A Critical Appraisal Of Legal And Policy Interventions For Curbing Illegal Sand Mining In India
Author: LawSphereX
Category: Banking & Finance
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A CRITICAL APPRAISAL OF LEGAL AND POLICY
INTERVENTIONS FOR CURBING ILLEGAL SAND MINING IN INDIA Mr. Prateek Tak, Doctoral Research Scholar, Mohanlal Sukhadia University, Udaipur.
ABSTRACT
The menace of illegal sand mining has become one of the most significant environmental challenge in India which has led to the degradation of water tables, loss of biodiversity and disruption of aquatic habitats. This research article analyses the Indian legal framework for controlling and mitigating the illegal sand mining wherein it examines the key policy intervention such as the Sustainable Sand Management Guidelines (SSMG), 2016, and the Enforcement and Monitoring Guidelines for Sand Mining (EMGSM), 2020 along with the Constitutional provisions & Mines and Minerals (Development and Regulation) Act, 1957. The research article highlights the need for a comprehensive, well monitored and participatory framework for checking the illegal sand mining in India.
Keywords: Illegal Sand Mining, Legal Framework, Sustainable Sand Management Guidelines (SSMG), Enforcement and Monitoring Guidelines for Sand Mining (EMGSM), Environmental Degradation
Introduction
The illegal sand mining problem across India has become one of the most dreaded and perennial issues1 , wherein it has caused huge depletion to the natural resources like changing the course of rivers, depleting water tables, hurting wildlife, increase in water pollution and adverse impact on biodiversity2. According to section 3(e) of the Mines and Minerals (Development and Regulation Ac) 1957 (MMDR Act), Sand is a minor mineral wherein it is regulated by under section 23C of the MMDR Act empowers the State Government/ UT Administrations to make rules for preventing illegal mining, transportation and storage of minerals and also to lay down sustainable sand mining guidelines3. Article 48A and Article 51A (g) of the Indian Constitution explicitly mandates the protection of the natural resources and environment4 by the State and Citizens respectively.
Sand mining can broadly be classified into organised mining and disorganised, random or unscientific mining5. The organised mining is, to an extent, monitored and regulated by the laws. This type of mining is carried out through the licence, which is issued by the State government, after ensuring compliance with certain conditions and charging fees. On the contrary, disorganised, random or unscientific mining is fully unregulated, unsustainable and illegal which is usually carried out near river banks and marine beaches for extracting fertile alluvial soil for selling in the black market6 without paying any license fees, environmental fee or tax to the regulator or to the government. And this type of mining is posing a significant threat to the environment.
This rampant problem of illegal and unsustainable sand mining has 1Joyjeet Das, Flouted with Impunity, Down to Earth (May 20, 2024), https://www. downtoearth. org. in/mining/flouted-with-impunity-58736. 2Vikas Gora, Sand Mining: An Underrated Threat, The Statesman (May 28, 2024), https://www. thestatesman. com/opinion/sand-mining-underrated-threat-1502924283. html. 3Press Release, Ministry of Finance, Govt. of India, RBI Approves Transfer of ₹ 2. 11 Lakh Crore as Surplus to the Central Government for the Accounting Year 2023-24 (May 22, 2024), available at https://www. pib. gov. in/PressReleaseIframePage. aspx? PRID=2043007. 4Article 48A - Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
Article 51A(g) - to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; 5International Inst. for Env’t & Dev. , Tackling Illegal Sand Mining in India: A Study of Gurgaon and Faridabad
12 (2013), https://www.iied.org/sites/default/files/pdfs/migrate/G00724.pdf.
6South Asia Network on Dams, Rivers & People (SANDRP), Illegal Sand Mining 2017: Rivers Continue to Lose Mindless Mining Battle (Dec. 19, 2017), https://sandrp. in/2017/12/19/illegal-sand-mining-2017-rivers-continueto-loose-mindless-mining-battle/. become a pan-india problem7. Given the magnitude of the problem, this article attempts to analyze the issue of illegal sand mining in India by discussing the applicable laws and relevant policies in recent times. Constitutional Scheme and Laws regarding Mining Under the Constitutional scheme for the ownership of minerals8, the State governments are the owners of the minerals located within State boundaries, while the Central government is the owner of the minerals underlying the ocean within the territorial waters or in the EEZ of India.
Entry 54 in List I and Entry 23 in List II9 under Schedule VII of the Indian Constitution, deals with mines and mineral regulation between States and Union. In essence, States have the power to frame rules and policies regarding the regulation of mines and mineral development but these rules and policies are subject to control of the Central laws passed by the Parliament. In this regard, the Central government, while exercising the power conferred under entry 54 of List I, enacted the Mines & Minerals (Development and Regulation)(MMDR) Act,
1957 and Mineral Concession Rules (MCR), 1960. And the State government, under the
provisions of Mines & Minerals (Development and Regulation)(MMDR) Act, 1957 and Mineral Concession Rules (MCR), 1960 can grant the mineral concessions for all the minerals located within the boundary of the State10, subject to prior approval of the Central government in certain cases as enumerated in the act. Policy Framework to curb Illegal Sand Mining: 2016-2020 In pursuance to the landmark judgment, with respect to illegal sand mining, by Supreme Court in case of Deepak Kumar etc v. State of Haryana & Ors. etc11, MOEFCC released the Sustainable Sand Management Guidelines(SSMG)12 in 2016. These guidelines stressed on 7Priya R. Sharma & Rajiv Mehta, Illegal Sand Mining and Environmental Governance in South Asia, in Routledge Handbook of Environmental Conflicts and Justice 245, 247–248 (Arun Agrawal ed. , Routledge 2022), https://doi. org/10. 1002/9781119870562. ch16.
8Indian Bureau of Mines, Review of Performance of Mineral Development and Regulation 71-85 (2014), https://ibm. gov. in/writereaddata/files/07142014165928ibmreport%20Chapter-VI. pdf. 9Ibid 10The Mines and Minerals (Development and Regulation) Act, No. 67 of 1957, India Code (2012), http://ibm. gov. in/writereaddata/files/07102014115602MMDR%20Act%201957_10052012. pdf. 11AIR (2012) 4 SCC 629 12Ministry of Environment, Forest & Climate Change, Sustainable Sand Mining Management Guidelines 1 (2016), available at http://www. indiaenvironmentportal. org. in/content/430504/sustainable-sand-mining-managementguidelines-2016/ sustainable sand and gravel mining13 along with the use of technological tools like GPS and bar codes to map the riverine areas and track produce from sand mines14.
It attempted to provide for the effective institutional monitoring mechanism till the environmental clearance stage but it failed to provide for the subsequent institutional monitoring after the environmental clearance stage. Thus these guidelines, to a large extent, failed to manage and systematize sand mining15. This is evident from the fact that in a report published by the Ministry of Mines16 in 2018, the Ministry admitted that sand mining in India has reached a level which is threatening to the environment and ecosystem. Since the passing of 2016 guidelines, the National Green Tribunal in many cases passed several orders for stringent measures against the sand mafia. It also expressed its concern and disappointment over the irregularity in curbing the accentuating instances of illegal sand mining.
Thereafter, in 2020 the MOEFCC unveiled the Enforcement and Monitoring guidelines for Sand Mining17 (EMGSM). This guidelines inadvertently admits the loophole and failure of
2016 guidelines in regulating and monitoring the illegal sand mining. At the outset only, it is
important to point that EMGSM is to be read in sync with the existing SSMG, 2016, which is both supplementary and complementary to each other. Following SSMG, EMGSM also stresses on the usage of High end technology like drone for night surveillance of sand mining sites18. It also provides for the steps to identify sources of sand, procedures for replenishment of sand, reduction in the demand and supply gaps, post environmental clearance monitoring of sand mining sites, a procedure for environmental audit of such areas and steps to control the 13ibid 14Shagun Kapil, New Sand Mining Guidelines Call for Robust Monitoring and Sustainable Development, Down to Earth (Aug. 25, 2020), https://www. downtoearth. org. in/mining/new-sand-mining-guidelines-call-for-robustmonitoring-and-sustainable-development-51105. 15Joyjeet Das, Flouted with Impunity, Down to Earth (May 20, 2024), https://www.
downtoearth. org. in/mining/flouted-with-impunity-58736. 16Ministry of Mines, Sustainable Sand Mining Management Framework (2020), https://www. fedmin. com/fedmin/sandminingframework. pdf. 17Ministry of Environment, Forest & Climate Change, Sand Mining Management Guidelines 2020 1 (2020), https://environmentclearance. nic. in/writereaddata/SandMiningManagementGuidelines2020. pdf. 18 S. Gopikrishna Warrier, No-Mining Zones to Protect River Ecosystems from Sand Mining, Mongabay-India (Jan. 29, 2020), https://india. mongabay. com/2020/01/no-mining-zones-to-protect-river-ecosystems-from-sandmining/. instances of illegal mining19, amongst other steps. Analysis of Key provisions of EMGSM, 2020 EMGSM provides for the Post environment clearance monitoring mechanism.
By explicitly incorporating the provision of post environmental clearance monitoring in 2020 guidelines, effort has been made to fill the legal void which was left in SSMG, 2016. The post environmental clearance monitoring provision provides for the EC holder to upload EC compliance reports to the MOEFCC ministry. For category ‘A’ mines, the Regional office of MOEFCC is responsible for carrying out EC monitoring, whereas for ‘B’ mines, SEIAA is held responsible20. But the post environmental clearance monitoring mechanism does not extend to the disorganised, random or unscientific mining, which is the major impediment in the effective regulation of illegal sand mining.
It relies on the section 23 of the Mines & Minerals (Development and Regulation)(MMDR) Act, 1957, thereby leaving the onus on the State government to make rules for preventing illegal mining, transportation and storage of minerals. This void could seriously affect the effective regulation of illegal sand mining, because most of the State government do not frame such rules and even when they frame such rules, these rules are not stringent enough to curb the illegal mining. Further it has been generally observed that such delegation of rule making power to the State government is further sub-delegated to the executive bodies, which opens the way to corruption. This policy also emphasizes the protection of river and species from sand mining21, wherein it directs for identifying the stretches which are hotspot for the breeding and hatching of turtles.
It provides for the survey of such stretches and provides for the protection of these important ecology spots. Additionally, policy also calls for the classification of each district, on the basis of survey reports, into ‘mining and no mining zone’ on the basis of various environmental and social factors like the distance of the mining area from the protected area, forest, bridges, important structures and habitation22. Such classification of every district into ‘mining and nonmining’ can be very helpful in preparation of future framework and course of action against 19Supra 17 20Supra 17 21Supra 18
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the illegal sand mining, as this classification can help in identifying the hotspots and magnitude of problems, specific to area or region, which can help in devising ‘specific need based solutions’. Apart from these provisions, effort has been made to make this policy all inclusive, by including provisions like river mapping, land use monitoring, auditing of rivers, profiling of rivers etc. For curbing illegal sand mining, new guidelines provide for the public participation. In this effort, it is proposed in the guidelines that when mining sites, which are to be auctioned, are identified, they should be put before the public for the discussion23. After discussion, based on the comments and reviews, the final list should be prepared. This provision can be very useful in building trust and awareness among the general public.
It also provides for the authorised mechanism of selling and purchasing the sand, through an online portal. This will help in reducing the gap between demand and supply of the sand in the market. Conclusion The EMGSM, 2020 is supplementary as well as complementary to the SSMG, 2016, as it attempts to address all the issues relating to illegal sand mining. But still, it will be important to see its implementation on the ground level. And accordingly, as the situation demands, changes should be incorporated in coming times, so that we can save our environment by curbing the menace of illegal sand mining.
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