Explained: Legal challenges to the Great Nicobar infrastructure project

The HPC concluded that the proposed transshipment port does not fall in the Island Coastal Regulation Zone-IA (ICRZ-IA), where ports are prohibited.

What led the NGT to revisit the green clearance?

In 2022, environmental activist Ashish Kothari and Mumbai-based non-profit Conservation Action Trust (CAT) challenged the environmental and Coastal Regulation Zone clearances granted to the GNI project. Along with the submission before the eastern bench of the NGT, CAT filed a separate appeal challenging the forest clearance.

The Ministry of Environment, Forests & Climate Change (MoEFCC) grants these clearances to permit construction activities. The appeals before the NGT sought for them to be quashed.

The grounds for the appeals were similar, centred on irreversible damage that the project would cause to biodiversity, inadequate environmental impact studies and opacity in the clearance process. The appeals pointed out that GNI was a Biosphere Reserve, home to a “wide spectrum of ecosystems comprising wet evergreen forests”.

Issues of inadequate assessment of the impact on Shompen and Nicobarese tribal communities and non-compliance with due process in granting statutory clearances were also flagged. The Shompens are hunter-gatherers, while the Nicobarese people’s ancestral lands are likely to be affected by the project.

Both appeals said the challenge was not against defence projects but over permissions granted for ports and townships in prohibited areas, such as the Island Coastal Regulation Zone (ICRZ) – IA area. The categorisation refers to “ecologically sensitive areas and the geomorphological features which play a role in maintaining the integrity of the coast.”

CAT also alleged a conflict of interest as the Secretary, Environment and Forests, of the UT of Andaman and Nicobar Islands, was also the Managing Director of the Andaman and Nicobar Islands Integrated Development Corporation Limited (ANIIDCO).

In total, the project will be spread over 166 sq km and involve the felling of 130.75 sq km of forests.

What orders did the NGT pass on these appeals?

While the appeals were filed before the eastern bench of NGT, a special six-member bench headed by then NGT chairperson Adarsh Kumar Goel penned the final order deciding them.

The special bench ruled it did not find any ground to interfere with the forest clearance. It said while the forest help tackle air pollution and climate change, development cannot be ignored. It added that there was hardly any development in GNI and there was a need not only for “economic development but also national security”.

The bench said that while the environmental impact assessment procedure is mandatory, it does not follow that “hyper technical approach should be adopted ignoring ground realities about the need of the country for development and national security.”

However, in its conclusion, it ruled that there were “unanswered deficiencies” on coral conservation, the port’s location in a prohibited area and limited baseline data collection. An HPC headed by the Secretary, MoEFCC, was thus formed and ordered to finalise a report within two months. The bench also said no irreversible work should happen till its submission.

Notably, apart from economic factors, the project has been linked to India’s strategic interests in the Indian Ocean. In recent years, as the Chinese People’s Liberation Army Navy has expanded its footprint across the region, India has had concerns about the build-up of its maritime forces at the Indo-Pacific choke points such as the Malacca Strait.

What petitions on the project are pending before the NGT?

In May this year, Kothari again filed two petitions before the NGT’s eastern bench. One was about the violation of the 2019 ICRZ notification. It said that the NGT should direct ANIIDCO to exclude parts of the project’s port, airport and township from ecologically sensitive coastal areas.

The plea pointed out that ANIIDCO and MoEFCC were not complying with the NGT’s April 3, 2023 order to exclude project areas falling in the ICRZ-IA classification.

The second plea argued that the MoEFCC was in contempt of the NGT’s April 2023 order, in which it had formed an HPC to revisit the GNI infrastructure project’s environmental clearance. The plea pointed out that MoEFCC had not communicated any details of the HPC’s proceedings and had not passed any order after revisiting the clearance, as directed by NGT.

On July 26, ANIIDCO filed a counter affidavit to these petitions, whereas MoEFCC sought more time to file their response.

And what about cases at the Calcutta High Court?

Last year, CAT filed a writ petition before the Kolkata High Court over the April 2023 order of the NGT special bench. The writ prayed to quash the statutory clearances.

CAT said the NGT special bench did not have jurisdiction in the case dealing with challenges against forest clearance. It has argued that the case should have been dealt with by the eastern zone, rather than a special bench.

Further, CAT said in its plea that its counsel was not heard duly even though the date when the final order was passed was reserved for the completion of pleadings.

The petition has said that the NGT failed to critically evaluate the project clearances, “blinded by the mention of strategic importance of the project”. It added that by forming an HPC to revisit the project’s environmental clearance, the NGT delegated its decision. The plea referred to the Supreme Court’s earlier orders, which have said that the NGT cannot “abdicate its judicial functions to an administrative expert committee”.