How Shivaji Memorial was cleared in 19 days despite environmental concerns

QUICK PILL

The project

• A 190m-tall statue of Shivaji is to be built in the Arabian Sea

• The 16-hectare complex will be 2.6 km to the west of Mumbai\'s Nariman Point

• It will include museums, shops and a small hospital

The haste

• It took just 19 working days at the start of this year for the project to be cleared

• CM Fadnavis wanted the PM to inaugurate the project on 19 Feb, Shivaji\'s birthday

• Clearances were given on the basis of a draft notification of the environment ministry

• The clearances may not stand up to legal scrutiny

The repercussions

• The ferry route to the proposed site will pass through fishing grounds

• South Mumbai\'s fishermen will permanently lose their livelihoods

• The project will have a big impact on water & electricity supply and sewage generation

The government has promised fast environmental clearances, and many think it's about time we cut the 'green tape'.

Here's a glimpse into what that actually means.

Government files on the approval given to the Shivaji Memorial project off the coast of Mumbai reveal how a 16 hectare project - that's over 30 football fields - in the Arabian Sea was cleared in just 19 working days.

The file was first moved on 23 January 2015, and the clearance was completed by 19 February.

Why the hurry? Maharashtra Chief Minister Devendra Fadnavis had announced to the state assembly, amid cheers, that the memorial would be inaugurated by Prime Minister Narendra Modi on 19 February, Shivaji's birthday.

The key method for speeding: bypassing a public hearing. The biggest losers: fishermen in South Mumbai. Other losers: the rest of Mumbai city.

The files were accessed from the Ministry of Environment, Forests and Climate Change, using the Right to Information Act.

The memorial's clearance process also shows the trail that haste has left behind: conflicts of interest, unusually fast impact analysis, and critical decisions - including the clearance itself - based on rules that were still in draft.

Many of these decisions may not stand legal scrutiny, according to lawyers.

The statue of Shivaji

The Shivaji Memorial project was proposed by the Maharashtra government in 2004. It was slated to come up in the sea, on the lines of the Statue of Liberty in New York.

The project includes a 190-metre tall statue of the Maratha warrior king Shivaji, mounted on a horse and brandishing a sword. Around the statue, there are plans to build museums, shops and even a 10-bed hospital.

This complex is to be located in the Arabian Sea, 2.6 km west of South Mumbai's Nariman Point.

Coastal management problems

By early 2014, the project had run into problems, as there was no provision in the coastal regulation that allowed such projects.

The process for getting green approvals began in early 2013, when the state government applied for coastal clearance to the Maharashtra Coastal Zone Management Authority (MCZMA).

The authority took up the matter in January 2014, and noted that there was no provision in the rules - the Coastal Regulatory Zone Notification, 2011 - for such a project. It requested the ministry for special dispensation of the project.

There was no action from the central ministry until the Modi government took office in May 2014, and the BJP-led Devendra Fadnavis government came to power in Maharashtra in October.

Fadnavis and the environment minister met twice in November, and it was decided that the project should be speeded up.

On 11 December 2014, the ministry issued a draft notification to allow "monuments/memorials" to come up in so-called CRZ-IV areas - which is the sea up to 12 nautical miles from the coast.

Conflict of interest?

According to the procedure, project proponents get an agency to conduct the environment impact assessment. The MCZMA is to take an objective view of these assessments, and suggest any changes.

However, in the case of the Shivaji Memorial, one of the members of the authority is also a senior official of the agency that conducted the assessment.

The state government engaged the Goa-based National Institute of Oceanography to conduct marine studies for the project's environment impact assessment (EIA). But the chief scientist of NIO, Dr Babanrao Ingole, is also an expert member of the MCZMA.

Minutes of the meeting show that he was present at the meeting that evaluated the NIO studies, and he did not excuse himself from the decision.

Permissions on draft notification

The draft notification allowing memorials to come up in the sea was issued in December 2014, and as per procedure, was up for public comments and objections for 60 days. The end of this period was close to Modi's inauguration plans in mid-February.

So, the MCZMA recommended the project for clearance - in other words, gave its approval - based on the draft notification itself. This happened in a meeting on 31 January 2015. It justified this saying that the 'intention of the government is clear from the draft notification'.

The project includes a 190-metre tall statue of the Shivaji in the Arabian Sea, 2.6 km west of Nariman Point

Being a draft, it did not exist in the rule books, so taking decisions based on it was questionable. This was especially so, since a draft notification can - at least in theory - be modified, or even cancelled - based on public suggestions.

But this process was repeated in the meeting of the Expert Appraisal Committee (EAC) of the ministry. This body evaluates projects for granting environmental clearance.

It met on 9 February, when the notification was still a draft, and recommended the project for environmental clearance. The coastal clearance, itself based on the draft rules, was a part of this clearance.

The final notification was issued on 17 February.

Speedy meeting, speedier assessment

The final environmental clearance process shows the haste shown by the ministry in getting the project approved.

When the EAC met on 28 January, it was barely prepared to discuss the issue According to ministry files, it was only on 23 January that officials decided to insert the Shivaji Memorial project in the meeting agenda.

Given that 24-26 January were holidays, it is likely the EAC had barely a day to study the project documents. Catch had highlighted earlier how proposals for approvals to coastal projects were given to members just a few days in advance, and how this reduced thoroughness of the decision.

In its meeting, which lasted until 30 January, the committee granted terms of reference to conduct the environmental impact study of the project.

The terms of reference highlight what an Environmental Impact Assessment should study, based on the location and details of the project. The assessment is to follow these instructions.

The Maharashtra government claimed it did this job in just three days. On 3 February, it wrote to the ministry saying it had already prepared an EIA in 2014, and only updated it based on the January 30 terms of reference.

As a result, the project was put in the agenda of the EAC's next meeting on 9 February, when it gave the final clearance.

Impact on lives and livelihoods

It doesn't take much effort to investigate the project's impacts. The government-commissioned EIA report itself sounds an alarm on the project's harmful impact.

The report admits that project will permanently destroy fishermen's livelihood. This is because ferries taking visitors from Gateway of India and from a proposed jetty at Nariman Point will pass by local fishing grounds, currently used by fishermen living in the Back Bay area.

This is the fishing village through which terrorists entered Mumbai in the infamous 26/11 attacks. The impact on fishermen is listed as a 'major' impact.

The report also describes how the memorial will raise air pollution levels, strain South Mumbai's roads and garbage disposal, as also the city's water and electricity supply.

It also admitted that the project will affect the migratory paths of birds and severely alter their breeding patterns.

During the construction of the memorial, trucks carrying building material would raise air and noise pollution levels. "Even the best maintained trucks will not be able to meet standards for night time in [the] residential area. this can create social conflict," the report states.

After the memorial opens, the city would require about 11 lakh litres of water. Almost one lakh litres of waste water would be generated, besides 3,000 kg of solid waste. Tourists at the memorial will generate 1.5 tonnes of solid waste from eating food.

The report also estimates high power demand from illuminating the statue, which will cause a load on the power supply and is estimated to cause cuts to the general public.

No public hearing

But the government appears deaf to these concerns. In the final files, these concerns don't find any mention, except matters like car parking and bus shuttles for the visitors to the memorial.

Although the project clearly affects a large section of Mumbaikars, the state government requested exemption from a public hearing.

In a letter to the ministry, it said a public hearing is not required since the project is for 'public at large and not for a commercial activity'. In other places in the project files, the exemption was justified on the grounds that the memorial is of national importance, or is in the national interest.

Lawyers said this is the biggest legal hurdle the project may face if the case comes up in court.

"Due compensation has to be paid to fishermen, or they should be given a new fishing ground. First admitting that livelihoods are affected and then waiting for a public hearing cannot stand in court," a Supreme Court advocate said.

"If you read this out in a court, the judge will leap at this. This reminds me of how the old land acquisition act was used [for exemption from] public hearings, and how the SC pulled up such projects."

In fact, the draft CRZ notification, making exceptions for monuments to come up in the sea, made a strong case for holding public hearings. However, this was weakened in the final notification.

The haste was due to CM Fadnavis's announcement that the PM would inaugurate the project on Shivaji's birthday

A clause was added that the central government may dispense with public hearings if the project doesn't involve rehabilitation and resettlement of the public, or if the project is located away from human habitation.

This is peculiar since the notification deals only with CRZ-IV areas, defined up to 12 nautical miles into the sea. This area is, by definition, unpopulated.

The draft notification even had a note that said such approvals 'would be generally discouraged' and allowed only in 'exceptional cases'. This, too, was removed in the final notification.

Godfrey Pimenta, an advocate in Mumbai, took the matter to the Union government, citing livelihood loss to the fishermen.

"I filed objections with the union government. But they have not answered back. The state government insisted on a personal hearing, and not a public hearing," he said, adding that he is preparing a court case against the project, to be filed at 'the appropriate time'.

Caveat petition

The environment minister signed the clearance on 23 February. Within two days, his ministry asked the law ministry to prepare a caveat petition in the court.

According to ministry documents, the letter was to contain the sentence 'it is anticipated that the matter may be challenged before the court of law'. This was struck out in the final version, which was eventually sent.

The irony is, in the end, Modi did not even inaugurate the statue on the appointed day. Despite all the rush, a report said the PM cancelled the event on 13 February, as the project did not receive environmental clearances until the last day.