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December 8, 2020

Right of Passage: Are Elephant Corridors Protected?

Author: Nayantara Malhotra

Introduction

Elephants are widely regarded as keystone species because of the significant impact which they have on the environment. According to the 2017 census, around only 27, 312 elephants are left in India.[1] To prevent elephant population from dwindling further, the Indian government has taken various measures such as introduction and implementation of elephant corridors.

What is an elephant corridor? 

An elephant corridor is defined as a linear path which facilitates movement of elephants from one habitat to another. An elephant corridor not only helps elephants to move between habitats, but also helps them to intermingle and breed with elephants outside their gene pool. These corridors also reduce the scope of human-animal conflict. However, such corridors face threats from poaching, agricultural activity, mining, vehicular traffic, development of resorts, electrical fences, etc. The Indian government and judiciary have taken a number of steps for protection of the same.

The existing legal framework for protection of wildlife corridors

The Wildlife (Protection) Act, 1972 (“Wildlife Act”), which aims at protecting flora and fauna for safeguarding the country’s ecological and environmental security, contains provisions for protection of wildlife corridors. Section 36A of the Wildlife Act empowers the State Government to declare areas that link protected areas with each other as ‘conservation reserves’. The corridors can also be declared as ‘community reserves’ under Section 36C of the Wildlife Act. As per the Section 2(24A) of the Wildlife Act, conservation and community reserves fall under the category of ‘protected areas’.

Declaration of a corridor as a conservation reserve or a community reserve allows management and maintenance of the same by the State; restriction of activities; prevention of diversion of the same for unsustainable uses; prevention of commission of offences; prohibition on damage; prohibition of wrongful gain; prohibition on use injurious substances, etc.

The Biological Diversity Act, 2002 (“Biological Diversity Act”) also provides for declaration of wildlife corridors as heritage sites, as well as management and conservation thereof.

In 2002, the National Board for Wildlife adopted the Wildlife Conservation Strategy, as per which areas within 10 kilometers of national parks’ and sanctuaries’ boundaries could be notified as ‘Eco-Fragile Zones’ under Section 3(v) of the Environmental Protection Act, 1986 (“EPA”) and Rule 5 of The Environment (Protection) Rules, 1986 (“EPR”). Wildlife corridors can also be notified as Eco-Fragile Zones.

According to Section 3 of the EPA, the Central Government can take measures for protecting as well as improving the quality of environment. Under Section 3(2)(v) of the EPA, the Central Government is empowered to identify the areas in which industries, operations or processes cannot be carried out.

Rule 5(1) of EPR states that while placing restrictions in accordance with Section 3(2)(v) of the EPA, the Central Government may take into account factors such as biological diversity of the area, proximity to protected areas, topographic and climatic features, adverse impact of the activity sought to be restricted, etc.

Under Section 3(1)(i) of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, certain forest dwellers are allowed to protect community forest resources for sustainable use. A wildlife corridor also falls under the ambit of a community forest resource.

Judicial Measures

The Indian Courts over the years have recognized the importance of elephant corridors and have accorded protection to the same.

Recently, on October 14, 2020, a Single Judge Bench (S. Abdul Nazeer, J.) of the Supreme Court of India in Hospitality Association of Mudumalai v. In Defence of Environment and Animals and Ors. etc. [Civil Appeal Nos.3438-3439 of 2020 arising out of S.L.P. (C) Nos.17313-17314 of 2011] ordered removal of 39 illegal resorts from an elephant corridor in the Sigur plateu in Nilgiris. In this case, the appellants had challenged the Madras High Court’s order which had upheld the Tamil Nadu government’s decision to notify the aforesaid corridor and evict resort owners and private landowners therefrom.

In the appeal, Madras High Court while rejecting the appellant’s contentions that the State Government could not notify the corridor, observed “It is undeniable that the State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17A ‘Forest’ and 17B ‘Protection of wild animals and birds’ in the concurrent list and the power of the State Government under the Wildlife Act to notify Sanctuaries and other protected areas…land of the appellants has also been notified as private forest in 1991 under the Tamil Nadu Preservation of Private Forests Act, 1949, which prohibits cutting of trees in private forests… we find no difficulty in holding that the State Government was empowered to protect the habitats situated on the appellants’ land by notifying an elephant corridor thereupon.”

The Supreme Court further observed, “…since the impugned decision of the High Court, the Ministry of Environment, Forest and Climate Change…has declared the entire area in question…as an Eco-Sensitive Zone. Under this Notification, the State Government of Tamil Nadu has been expressly directed to regulate land use generally, as well commercial establishment of hotels/resorts specifically, in the Eco-Sensitive Zone so established. As was held by this Court in M.C. Mehta v. Union of India and Ors. the “Precautionary Principle” has been accepted as a part of the law of our land…The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. In this light, we have no hesitation in holding that in order to protect the elephant population in the Sigur Plateau region, it was necessary and appropriate for the State Government to limit commercial activity in the areas falling within the elephant corridor.

In Rohit Chowdhury v. Union of India [O.A. No. 472/2018 (EZ)], the National Green Tribunal, New Delhi (“NGT”), a three Member Bench (S. P. Wangdi J., K. Ramakrishnan J., De. Satyawan Singh Garbyal) by its order dated February 26, 2019, directed the Railway authorities to free the elephant corridor in Deepor Beel, Assam through construction of an overpass or an underpass. The NGT also directed the authorities to reduce the speed of trains passing through the elephant corridors. Furthermore, the NGT observed, “…the earth is not for humans alone. All creatures including the wild animal have a sacred right. Economic consideration no doubt is important for development but, it should not be at the cost of ecology, bio-diversity and the environment.”

In Dr. Kashmira Kakati v. Union of India and Ors. [O.A No. 19/2014], a four Member Bench (Swatanter Kumar J., Jawad Rahim J., Raghuvendra S. Rathore J., Bikram Singh Sajwan) of the NGT, by its order dated December 8, 2017, issued various directions to the Central and State Government for protection of elephant corridors in Assam. The directions included declaration of the Bogapani Corridor and South Brahmaputra elephant ranges as elephant corridors; conduction of survey of the elephant population in each state, and consequent declaration of the surrounding areas as eco-sensitive zones; prohibition of establishment of permanent structures in and around Golai corridors; provision of legal recognition and status to Golai and Bogpani corridors and other areas in accordance with Wildlife Act and Section 5 of the EPA; and constitution of Core Committee by the Central Government for declaration of elephant corridors.

In 2008, in light of the death of numerous elephants in Mysore, the High Court of Karnataka initiated a suo motu Public Interest Litigation – Suo Motu v. The State of Karnataka [W.P.No.14029/2008 (GM-RES)]. A Division Bench (D. H. Waghela, B. V. Nagarathna, JJ.) of the High Court of Karnataka, by its order dated October 8, 2013, issued various directions to the State and Central government for protection of elephants. The Court directed the State and Central government to, inter alia, renotify the relevant elephant corridors; review environmental clearances given to various projects in the elephant corridors; review non forest activities in elephant corridors; raise and maintain the height of power lines above the ground level for ensuring safety of elephants in corridors, etc.

Conclusion

While legal provisions already accord protection to wildlife corridors, owing to the increasing human-elephant conflict and loss of habitat, a need has been felt for greater legal protection to elephant corridors. Reportedly, the Union Environment Ministry has submitted a proposal to amend the Wildlife Act so as to include specific legal provisions for protection of elephant corridors.[2] It remains to be seen if the proposal is accepted and the population of the already endangered species is prevented from dwindling further. 

[1] Read more at – <https://www.thehindu.com/news/national/kerala/elephants-in-troubled-waters/article31760011.ece>, last accessed on December 8, 2020.

[2] Read more at: <https://www.hindustantimes.com/india-news/environment-ministry-seeks-legal-status-for-elephant-reserve-states-ask-for-the-draft/story-8Gyio5nDJS8fsDSZDzVh3N.html >, last accessed on December 8, 2020.  

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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