Tikok OCP and should have applied for approval of the Central Government under Section 2 of the Forest (Conservation) Act, 1980. Only after such approval being granted, the NECF would have been able to continue mining in the Tikok OCP. However, the NECF did not apply for prior approval of the GoI and continued illegal mining in the Tikok OCP even after expiry of their lease. The NECF apart from mining in the already broken up 12.93 hectares of Tikok OCP, had also illegally broken up an area of another 44.27 hectares and started illegal mining there.
The NECF in utter violation of the Forest (Conservation) Act, 1980 as well as in violation of the Mines and Minerals (Development & Regulation) Act, 1957, Wildlife (Protection) Act, 1972, Environment (Protection) Act, 1986 and the Assam Forest Regulation, 1891 continued illegal mining in 57.2 hectares of Tikok OCP. Such illegal action on the part of the NECF has resulted in destruction of the flora and fauna of the Dehing Patkai rainforest and has also disturbed the ecological balance of the area. The NECF continued their illegal mining since 2003 and it was only in December of 2012, after a period of almost ten years, that they submitted a proposal for diversion of 98.59 hectares of forest land of the Tikok OCP for seeking ex-post facto approval of the GoI under Section 2(ii) of the Forest (Conservation) Act, 1980 for the period 2003 to 2012 and for renewal of their lease from 2012 to 2023.
In between, there were several site inspection reports by the State Forest Department which admitted illegal coal mining in the forest areas. In August’ 2019, at the 55th meeting of the Standing Committee of National Board for Wildlife (NBWL), a decision was made to have a Site Inspection Committee report. In the following month, the Ministry of Environment, Forest and Climate Change vide its letter No. 8-34/2013-FC instructed the North-Eastern Regional Office, Shillong of the Ministry of Environment, Forest and Climate Change to carry out site inspection and submit its report. Accordingly, the site inspection was carried out in October’2019. During this inspection, it was found that the NECF was carrying out illegal mining of coal in the project area. It was also found that apart from the 57.2 hectares that was broken up and mined since 2003, the NECF had further illegally broken up another nine hectares of forest land and mining even there. The Committee also reported that another seven hectares of land was cleared up for future mining.
Thus, what emerged from this inspection was that apart from the 57.2 hectares already broken up and used, another sixteen hectares of forest land has been utilised by the NECF. The Committee also observed that the officers from the state government including the Conservator of Forests, North Assam Circle and the Divisional Forest Officer (DFO) seemed to be aware of these illegalities. The Committee after its inspection concluded that the NECF had committed gross illegalities and it was recommended that the Ministry may take appropriate action against it. This report of the Site Inspection Committee was forwarded to the GoI in November’ 2019.
The Public Interest Litigation (PIL)
This being the sum and substance of the case in a nut shell, I wanted to try and make some legal intervention if possible. What was truly astonishing for me was to find a government agency, the CIL, actively engage in such an illicit process and destroy our vulnerable bio-diversity hot-spot in the process. This was an erosion of public trust in the government as the elected government is a trustee of the public. But sadly, such erosion of public trust is nothing new in our state. Over the years the democratic system has become such that our political leaders cannot envision anything beyond electoral politics and thus, the failing policies and abuse of our natural resources reflect that. I did not feel like being a passive viewer of this blatant abuse of our natural resources anymore. The Indian Constitution under Article 51 A, provides us as citizens our fundamental duty to protect and preserve our environment and forests. I wanted to serve out my fundamental duty.
I teamed up with a fellow advocate, Debajit Das to make a case in this regard and approach the Gauhati High Court for intervention. We pored through the Ministry of Environment, Forest and Climate Change (MoEFCC) website to get hold of the relevant documents that would help us challenge the approval given to CIL by the NBWL in April’2020. Our two-member team reached out to my friend and fellow advocate, Rakhee S. Chaudhury to help us file a Public Interest Litigation (PIL) regarding this issue. She agreed to join us and thus, our legal motley crew was born and we started drafting the PIL. Initially, I did try to reach out to some known conservationists and nature lovers of Assam, as I did not have much idea about this subject. But, unfortunately, although people were expressing their concerns on social media, none came forward to take any on a proactive role. I then approached my trekking guide and experienced mountaineer, Amarjyoti Deka. As a mountaineer, Deka has been documenting the destruction of the Himalayan region by anthropogenic activities over the years since 1990s. After a meeting, we decided to file the petition to the Gauhati High Court with advocate Debajit Das as our counsel. Both the advocates, Das and Chaudhury, worked pro-bono in this PIL. To say that all were highly alarmed at the illegal conduct of not any ‘coal mafia’ but central government agencies themselves, would be an understatement. I must also mention the role of Joi Barua, a musician and singer based in Mumbai, who hosted several online discussions on Dehing Patkai which helped immensely in creating awareness among the youth of the region about this issue.
The prayers and relief sought for in the Public Interest Litigation on the Dehing Patkai issue were the following:
- To quash the minutes of the 57th meeting of the Standing Committee of NBWL dated 7/4/2020 in so far as it relates to proposal for diversion of 98.59 hectares of Forest Land in Saleki PRF under Tikok OCP.
- To set aside approval granted to Coal India Ltd for use of 57.20 Hectare of forest land in Saleki PRF under Tikok OCP.
- A direction to Govt to prohibit/stop Coal India to stop all mining activities including open cast / rat hole mining in entire 98,59 Hectare of Forest land in Tikok OCP
- To recall, rescind, cancel and or otherwise forbear from giving effect to the impugned minutes of 57th meeting of Standing Committee of NBWL dated 7/4/2020 in so far as it relates to proposal for diversion of 98.59 hectares of Forest Land in Saleki PRF under Tikok OCP.
- A direction to Govt to restore/reclaim/rehabilitate the entire 98.59 hectare of Forest Land in Tikok OCP to its original conditions
- Direct Coal India Ltd. to pay penalty proportionate to destruction caused to Forest and Wildlife caused due to illegal mining in addition to penalty imposed by Govt.of Assam.
- To declare Dehing Patkai Elephant Reserve and the corridors and other eco-sensitive areas around Dehing Patkai Wildlife Sanctuary as an ecologically fragile region under the Environment (Protection) Act,1986.
- To constitute an Independent Committee to inspect site of Tikok OCP and to look into the feasibility of mining in the said location and submit report and on submission of report Honourable Court to pass necessary orders.
- To prohibit future proposal of conversion of any type of forest area in said Dehing Patkai Reserve Forest for commercial purpose but only after proper environmental /ecological impact assessment as carried out by an independent body comprising stake holders and competent individuals who are experts in field on sustainable basis.
- To inquire the matter through CBI and Central Vigilance Commission to civil and criminal liability on the erring officials of Forest Department under state of Assam as well as Coal India Limited in terms of T.N Godavarman Case.
- To declare Jeypore Forest Reserve , Tirap PRF, Dilai PRF , Makumpani PRF under Digboi and Dibrugarh Forest Division as Wild Life Sanctuary due to its critical importance in terms of Flora and Fauna and Bio-Diversity as held in Lafarge Case of Supreme Court of India in letter and spirit and approach be geocentric and not anthropocentric.
The case was filed on 26th May’2020 at the Gauhati High Court and we faced some initial glitches due to covid protocol, which meant that the case was quarantined for three days. In the meantime, the court also on its own motion registered another PIL on this very issue. The cases came up on for hearing on 4th June’2020 and the notice was issued fixing 20th July’2020 for respondent government authorities including CIL, to offer explanations to the allegations. When the case came up for hearing, the Government Counsel for Forest Department informed that there are some developments taking place on the issue at the central government level, and thus, sought more time. Accordingly, the case was again fixed on 1st September’2020 and on that day the Government Counsel informed the court that the Government of Assam has ordered an inquiry under the Commission of Enquiry’s Act, 1952 by appointing a ‘One Man Committee’ headed by a retired High Court Judge with terms of references issued by the state government, to file a report. Considering that development, the Gauhati High Court stayed its hands from adjudication and listed the matter again to be heard on 20th October’2020.
In that hearing, the Government Counsel again informed the court that six months were granted for filing the report by the One-Man Commission. This period is supposed to end in January’2021 and the case will be heard again in the first week of February’2021. Meanwhile, the NBWL met again for its 58th Meeting and discussed the approval granted to CIL to mine in Saleki PRF under Tikok OCP. The meeting however, overlooked the vital reports of Prof. Raman Sukumar one of the independent members of NBWL, who vehemently opposed any approval for coal mining in the Dehing Patkai region.
As the day for the hearing approaches, I have high expectations from the judiciary in this case. The Indian judiciary has played a vital part in intervening to protect the flora and fauna of India from time to time. Had it been not for the intervention of the judiciary in the T.N Godavarman case,all the pristine forests, rivers and valleys of North East India would have been ravaged by rampant mining and timber industries.
Hopes from the Indian Judiciary
The Indian judiciary has been the vanguard in protecting the environment and forests of India. Successive Indian governments have been successful in generating a consensus in favour of economic growth at any or all costs, such as the cases of the Arrey forested area in heart of Mumbai for a metro project, or the clearing of large swathes of trees of Mollem National Park in Goa to make way for an airport and the destruction of forests for coal mining in Chattisgarh. The most important and successful case in protecting the forests and natural environment in India is the T.N Godavarman case where the plundering of sandalwood trees in the Nilgiri Hills, resulted in monitoring of the whole forest cover of India. This case also led to the remote sensing satellite images of the Northeast which showed large scale degradation of forest cover at an alarming rate and especially in Arunachal Pradesh. These images and investigation led to an order by the Supreme Court in 1996 whereby timber felling and sawmills were banned. The Supreme Court also opined that The Forest (Conservation) Act, 1980 be enacted with a view to check further deforestation which ultimately results in ecological imbalance. Closer home, activist Rohit Chaudhury from Bokakhat is a lone crusader who has single handedly fought for the protection of the natural environment of Assam. Chaudury got the National Green Tribunal to rule against the Numaligarh Refinery Limited (NRL) and be ordered to take down a two kilometer boundary wall that was raised in an animal corridor which obstructed the traditional pathways of wild elephants.
With such a background in the Indian judiciary which has had so many important judgments regarding the protection of our environment, I am indeed hopeful that we too will get a favourable response. If we, the Assamese community, cannot protect our own land then it will be the end of our history and narratives. We are today in the brink of an existential crisis and we need mass awareness about our resources and the urgent need to protect them. The absolute need of the hour for this end goal is a strong civil society which is vocal on these issues plaguing Assam. Every Assamese must also learn to assert their rights be ever vigilant to the issues that affect Assam.
Mrinmoy Khataniar joined the Gauhati High Court Bar to practice law in 1997 and is a practicing advocate. He was born in Shillong and spent his childhood in different parts of Assam. This is his first case as a petitioner on any environmental cause related to Assam.
The Dwima Collective 