The Sea As Rising Witness :The Socio-Legal Debate On The Coastal Road In Mumbai
It remains to be seen how the CJ's pro-environment observations translate into the judgment and how he and his colleague will view the contentious project and its description/dominant purpose as a "road", that can escape the stipulated procedure under the EIA notification of 2006.
The intense debate on the Coastal Road in Mumbai has often communicated the sense that this is just one of those never-ending arguments of the environment v/s development. While the environment is a significant issue, there are other important ones too. This binary reading has not only been deliberately politicised, but has also debilitated a nuanced and critical understanding of the project as a whole, the actual quantum of reclamation, and the legalities affecting the same. Hence the history of this project, facts, and the arguments presented in the Bombay High Court, need comprehensive understanding.
The project's recent history and controversy go back to 2011 when Prithviraj Chavan was Chief Minister, while its seeds can be traced to American transportation planner Wilbur Smith's 1963 proposal for the "West Island Freeway", which according to architect and visual artiste Robert Stephens, is the blueprint for the road in its present iteration – the "Mumbai Coastal Road Plan". Bombay's first Municipal Commissioner Arthur Crawford had first mooted the proposal in the 1870s, which was basically in his self-interest. But at least he was straightforward about it when he had wanted to dig a tunnel through Malabar Hill with the singular purpose of seeking to relocate the Byculla club to a tony locality.
Since then, as Robert Stephens says, the idea of such a road along the western coastline of the city has always evolved to benefit few, leaving the concerns of most of the city's residents aside. Primary among these concerns is an already crumbling infrastructure, and the need for investment in more efficient and sustainable systems of public transportation, including strengthening the existing Railway and the BEST services. Experts and activists like Hussain Indorewala have consistently pointed out the fallibility of plans that do not take into account a comprehensive and holistic view of public transportation, in which one system cannot be isolated from the other, but which has to logically develop and intelligently merge with other systems to address the actual needs of the people at large.
This is not an overnight project. Let us also be clear that by calling the project a "road", the Municipal Corporation of Greater Mumbai (MCGM), that is the project proponent, has diverted all attention from the extent of the reclamation that it intends to carry out, while being casual about the actual outcomes of the reclamation. Its foremost claim to alleviate the traffic congestion in the city does not appear to be tested against any rigorous studies with future projections, nor does it justify the traffic argument when it will reclaim 95 hectares (950000 sq. meters) from the sea. By its own admission 75 hectares has been earmarked for other activities. Earlier it had proposed to reclaim 90 hectares. This means the actual road (a 35 kms. stretch from Princess Street in South Mumbai to Kandivali in the North, requires only 25 hectares). There is also legitimate concern about the traffic worsening as the vehicles exit or enter the road via the proposed interchanges, as is to be seen in the existing projects such as the Sea Link and the Eastern Freeway.
The MCGM has also gone back on its plan in which this project was to be developed as a continuous project. It is now divided into two sections with the South Mumbai section to be developed first. In such a scenario the MCGM's claim of reducing traffic congestion begs logic. It also flies in the face of its other claim that the reclamation was the most cost-effective option compared to any other alternative. The projected cost as it stands now is already 12,000 crores for the South Mumbai section according to the MCGM. It has been one of MCGM's recurring arguments that delays would escalate costs. What then is the logic behind splitting the project when there is no certainty about when and how the second half will be completed?
Moreover it throws opens a cause for wider concern about an unfinished project in direct correlation to the ecology in the sea and commuter issues on land. There is the unfinished and uncertain Monorail project (a white elephant hovering over the city), not to mention the various risks associated with such unfinished projects, and the ultimate loss to the exchequer.
The crux of the MCGM's argument in court is that this is an "exceptional circumstance" as envisaged under the amended Coastal Regulation Zone (CRZ) notification of 2015, that the State has a right to exercise its dominant purpose for public interest, that the judiciary has a limited role therefore, and that this is not an "Area Development Project" under Clause 8 B of the Schedule to the Environment Impact Assessment (EIA) notification of 2006. This clause is one of those clauses for which a stricter evaluation with a corresponding procedure has been contemplated under the EIA notification. Senior Counsel Darius Khambatta opened the arguments on behalf of the Respondent-MGCM.
This stance of the MCGM has led it to bypass the more stringent and detailed EIA procedure in which "screening", "scoping", "public consultation" (which includes public hearing and written responses), "appraisal" are the foundation to acquire the requisite Environment Clearance (EC). It's an extensive procedure with terms of reference (standard and additional) that have to be addressed and properly fulfilled. This EIA exercise is effectively like the Bible for seeking the EC, says advocate Rishika Harish, who has assisted senior counsel Janak Dwarkadas in the matter.
Rather, the MCGM with the same nerve has also bypassed The Wild Life Protection Act, 1972, although it now admits the presence of coral in the area sought to be reclaimed. Coral is a Schedule I protected species under the Act, and is one among the other species that contribute to the biodiversity in the area. Coral has also been listed as a component of CRZ 1A, which is an ecologically sensitive area. The MCGM has however said that the coral is too small in quantity to matter. In the MCGM's scheme of things, these are mere technicalities to be tackled with as and when they arise. Advocate Zaman Ali contested this on behalf of the petitioner Vanashakti and has said the project cannot be carried out in its present form till this biodiversity is properly addressed. Initially the MCGM had completely denied the presence of the species, which has been specifically studied by Vanashakti. A report of the same was submitted to the MCGM but it has been largely ignored.
The MCGM contends that its own studies are sufficient but they are not in the public domain. In any case, the MCGM maintains that it does not have to follow the procedure under the EIA notification of 2006. So basically the residents of Mumbai have only the MCGM's word, and must accept what it says without any questions or objections. The MCGM keeps insisting on the "marginal impact" of the project.
No thinking person would be in doubt that the MCGM has completely failed on urban planning and management in the city of Mumbai. Its poor planning is routinely exposed every monsoon and even otherwise with bad roads, lack of proper pavements, crumbling bridges and foot overbridges, fire hazards, neglect of trees, shoddy waste disposal, and what not. Even if we were to assume that the MCGM has all the right intentions, there is very little to show for it. The MCGM is perhaps the richest municipal body in the world. Yet any thoughtful and sustainable alternative vis-à-vis the costal reclamation has been rejected citing cost.
For a project of this magnitude, socioeconomic studies must ideally be made mandatory. Similarly, in-depth scientific studies are necessary to show how this reclamation will change the geomorphology of the coastline and impact the tidal waves in a city that still regularly floods. With climate change and erratic monsoons becoming the norm, these studies become all the more essential. It is not enough to say that there will be some environment impact in loose terms. Rather the travesty is that the MCGM has proposed to study the effect of the project on the sea for 6 years while it is being built!
The petitioners' concerns are several but they are precisely based on the lack of rigour underlying these important studies and the untested reasoning behind the project. Yet their submissions and rebuttals are entrenched in the letter of the law and their interpretation of it. On behalf of the petitioners, senior counsel Mr. Janak Dwarkadas has gone on to question the subjective reading of the "exceptional circumstance" by the MCGM; of how it does not apply to this project (especially in the absence of any guidelines); of why this project has to be seen in the light of clause 8 B as an "Area Development Project" under the Schedule of the EIA notification of 2006 demanding stricter scrutiny and the requisite procedure; of how there has been an excessive delegation of powers, of how the Maharashtra Coastal Zone Management Authority(MCZMA) has not applied its mind, and why the procedure under the EIA (Environment Impact Assessment) notification of 2006 not only applies to this project, but also needs to be followed as per law. He also stressed on the Precautionary Principle that the project proponent (the MCGM) ought to have taken.
Since this project attracts both CRZ (Coastal Zone Regulation) and EIA notifications, the EIA notification supersedes the CRZ notification. Mr. Dwarkadas said that it is not up to the project proponent (the MCGM) to cherry pick the forum and the procedure when the law is clear. Against this canvas, Mr. Dwarkadas also beautifully argued the "doctrine of necessity", whose ethos is reflected in the time-honoured truism made famous by Mahatma Gandhi: "The world has enough for everyone's needs, but not everyone's greed." One of the main judgments that has been cited by the petitioners is Hanuman Laxman Aroskar v. Union of India, 2019 that challenged the EC given to the greenfield international airport at Mopa in Goa. The Supreme Court overturned the decision of not just the ministry but also of the National Green Tribunal, which had allowed the project. There is a stay on the proposed airport and the EC was suspended. It has become the first significant judgment authored by Justice D.Y. Chandrachud on the EIA process itself.
Senior Advocate Gayatri Singh of the Human Rights Law Network (HRLN) has also been arguing for the artisanal fisher folk whose livelihoods are at stake because of the reclamation. The artisanal fishing societies in their petition are fundamentally opposed to the very idea of reclamation because it directly hits their areas of fishing. These are traditional fishers who fish in the shallow seas and are unable to venture into the deep sea. Hence these communities are directly affected by the project, much like the silent creatures whose habitats will be destroyed in the intertidal zone. Ms. Gayatri Singh has also brought to the notice of the court the issue of navigational channels, given the existing Worli-Bandra Sea Link, and in the close proximity of which, this road will run. The Sea Link has already made the journey precarious for the fishermen who fish in the shallow sea around it.
The MCGM has said it would compensate the affected fishing community but there is no question of it at this stage with the petitioners strongly rejecting the reclamation as a direct assault to their livelihood. Speaking of compensation if at all it comes to a pass, it is worth bringing up the case of the fisher community at Uran (Mora-Koliwada) who are yet fighting for just compensation after their fishing activities in the deep sea have been hindered by the ships navigating from the JNPT Terminal. Oil leakages have also lead the fish to move their breeding places.
The marathon hearings in the Bombay High Court have ended. The judgment is reserved. The hearings were animated no less by the observations and feedback from the Chief Justice of the Bombay High Court, Pradeep Nandrajog. He shared the bench with Justice Nitin Jamdar. The CJ has been a particularly engaged judge. From drawing caricatures of our future selves devastated by our lack of care for our ecology, and explaining the rudiments of Geometry to an engineer representing the MCGM, he has been a patient listener to both sides along with his brother judge. It remains to be seen how the CJ's pro-environment observations translate into the judgment and how he and his colleague will view the contentious project and its description/dominant purpose as a "road", that can escape the stipulated procedure under the EIA notification of 2006.
Earlier, the same bench had ordered a stay on the construction, and had not allowed L & T, one of the contractors to have a say in the matter. The respondents along with the contractors (the other being HCC) had moved the Supreme Court, which in an ambiguous order had allowed the contractors to carry on with the existing work but not to commence any new work. Since then the cranes at the various constructions sites have been in full motion. The construction activity continues unabated. Who can tell what existed and what is new? Observers have evidence to show more reclamation/new work has been undertaken since. One way or the other, the Supreme Court will be hearing this again. The stakes are high for all parties concerned.
The environment in spite of its overarching narrative is not a singular thing. We often make the mistake of equating the environment superficially with trees, seas, and mountains, whereas environment is a far more encompassing term in which we co-habit with many other species whose habitats go far beyond our immediate dwellings and our imagination. Along the way with our never-ending needs, we lost sight of this essential fact: that we are more connected with the water than we actually realise – that our own species exists as part of a greater chain, much older than us and to which we owe our very own existence on this Planet. People like the artisanal fisher folk from the Worli Koliwada area, who have their own petition in this matter, understand this instinctively. Theirs was the first petition to be filed. They suffer along with their brothers and sisters from other koliwadas whose futures and livelihoods are up in the air, given the various projects underway.
The environmental aspect if not appreciated in the wider context of the goals advocated in our progressive Environment Law, will remain an elusive concept, triggering superficial debates ad nauseam. These goals have to be read together and will reveal that without sustainable development, not only our lives are at risk, but entire economies can be thrown/have been thrown into jeopardy. Poverty and inequality are proven to be directly co-related with the degradation of the environment. We can never hope to have any meaningful or a serious dialogue impacting human life without bringing sustainability into the discourse.
Various interest groups have found a common cause of grievance in this project. Some of the issues taken up overlap, some are distinct. One group, focused on saving a garden (Tata garden) in a prime area in South Mumbai, has offered an alternative plan that was taken up for discussion on the last day of the hearing. There are online petitions and campaigns. Yet the groups do not form a single, cohesive unit of solidarity and resistance, which would have changed the tenor of the battle and protest on ground. These are fundamentally public protests that need to be channelised into people's movements because there are larger issues of urban planning and sustainability that go beyond this project. But as Lina Mathias succinctly notes in her article (The 'First City', Then and Now: Working Class Movements in Bombay, Economic And Political Weekly), Mumbai's protest and resistance movements have been diluted with shrinking public places amidst a new culture that does not encourage dissent.
The CRZ regulations were meant to be a check against unfettered development in our vulnerable coastlines as exemplified by the 2011 notification, but the amended CRZ notification of 2015, has diluted the very protective aspects of the 2011 notification. It was on the basis of the same notification that the then Environment Minister at the Centre, Jairam Ramesh, had thrown out Prithviraj Chavan's plan of this Coastal Road, even though they belonged to the same Congress party. The Conservation Action Trust (CAT), one of the petitioners, has in fact challenged the 2015 notification in its entirety. Rightly so, because the amended notification, can well change the entire 6500 kms odd coastline of the country without the necessary checks and balances. People who argue that reclamation has always happened, tend to be simplistic in their approach. They conveniently forget that reclamation cannot be an independent and isolated process. Besides our own attitudes towards reclamation need re-examination.
Mr. Shrihari Aney, one of the senior counsels for the MCGM, quoted John Donne's 'No Man Is An Island' during one of the hearings. It was hard to get the point. Surely, the famous 17th century metaphysical poet from England in this sombre poem could not have meant that man should be irresponsible. I have something simpler from a more contemporary John: "…Steady shores lured us, invited us/to build bigger and bigger/as if we were in command/silly us…/the sea is rising…/king tides make it clear/waters will go from feet to chin/we will emerge or be submerged/now is the time for us to rise."
- From 'Sea-Rise' by John Englander.
(The writer is a lawyer keenly interested in the intersections between law, society, culture and journalism. Views are personal.
The writer would like to thank Rishika Harish, Shweta Wagh, Cyrus Guzder, Aaran Patel, Hussain Indorewala, Stalin Dayanand, and Robert Stephens for their inputs and assistance. The law firm Hariani & Company engaged senior counsel Janak Dwarkadas for two of the petitions: by the Conservation Action Trust and by the Society contesting the appropriation of Tata garden. Human Rights Law Network [HRLN] represented by Senior Advocate Gayatri has handled Shweta Wagh's petition along with the petition by the the Worli-Koliwada fishing societies. NGO Vanashakti engaged Advocate Zaman Ali. The article is also dedicated to all those untiring activists online and offline, who are not against development, but who want to bring in sustainable development).
(Cover image sourced from here)