Lonely Hearts (1981)
A Socio-Legal Approach To Preservation of Dal Lake
Evolution of Legal Framework:
The Indian constitution happens to be the ground norm of all legislation by providing a source of power in all spheres of legislation including that of Environment law. The environment evidently has suffered the apathy of the negligence and second class treatment at the hands of our founding fathers of the constitution who happened to be the members of the constituent assembly. The environmental issues have failed to dominate the imagination of legislature. The reason primarily being that political rights were naturally the best area to have captivated the juristic intellect of a county at the dawn of freedom after two hundred years of foreign occupation.
The specific provisions for the protection of the Environment were non-existent in the sacred constitutional text of 1950. It was only by virtue of the Forty Second Constitutional Amendment brought in 1976 that Article 48-A and 51A (g) which were aimed at the protection of the Environment were inserted into the Constitution of India.
Article 48-A.- Protection and improvement and safeguarding of forests and wildlife.- The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the Country.
The 48-A falls in the Part IV i.e. Directive Principles of State Policy. The Part IV and the provisions therein are only in the nature of directives for the policy makers of the Country. They cannot be enforced as a matter of right. These directives only have a persuasive value.
Article 51A. Fundamental Duties.- It shall be the duty of every Citizen of India,-
(g) to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures.
The 51A(g) falls in the Part IV-A i.e. Fundamental Duties. It is therefore a duty cast upon every citizen of this county to protect the environment. However, the duties provided under the constitution are not binding on the citizen and they only have the persuasive value. The approach in our society is such that rights always get precedence our duties.
The human greed for material gains and indifference to environment has posed a threat to ecology and environment around us. The lakes are an important aspect of our living habitat. Traditionally in our country the people have showed religious attachment even to water bodies. But despite the religious sanctity the population growth and human mad race for materialism has led to pollution of water bodies and many have become extinct.
In recent years there has been alarming increase in contamination of water bodies due to industrial waste and population explosion. The human disturbance into the natural biological cycles of water bodies has led to the degradation of their natural ecosystem. Many of the water bodies have either become extinct or turned into marshy lands. It was only in late eighties that a series of case law titled M.C.Mehta Vs Union of India was brought before the Hon’ble Supreme Court of India and the Apex Court brought the right to clean environment within the ambit of the right to life provided under Article 21 of the Constitution of India.
Article 21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Article 21 falls under the Part III of the constitution of India, dealing with Fundamental Rights. The Article 21 on plain reading suggests that it is a political right aimed at protecting the personal liberty. Since the 48-A and 51-A (g) were only persuasive in nature and not binding, the Apex Court had to read the right to clean Environment in Article 21. The Act 21 has now become an abode of divine birth for right to clean and safe Environment. The judicial effort has brought the right to clean environment within the domain of fundamental rights and therefore acknowledged the importance of clean and safe Environment. The transformation of judicial approach has been product of world wide acceptance of importance of the preservation of Environment.
Over the years a distinct branch of law called environmental law has emerged which concerns specifically with issues concerning our Environment. The preservation of water bodies is one area of operation of Environment law. The laws have therefore been framed to preserve the water bodies around us like lakes.
The legislature of this county has also awakened to the need of protecting the Environment and therefore has enacted legislation like Water (Prevention & Control of Pollution) Act 1974, Environment (Protection) Act 1986 and Air (Prevention and Control of Pollution Act 1981. The legislation has failed to create an impact on the health of Environment as the enactment of the law itself has been delayed.
Despite the legal system in place our Environment comprising of rivers, lakes and forests etc is facing an alarming threat of degradation and extinction. The legal system has probably failed to respond to the individual requirement of our environmental assets. The flaw however is not with the law that are in operation but probably with there implementation.
Dal Lake – Socio-Legal Issues:
The specific threat of extinction to the world famous Dal Lake located in the heart of the Srinagar city can be understood by identifying the aspects of social life which requires attention. In order to arrive at the laws required to prevent death of Dal Lake the broad aspects of our social life that pose a threat to the existence of the Lake have to be understood. The major problems that threaten the life of the Dal Lake is encroachment and Pollution.
(1) Encroachment:
According to ancient manuscripts the area of Dal Lake was about 75 Sq Km in 1200 AD. It has now reduced to an area of 11.50 Sq Km. The first area of concern for the preservation of Dal Lake is therefore the declining surface area of the lake. The primary cause of the decline in the area is due to encroachment or by land grabbing. The method of encroachment has been distinct and novel here. The floating land mass has been created by the people on which trees have been planted and vegetables are grown. The islands of land are locally called the “Floating Gardens”. It is a slow process of conversion of the lake areas into land mass. The big trees are then planted on floating land mass and upon growth of these trees the land acquires a fixed character. The gradual process is followed by earth filling at snails pace. The process is slow but definite. Finally, the concrete buildings are raised.
It is here that the Control of Building Operation Act comes into operation. The people have developed ways to defeat its purpose. The permission to raise the construction Control of Building Operation Act requires that person intending to raise the construction should be the proprietor of the land. The people in the vicinity of the Dal Lake have over the years in connivance with the Municipal Authorities raised construction over the lake area. The biggest problem being that once the construction is complete it becomes impossible to demolish the same. The demolition drive if at all taken up has to face a stiff resistance from the encroachers.
The Control of Building operation Act provides that a demolition order can be issued in respect of the construction raised without permission. The same Act provides a right of appeal to the person who is affected by such order of demolition. The people then file appeal under section 13 of the Act and obtain stay order. The judicial process is abused by these encroachers to sustain their construction on the strength of interim order of stay. The legal hassles and the procedures give sufficient room to them for manipulation.
The effort has to be made to delineate the existing boundary of the Lake. The slow process of conversion has to be stopped by preventing the creation of land mass by stopping plantation and earth filling. The special effort is required to dispose off the appeals pending in court in respect of the demolitions orders served on the construction carried out in the area adjoining the Dal Lake. The particular area around the lake has to be identified and declared out of bounds for all construction and in a phased manner be taken over by the government for the development of green belt that would serve as the cushion between the Dal Lake and the human populated area.
(2) Pollution:
The water quality in the Lake has become extremely bad. The cause of decline in the water quality is the high degree of flow of sewerage and other waste material into the Dal Lake. The source of this pollution is primarily the sewage produced by the human population living in the house boats and the sewage outlets of adjoining areas that open into Dal Lake. The tourists who come to admire the beauty of the world famous Dal Lake ultimately shit in it. The human shit has led to the unlimited growth of Azolla weeds that has considerably deteriorated the water quality and made it unfit for human consumption.
The law for the protection of the environment does not permit draining out shit into the Dal Lake. The key lies with the implementation of these laws. However the important aspect of this problem is that Srinagar city lacks an effective drainage system. The authorities might be having a plan to construct the sewerage system for the city but the pace of its development is not able to catch up with the life of the lake.
The Union Ministry of Environment and Forests had launched an ambitious `Save Dal’ project of Rs 500 crores which was accorded top priority under the National Lake Conservation Plan. The Jammu and Kashmir Lakes Waterways Development Authority, was constituted to implement the ambitious `Save Dal’ project. The Centre agreed to contribute Rs 297.90 crores and state of Jammu and Kashmir committed to contribute Rs 194 crores. The money was to be spent to acquire land so that the people living in the Dal could be rehabilitated. The Centre release Rs 50 crores in 1997-98 and State Government has release Rs 24.50 crores till now. However both the Centre and State Government has failed to live upto their financial commitment and the cash flow has dried up. The Save Dal project has therefore become casualty of the financial crunch.
The sewerage of house boats and adjoining areas has been flowing into the Dal Lake continuously over decades. The water has become as a result high in mineral content called Eutrophication. The depth of the lake is decreasing due to the process of Siltation i.e. earth and solid waste accumulation. Even if employ heavy machinery it would be probably impossible to remove the sewerage and the resultant Azolla weeds. The water probably can only be purified and the debris that has accumulated at the bottom of the lake can only be removed by draining out all the water of the lake and then by physically removing the debris from the bottom of the Lake by employing earth moving machinery and trucks for the same. Once the process is complete the lake can be refilled with fresh water through its naturally feeding sources. The process is possible because the depth of the Dal Lake is less i.e. around 6 M Maximum. The method was employed to clean the “Sukhna Lake” of Chadigrah in mid nineties. In Chandigrah the people had joined the cleaning of the Sukhna Lake voluntarily and on massive scale. The similar collective effort of government and the people is called for here as well. However the govt has to be ready for the resistance of the Dal dwellers and the economis loss it would bring during the time the Lake Cleaning process is underway.
Conclusion:
The Constitutional and legal system that has evolved over a period of time is alive to the need to protect our environmental assets. It is the implementation of these laws that is crucial for better result. In order to prevent encroachment over the Dal Lake the laws relating to the construction in urban area needs to be applied strictly. The environmental laws like Prevention of Water Pollution Act has to be strictly applied in order to prevent the follow of sewerage into the Dal Lake. It is not the law but the political and administrative will that needs to gear up in order to prevent the encroachment and pollution of the Dal Lake.
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