AAREY' S NIGHT OF THE CHAINSAWS- TIME FOR THE JUDICIARY TO GET OFF THE FENCE.

                   

   

If you're still wondering why India ranks at 177 out of 180 countries in the World Environment Performance Index ( we were at 141 in 2016), you need look no further than what happened in Mumbai's Aarey forest last week. Every concerned institution and civil society contributed to the massacre of thousands of trees, a deed which, befitting a dastardly crime, was performed in the dark of the night- the political executive, the administration, the judiciary, civil society( barring a few hundred brave souls). The whole process, clothed in frayed legal garb, was a travesty of the legal process, something which is recurring with greater frequency these days as the courts appear to be wary of rubbing the government the wrong way.

  No reasonable person would hold that 2600 trees do not constitute a forest, and yet the Mumbai High Court did precisely that, on the basis of a technicality and perhaps missing out on an order of the Supreme Court itself. The Forest Conservation Act 1980 does not define a "forest" but the Supreme Court did, in the 1996 Godavarman case: it ruled that the dictionary meaning of the word would apply, regardless of the title of the land or its categorisation in forest or revenue records. The Oxford Dictionary defines a forest as " a large area covered chiefly with trees and undergrowth." The court asked all states to notify forests as per this definition, and further stipulated that no non-forestry activity would be permissible in these areas without a strict process of approval. Some states complied; for example in Himachal any area of 5 hectares or more with a canopy density of 40%, by itself or in contiguity with a wooded area, would be deemed to be a forest, in Gujarat it is 2.5 hectares. Unfortunately most states have not done so, including Maharashtra, even 24 years down the line. Their nefarious motive is clear: by not defining forest areas they can continue to divert valuable forest land for mining, industry, dams, real estate development etc. without seeking environmental approvals that forests would attract. Rent seeking would continue to flourish while the environment would continue to be devastated. It's happening in the Aravalis, in Jharkhand and Chhatisgarh, in the Western Ghats.

  Aarey is the last remaining green lung of Mumbai and covers an area of 1287 hectares, with an estimated 500,000 trees on it., abutting the Sanjay Gandhi national park and the Mithi river. It is home to Adivasis and is rich in wildlife. However, it remains an undefined area, but the government's deliberate and venal lethargy in defining it does not make it any less of a forest. The metro car washing shed proposed on it is in the Red category of industries- that is, most polluting- and the millions of liters of toxic water from the washing activity ( mixed with oil, grease and sludge) is bound to leach into the soil of the forest and also the river. The project should never have been allowed in the middle of Aarey. In fact there were eight other alternative sites the BMC or the MMRCL could have chosen from, including the Backbay Reclamation area and the Kanjurmarg marshes, but they opted for Aarey because it was the "cheapest" as no price is ever attached to the natural environment in India: trees are only priced at their current wood value, not for the far more important ecological services they provide, and that too for a life span of 50 to 80 years. If these values were also factored into the project cost then perhaps forest areas would not be the first choice for industrial projects.

   It boggles the mind that the High Court did not consider these aspects but chose to resort to the technicality that since Aarey had not been categorised as a forest by the state govt. it did not merit any protection. In effect, it rewarded the state govt. for NOT DOING SOMETHING IT WAS DIRECTED BY THE SC TO DO IN 1996, VIZ. DEFINE WHAT CONSTITUTES A FOREST AS PER THE COURT'S "DICTIONARY MEANING" INTERPRETATION.

   The High Court further concerned itself with the procedural aspects rather than the merits of the petition, loftily noting that the petitioners " had lost touch with the procedures to be followed": since  the issue of declaring Aarey as a forest/ eco-sensitive area was pending before the SC and the NGT, therefore the petitioners should seek relief there- " sink or swim" there, I believe were the exact unguent words. This raises two points. One, if the matter was still pending a judicial determination then why was MMRLC allowed to go ahead with the cutting of the trees on the next two nights? Surely the correct course would have been to stay the fellings till the higher courts decided the matter? And secondly, my lordships, it is not just the petitioners who will "sink" if Mumbai's last remaining green tract is destroyed, it will be the whole city, including the High Court.

   The Supreme Court has of course stayed the felling of trees now, in an intervention which must be appreciated. But the order is practically non est- meaningless and without any significance- since the trees have already been slaughtered. The govt. counsel in the SC triumphantly stated( crowed?) that 2141 of the required 2185 trees had already been cut, they did not need to cut any more, and now the construction work on the shed will begin. As has become almost the rule now, the govt. has presented the court with a fait accompli which it will be happy to accept. Don't rock the boat( or the bench) appears to be the current motto.

  It is not just a question of the 2141 trees that have been massacred in the night of the chainsaws. The court should have recognised the govt's intentions for what they really are- salami tactics, chipping away at the forest a few hectares at a time. Aarey has already lost a large part of its priceless greenery to the Aarey Milk Colony and the Filmcity ( 600 acres); it was time now to draw a red line. For the plain truth is that India has never had a government so unmindful of the natural environment, willing to sacrifice it all for a blind pursuit of the GDP gods. There is enough testimony to this in the almost total dismantling of the environmental approvals regime, felling of trees in Chhatisgarh, Uttarakhand, Aravalis etc. for mining, unnecessary highways, real estate development, dams, failure to declare the ESZ ( Environmentally Sensitive Zones) in the Western Ghats as recommended by the Gadgil and Kasturirangan Committees, ramming roads through tiger reserves, denotifying sanctuaries for the Ganga Waterway, and so on. All this is hidden under the bluster of grandiloquent announcements and fudged statistics which the world is now beginning to see through.

   Given the collapse of all other forms of opposition and checks to the state it is now only the judiciary that can act as a brake. It has had many opportunities to do so but has not seized them, including the 53000 mangroves being slaughtered for the Bullet train, the 40000 deodars for the Char Dham highway, the desecration of the Yamuna flood plains for the Art of Living jamboree. It is no longer about maintaining a balance between the imperatives of the environment and "development", as it would like to believe: the need now is to correct the imbalance which is destroying the planet. Our courts will be doing a  great dis-service to the ecology by laying more store on procedures, technicalities, choosing to believe the assurances of the government. As Aarey shows, the government deals with a marked deck and speaks with a forked tongue. The time for sitting on the fence is now over. The judiciary needs to be more proactive in saving the environment, it cannot continue to look at its wanton destruction through the prism of legal technicalities and procedures. It needs to dispel a worrying perception that it is reluctant to take on the government of the day in such matters. After all, judges too reside on the same planet as the petitioners. In any struggle between right and wrong, professing neutrality means siding with the wrong. In the final analysis the majesty of the law is but a legal fiction and is as nothing before the majesty of Nature, which is the reality. In matters of the natural environment there is no place for the dictum- "Nemo judex in causa sua" ( nobody should be a judge in his own cause)- for when this boat sinks there will be no survivors.

     

IAS RESIGNATIONS--MUCH ADO ABOUT NOTHING ?

                            IAS RESIGNATIONS--MUCH ADO ABOUT NOTHING ?

   A recent spurt in resignations by some IAS officers is attracting media and political attention. A BJP leader has advised these officers to go to Pakistan, which is the normal reaction from this party to anyone who dares to differ. Of graver import is an interview by Jawhar Sircar to Newsclick on the 23rd of last month. Mr. Sarkar, who has served as Secretary, Culture and the Chairman of Prasar Bharti till he hung up his well worn boots in 2016, is among the very few articulate and erudite retired officers from this service who have the courage to speak up, and is well worth listening to. He sees in these resignations a shadow of hope, a pushback from the IAS against the increasing dictatorial tendencies of the present Union Government. He expects more resignations to follow as officers are forced to choose between the Constitution and the unlawful proclivities of a vindictive government that will brook no alternative view. How correct is his assessment?

   Before we do so, however, it will be useful to recall the context of this debate. So far five IAS officers have resigned: Subhash Garg ( Gujarat), Shah Faesal ( J+K), Shashikanth Senthil  (Karnataka), Kannan Gopinath( Kerala), Kashish Mittal ( AGMUT). They are not all conscientious objectors, however. Mr. Garg was the all powerful Finance Secretary - the demonetisation man- and had no option but to quit when he got his come-uppance for proposing a sovereign, foreign loan in the Budget. Mr. Mittal too was not driven by any ideals: unwilling to give up a cushy assignment in Delhi, he put in his papers when he was transferred to the dreaded north-east. We need not shed any tears for this duo. But the other three- all youngsters with barely fifteen years of service between them- are perhaps the gentlemen Mr. Jawhar Sircar speaks of, officers who still retained in large measure the ideals, values and professionalism with which they had joined service. All three have left no doubt whatsoever as to why they quit: undemocratic functioning of the union government, denial of basic freedoms, trampling of human rights.

   There is also a second context: the manner in which the BJP government is systematically dismantling the civil and central services in order to recast them in its own image. All other services have already gone belly up, as have the so called autonomous institutions- CAG, RBI, ECI, CBI, SSC, Revenue, ED and the dozens of others; the judiciary too is well on its way down this slippery slope. The IAS needs a little bit more effort to be brought to heel, partly because it functions under a dual control- the centre and the state- and the former cannot claim exclusive rights over it, and partly because its members are descended form the ICS and can still recall a Seshan, a Noronha, an NC Saxena or a Butch, and some still try to live up to this pedigree.

   The political onslaught is from all sides: rules have been/ are being amended to change the system of assessment and allotment of services and cadres; lateral inductions being made to ensure the loyalty of such appointees to only one party, even UPSC question papers are being realigned to project the BJP's ideology. ( HW channel recently revealed one such question in a paper, it goes like this- " What are the challenges to our cultural practices in the name of secularism?" The message to prospective examinees is clear: start thinking like the BJP if you want to do well in the competition.) Crucial appointments are being made by-passing existing codes, as in the appointment of the Chairman, Staff Selection Commission. " Inconvenient" persons are being eased out, pliable collaborators rewarded with sinecures. Read my lips or you  will be treated like the Lavasa family, is the not so muted message. The centre's  "cadre controlling authority" powers are being exercised to override, in many cases, a state government's control. The CBI is always lurking in the wings when push comes to shove.

   In this suffocating, and worse, context three young officers decided to quit rather than become willing collaborators. But is it the beginning of a trend, as Mr. Jawhar Sircar feels, or is it just a lonely cry in the wilderness? On this I'm afraid I have to disagree with my batchmate .

  The IAS is no longer the service it was even twenty years ago. It has been hollowed out from within by the wrong kind of inductees- the KOTA type of engineering, medical and management graduates who are decidedly intelligent but lack a broader vision of history, of liberal traditions, humanism and social empathy. They are driven by algorithms and not by the values of a Gandhi or a John Stuart Mill, by the hardware of material aspirations, not the software of a troublesome conscience. It is not their fault, they are products of an uncaring, amoral if not immoral society. They are the products of an educational system that prioritises material success and power as the new religion and the Apex scale as the new deity: there is no other meaning to life. Their belief in the utilitarian principles of today is total; they have no self-doubts, they exemplify what Mills called " the completeness of limited men."                                                                 Perhaps because of their training in the dog eats dog IIT type of exam system, they are competitive to a fault which is why there is no esprit de corps left in the IAS- it is every man and woman for him/herself and the CBI take the hindmost. There is no rallying around when one of its members is subjected to unfair persecution- like a herd of wildebeest, they stand around observing the massacre till it's the turn of one of them to be on the menu. The IAS Associations can do little to protest, they are mere choir boys who can just about organise a farewell party when pushed to their outer limit. This suits the government of the day just fine. Politics and politicians have made deep inroads into the vitals of the service by holding out the promise of lucrative postings and post retirement sinecures, balanced with the threat of a departmental inquiry or FIR. There was a time when the senior officers mentored the junior ones, and trained them in the sterling ethos of the service. No longer, for the honour of serving the nation has now been replaced with naked ambition and self aggrandisement. They are now taught how to survive, not how to serve. They are like frogs in that famous experiment: comfortable in their slowly heating cocooned saunas, making no attempt to get out while they can, till it reaches boiling point and then it's too late.

   Don't get me wrong. There still are plenty of fine officers, but they are a silent minority and today its all about majoritarianism. And the IAS alone should not be singled out for blame either. Even the heavily insulated defense services have caved in and can no longer distinguish between the legitimate civilian  control of the armed forces and the wholly unconstitutional political control. They too have fallen in line like a platoon on the parade ground. The IAS has not yet become the Praetorian Guard, but it will soon. I do not see many more Senthils or Aruna Roys who stand by their convictions. It's more comfortable, and less dangerous, to have the courage of others' convictions- especially that of your political bosses. One swallow does not a summer make, but it does make one wonder- where have all the other swallows gone?