Backgrounder: The legal fight against illegal sand mining

While the issue of sand mining had been known earlier as well, it has gained significant legal prominence ever since the Supreme Court of India, in its order dated February 27, 2012, went on to systematically record how India’s rivers and its riparian ecology have been severely affected due to an “alarming rate of unrestricted sand mining.”  Recognising that small-scale mining of minor minerals from riverbeds is an important economic activity, the order noted that unrestricted and uncontrolled form of such mining has had a huge environmental impact.

Sand is as an important ingredient in the making of concrete, which is the mainstay of the construction industry. While the extraction of sand and gravel from river beds has been carried out for generations, it has increased massively with the boom in construction and real estate across the country. This has caused erosion in riverbeds and left the river plains much more vulnerable to flooding with the loose land mass being swept away, especially during the monsoons.

The Geological Survey of India lists seven major hazards of sand and gravel extraction: the impact on the in-stream flora and fauna and vegetative cover, riverbed erosion, degradation and pollution of ground water, lowering of ground water table and degradation of land.

Rules are changed

The Supreme Court's 2012 order has been the basis of regular directions and follow ups by the National Green Tribunal. Since August 2013, the Tribunal has reiterated the restriction on mining activity in riverbeds without environment clearances. However, despite judicial pronouncements and regulatory circulars, the issue of illegal riverbed mining remains far from resolved, as demonstrated by the latest controversy.

In mid-2013, the National Green Tribunal Bar Association sought the Tribunal’s intervention against the illegal sand mining being carried out across many river beds in India, particularly in the Yamuna, Ganga, Chambal, Gaumti and Revati rivers.

Invoking the Supreme Court order, the Association noted that the removal of minerals from riverbeds was causing a serious threat to the flow of rivers, the nearby forests and the overall environment.  On August 5, 2013, the Tribunal's principal bench passed a strong order restraining the removal of minerals from riverbeds across the country without approvals by the Ministry of Environment and the concerned state-level environment impact assessment authorities.

As a follow up to these directions, the Tribunal later made strong observations regarding the non-compliance of its orders by state governments. It emphasised that rampant illegal mining of riverbeds had continued despite directions of the higher judiciary and directed all state governments to inform it about about the steps they had taken to implement the Supreme Court judgment.

Individual applications  

Many individuals and organisations have also filed applications before the Tribunal seeking action against illegal sand mining.

For instance, in a recent order of February 2015, the district magistrate was asked to take action against illegal sand mining in Rajasthan's Bijnore district. The counsel for the Rajasthan government assured the Tribunal that their orders would be complied with.

Soon after, in another case, the Tribunal summoned the Superintendent of Police and district magistrate of Bijnore district in the light of the local commissioner’s report, which showed rampant illegal mining being carried out despite the order.

Applications have also been filed before the Tribunal by illegal sand miners seeking waivers on their fines. In a case heard on February 3, 2015, an applicant from Uttar Pradesh who admitted that they had carried out mining of “4,500 cubic meter Boulder (Gitti) and 15,487 cubic meter of sand”, sought an exemption on the payment of compensation for their excesses. They argued that they had already paid a royalty of Rs 16, 93,902 as compounded fee. However, the Tribunal directed it to pay another Rs 350,000.

In January 13, 2015, the Tribunal emphasised yet again that even existing mining lease holders need to get environmental clearances, while giving them three months' time to obtain them. This judgment was issued in a particular instance of bajri mining in Rajasthan, but brought together several applications, including from the state governments of Madhya Pradesh, Himachal Pradesh and Rajasthan, seeking exemptions and exceptions for mining activities that were already in operation. The judgment was unambiguous, directing once again that no mining should be carried out without environment approvals.

Looming threats

Rahul Chaudhary, the Counsel for the Tribunal's bar association points to various such cases since these August 2013 directions. In one such case where, while the river bed was being mined in Faridabad in Haryana, the supply was to Noida in Uttar Pradesh.

While talking about some of the petitioners he is representing, who have taken up cases against illegal mining before the Tribunal, Chaudhary pointed to the lurking danger in this fight and referred to two specific cases, one from Banda district in Uttar Pradesh and the other from Faridabad in Haryana, and said they have been "threatened by illegal sand miners and also beaten up for raising the irregularities before the Tribunal.”

No blanket ban

Despite this, the Tribunal has refused to consider imposing a blanket ban on sand mining. One such application was filed last year seeking such a ban on mining in in the Ganga in Uttarakhand's Haridwar district.  The Tribunal's order dated February 4, 2015, did not allow this, saying that removing sand from riverbeds is “established and time tested practice”.  It noted that "unregulated, illegal and unsustainable mining activity on the river banks” is prohibited, but that a limited and scientific removal of sand could proceed if the river's biodiversity was maintained.

Other lacuna also exist. For instance, in August 2013, a report by the ministry of environment, forest and climate change acknowledged the existence of rampant and unscientific mining and recommended a "cluster approach for collecting baseline data, which shall adequately cover every single Lease Area under consideration before seeking Environmental Clearance”.

Such an exercise would consider a wide variety of factors, such as the pollution caused by the transportation of the mined material, the available infrastructure and the rate of sedimentation. However, this recommendation is yet to be taken forward.

In a recent judgment of the Tribunal, in another case related to sand mining dated January 13, 2015, it has been yet again emphasised that even existing mining lease holders need to get environmental clearance, while giving them three month’s relief for the same. This judgment though issued in the case of Himmat Singh Shekhawat v/s State of Rajasthan, relating to a particular instance of bajri mining, brought together several applications, including from the state government of Madhya Pradesh, Himachal Pradesh and Rajasthan, seeking exemptions and exceptions for mining activities, which were already in operation with mining plans. The judgment was unambiguous, directing once again that no mining should be carried out without environment clearance.

This is a telling story of ongoing directions of the courts and untiring assurances of state governments. What falls within the cracks of this conversation are the actual safeguards and mandatory legal requirements, with those related to environment being only one of the facets of this regulatory framework for mining river-banks. At the same time, the illegal sand-miners are known to have strong and far-reaching political connections.

It has been three years since the apex court of India issued clear directions, but a walk by almost any river in the country will show that massive excavation of riverbeds is still routine.