Castles In The Sand

Gautam Patel

Once upon a time in a land that now seems far, far away, India had a Prime Minister of a very different hue. In fact, Indira Gandhi had so many hues she was entirely different things to different people. To environmentalists, she was very nearly a patron saint, at least from the time of her address to the 1972 UN Stockholm Conference. Her November 1981 letter to the chief ministers of India’s states demanding protection for India’s coastline and the maintenance of a 500-metre strip to be “clear of all activities” was seen as a re-affirmation of her—and therefore India’s—commitment to environmental protection. This letter (often called a ‘directive’, and sometimes even capitalized as if that lends it some sanctity) was always of the most dubious legal effect but as a piece of posturing, especially one designed to catch the eye of the international political community, it was magnificent; and if there was one thing that Mrs Gandhi was acutely sensitive about, it was the world’s perception of her as an enlightened leader. A few years earlier, it was she who had plunged India into a seemingly bottomless democratic abyss and it was only a miscalculation on her part that brought us out of it. During that time, her stock on the international stage had plummeted.

Many attribute the 1991 Coastal Regulation Zone Notification to Mrs Gandhi’s fabled letter. But the journey from letter to notification took ten years, a period of repeated consultations, and persistent lobbying and activism by environmentalists.¹ In some ways, the CRZ notification was a breakthrough, and not necessarily or not only for the reason environmentalists like to believe. It was a startling law: a previously unprotected aspect of the environment was now brought under statutory protection. It was a short, uncomplicated legislation of colossal reach: if you include Andaman & Nicobar and Lakshadweep, it affected 7500 kms of shoreline.

It was also very clearly an experiment. No one had attempted anything like this before and, from the start, it wasn’t at all apparent whether something like this could ever work. For one thing, the statute was peculiarly abstracted from reality. While it did not ban on all construction within 500 metres of the High Tide Line (HTL), it imposed unprecedented development restrictions in some areas. It created four ‘zones’. The first, CRZ I, is the area between the HTL and the Low Tide Line (LTL), and includes ecologically sensitive areas; CRZ II covered substantially developed municipal areas; CRZ III dealt with areas outside municipalities and municipal areas not yet substantially developed; and CRZ IV dealt specifically with the Andaman & Nicobar and Lakshadweep islands. Each zone was allowed specified development.

Paradoxically, this zoning was at once its greatest strength and greatest failing. The notification correctly recognized that different areas need different treatment; but the zoning had the effect of flattening conditions across the country within each zone. The notification proceeded on the fiction—presumably on the basis of the PM’s letter—that the entire coastline, all 7500 kms of it, needed the strictest protection from all three principal threats: maritime trade, fisheries and coastal development. Logically, conceptually and environmentally, the coastal concerns of the Sunderbans are very different from those of Navi Mumbai; fishing villages and ports have quite distinct needs; Goa and Kerala require quite different treatment from Versova; and Mumbai is, and always was, a case apart.

The notification was always structurally unsound. Essentially framed as an eleventh commandment—thou shalt not build near the sea—it said nothing of what is to be done if you do, other than imply prosecution under the Environment Protection Act, a difficult job at best with uncertain results and inadequate penal provisions. The unsurprising result was that over its 20-year life it was more frequently violated than followed. It was repeatedly amended (government argot) or diluted (greenspeak) some 25 times over its 20-year life. Without meaningful enforcement mechanisms, and with constant changes in content, it forced activists to the slow grind of litigation, and, faced with regularisations, often reduced courts to helplessness.²

Its fatal conceptual flaw was that it did not acknowledge the differing interests of the many stakeholders of India’s coastline. To recognize only fishing and ‘traditional’ communities (an undefined phrase) is simply vapid. In a coastal city, development and affordable housing are equally valid concerns; in Goa and Kerala, tourism is a powerful economic force that cannot be relegated into second place; and at an individual level, beach protection is arguably best achieved by encouraging individuals to care for beachfronts on well-defined guidelines accompanied by stringent regulatory and punitive measure for failure. The 1991 notification did none of these. It did foster the indefensible position that all construction is bad; construction on a coast is downright evil; and that no matter what the condition of development, the seafront is always ecologically fragile.

Its success is questionable. Certainly there has been mangrove protection and much valuable work in CRZ I areas and ecological zones that, but for the notification, might now have been lost forever. But in other areas, it’s a different story: nothing about, say, the mess across the harbour that is the Rewas to Revdanda stretch speaks of environmental success. In cities like Mumbai, it created delightful absurdities. Most of the peninsular part of this city is within spitting distance of the sea and therefore in a CRZ-II zone. Here, within a specified distance from the sea, the CRZ law demands special development permission. The object is to prevent environmental damage and to protect marine ecology. Therefore, all development on the plots along Marine Drive needs CRZ ‘clearance’. They are within 200 metres of the sea. Forget that there are six lanes of Marine Drive concrete (and those incredible tetrapods) between any of these sites and the sea. And forget, too, that Marine Drive has no ‘marine ecology’ to speak of. Ditto Malabar Hill, Prabhadevi and Mahim. What is the impact on the sea of a structure 200 mtrs inland, surrounded by roads and other buildings? If you build at Peddar Road or Tardeo, can you be accused of having damaged the coast? In the midst of a matter against a CRZ-violating construction at Walkeshwar, I made the cardinal mistake of asking what, if any, was the environmental impact on the sea of this structure. I received no answer other than ‘that is the law’. As an environmental defence, this wanders dangerously close to stupidity. And it didn’t stop at new construction or high-rises either. It applied to every form of development, even mounting an additional floor on an existing building or putting in a lift.

This is not meaningful law. This is legislative carpet-bombing that damages the city and hurts its poor, discourages studied housing policies while encouraging sea-front slums, resulting in a massive degradation of the city’s coast. Modern engineering allows for safe development very close to the sea without causing environmental harm; for the law to limit technology is both oppressive and regressive. It also creates a wonderful new window of opportunity for graft and corruption. Once upon a time, when men were men and politicians honest, the most important portfolio in government was home. Now it is urban development, where the men are metrosexual and bureaucrats are terrified. One answer, in Shyam Chainani’s book,³ was that a hundred buildings in Bombay should not be allowed to hold up coastal protection everywhere else. As an argument, this is remarkably unpersuasive.

Other countries do have setback zones, but merely citing these, as Chainani and other environmentalists and writers do, is misleading. Do these countries also have the same kind of restrictions within these coastal setback zones? Activists do not say. Contrast our restrictions with the coastal policy of New South Wales, Australia’s most populous state, and one that has over 700 national parks and reserves. Recognizing the competing demands, that policy document says:

The focus on conservation initiatives does not mean that future urban development in coastal areas should be sterilised. In particular, the policy promotes the need for local housing strategies in order that opportunities to more efficiently utilise land in existing urban centres are identified. These opportunities can ensure that equity considerations are fulfilled by allowing more people to live in the coastal zone while preserving important environmental attributes.

The 1991 notification’s disenfranchising of legitimate interests by stakeholders was destined to create trouble. The 1991 Notification proceeded on the a priori assumption that beach-front development, whether by individuals for their private residences or by hotels, is an environmental hazard. There is, of course, very little to substantiate this. To the contrary, there is a powerful argument that smaller establishments that come up on our beaches (the shacks on Goa’s beaches) are ultimately far more polluting than a resort or a large home. What the 1991 notification failed to recognize is that the business interests of a resort and the private concerns of an individual home owner are not only as legitimate as the rights of fishermen and the need for ecological protection but that both demand well-preserved seafront environments. No seafront home owner wants a polluted sea or a degraded beach. A beach resort’s business depends on coastline environmental health. Development restrictions of the kind found in the notification are very nearly impossible to enforce; and the mushrooming of resorts in Goa and Kerala, and the sprawling bungalows in the Alibag belt point precisely to enforcement failures and a blinkered view.

The 1991 notification had a real chance to make a difference. A regime of incentives and disincentives—in-built strong penalties for violations and tangible rewards for compliance and performance—might have served the purpose better. A deluxe resort can afford to spend on basic beach cleaning and more expensive environmental safeguards. A shack on the beach cannot. But the resort’s clientele wants both, the good beach and the native experience of the shack. If the resort was required to have pollution control equipment, and also charged with the duty of extending clean-up services to the shacks, would not the purpose be better served? A similar model, scaled down, could be applied to beachfront home owners who would then find different ways of combining their shared interests in seafront environmental protection. There is no shortage of economic, fiscal and legal devices that can be deployed to force the realization of a shared civic sense.

The most bizarre twist to the 1991 notification in Mumbai was that it froze local planning regulations as they existed when the notification came into force. This is downright barmy. Mumbai’s local town planning regulations, also of 1991, came into force a few days after the CRZ notification. Because of the notification’s wording, CRZ-affected areas in Mumbai were controlled not by the local 1991 town planning law but by the earlier 1967 town planning law,⁴ which meant that we had a city divided, some of it regulated by the 1991 town planning regulations and some of it by the 1967 regulations. This is the kind of thing that creates administrative and planning chaos; and it only benefits one constituency, and that isn’t the environment.

In 2005, the MOEF ordered a re-look at the CRZ Notification. Its Swaminathan committee was much reviled,⁵ and its earlier attempts to modify the CRZ law were soon abandoned. The current version, announced on 7 January 2011 by Jairam Ramesh,⁶ is a vast improvement on its predecessor. It prohibits SEZs on the coast, which the 1991 notification did not. It makes special provisions for Mumbai, Kerala and Goa, and for ‘critically vulnerable coastal areas’ like the Sunderbans, Bhitarkanika, the Gulf of Kutch, Malwan, and more. There is now a clear procedure for CRZ approvals, and, for the first time, it expressly includes the water area of tidal water bodies like creeks, rivers and estuaries. It also protects the coast upto 12 nautical miles into the sea (there goes the Shivaji statue), and it uses satellite imagery to more correctly delineate hazard lines. It also includes the participation of local communities in the planning process. True, there are missed opportunities—there might have been stronger restrictions on the total development in CRZ II areas in Mumbai, for instance—but it also says that the current local planning laws will govern these areas in Mumbai, which is both logical and sensible. It also quietly works to protect a city’s reserved open spaces. And the islands have their own special notification, something that was desperately needed.

Predictably, it provoked howls of protest from some quarters. Especially ludicrous were the remarks about the 2011 notification being a betrayal because it allowed development in coastal cities. But a coastal city is, not to put too fine a point on it, on the coast, see. Where but on a coast could you then possibly build? Others contended that its provision to allow coastal roads on stilts would damage the environment, meaning thereby that coastal cities and developments should have no roads along the coast. Given its expanded coverage, this could well mean no roads anywhere near the sea, a river, an estuary or a creek. One lot says this is a “bonanza” for builders, and there we have it again, builders being the forces of darkness; and even the fishermen claim to be upset by the inclusion of a wider term, ‘local communities’. But it is no bad thing if the policy also lends itself to a halfway decent housing policy and allows for representation of a wider spectrum of the population.

The most remarkable criticism was that the 2011 notification lends itself to abuse, and so the government should revert to the 1991 notification—a law that was more effectively abused than used. Besides, the fact that a law might be abused is never reason to invalidate it. A law and its implementation are two different things.

What these criticisms overlook is that finally we have an environmental protective law that is sensible and balanced; and if there’s one thing we increasingly need, it is sense and balance, not pride and prejudice.