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The Chimera of Sand Mining in India: An Analytical Insight

Author: Pranoy Goswami


Overview


The issues regarding the ambit of sand mining in the world’s largest democracy, India, are worrisome, deep-rooted and disturbing at varying levels. Though it might be a seemingly outlandish to the western world because sand has often been perceived as a ‘cheap or inferior’ natural resource consisting of ground rocks, minute quantities of silica and quartz yet it’s valuation in the Indian market is immense, with a potential boom having been seen in the construction industry in the last two decades makes it quintessential for consumption[1]. The article seeks to examine the laws in place to curb the menace of illegal mining of sand, the loopholes persisting therein and finally take an analytical look at the environmental repercussions of the same.


Background


Sand has been routinely classified as a “minor mineral” and has been defined in the Mines and Minerals (Development and Regulation) Act, 1957 (‘the MMDR Act’) in the following words:


minor minerals means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the official gazette, declare to be a minor mineral”.[2]

The term ‘ordinary sand’ that can be noticed distinctly in clause (e) of Section 3 of the MMDR Act, 1957 has been given an additional clarification through Rule 70 of the Mineral Concession Rules, 1960[3]:

(vi) For the manufacture of sodium silicate and for

(vii) For the manufacture of various types of pottery and glass.


The State Governments have duly been empowered by Section 15 of the MMDR Act to frame rules[4] that help to regulate mineral grants and concessions in respect of minor minerals. Such an administrative domain has been extended to the State governments so that they can frame their respective minor minerals concession policies. Section 23 (c) of the MMDR Act, 1957 holds the key[5] with respect to the prevention of illegal mining, transport and storage of minerals, one that is the cynosure of discussion in this article.


Current Scenario


Sand despite its looming presence along the river and seabeds continues to elude nationwide availability and the consequent rise of sand syndicates and cartels have compounded the issue ten-fold. Sky-high prices in the range of INR 85,000- 1,05,000 have been recorded in the metropolis of Mumbai for a truck carrying 30 tonnes of sand.[6] The persistent demand-supply mismatch is often an artificially created one due to hoarding and illegal extraction of sand from the areas more popular for their riverside contributions.


The issue of illegal sand mining first hogged the limelight owing to an NGT Order dating back to 2013 which sought the ban of sand mining without proper environmental clearance and the green light of the Acts in place being met for their storage and transport[7]. The NGT had clearly put a restraint on “any person, company, authority to carry out any mining activity or removal of sand, from river beds anywhere in the country without obtaining Environmental Clearance” from the requisite authorities[8].


The order found its strong footing through the judgment pronounced by the SC in Deepak Kumar vs. State of Haryana[9], wherein the Court held that the Model Rules of 2010 issued by the Ministry of Mines are vital from the environmental, ecological and bio-diversity point of view and therefore the State Governments have to frame proper rules in accordance with the recommendations, under Section 15 of the MMDR Act, 1957. The Court was of the view that it is highly necessary to have an effective framework of mining plan which will take care of all environmental issues and also evolve a long term rational and sustainable use of natural resource base and also the bio-assessment protocol hence paving the way for environmental clearances and environmental impact assessment (EIA) studies for the same[10].


In pursuance to the same, the Union Government’s Ministry of Environment, Forest and Climate Change released the Sustainable Sand Mining Guidelines, 2016[11] to tackle the problem, which sought to prohibit in-stream mining and to put an end to the unscrupulous practice of sand mining near volatile river beds manually without clearance from the authorities and to obtain a certificate for the same.


But on a few occasions, the stand of the NGT has often been a confused one, as can be seen from the case of the Karnataka government’s directive to permit the use of JCBs for bulk sand mining with the plain assurance given by the government[12] that they will try their best to prohibit such mechanization in riverbeds and sensitive sand dune zones.


However in 2017, the NGT’s stance that stood at loggerheads with the notifications regarding the Amended EIA Notification, 2016[13] released by the Ministry of Environment, Forests and Climate Change which gyrated ‘round the fact that if the minor minerals like sand in up to 25 hectares of area were to be exempted from prior public consultation and the steps underlying the EIA norms[14], the critical and substantial economic questions of mitigation measures, risk assessment, socio-economic costs, rehabilitation and resettlement plans for the displaced shall all be put to the sword. The erstwhile NGT chairperson Justice Adarsh Goel-led bench ordered the incorporation of formal procedure for the calculation of annual rates and the time frame that was required for the replenishment along with the proper issuance of guidelines[15] for the calculation of the cost of restitution of damage caused to the mined out areas on an effective level at the earliest.


In April, 2019, in response to the plea filed by Mr. Anumolu Gandhi, a resident of Andhra Pradesh alleging the fact that rampant sand mining across the state was causing great damage to rivers Krishna and Godavari along with their tributaries in the state, the NGT roughened up on the Andhra Pradesh State Pollution Control Board (APSPCB) and ordered the Andhra Pradesh government to pay Rs. 100 crores as interim penalty[16], redubbed as “environmental compensation” for their gross inability to curb the tide of exploitation of sand and other minor minerals across the state. However, the decision to pay the interim penalty was suspended by the Supreme Court citing that the due course of natural justice had not been followed and therefore, without expressing any opinion on the merits of the appeal[17], the Andhra Pradesh government must move a formal application within a fortnight to be heard by the NGT before it could pronounce its final decision. However, as of May, 2020, an independent assessment regarding the sand mining operations in River Krishna shall be undertaken by an expert committee constituted by the NGT since it was dissatisfied with the submissions and statistics presented by the state government in the instant matter[18].


The start of the first month this decade saw a somewhat more swift-footed piece of legislation in the form of the “Enforcement and Monitoring Guidelines for Sand Mining”[19] by the MoEF& CC. The comprehensive 83 page document[20] introduces the facets of aerial data recording systems, the system of night drone operations to monitor the riverbeds. Pointers 5.1 and 5.2 of the new guidelines[21] specify the generic and methodology-based studies for replenishing the areas from where sand shall be mined. It would thus help to substantially minimize the adverse impact arising out of sand mining over the given stretch (es) of the rivers.


Concluding Remarks


The international conservation concern regarding natural wealth is a universal demand. Article 51(a) (g) of the Indian Constitution requires every citizen of India to protect and improve the natural environment including forest, lakes, rivers, wildlife and to have compassion for the living creature. The SC in the case of M.C. Mehta vs. Kamal Nath[22] held that the Indian Constitution does incorporate the “Public Trust Doctrine” and as such it seeks to extend to the protection of nation-wide natural resources that includes the protection of flora and fauna accordingly.Thus, it becomes imperative on the part of the various stakeholders, be it the government, the construction industry magnates or the people residing near the riverbeds to step up and follow the guidelines of 2020 more stringently. The 2020 guidelines are more so a result of the NGT and MoEF&CC concerted efforts post the issues highlighted in Sudarsan Das vs. State of West Bengal and Ors[23]. It is suggested that the State Government should develop an online portal for sale and purchase of sand and requisite building materials.The state governments should endeavor to fixate the appropriate model for sand and other construction materials. Consequent modification brought about in the Minor Mineral Concession Rules within six months[24] from the issuance of these guidelines shall thus effectively help to thaw the perils of illegal sand mining, if only the various monitoring authorities put in place at the district and state levels perform to their full potential.


[The author is a fourth-year student of Law at the National Law University and Judicial Academy, Assam.]


Notes and References

[1] Paul Salopek, ‘Inside the Deadly World of India’s Sand Mining Mafia’ (National Geographic June 26, 2019) <https://www.nationalgeographic.com/environment/2019/06/inside-india-sand-mining-mafia/> accessed July 21, 2020. [2] Mines and Minerals (Development and Regulation) Act, 1957, S. 3 < https://mines.gov.in/writereaddata/UploadFile/MMDR%20Act,1957.pdf> accessed July 18, 2020. [3] Mineral Concession Rules, 1960 < https://coal.nic.in/sites/upload_files/coal/files/curentnotices/mcr1960_0.pdf> accessed on July 19, 2020. [4] Mines and Minerals (Development and Regulations) Act, 1957, § 15. [5] Mines and Minerals (Development and Regulations) Act, 1957, § 23 (c). [6] Shradha Goyal, ‘Soaring Sand Prices Adversely Affect Residential Projects’ (99 Acres May 16, 2017) < https://www.99acres.com/articles/soaring-sand-prices-adversely-impact-residential-projects.html> accessed July 21, 2020. [7] Trust Legal, An Analysis of the NGT Order Dated 05th August, 2013 < http://www.indiaenvironmentportal.org.in/content/378773/order-of-the-national-green-tribunal-on-mining-activity-on-the-banks-of-rivers-dated-05082013/> accessed on July 18, 2020. [8] NGT Bar Association & Others vs. Ministry of Environment & Forests and others [2013] NGT PB O.A. 277/ 2013. [9] [2012] 4 SCC 629. [10] Ibid. [11] Mayank Aggarwal, ‘Govt.’s Sand Mining Guidelines Shift Focus on Alternative Sources’ (Livemint June 13, 2016) < https://www.livemint.com/Politics/gH38RhW8CsVdHEoDqlZjmN/Govts-sand-mining-guidelines-shift-focus-on-alternative-sou.html> accessed July 18, 2020. [12] Ajith Athrady, ‘Sand Mining: NGT not to interfere with state’s rules’ (Deccan Herald October 8, 2018) <https://www.deccanherald.com/state/ngt-declines-interfere-state-s-696435.html> accessed July 21, 2020. [13] Sonam Mhatre and Sana Khan, ‘India: Impact Of The Amended Environment Impact Assessment (EIA) Notification 2016’ (Mondaq January 18, 2017) <https://www.mondaq.com/india/environmental-law/560852/impact-of-the-amended-environment-impact-assessment-eia-notification-2016> accessed July 21, 2020. [14] Jayashree Nandi , ‘NGT Junks Government’s Order Easing Mining Rules’ (Hindustan Times September 27, 2018) < https://www.hindustantimes.com/india-news/ngt-junks-government-order-easing-mining-rules/story-Bs2HBuCGoGBGqcs8mgCdjJ.html> accessed July 18, 2020. [15] Prem Singh Yadav vs. Union of India and others [2018] NGT PB O.A. 277/ 2018. [16] PTI, ‘National Green Tribunal imposes Rs 100-crore penalty on Andhra Pradesh govt over illegal sand mining’ (Economic Times April 07, 2019) <https://economictimes.indiatimes.com/news/politics-and-nation/national-green-tribunal-imposes-rs-100-crore-penalty-on-andhra-pradesh-govt-over-illegal-sand-mining/articleshow/68763662.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst> accessed July 19, 2020. [17] PTI, ‘Supreme Court allows Andhra govt to present their plea to NGT in sand mining case’ (The Print May 13, 2019), < https://theprint.in/judiciary/supreme-court-allows-andhra-govt-to-present-their-plea-to-ngt-in-sand-mining-case/234976/> accessed July 19, 2020. [18] EPS, ‘NGT Committee to study illegal sand mining in East Godavari’ ( Indian Express July 02, 2020) <https://www.newindianexpress.com/states/andhra-pradesh/2020/jul/02/ngt-committee-to-study-illegal-sand-mining-in-east-godavari-2164296.html> accessed July 21, 2020. [19] Enforcement and Monitoring Guidelines for Sand Mining (January, 2020), Ministry of Environment, Forest and Climate Change, Government of India <http://environmentclearance.nic.in/writereaddata/SandMiningManagementGuidelines2020.pdf> accessed July 21, 2020. [20] Ibid. [21] Ibid, pp. 5.1-5.2 [22] [1997] 1 SCC 388. [23]Sudarsan Das vs. State of West Bengal and Ors. [2018] ,NGT PB O.A. 173/ 2018. [24] Enforcement and Monitoring Guidelines for Sand Mining (January, 2020), Ministry of Environment, Forest and Climate Change, Government of India, para 1.2.12.3. .<http://environmentclearance.nic.in/writereaddata/SandMiningManagementGuidelines2020.pdf> accessed July 21, 2020.

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