On World Environment Day, DR. SILPA AZIZ looks at the union government's holistic island development program, its '''upfront environmental clearance" as it rolls out in Lakshadweep, and the implication of LANIDS 2019 (the DIPP-notified five-year industrial development incentive program) on the islanders. She explains how some of the recent administrative reform regulations in Lakshadweep are in line with these development programs, and why we must worry about them..—-.EVEN as World Environment Day 2021 arrives, noises abound in the pristine virgin islands of Lakshadweep against some of the recent administrative reforms..This smallest of India's Union Territories, an ecologically significant archipelago placed in the Indian Ocean, has also become, in recent years, India's 'showcased-for-investment' island property along with the Andaman and Nicobar Islands..They have become the subjects of an ambitious 'holistic development program' spearheaded by the NITI Ayog and the Island Development Agency of the Union Government under the Ministry of Home Affairs..As the State-driven environment-based development program rolls out in the peaceful Union Territory, it seems to have a striking connection with the controversial draft regulations recently introduced on the island..Lakshadweep has an ecosystem comprising 36 islands, three coral reefs and several inhabited and uninhabited islands. The island's population, as per the 2011 Census, is 65,000, 94.5 percent of whom are classified as Schedule Tribes and 96.58 percent of whom follow the religion of Islam..Also read: Once Upon a Time in Lakshadweep….Its natural features present a "strong justification for water villas in Lakshadweep", as per a May 2019 NITI Ayog paper on 'Transforming the Islands through Creativity & Innovation', based on its large lagoon area of 4,000 square kilometre, apart from land-based projects. It is leveraging on the hitherto unexplored tourism potential through world class resort/hotel chains combined with possibilities to develop a landing point or hub for international technology service companies. For the local islanders, a mix of Public Private Partnership (PPP) and alternatives leading to "promotion of responsible tourism, development of fisheries, export of seafood and coconut products etc.," is put forward..An Incentivising Industrial Development Scheme – LANIDS, 2019.In January 2019, the Department of Industrial Policy and Promotion under the Ministry of Trade and Commerce, through an Extra Ordinary Gazette Notification, brought out the Lakshwadeep and Andaman and Nicobar Industrial Development Scheme (LANIDS), akin to an existing scheme for the North Eastern states, for the industrial units (NEIDS)..The scheme aims to provide a five-year incentive program reimbursing various investment and operational components not exceeding Rs. 200 crores per eligible unit in both Union Territories..Ignoring the Local Islanders Entirely.For a scheme attracting investors to the islands, it does not require an islander to be an investor or owner or major stakeholder in any of the industrial units. Neither does the scheme consider local people's representation important in the "Empowered Committee" deciding the final approval of eligibility for an industrial unit. In a project that is about to have much impact on the local environment and ecosystem, the absence of local participation is a glaring concern..Also read: Untrammelled Power by Lakshadweep Administrator is Against Democracy.An overlapping, non-discerning list of ineligible industries.A 'negative list' of industries based on the First Schedule of the Central Excise Tariff Act, 1985 that cannot avail the scheme is added as Annexure I to LANIDS, 2019. The list drawn up in almost exactly the same as NEIDs, indicating a non-discerning approach having neither considered the entirely different coastal geographical characteristics of the UTs as compared to the North East or the limited land area as in Lakshadweep where the scheme is implemented..Further, apart from tobacco products, pan masala products, coke, fly ash, cement, and gold ore in the 'Negative' list, there remain a plethora of items ranging from fertilizers to pharmaceuticals to explosive substances that can prove detrimental if allowed to be manufactured under the LANIDS in Lakshadweep's ecosystem. The only deterrent against the approval of these units could be the conditional classification in the Negative List for a unit that does not clear an environmental impact assessment (EIA) or the pollution control board's approvals..Considering Lakshadweep's population of about 65,000 people (as per the 2011 census), is LANIDS a move in sync with its ecosystem? What shall be the cost of this new industrial development scheme for the island, as its population expands, exerting pressure on its resources, exposing the flora and fauna and marine life of the islands to the risks of pollution and related hazards? .Holistic Sustainable Project, With 'Upfront Clearance'.Strategised as a unique move for the island development program before finalising the project bids – was the recommendation in the May 2019 NITI Ayog paper for upfront Environmental clearance (EC) and Coastal Regulation Zone (CRZ) clearances aimed at "creating an environment conducive for investment by the private sector". Clarity on this clearance/approval exercise in Lakshwadeep's environment regulations context is not forthcoming, as the island's developmental activities are regulated by the Island Protection Zone Notification, 2011 (IPZN)..Island Protection Zone Notification (2011).The IPZN was notified separately for the island union territories as the 500 m demarcation under the CRZ notification cannot become applicable to their smaller geographical areas. It aims to provide livelihood security to the local communities including the fisherfolk and tribals, to promote conservation and protection of Islands unique environment and its marine area, and to promote development through sustainable integrated management plan based on scientific principles taking into account the vulnerability of the coast to natural hazards. .Based on IPZN guidelines, the Integrated Island Management Plan (IIMP) was evaluated by a Justice R.V. Raveendran-led Expert Committee, after the Supreme Court's order in the case of M/s Sea Shell Beach Resorts v. Union Territory of Lakshadweep and Others (2012)..The committee submitted its report in 2014, and it was stipulated that the developmental activities in the Islands shall be included in the IIMPs in accordance with rules, regulations and building bye-laws of local town and country planning; that the activities permitted in the IIMP be undertaken in accordance with the environment law prevalent in the country. .It is not clear whether the "upfront clearance" given to the project bypasses the approval process stipulated under the Development Control Regulations tailored to meet the requirements of Lakshadweep Islands, and which is held to be compulsory before starting of any development activity, including government projects..This is particularly relevant for the deep sea mining industry envisaged in the project plan. It is an industry involving shuffling of the ocean floor by heavy machinery capable of altering marine habitats whilst increasing the turbidity in the region. Lakshadweep with its coral reef stands to be exposed to these activities. EIAs and the aforementioned approvals have to be a sine qua non for such projects..Rapid EIA.Minicoy, the second largest island and the southernmost island having the largest of lagoons, is one of the three islands chosen in the initial project development phase in Lakshadweep. The Request for Qualification document issued for bids to develop 110 Beach villas and 40 Water Villas by 5th December, 2019, referred to a ''rapid EIA" process as part of Coastal Zone Management clearance which has already been granted on an upfront basis. Rapid EIA, unlike regular EIA, considers data for one or two seasons..In its judgment in the case of Sterlite Industries (India) Ltd v. Union of India (2013), the Supreme Court found this form of assessment to be adequate from the lens of Wednesbury unreasonableness as long as the procedure was followed and the action of the authorities not irrational..However, this was before the public consultation process was incorporated into the EIA exercise. Also, Minicoy is referred to by the National Coastal Zone Management Authority (NCZMA) as an uninhabited island for its Integrated Island Management Plan (IIMP) reference. However, Minicoy has about 10 villages with a population of 10,447 (as per the 2011 census). .Also read: At the Heart of Lakshadweep 'Shock Therapy' Lies a Policy to Grab Land.It is unclear as to whether there shall be any displacement and consequent rehabilitation exercise. Undoubtedly, the project development would find greater success with a public consultation exercise..Judicial Interventions in Coastal Zone Norms.From Goa Foundations, Goa v. Diksha Holdings Pvt. Ltd. (2000) and Vaamika Island (Green Lagoon Resort) v. Union of India (2013) to Kapiko Kerala Resorts Pvt. Ltd. v State of Kerala (2020), the Supreme Court has, in multiple decisions, highlighted that development can be harmonised with ecological values in coastal areas following CRZ or relevant laid out norms in place..In Vamika, the apex court had held that the fisherfolk and other communities inhabiting the region fall under Critically Vulnerable Coastal Areas (CVCA) as per CRZ Notification (2011) and that they have a crucial say in the management of CVCAs, promoting conservation, and sustainable use of coastal resources and habitats..The country's legal framework provides abundant layers of protective mechanisms in the form of constitutional and statutory mandates. The State cannot give away nature's gifts to its citizens arbitrarily for exploitation..Need to relook at development plans for Lakshadweep.The economic development activities of the type described above are bound to weigh down on Lakshadweep's ecosystem. As much as augmented incomes, better quality of life and access to facilities for the islanders favour such expansionist development, it is necessary to ensure these happen without burdening and collapsing the island's sensitive ecosystem..The Zanzibar islands of Tanzania are a great example of more balanced tourism industry in a similar context; on the other hand, island/coastal nations as Japan, Philippines, and the Maldives, among others, have had their marine and coastal ecosystems bear the brunt of brutal exploitation of its coastal zones, leading to massive restoration campaigns at later stages..The mere existence of regulatory frameworks was not enough. A participatory local people-based consultative approach, along with the government's proactive functioning, was imperative. Restoration campaigns have steadfastly and successfully implemented this..The United Nations defines an ecosystem as the interaction between living organisms – plants, animals, people, etc. – with their surroundings. The significance placed on the interaction between man and his surroundings, comprising of plants and animals, cities or farms, can mean a harmonious coexistence. In this context, the new administration regulations in the Union Territory coming into conflict with the local population interests raise grave apprehensions..For instance, going by the Draft Lakshadweep Prevention of Antisocial Activities Regulation, 2021, the local population may not be able to organise protests or meetings against the new economic and development plans being rolled out in Lakshadweep. The regulation vests unquestionable power on the administrator if they are satisfied that a person is "acting in any manner prejudicial to the maintenance of public order", while the term "public order" is not defined in the regulation..Similarly, the Draft Lakshadweep Development Regulation Authority, 2021 brings up questions on the authoritative action contemplated through its Sections 5 (Planned Area) and 7 (Constitution of planning authority). Further, preparation of land development plans through the planning authority and bringing about changes in land use (through section 25) would be in direct contrast even to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which aims for the exercise to be a local, consultative and humane exercise..Also read: Former civil servants write to PM expressing concern about disturbing developments in Lakshadweep.A project implemented for Lakshadweep's local islanders sans their participation and contribution is in no measure the hallmark of a holistic sustainable development program. Unless wisely addressed and designed, development activities ushering in prosperity may mean a miserable situation not just for the marine ecosystem but for the people inhabiting the region. Mere regulatory compliance as a procedural formality won't suffice; the executive action has to match the ethical action. The voice of the island people that lends life to that very environment and ecosystem must not to be stifled..Time to reimagine compliance, recreate regulations, restore trust.'Reimagine. Recreate. Restore.' is this year's World Environment Day theme – calling for attention to our ecosystems..Any regulatory amendment for mere procedural compliance should be discouraged. Rather it should be based on EIA, a critical component of which is public consultation..The Madras High Court's observation in its recent judgment in the case of K. Santhanam v. The District Collector, Virudhunagar (2021) holds good here: "Merely because the process of issuance … was conducted in consonance with the statutory procedure … would not confer any immunity against judicial scrutiny"..(Dr. Silpa Aziz is an advocate practicing in Kerala and Delhi NCR. The views expressed are personal.)
On World Environment Day, DR. SILPA AZIZ looks at the union government's holistic island development program, its '''upfront environmental clearance" as it rolls out in Lakshadweep, and the implication of LANIDS 2019 (the DIPP-notified five-year industrial development incentive program) on the islanders. She explains how some of the recent administrative reform regulations in Lakshadweep are in line with these development programs, and why we must worry about them..—-.EVEN as World Environment Day 2021 arrives, noises abound in the pristine virgin islands of Lakshadweep against some of the recent administrative reforms..This smallest of India's Union Territories, an ecologically significant archipelago placed in the Indian Ocean, has also become, in recent years, India's 'showcased-for-investment' island property along with the Andaman and Nicobar Islands..They have become the subjects of an ambitious 'holistic development program' spearheaded by the NITI Ayog and the Island Development Agency of the Union Government under the Ministry of Home Affairs..As the State-driven environment-based development program rolls out in the peaceful Union Territory, it seems to have a striking connection with the controversial draft regulations recently introduced on the island..Lakshadweep has an ecosystem comprising 36 islands, three coral reefs and several inhabited and uninhabited islands. The island's population, as per the 2011 Census, is 65,000, 94.5 percent of whom are classified as Schedule Tribes and 96.58 percent of whom follow the religion of Islam..Also read: Once Upon a Time in Lakshadweep….Its natural features present a "strong justification for water villas in Lakshadweep", as per a May 2019 NITI Ayog paper on 'Transforming the Islands through Creativity & Innovation', based on its large lagoon area of 4,000 square kilometre, apart from land-based projects. It is leveraging on the hitherto unexplored tourism potential through world class resort/hotel chains combined with possibilities to develop a landing point or hub for international technology service companies. For the local islanders, a mix of Public Private Partnership (PPP) and alternatives leading to "promotion of responsible tourism, development of fisheries, export of seafood and coconut products etc.," is put forward..An Incentivising Industrial Development Scheme – LANIDS, 2019.In January 2019, the Department of Industrial Policy and Promotion under the Ministry of Trade and Commerce, through an Extra Ordinary Gazette Notification, brought out the Lakshwadeep and Andaman and Nicobar Industrial Development Scheme (LANIDS), akin to an existing scheme for the North Eastern states, for the industrial units (NEIDS)..The scheme aims to provide a five-year incentive program reimbursing various investment and operational components not exceeding Rs. 200 crores per eligible unit in both Union Territories..Ignoring the Local Islanders Entirely.For a scheme attracting investors to the islands, it does not require an islander to be an investor or owner or major stakeholder in any of the industrial units. Neither does the scheme consider local people's representation important in the "Empowered Committee" deciding the final approval of eligibility for an industrial unit. In a project that is about to have much impact on the local environment and ecosystem, the absence of local participation is a glaring concern..Also read: Untrammelled Power by Lakshadweep Administrator is Against Democracy.An overlapping, non-discerning list of ineligible industries.A 'negative list' of industries based on the First Schedule of the Central Excise Tariff Act, 1985 that cannot avail the scheme is added as Annexure I to LANIDS, 2019. The list drawn up in almost exactly the same as NEIDs, indicating a non-discerning approach having neither considered the entirely different coastal geographical characteristics of the UTs as compared to the North East or the limited land area as in Lakshadweep where the scheme is implemented..Further, apart from tobacco products, pan masala products, coke, fly ash, cement, and gold ore in the 'Negative' list, there remain a plethora of items ranging from fertilizers to pharmaceuticals to explosive substances that can prove detrimental if allowed to be manufactured under the LANIDS in Lakshadweep's ecosystem. The only deterrent against the approval of these units could be the conditional classification in the Negative List for a unit that does not clear an environmental impact assessment (EIA) or the pollution control board's approvals..Considering Lakshadweep's population of about 65,000 people (as per the 2011 census), is LANIDS a move in sync with its ecosystem? What shall be the cost of this new industrial development scheme for the island, as its population expands, exerting pressure on its resources, exposing the flora and fauna and marine life of the islands to the risks of pollution and related hazards? .Holistic Sustainable Project, With 'Upfront Clearance'.Strategised as a unique move for the island development program before finalising the project bids – was the recommendation in the May 2019 NITI Ayog paper for upfront Environmental clearance (EC) and Coastal Regulation Zone (CRZ) clearances aimed at "creating an environment conducive for investment by the private sector". Clarity on this clearance/approval exercise in Lakshwadeep's environment regulations context is not forthcoming, as the island's developmental activities are regulated by the Island Protection Zone Notification, 2011 (IPZN)..Island Protection Zone Notification (2011).The IPZN was notified separately for the island union territories as the 500 m demarcation under the CRZ notification cannot become applicable to their smaller geographical areas. It aims to provide livelihood security to the local communities including the fisherfolk and tribals, to promote conservation and protection of Islands unique environment and its marine area, and to promote development through sustainable integrated management plan based on scientific principles taking into account the vulnerability of the coast to natural hazards. .Based on IPZN guidelines, the Integrated Island Management Plan (IIMP) was evaluated by a Justice R.V. Raveendran-led Expert Committee, after the Supreme Court's order in the case of M/s Sea Shell Beach Resorts v. Union Territory of Lakshadweep and Others (2012)..The committee submitted its report in 2014, and it was stipulated that the developmental activities in the Islands shall be included in the IIMPs in accordance with rules, regulations and building bye-laws of local town and country planning; that the activities permitted in the IIMP be undertaken in accordance with the environment law prevalent in the country. .It is not clear whether the "upfront clearance" given to the project bypasses the approval process stipulated under the Development Control Regulations tailored to meet the requirements of Lakshadweep Islands, and which is held to be compulsory before starting of any development activity, including government projects..This is particularly relevant for the deep sea mining industry envisaged in the project plan. It is an industry involving shuffling of the ocean floor by heavy machinery capable of altering marine habitats whilst increasing the turbidity in the region. Lakshadweep with its coral reef stands to be exposed to these activities. EIAs and the aforementioned approvals have to be a sine qua non for such projects..Rapid EIA.Minicoy, the second largest island and the southernmost island having the largest of lagoons, is one of the three islands chosen in the initial project development phase in Lakshadweep. The Request for Qualification document issued for bids to develop 110 Beach villas and 40 Water Villas by 5th December, 2019, referred to a ''rapid EIA" process as part of Coastal Zone Management clearance which has already been granted on an upfront basis. Rapid EIA, unlike regular EIA, considers data for one or two seasons..In its judgment in the case of Sterlite Industries (India) Ltd v. Union of India (2013), the Supreme Court found this form of assessment to be adequate from the lens of Wednesbury unreasonableness as long as the procedure was followed and the action of the authorities not irrational..However, this was before the public consultation process was incorporated into the EIA exercise. Also, Minicoy is referred to by the National Coastal Zone Management Authority (NCZMA) as an uninhabited island for its Integrated Island Management Plan (IIMP) reference. However, Minicoy has about 10 villages with a population of 10,447 (as per the 2011 census). .Also read: At the Heart of Lakshadweep 'Shock Therapy' Lies a Policy to Grab Land.It is unclear as to whether there shall be any displacement and consequent rehabilitation exercise. Undoubtedly, the project development would find greater success with a public consultation exercise..Judicial Interventions in Coastal Zone Norms.From Goa Foundations, Goa v. Diksha Holdings Pvt. Ltd. (2000) and Vaamika Island (Green Lagoon Resort) v. Union of India (2013) to Kapiko Kerala Resorts Pvt. Ltd. v State of Kerala (2020), the Supreme Court has, in multiple decisions, highlighted that development can be harmonised with ecological values in coastal areas following CRZ or relevant laid out norms in place..In Vamika, the apex court had held that the fisherfolk and other communities inhabiting the region fall under Critically Vulnerable Coastal Areas (CVCA) as per CRZ Notification (2011) and that they have a crucial say in the management of CVCAs, promoting conservation, and sustainable use of coastal resources and habitats..The country's legal framework provides abundant layers of protective mechanisms in the form of constitutional and statutory mandates. The State cannot give away nature's gifts to its citizens arbitrarily for exploitation..Need to relook at development plans for Lakshadweep.The economic development activities of the type described above are bound to weigh down on Lakshadweep's ecosystem. As much as augmented incomes, better quality of life and access to facilities for the islanders favour such expansionist development, it is necessary to ensure these happen without burdening and collapsing the island's sensitive ecosystem..The Zanzibar islands of Tanzania are a great example of more balanced tourism industry in a similar context; on the other hand, island/coastal nations as Japan, Philippines, and the Maldives, among others, have had their marine and coastal ecosystems bear the brunt of brutal exploitation of its coastal zones, leading to massive restoration campaigns at later stages..The mere existence of regulatory frameworks was not enough. A participatory local people-based consultative approach, along with the government's proactive functioning, was imperative. Restoration campaigns have steadfastly and successfully implemented this..The United Nations defines an ecosystem as the interaction between living organisms – plants, animals, people, etc. – with their surroundings. The significance placed on the interaction between man and his surroundings, comprising of plants and animals, cities or farms, can mean a harmonious coexistence. In this context, the new administration regulations in the Union Territory coming into conflict with the local population interests raise grave apprehensions..For instance, going by the Draft Lakshadweep Prevention of Antisocial Activities Regulation, 2021, the local population may not be able to organise protests or meetings against the new economic and development plans being rolled out in Lakshadweep. The regulation vests unquestionable power on the administrator if they are satisfied that a person is "acting in any manner prejudicial to the maintenance of public order", while the term "public order" is not defined in the regulation..Similarly, the Draft Lakshadweep Development Regulation Authority, 2021 brings up questions on the authoritative action contemplated through its Sections 5 (Planned Area) and 7 (Constitution of planning authority). Further, preparation of land development plans through the planning authority and bringing about changes in land use (through section 25) would be in direct contrast even to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which aims for the exercise to be a local, consultative and humane exercise..Also read: Former civil servants write to PM expressing concern about disturbing developments in Lakshadweep.A project implemented for Lakshadweep's local islanders sans their participation and contribution is in no measure the hallmark of a holistic sustainable development program. Unless wisely addressed and designed, development activities ushering in prosperity may mean a miserable situation not just for the marine ecosystem but for the people inhabiting the region. Mere regulatory compliance as a procedural formality won't suffice; the executive action has to match the ethical action. The voice of the island people that lends life to that very environment and ecosystem must not to be stifled..Time to reimagine compliance, recreate regulations, restore trust.'Reimagine. Recreate. Restore.' is this year's World Environment Day theme – calling for attention to our ecosystems..Any regulatory amendment for mere procedural compliance should be discouraged. Rather it should be based on EIA, a critical component of which is public consultation..The Madras High Court's observation in its recent judgment in the case of K. Santhanam v. The District Collector, Virudhunagar (2021) holds good here: "Merely because the process of issuance … was conducted in consonance with the statutory procedure … would not confer any immunity against judicial scrutiny"..(Dr. Silpa Aziz is an advocate practicing in Kerala and Delhi NCR. The views expressed are personal.)
