SC’s Aravalli stay order questions ‘structural paradox’ of 100-m rule

At the outset, today’s order records the pressure from realty development by noting that “decades of unchecked urbanization” and “systematic deforestation” — and only “intensive resource extraction” (mining) — have “exerted immense strain upon this inherently fragile ecosystem.”

Next, the order addresses the very crux of the definition issue. While it was alright to assure that “no new mining leases” will be granted within the “newly demarcated Aravalli”, the uncertainty over the exclusion of the existing Aravalli areas under the 100-metre definition is what has the citizens concerned.

Noting that the “public dissent and criticism appear to stem from the perceived ambiguity and lack of clarity,” the order said, “there is a dire need to further probe and clarify to prevent any regulatory gaps that might undermine the ecological integrity of the Aravalli region.”

The order succinctly placed issues of both inclusion and exclusion on the proposed HPEC’s plate by asking it to mark specific areas that fall within the scope of 100-metre height definition and analyse if sustainable or regulated mining in those areas — “notwithstanding regulatory oversight” — would have adverse ecological impact; and also mark specific hills that would not make the 100-metre cut and assess if such exclusions will lead to their “eventual erasure or degradation, thereby compromising the overall ecological integrity of the Aravalli range.

Reflecting the public concern, the order sought to know from the HPEC if Aravalli hills identified under the 100-metre definition would “constitute a contiguous ecological formation” even when the distance between two hills exceeds the stipulated 500-metre threshold and if “regulated mining would be permissible in these gaps.”

It further raised the question if excluding the intervening areas between two hills more than 500 metres apart would create “a structural paradox” and narrow “the geographical scope of protected territory.”

As an obvious corollary, the order asked if allowing “unregulated mining and other disruptive activities” to continue in such areas which are “ecologically contiguous” to 100-metre hills but “technically excluded” by the definition.

The order also addressed the “widely publicized criticism” of the exclusion of the lower Aravalli hills under the 100-metre definition. It specifically sought confirmation of the fact that only 1,048 — the number of hills reported by The Indian Express citing an internal analysis of the Forest Survey of India (FSI) — out of 12,081 Aravalli Hills which are 20m or higher made the ministry’s 100-metre cut.

Since the ministry has so far refused to confirm the FSI’s internal assessment based on digitised contour maps of Aravallis in the 15 districts of Rajasthan, the order’s emphasis on the need for “an exhaustive scientific and geological investigation” if this “assessment correctly identifies a significant regulatory lacuna” is reassuring.

So is the order’s detailed instruction to carry out “precise measurements of all hills and hillocks elevation to facilitate a more nuanced and measured assessment of the criteria required to maintain the structural and ecological integrity of the entire range.”

While a lot will depend on the composition of the proposed HPEC, today’s order paved the way for reaching “logical finality” in the matter and ensured that “no irreversible administrative or ecological actions are taken based on the current framework.”

In reiterating that no permission shall be granted for mining without the apex court’s permission “in the Aravalli Hills and Ranges as defined in the FSI Report dated 25.08.2010,” the order nods to the three-degree-slope formula proposed by the FSI, the court’s Central Empowered Committee and the amicus curiae.

“Perhaps there is still room for the realisation to dawn that we do not need to reinvent the wheel because Aravalli was already defined by the FSI in 2010. The fact that the court felt it necessary to constitute a new expert committee to review not only the findings of the earlier committee but also clarify on other issues suggests that the earlier report was prepared in haste. The suo motu cognisance also means that the government’s public response was not convincing.” said environmental lawyer Ritwick Dutta.

Chetan Agarwal, independent environmental and forest analyst, also welcomed the order. “The court has prevented the overturning of decades of jurisprudence for aravalli conservation. It is hoped that the new committee is tasked to look at the aravallis as an ecological entity — a living breathing habitat for the last vestiges of wildlife, and its role in moderating air pollution and enhancing groundwater recharge.”