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Rivers, sand and people's survival
By V.R. Krishna Iyer
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It
is unconstitutional, unethical and violative of human rights to sell
or negotiate disposal of publicly owned water resources for mineral
water rackets by industrial giants.
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THE RULE of law
runs close to the rule of life and the Indian Constitution, in its humanist
vision, has made environmental-ecological preservation a fundamental value.
Rivers which are the source of water, sand that sustains riverbeds, river
banks, greenery, and bridges, coastal beaches which contain rare minerals
and offshore sea beds which protect the littoral stretches, are a precious
natural resource indispensable for human survival. Coastal sea beds if
dredged for sand by builders may be deleterious to fishing wealth. It
follows that rivers, sand and coastal waters have uses for community too
cardinal to be neglected and too fundamental to be commercialised. Indeed,
the higher jurisprudence of Article 21 of the Constitution (right to life)
embraces the protection and preservation of nature's gift without which life
ceases to be viable and human rights become a simulacrum.
The Stockholm
Declaration of United Nations on Human Environment evidences this seminal
proposition: " The natural resources of the earth, including the air,
water, land, flora and fauna and especially representative samples of
natural system, must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate... "
In State of Tamil
Nadu vs. M/s Hind Stone (AIR 1981 SC 711) it has been observed:
"Rivers, forests, minerals and such other resources constitute a
nation's natural wealth. These resources are not to be frittered away and
exhausted by any one generation. Every generation owes a duty to all
succeeding generations to develop and conserve the natural resources of the
nation in the best possible way. It is in the interest of mankind. It is in
the interest of the nation."
The Madras High
Court dealing with sand mining said: " Sand mining has an adverse and
destructive impact. Its disastrous effect is unimaginable. It has `crippled
the riverine ecology and depleted the ground water table resulting in a
nascent desertification process'. It has affected the stability of
riverbanks leading to loss of whole chunks of land and making large areas
flood prone. Drain channels to lakes, ponds, tanks irrigation are blocked
since there is no more water. The river bed goes down far below the receive
canals. It has been identified as the main reason for the water crisis. The
potable nature of available drinking water is affected as the sweet water
aquifers are destroyed by quarrying. It has increased the base flow of
ground water to the rivers. It also causes sea water intrusion further than
usual upstream through back waters and river mouths. As enough sand does not
reach the river mouths to make natural barriers along the coast, sea water
and sand enter the back waters and rivers. This ultimately leads to saline
intrusion into ground water. It has also seriously affected the structural
stability of several bridges. River bridges and railway tracks are severely
damaged by sand minding in violation of rules and lease deeds. Flooding of
agricultural lands due to break in linkage between discharge/channels and
river basins." The sand-depletion terrorism practiced on nature by
lawless looters inflicts an unconstitutional blow on the survival of the
species. Articles 48A and 51A furnish the principles of jurisprudence which
are fundamental to our governance under the Rule of Law. Section 3 of the
Environment (Protection) Act 1986 is geared to the great goal of preserving
nature's bounty sans which societal survival will eventually be a mirage.
Water is a primary
human need to deprive which is to deny the right to life. Indeed, the world
may go to war on the struggle to control water. States dispute violently on
the claim to water. People in cities and towns suffer desperately for want
of drinking water. This gift of nature has to be equitably distributed for
every human being to keep life going. But the water mafiosi strangle sources
of supply corruptly and make the right to life a misery. The state has a
great duty vis-a-vis distribution of drinking water. Our rivers are sacred;
so too our lakes and dams which serve several social uses. Aqua robbery by
corporates is becoming common. The core principle of public law is: the
state is a trustee of all natural resources and is under a legal duty to
protect them. These rare resources are meant for public use and cannot be
converted into private ownership. The locus classicus on this point is
blazed in M.C. Mehta vs. Kamal Nath. The relevant head note relating to
environmental degradation runs thus:
"The notion
that public has a right to expect certain lands and natural areas to retain
their natural characteristic is finding its way into the law of the land.
The ancient Roman Empire developed a legal theory known as the `Doctrine of
the Public Trust'. The Public Trust Doctrine primarily rests on the
principle that certain resources like air, sea, waters and the forests have
such a great importance to the people as a whole that it would be wholly
unjustified to make them a subject of private ownership. The said resources
being a gift of nature, they should be made freely available to everyone
irrespective of the status in life. The doctrine enjoins upon the Government
to protect the resources for the enjoyment of the general public rather than
to permit their use for private ownership or commercial purposes. Though the
public trust doctrine under the English common law extended only to certain
traditional uses such as navigation, commerce and fishing, the American
Courts in recent cases expanded the concept of the public trust doctrine.
The observations of the Supreme Court of California in Mono Lake case
clearly show the judicial concern in protecting all ecologically important
lands, for example fresh water, wetlands or riparian forests... There is no
reason why the public trust doctrine should not be expanded to include all
ecosystems operating in our natural resources."Our legal system —
based on English common law — includes the public trust doctrine as part
of its jurisprudence. The State is the trustee of all natural resources
which are by nature meant for public use and enjoyment. Public at large is
the beneficiary of the sea-shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public use cannot
be converted into private ownership. Thus the Public Trust doctrine is a
part of the law of the land." (1997)I SCC P-388/389)
The Pamba or the
Malampuzha (the Ganga or the Narmada) belong to the people and the state
cannot abandon its fiduciary obligation. It is unconstitutional, unethical
and violative of human rights to sell or negotiate disposal of publicly
owned water resources for mineral water rackets by industrial giants.
Equally dangerous, mischievous, mala fide are permission granted to macro-corporates
to dig down to the bowels of the earth, pump up waters in enormous
quantities and leave the lakes and neighbouring wells deprived of the
blessings of nature.
Law is what law
does and the state in India is socialist and democratic under the
Constitution. The Government, whichever the state, shall not commit breach
of trust without the judicial sentinel preserving, by its writ, fresh air,
potable water, sand from river bed or sea bed in a form which is consistent
with the quality and equality of life guaranteed by the fundamental rights
of the Suprema Lex. Where the state betrays the court mandates.
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