This article has been written by Shohom Roy, from Symbiosis Law School, Noida. This article touches on the issue of reconstructing post-flood Kerala from a legal and societal point of view.
Kerala or “God’s own country” is renowned for its beautiful natural vistas and rich valleys. The province suffers from frequent landslides and storms, especially in the monsoon season. However, the Okchi cyclone along with one of the worst droughts has adversely affected the coastal communities of Kerala. The floods in the months of July and August in 2018 were the biggest natural disaster in the state’s history. The flood claimed the lives of 483 people, many other living beings, and inflicted over Rs. 20,000 crore in damage. Natural disasters underscore the importance of having strong and comprehensive disaster management and environmental policy. The natural infrastructure that allows protection from natural disasters, especially in the face of the very real implications of climate change, is the state’s one-of-a-kind geophysical feature.
Evaluating the current legislation and policy regime surrounding conservation in Kerala
The unique geophysical landscape of Kerala is the natural barrier that provides protection against the disastrous effects of natural calamities. However, the Kerala Disaster Management Policy of 2010 does not have any provisions regarding the protection of the ecosystems through disaster management plans and risk mitigation etc. In spite of having specific provisions regarding the welfare of ecosystems during a disaster, the Kerala State Disaster Management Plan of 2016 has failed to achieve its objective in letter and spirit. The Post Disaster Needs Assessment Report of the 2018 Kerala Floods highlights the immense environmental degradation due to the floods.
Kerala benefits from various Central and state legislation and policies that are concerned with the protection of the natural ecosystems existing in the rich and varied landscape of the province. However, these legislations are rendered useless by their defective implementation. For instance, the Water (Prevention and Control of Pollution) Act, 1974 has failed to achieve its objective of controlling pollution in water bodies due to the Kerala State Pollution Control Board’s improper enforcement of guidelines regarding discharge of effluents by industries. On a similar note, groundwater reserves are depleted and polluted at a rapid rate. The lack of control on waste management leading to the dumping of plastic and non-biodegradable wastes poses a major challenge to the protection of water bodies.
The extraction of minerals like granite, sand, etc contributes to the increase in pollution levels in the state of Kerala. Despite legislations like the Kerala Minor Mineral Concession Rules, 2015, Environmental Impact Assessment Notification, 2006, and other guidelines, the unsustainable methods of mineral extraction have not been stopped. In light of the lack of stringent laws and laxity in the enforcement of existing laws, the Supreme Court in the case of Deepak Kumar vs State of Haryana & Ors, (2012) had held that mining activities should be allowed after environmental clearance. This judgement was also upheld by various cases before the Kerala High Court. One of the foremost reasons behind the frequency of landslides and floods can be attributed to the reckless mining activities on hill slopes. The disaster management organisations must pay heed to this menace and reassess the process of granting mining permits.
Legislations like the Biological Diversity Act, 2002 cater to the needs of the diverse species of animals and plants in the state of Kerala. However, the laxity in the implementation of the guidelines poses a major challenge to the protection of animal life during natural disasters. Mechanisms like the People’s Biodiversity Registers can prove to be instrumental in assessing information regarding biologically prioritised areas and help with the post-natural disaster rehabilitation programs. Similarly, Biodiversity Heritage Sites (BHS) grant strong legal protection to natural ecosystems and protect them from human encroachment and exploitation. However, the government has provided no clarity regarding the usage of mechanisms like the PBRs and has been unsuccessful in declaring any BHS across the state of Kerala.
Protection of ecosystems existing in forests and highlands
The forests and hills especially those belonging to the Western Ghats are governed by various Central and state laws. Reports like the Western Ghats Ecology Expert Panel Report or the Gadgil Report of 2011 followed by the Kasturirangan Committee Report of 2012 suggested the government bring the entire Western Ghats within the ambit of the Eco-Sensitive Areas (ESAs) with added restrictions on land use depending on ecological sensitivity and importance.
After the Kasturirangan Committee Report, the Ministry of Forests and Environments ordered state governments to declare ESAs through a draft notification on ESAs in the Western Ghats through the Environment Protection Act, 1986. The population and boundaries of the villages surrounding the ESAs, as informed by the fourth draft notification on ESA for the Western Ghats by the Ministry of Forest and Environment, is available on the website of the Kerala State Biodiversity Board. The recent intervention by state authorities like the National Green Tribunal protested the reduction of the extent of ESAs under the Kasturirangan Report. The government has been urged to implement the recommendations of these reports and constitute effective mechanisms for the prevention of encroachment, mining and infrastructural development in areas of ecological importance.
There are legislations like the Kerala Forest Act,1961 and the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 which are responsible for governing the forests and asserting the government’s control over all natural resources. The principal legislation protecting the rights of the forest-dwelling tribal communities is the Forest Rights Act, 2006. This Act acknowledges the importance of sheltering these communities, who hold valuable traditional information regarding the areas they inhabit, from exploitation. In the event of natural disasters, the ancient knowledge of these communities can be utilized for mitigating the damages.
Protection of coastal and marine ecosystems
Kerala has legislations like the Wetland (Conservation and Management Rules) 2017, Kerala Conservation of Paddy Land and Wetland Act, 2008 and Coastal Zone Regulation Notification, 2011 to cater to the ecological needs of its numerous coastal wetlands, lagoons, mangroves and beaches. These legislations have been criticized in the wake of the 2018 floods. A recent amendment to the Kerala Conservation of Paddy Land and Wetland Act exempts the conversion of paddy fields and wetlands for public purposes by the government. These wetlands governed by the local administrative bodies can be regularized for a nominal fee of Rs. 500 along with some documentation. The state lacks a database of the number of paddy fields and wetlands existing within its territorial domain. The Central government’s The Wetlands (Conservation and Management ) Rules, 2017 which mandates an identified list of wetlands in every state is ineffective in Kerala. There is an imminent need for statutory authorities to implement stringent provisions instead of diluting the wetland protection regime.
The Coastal Zone Management Plans which classify the 580 km of Keralite coastal stretch has not been published. The current regime pays no heed to the needs of the local communities. The Shailesh Nayak Committee Report recommends cutting down on the extent of the no-development zone in rural areas and seeks special concessions for boosting the tourism industry. These suggestions implemented by the Kerala government encourage construction in vulnerable areas for housing and tourism purposes, thereby adding to the problem of endangerment of certain endemic flora and fauna.
Protection of riverine life
Rivers are one of the most important natural assets of Kerala. Around 44 Keralite rivers are responsible for irrigation, electricity, drinking water supply and various ecological services like prevention of flooding. A lack of stringent policies and regulations has led to pollution and degradation of the riverine ecosystem. Some of the legislation like the Pampa River Basin Authority Act, 2009 and the Centrally Sanctioned Scheme of National River Conservation Plan focusing on specific areas have failed in implementation. Other legislations like the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 cater to the problem of dredging of river sand from river banks and river beds. In light of the present circumstances, it is clear that there is no comprehensive and integrated law or policy aimed at the overall management and conservation of the rivers in Kerala.
Flood management in India
The menace of floods is not a present-day phenomenon. According to the report on the Flood Management Program for XIth five-year plan stretching from the year 2007-2012, approximately 7.55 million hectares of land are afflicted by floods on average, every year, claiming the lives of about 1560 people and damage of Rs 1,805 crore to property and utilities.
However, a report by the Comptroller and Auditor General of India on the Schemes for Flood Control and Flood Forecasting shows that despite the frequency of floods and the subsequent damage caused in their wake, the implementation of effective disaster management measures has been neglected. The Report states:
- In spite of the goal set by the XIIth plan of setting 219 telemetry stations, 310 base stations and 100 flood forecasting stations, about 56 telemetry stations have been installed in the country as of August 2006. The state of Kerala does not have a single flood forecasting station.
- 222 telemetry stations out of the 375 telemetry stations were non-functional right after setting them up and therefore no data is available from those telemetry stations during that time period.
- The state of Kerala has neither an operation and maintenance manual nor an emergency action plan for around 61 dams. The country fares poorly in terms of disaster management planning with only 7 % of the large dams having an effective emergency action plan.
- The only framework which caters to the requirement for Emergency Action Plans is the Dam Rehabilitation and Improvement Project by the Central Water Commission.
Recourse for victims of the flood
The Central Water Commission is the apex statutory authority responsible for managing the early flood warning system. The CWC had issued a Standard Operating Procedure for Flood Forecasting. The information regarding a possible deluge was shared on the website of the Commission and distributed to the local administration. However, in spite of being aware of the possibility of a flood in the areas receiving excess rainfall, the local administration failed in their duty of disaster management. The Ministry of Power for the state of Kerala reported that the Idukki Dam was capable of holding water even if the gates of the Mullaperiyar Dam were opened. However, this oversight in dam management resulted in devastating floods and caused immense damage to the people.
Article 21 of the Constitution of India mandates the State to take all necessary precautions and measures to preserve and protect human life. Article 21 serves as a guiding principle for the State’s action throughout the occurrence of a calamity. In the Bhopal Gas tragedy, the Supreme Court of India while interpreting Article 21 of the Constitution emphasized the enormity of human suffering caused by the negligence of particular individuals and directed the Union Carbide Corporation to pay a sum of around 470 million dollars as damages to the victims of the disaster. In the case of Jay Laxmi Salt Works Ltd V. State of Gujarat (1994), the Apex Court held that when the State undertakes a duty and is negligent in the performance of the said duty, it is liable to compensate the individuals suffering loss or injury directly due to the state’s negligent actions. The tortious liability mandates that a common man when wronged cannot be left without remedies just because the State is the wrongdoer.
In light of the negligence and mismanagement of the disaster management system, the state of Kerala is liable to pay damages for the losses incurred by the victims of the flood. The evidence shows dereliction of duty almost to the point of criminal negligence by the bureaucrats appointed in statutory authorities responsible for disaster management. Adequate compensation is a constitutional right under Article 21. The loss of life and property should be evaluated and compensation should be paid adequately. The government should also establish a fact-finding committee to assess the causes and impact of the calamity.
Statutory entities responsible for environmental governance have always been diligent in the state of Kerala. The institutional mechanism for the protection of the environment and conservation of forest and biodiversity comprises government directorates, statutory institutions and independent research organizations. For example, the state of Kerala established an autonomous Department of Environment from the pre-existing Science, Technology and Environment Department in 2006. This department was later renamed the Department of Environment and Climate in 2010. The Directorate of Environment and Climate Change is responsible for supervising the implementation and working of different environmental programmes, Other institutions established under various legislations like the department of forest and wildlife, agriculture, fisheries, water resources and specialised bodies like the State Level River Authority work in synergy to achieve the goal of protecting the environment.
Several eco-tourism landscape based programs have been developed by the State Forest Department. The models developed in Periyar and Parambikulam Tiger Reserves could be replicated all across the state. An initiative to implement the Biodiversity Act, 2002 all across the state by the Kerala State Biodiversity Board can improve the conservation programs focusing on the identification of flood and drought resilient plants and animals. After the devastation of the 2018 floods, a survey to analyse the impact of floods on biodiversity of the state in terms of riverine population, fish migration, riparian vegetables, invasive specifies, mangroves, soil biota, etc is commendable. The Green Protocol under the Suchitwa Mission attempts to provide technical support to the local self-government entities prohibiting the usage of one-time plastics and controlling water pollution.
Challenges to institutional strengthening
The governmental institutions have been handicapped by rampant corruption, red-tapism, bureaucracy and lack of resources. The Kerala State Pollution Control Board and its regional offices have not been successful in implementing the environmental regulations and control the ever-increasing amount of pollution. A possible solution to this conundrum is the identification of the source of the problem and taking effective remedial action. For instance, the State Environment Impact Assessment Authority which evaluates projects belonging to Category B of the EIA Notification has not been set up immediately after the completion of the tenure of the previous members. This lag has a tremendous impact on the environmental preservation efforts in the state of Kerala. Similarly, the forest department should encourage community participation and raise awareness regarding afforestation policies along with the effective implementation of forest conservation programs.
A major obstacle for government entities involved in environmental conservation programs is budgetary constraints. The dearth of funds results in the lapse of many effective and innovative programs. While mismanagement in Union and State budgetary allocation is a major reason behind the shortage of funds, the issue could be tackled at the grass-root level. The Green India Mission seeks to converge the national programs like the Mahatma Gandhi National Rural Employment Guarantee Scheme, Compensatory Afforestation Fund Management and Planning Authority, National Afforestation Program, National Rural Livelihood Mission, Integrated Watershed Management Program, Programs of Ministry of New and Renewable Energy, National Rainfed Area Authority, etc in areas surrounding forests and micro watersheds. This would combine the resources of the various statutory organisations and reduce the budgetary constraints for each program individually. The state of Kerala has received permission from the National Executive Council under Green India Mission to execute its Annual Plan of Operation and Perspective Plan. This might prove to be pivotal in the effective implementation of the various policies and schemes that have been unable to achieve their targets due to a shortage of funds.
Duplication of work by different institutions can lead to several conflicts as well as wastage of the tax-payers’ money. There is an imminent need to coordinate and integrate the activities of such agencies to prevent such careless squandering of resources. Statutorily recognized funds like the Local Biodiversity Fund under the Biological Diversity Act, 2002, River Management Fund under the Kerala Protection of River Band and Removal of Sand Act, 2001 must be utilized in a proper and efficient manner. Corporate Social Responsibility Fund can make an important impact on the efforts to save the environment while encouraging environmental awareness and active citizenry among public and private sector entities.
The conservation of globally important sites like the Western Ghats, Vembanad Kole wetlands can prove to be an important source of international revenue. Tags under the UNESCO World Heritage Sites and RAMSAR entitle these areas to international funding. The revenue acquired must be utilized for the improvement and maintenance of the site along with the people living in those areas. The mechanism of taxation in the form of carbon and other green taxes as well as payment for ecological services can help mitigate the problem of shortage of funds.
Decentralized governance in rebuilding Kerala
The 73rd and 74th Amendments to the Indian Constitution introduced a new fold within the democratic governance structure of India. The Local Self Governments (LSGs) ushered in the era of Panchayati Raj which has been instrumental in eradicating the problems of inequality, illiteracy, etc in the state of Kerala. These local administrative bodies have also worked for the development of programs centring on ecological conservation and welfare. These LSGs and other legal bodies work with statutory agencies like the Biodiversity Management Committee at the gram panchayat level, furthering the cause of environmental protection. Similarly, ‘Oorukootams’ or village level committees, Joint Forest Management Committees, Gram Sabhas and Community Forest Resource Management Committees are established and empowered to deal with environmental problems in forest areas.
The Disaster Management Act, 2005 has been called out for its inadequacy and negligence in recognising the role of the local bodies like Panchayats in mitigating the losses caused by natural calamities. The Act provides for disaster management plans at the national, state and district level while disregarding the plans that could be implemented at the grassroots levels. Although Kerala Disaster Management Policy, 2010 acknowledges the importance of local bodies in disaster management, the scope of action for these local bodies in Kerala seem to be confined to the directives issued by the state and national level government departments and agencies. The lawmakers must realise that the response system after a natural calamity depends entirely on the local self-governments for relief, rescue and rehabilitation. Empowering these LSGs is the need of the hour to prevent such huge damage to life and property as witnessed in the 2018 floods.
Steps to prevent disasters in future
Improvisation of flood forecasting
The initial step is to make use of the new flood predicting advancements. The lack of monitoring networks in India and other developing countries is a major restriction that inhibits near-real-time flood prediction. In response, researchers at the International Water Management Institute (IWMI) and elsewhere are developing new methodologies for forecasting floods based on river discharge using increasingly available satellite sensors.
Settlements must be shifted out of the floodplain over time, allowing it to revert to its natural state. To aid in the healing of the river basin ecosystem, sound plans must be adopted. Measures such as stringent regulation of sand mining and other activities that directly affect river flow should be included in these plans. Planned river flooding downstream, which simulates the annual flood cycle to manage fluvial sediment in the river and reservoir, is also significant. Roads, buildings, and other structures encroaching on the floodplain, as well as diverse land uses (such as high-value agriculture), may limit the scope for controlled flooding, while some high-flow restoration should still be achievable. Dams’ enhanced water discharges are occasionally employed to dilute effluent discharge downstream. Due to human health issues, restoring naturally low levels of flow might be difficult, if not impossible, in many instances.
Building more infrastructure
Reservoirs built in the heart of river basins, based on feasibility assessments, are critical for reducing the risk of water-related disasters by increasing surface water storage capacity. Dams have a variety of economic benefits and can help to offset the negative effects of water unpredictability and extreme climate events. Large-scale water infrastructure, on the other hand, has incurred huge social and environmental costs, spurring calls for alternative, natural-based solutions.
An all-encompassing strategy
Individual flood risk and ecological impact mitigation methods should be part of a holistic approach based on an understanding of the many components of the urban water system, as well as upstream and downstream interactions. The approach, known as Integrated Urban Water Management (IUWM), includes not only flood models and the use of embankments to divert water but also the entire water cycle—water sources and supplies, as well as wastewater (for example, its use for urban cropping) and stormwater, viewing urban water in the context of the larger basin.
Better catastrophe risk management, with the ultimate goal of establishing water security, can be a vital engine for long-term growth. To accelerate progress toward this goal, water management should be delegated to a single institution that is capable of making high-level decisions about water use, implementing steps to decrease inequities in water resources, and responding to water-related calamities.
The United Nation’s Sendai Framework for Disaster Risk Reduction, (2015-2030) provides various recommendations for the protection and conservation of the environment along with innovative methods to build resilience for preventing and mitigating disasters. The culmination of the efforts of the legislature, bureaucracy and the citizens of Kerala in implementing these steps and recommendations can increase the state’ resilience against natural disasters to a great extent. The study conducted by Thanal, Climatic Action Network South Asia, UNICEF and Phia Foundation titled ‘Climate Resilient Kerala’ calls attention to some of the major gaps existing in the climate legislation of Kerala. It also attempts to synchronize domestic and international climatic action plans and recommends updating various laws with a view of achieving ecological resilience and environment protection.
The 2018 floods were, without a doubt, eye-opening in various ways. On the positive side, it brought individuals and state machinery together. During and after the floods, the state has led the way with effective rescue and relief activities. The Post Disaster Needs Assessment Report also acknowledged that environmental damage within the sensitive areas, has been the least as compared to other states. The fact that there are fewer casualties in such a densely populated state is a sign of progress in disaster management. Kerala’s civil society is rather strong in comparison to other Indian states, and there is a willingness to join in collective actions in the event of a disaster; behavioural and cultural changes are required to encourage collective activity in normal conditions.
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