A notification to ensure ecological flow of rivers

Environment lawyer Ritwick Dutta talks about the highs and lows of the new river Ganga notification and how environmentalists can use it to make an impact.
Boys wait to collect coins thrown into the Ganga at Kanchla, Uttar Pradesh.
Boys wait to collect coins thrown into the Ganga at Kanchla, Uttar Pradesh.

I have objected so many times to the change in the name of Ministry of Water Resources to the Ministry of Water Resources, River Development and Ganga Rejuvenation. It shows where the priority of the government lies. It says that all the rivers need to be developed except the Ganga which needs to be rejuvenated. Even the minister has openly said that Ganga will have a separate policy than other rivers. I feel every river is unique as it has geographical, historical, socio-cultural and economic importance.

Now coming to the River Ganga (Rejuvenation, Protection and Management) Authorities Order of October 2016, this notification has been issued under the Environment (Protection) Act. So if there is a violation under this notification, it comes under violation of this Act. And there’s a specific section of this law that says that if an offence is committed under Environment (Protection) Act and under any other law, the person will be punished under the other law. This means that Environment (Protection) Act will always remain subordinate to all other laws in the country; it has no overriding power. 

The notification does a few good things. We have got for the first time legal definitions of ‘deforestation’ and ‘degraded forest’. Till now, under the Forest Conservation Act we only knew what ‘non-forest use’ was. It is also the first legal document to use the term ‘ecological flow’, even though ‘minimal flow’ has also been used at some places which will lead to different interpretations.

We have got for the first time legal definitions of ‘deforestation’ and ‘degraded forest’. It is also the first legal document to use the term ‘ecological flow’

Structure and Powers

The structure of the authorities mentioned in the notification is the repeat of what we see in almost every notification that is issued by the Ministry of Environment, Forests and Climate Change (MoEFCC). There are national level, state level and then district level authorities. The authority concerned will issue directions and the governments or the entities against which the directions are issued will be bound to comply with these. However, experience shows that none of these directions are actually issued. 

The Section 5 of the Environment Protection Act empowers the central government to issue directions, but it does not exercise these powers. The National Tiger Conservation Authority, which has also been given these powers, issues only advisories. The pollution control boards issue notices and not directions. In the recent instance when the high level of air pollution in Delhi was being heard at the National Green Tribunal, the MoEFCC was asked if it had issued directions to the concerned authorities. The ministry representative said, “We held a press conference and gave the media our action plan.”

But even this action plan was not communicated to the concerned authorities. The ministry said we have not issued any direction, we don’t intend to issue any direction but we will only request them to take certain measures. If you look at the last 20 to 30 years, directions have been issued very rarely under these provisions. So we have authorities which don’t function as authorities and issue advisories instead.  

The Section 5 of the Environment Protection Act empowers the central government to issue directions, but it does not exercise these powers

Many a time, state-level authorities are not formed or they don’t meet. There’s a case going on in the National Green Tribunal on the Central Wetland Regulatory Authority (CWRA). The wetland rules were notified in 2010 and till 2016, not a single wetland has been notified in the country. What they have notified are the Ramsar sites. After persistent prodding and pressure, all the states have now come up with draft notifications identifying wetlands. We have looked into that and 99 percent of the identified wetlands are either PWD tanks or reservoirs of hydropower projects. The CWRA didn’t meet for almost three years. So, I am confident that even the national level authority on Ganga will not meet regularly.  

Provisions and loopholes

A large portion of this notification is directed towards preventing pollution. Thus, there’s a huge overlap between provisions of the Water (Prevention and Control of Pollution) Act and this notification because the former already says that you can’t discharge sewage or untreated effluents into any river or stream. The same provision has been elaborated in this notification but while the punishment for the violation under the Water Act is a minimum of 1.5 years of imprisonment, the punishment under the Environment Protection Act is Rs 1 lakh fine after a judicial trial. 

Next very important provision is maintaining the ecological flow of water in the Ganga. Section 5 (1) says, “Every State Government, shall endeavor to ensure that uninterrupted flows of water are maintained at all times in River Ganga…”  This is a very weak provision as it’s not binding on the state governments to ensure uninterrupted flow. They just need to endeavor or attempt. Now an endeavor can always be there, but ecological flow may not exist.

There is another very important part which seems to have some safeguards. Section 6(3) says, “No person shall construct any structure, whether permanent or temporary for residential or commercial or industrial or any other purposes in the River Ganga, Bank of River Ganga or its tributaries or active floodplain area of River.”  

Even in this notification, they have put a window of opportunity for religious events. Also, “at traditional locations” is open to interpretation

But then it goes on to say: “Provided that in exceptional circumstances like natural calamities or religious events at traditional locations, temporary structures can be raised after prior permission of the National Mission for Clean Ganga acting through the State Ganga Committee and the District Ganga Committee.”

After reading this, I could only recall Sri Sri Ravi Shankar and the controversial Art of Living event on the Yamuna in Delhi. So, even in this notification, they have put a window of opportunity for religious events. Also “at traditional locations” is open to interpretation since all religious events need to happen near the river, so the whole stretch can be a traditional location. 

I am also amazed at the number of committees and commissions formed under this notification and some of them have been registered as societies under the Societies Registration Act which is interesting. How can an authority get registered under this Act and where the money will come from? 

Focus on positives 

I don’t want to end on a cautionary note. I would say that there are provisions in this notification that can be used. There are certain mistakes we have done in the past; we have not used the positives in The Wetlands (Conservation and Management) Rules. It took us five years to know that these rules can be beneficial. At least seven thermal plants in the country are stuck now because somebody used these provisions. 

So the River Ganga notification can also be an opportunity if we start using it and ensure that the authorities meet regularly and put the minutes of these meetings in public. The notification covers so many river systems in its scope.  

The notification covers so many river systems in its scope. So we can try within the limit and scope of law to ensure ecological flow in these rivers

It covers all the state tributaries of Ganga, including those in Madhya Pradesh and Chhattisgarh. So we can try within the limit and scope of the law to ensure ecological flow in these rivers. We can put systems in place to actually look at how district level, state level, and national level committees are functioning.

The notification definitely looks beyond the active floodplain and active river. So there’s some scope in the context of floodplain protection from mining and other harmful activities. Having something is still better than having nothing at all. So I feel it’s a positive step and at least certain terms, which were vague and were only policy statements earlier, are having some force of a statute now. It’s our work to actually use it for the Ganga and its tributaries and then extend to all the other rivers.

This is part of the transcript of the lecture Ritwick Dutta gave at the India Rivers’ Week on November 30, 2016

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