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ILLEGAL SAND MINING – A LEGAL ANALYSIS

Introduction to the present context

Recently in the case of Sanjay Chandrakant Keluskar v. State of Maharashtra & Ors.[1] The illegal mining along the coast of the Arabian Sea was in question. The issue of illegal mining becomes of much significance in the present times as it sheds light on one of the major issues posing serious threats to the environment and in need of immediate consideration. As per the research conducted by United Nations Environment Programme (UNEP), sand mining has tripled in the past 2 decades[2] and UNEP’s 2022 report titled – Sand and Sustainability: 10 Strategic Recommendations to Avert a Crisis[3], found that sand extraction is rising about 6 percent annually, a rate it called unsustainable. A pressing need to rethink unregulated sand mining is because these figures are expected to further escalate owing to the ever-increasing demand.         

Sand, the quintessential factor responsible for the maintenance of the ecosystem, is undergoing vandalization. Excessive mining of soil changes the course of the rivers which leads to floods in the monsoon.[4] Beachside areas become more vulnerable to floods, tsunamis, cyclones, etc. with the removal of the coastal barriers.[5] The river gets exposed to sunlight which in turn increases the solar radiation to marine life, and the gap in the bed decreases the groundwater index of the area.[6] Sand loss from the riverbed causes the riverbed to deepen and the river mouths to expand, which raises the salinity of the water.[7] The list here is not exhaustive in nature and has multi-faced dimensions to it, and hence a reason of grave concern.

CRITICAL ANALYSIS OF THE PROVISIONS OF THE LAW

Indian Legislations

Mines and Minerals (Development and Regulation) Act of 1957 – As per section 3(e)[8] of the act, the ‘sand’ is referred to as a ‘minor mineral’. Section 4[9] specifically mentions that mining “without necessary permits” is illegal. Further Section 23-C[10] of the act vests the power of the State Governments to make rules to prevent activities such as illegal mining, transportation, and storage of minerals.

Environment Protection Act, 1986 – The Doctrine of Public Trust attests the natural resources as the public’s embodiment. It prohibits illegal depletion of it, for selfish gains. The same essence[11] can be found in Sections 378[12] and 379[13] of the IPC, with State as the trustee. In line with the act, the MoEFCC released guidelines for Sustainable Sand Mining[14] in 2016 with certain salient features. The authority also brought the Enforcement and Monitoring guidelines for Sand Mining in 2020.[15]

Further, in the case of Deepak Kumar and Others v. Union of India and others[16], The court determined that having an effective framework for mining plans that would address all environmental concerns, as well as developing a long-term rational and sustainable use of the natural resource base and the bio-assessment technique, are essential.

The court found that the MoEF, Government of India, issued several recommendations in March 2010 after taking note of all the technical, scientific, and environmental issues, followed by the Model Rules, 2010,[17] drafted by the Ministry of Mines, which must be implemented while upholding the spirit of Articles 48-A[18] and 51-A(g)[19] read with Article 21[20] of the Indian Constitution.

International Legislations

The SDG Goals – SDG 2[21] – Zero Hunger – Land mining activities can affect agricultural lands, hence posing a burden on irrigation and productivity activities. SDG 7[22] – Affordable and Clean Energy – Sand/Silica is a vital renewable energy source, the exploitation of which will also cause a burden on other energy resources. SDG 11[23] – Sustainable Cities and Communities – With unchecked extraction activities, the concept of ‘sustainability’ is pushed into danger and should be regulated. Responsible Consumption and Production (SDG 12[24]), Climate Action (SDG 13[25]), Life below water and on land (SDG 14[26], 15[27]), etc., also find strong connotations with the aspect.

UN Convention on the Law of Sea – It was adopted on 10/12/1982.[28] Articles 208[29] and 214[30] of the Conventions pose a duty on State to control Marine Pollution from activities such as sand mining. Article 194(2)[31] also directs the State to take imminent steps so that the extraction activities do not result in damage to the ecosystem. Sri. S. Jagannath v. Union of India & others[32] also dealt with the same.

Convention on Biological Diversity – This was adopted on 22/5/1992[33]. Article 3[34],5[35],6[36] and 7[37] urges the nation-states to carry out activities in their jurisdiction responsibly and not exploit or breach the SDGs to attract environmental degradation in their area. Article 7[38] in particular deals with sand mining and extraction activities.

Mani v. The Revenue Divisional Officer, Ranipet, Vellore District, and another[39] pronounced a High-Level Committee set up for the investigation concluded the hazardous effects of sand mining on the biosphere of the area. It expressed its concern on how irrespective of several legislations, and authorities such as the State Geology and Mining Department, Revenue Department, etc., illegal mining activities are still unchecked. Hence, it promulgated that the “Important task of sand mining should be entrusted to a Single Agency”.

Conclusion

Despite the increasing need for sand, globally, the massive amount of sand extraction, the major environmental repercussions, and the socioeconomic problems it raises haven’t received the required attention. Planning a course of action including address to the major difficulty of balancing the expectations of economic growth and environmental sustainability.

Suggestions

At the Local Level – Implementing district-level sand resource mapping, selecting suitable extraction sites, evaluating the extraction procedure, taking necessary environmental precautions, and stringent monitoring of the volume of extracted material.[40]

At National Level – Engaging governments, and agencies, in regulation and surveillance to identify prospective threats due to sand mining activities,[41] Enhancing investments and community to effectively avert illicit mining by suggesting alternate construction materials.

At the International Level – Formulating and sharing an international framework and enforcement mechanism to monitor sand extraction[42], before receiving any permit for sand extraction, scientific and environmental impact evaluations must be consistently carried out.[43]

Author(s) Name: Bandana Mishra (Symbiosis Law School)

Reference(s):

[1] Sanjay Chandrakant Keluskar v. State of Maharashtra & Others, 2022 SCC OnLine NGT 1027.

[2] UN Environment Programme, https://www.unep.org/news-and-stories/press-release/rising-demand-sand-calls-resource-governance, (last visited Apr 23, 2022).

[3] UN Environment Programme, https://www.unep.org/resources/report/sand-and-sustainability-10-strategic-recommendations-avert-crisis, (last visited Apr 23, 2022).

[4] Naveen Kumar, Sand Mining in India – Grain of Despair: Failure of Regulatory Machinery, SCC Blog, (Apr 23, 2023, 9:45 pm), https://www.scconline.com/blog/post/2023/02/08/sand-mining-in-india-grain-of-despair-failure-of-regulatory-machinery/#:~:text=Excessive%20mining%20of%20sand%20affects,sandy%20banks%20for%20their%20survival.

[5] Naveen Kumar, Sand Mining in India – Grain of Despair: Failure of Regulatory Machinery, SCC Blog, (Apr 23, 2023, 9:45 pm), https://www.scconline.com/blog/post/2023/02/08/sand-mining-in-india-grain-of-despair-failure-of-regulatory-machinery/#:~:text=Excessive%20mining%20of%20sand%20affects,sandy%20banks%20for%20their%20survival.

[6] Naveen Kumar, Sand Mining in India – Grain of Despair: Failure of Regulatory Machinery, SCC Blog, (Apr 23, 2023, 9:45 pm), https://www.scconline.com/blog/post/2023/02/08/sand-mining-in-india-grain-of-despair-failure-of-regulatory-machinery/#:~:text=Excessive%20mining%20of%20sand%20affects,sandy%20banks%20for%20their%20survival.

[7] Naveen Kumar, Sand Mining in India – Grain of Despair: Failure of Regulatory Machinery, SCC Blog, (Apr 23, 2023, 9:45 pm), https://www.scconline.com/blog/post/2023/02/08/sand-mining-in-india-grain-of-despair-failure-of-regulatory-machinery/#:~:text=Excessive%20mining%20of%20sand%20affects,sandy%20banks%20for%20their%20survival.

[8] Mines and Minerals (Development and Regulation) Act, 1957, § 3 (e), No. 67, Acts of Parliament, 1957 (India).

[9] Mines and Minerals (Development and Regulation) Act, 1957, § 4, No. 67, Acts of Parliament, 1957 (India).

[10] Mines and Minerals (Development and Regulation) Act, 1957, § 23 C, No. 67, Acts of Parliament, 1957 (India).

[11] Environment Protection Act, 1986, No. 29, Acts of Parliament, 1957 (India).

[12] Indian Penal Code, 1860, § 378, No. 45, Acts of Parliament, 1860 (India).

[13] Indian Penal Code, 1860, § 379, No. 45, Acts of Parliament, 1860 (India).

[14] Ministry of Environment, Forest and Climate Change, Sustainable Sand Mining Management Guidelines, 2016. https://environmentclearance.nic.in/writereaddata/SandMiningManagementGuidelines2020.pdf.

[15] Ministry of Environment, Forest and Climate Change, Enforcement & Monitoring Guidelines for Sand Mining (29.1.2020).

[16] Deepak Kumar and Others v. Union of India and Others, (2012) 4 SCC 629.

[17] Ministry of Mines, https://mines.gov.in/writereaddata/UploadFile/Model%20State%20Mineral%20Policy,%202010.pdf, (last visited May 12, 2023).

[18] India Const. art. 48A.

[19] India Const. art. 51, § g.

[20] India Const. art. 21.

[21] United Nations, https://sdgs.un.org/goals, (last date May 24, 2023).

[22] United Nations, https://sdgs.un.org/goals, (last date May 24, 2023).

[23] United Nations, https://sdgs.un.org/goals, (last date May 24, 2023).

[24] United Nations, https://sdgs.un.org/goals, (last date May 24, 2023).

[25] United Nations, https://sdgs.un.org/goals, (last date May 24, 2023).

[26] United Nations, https://sdgs.un.org/goals, (last date May 24, 2023).

[27] United Nations, https://sdgs.un.org/goals, (last date May 24, 2023).

[28] International Maritime Organisation, https://www.imo.org/en/ourwork/legal/pages/unitednationsconventiononthelawofthesea.aspx#:~:text=The%20United%20Nations%20Convention%20on,the%20oceans%20and%20their%20resources., (last date visited May 24, 2023).

[29] UN Convention on Law of the Sea, Arts 208.

[30] UN Convention on Law of the Sea, Art 214.

[31] UN Convention on Law of the Sea, Arts 194(2).

[32] Sri. S. Jagannath v. Union of India & others, (1996) INSC 1592

[33] Convention on Biological Diversity, https://www.cbd.int/, (last visited May 24, 2023).

[34] Convention on Biological Diversity, Art 3.

[35] Convention on Biological Diversity, Art 5.

[36] Convention on Biological Diversity, Art 6.

[37] Convention on Biological Diversity, Art 7.

[38] Convention on Biological Diversity, Art 7.

[39] K. Mani v. The Revenue Divisional Officer, Ranipet, Vellore District and another, 2005 SCC OnLine Mad 146.

[40] Sand Mining Recommendations, Govt. of India (Ministry of Mines), 15th Feb 2018, https://www.mines.gov.in/writereaddata/UploadFile/sandmining16022018.pdf.  

[41] Sand Mining Recommendations, Govt. of India (Ministry of Mines), 15th Feb 2018, https://www.mines.gov.in/writereaddata/UploadFile/sandmining16022018.pdf.

[42] Mette Bendixen, Lars L. Iversen, Jim Best, Daniel M. Franks, Christopher R. Hackney, Edgardo M. Latrubesse, and Lucy S. Tusting, Sand, gravel, and UN Sustainable Development Goals: Conflicts, synergies, and pathways forward, 4 One Earth 1095, 1101-1106 (2021), https://www.cell.com/action/showPdf?pii=S2590-3322%2821%2900409-7.

[43]Mette Bendixen, Lars L. Iversen, Jim Best, Daniel M. Franks, Christopher R. Hackney, Edgardo M. Latrubesse, and Lucy S. Tusting, Sand, gravel, and UN Sustainable Development Goals: Conflicts, synergies, and pathways forward, 4 One Earth 1095, 1101-1106 (2021), https://www.cell.com/action/showPdf?pii=S2590-3322%2821%2900409-7.