Monthly Archives: November 2020

Constitution, Environmental Law

MAN V. WILD: DISPUTE OF NH 766

Leave a comment

HARISANKAR K V

Government Law College, Kozhikode.

ANUJUS PRADEEP

Government Law College, Kozhikode.

INTRODUCTION

“Man is a part of nature, and his war against nature is inevitably a war against himself” – Racheal  Carson. 

Human beings interact with wildlife from time immemorial for their existence. They continuously  interact with their environment, positively or negatively, for habitat and resources and have innovated  and adapted to become the dominant ecological force on the planet. As time passed, with the  civilization of the human race, these relationships took a major drift from mutual existence to a  conflict for space, food and shelter. As the conflict has been in existence for a millennium, it is now  more frequent, serious and widespread, and a global concern for conservation and development arise.  As the importance of development and conservation are major concerns of modern society, what  will be the outcome when development and conservation come face to face? Such a plot came up  recently in a developing district of Kerala, Wayanad, which is a part of Nilgiris Biosphere Reserve and is India’s first and foremost biosphere reserve with a heritage, rich in flora and fauna. The issue in  Wayanad is between one of the major National Highways NH 766 connecting Kozhikode in Kerala  with Kollegal in Karnataka via Mysore and a highly protected wildlife habitat of Muthanga Wildlife  Sanctuary in Kerala and Bandipur National Park in Karnataka. 

KILLER HIGHWAY 

National Highway NH 766 connecting Kozhikode in Kerala with Kollegal in Karnataka via Mysore  runs through a highly protected wildlife habitat of Muthanga Wildlife Sanctuary in Kerala and  Bandipur National Park in Karnataka, home to 140 Tigers, 1600 Elephants and 25000 Deer1. 24.5kms  of this arterial highway runs through the core area of the sanctuary out of which 19.7 kms are in the  state of Karnataka and the rest in the state of Kerala. The other portion of the road ad-measuring  10.10km also runs through the buffer zone of the sanctuary – 4.5 KMs in Karnataka and 5.6 KMs in  Kerala. This means a total of 34.60 KMs of this highway is running through the wildlife habitat and  an ecologically fragile area. The project officer of the Bandipur Tiger Reserve had prepared a report  in 2009 regarding the number of animals getting killed or injured by vehicles at night. An inspection  had found that 44 vehicles were on this 19 km stretch in a span of 30 minutes. The report also said  that night traffic would affect behaviour biology such as breeding and parental care of animals. It can  disrupt their life cycle and make them stray to human habitats. These reports are extremely disturbing  as it is deadly to the wildlife as well as people living in small settlements near the forest as these  animals’ ramble around their backyards. Considering all those fatalities the Highway brings to nature, the District Administration of Chamrajnagar, Karnataka, in August 2009, exercising the Central  Motor Vehicles Act along with the Karnataka Motor Vehicles Rules, banned traffic from 9 P.M. to 6  A.M whereby vehicles were stopped on both ends of the stretch and allowed resumption of traffic  only in the morning2. At this point, it is also important to advert to field visits and recommendations  of the National Tiger Conservation Committee. As per the studies, the road passing through the core  and Buffer zones of Tiger Conservation areas ought not to be permitted at all. Under section 38V in  subsection (4)(i) of the Wildlife (Protection) Act, 19723added by the amendment Act of 2006  follows4: –

i) Core or critical Tiger habitat areas of National Parks and Sanctuaries, where it has been  established, on the basis of scientific and objective criteria, that such areas are acquired to be kept  as inviolate for the purposes of tiger conservation, without affecting the rights of the scheduled  tribes or such other forest dwellers, and notified as such by the State Government in consultation  with an expert committee for the purpose.

PROTEST ON THE BAN 

The case was brought in front of the Hon’ble High Court of Karnataka which upheld the night traffic  ban pointing out that the interest of protecting wildlife is important and no less important is the need  to protect the interest of the public, who are commuters and traders. The state of Kerala, by a special leave petition, approached the Hon’ble Supreme Court to lift the ban. Observing the facts, the Hon’ble  Supreme Court upheld the decision of the Hon’ble High Court of Karnataka and also pointed out that  a complete closure of the NH 766 can be implemented if necessary5. 

Complete closure of NH 766 will adversely affect one of the major hill stations and also a developing  district in Kerala, Wayanad. The Kollegal-Mysore-Kozhikode road had existed for 200 years. It was  declared a National Highway in 1989, then named NH 766 with 150 odd registered resorts and  hundreds of homestay facilities, Wayanad has emerged as a major hill station, catering to tourists  from neighbouring states. Although, they exist as a great model for the implementation of sustainable  and environment friendly development in Kerala and a place where still Human-Wild coexistence is  positive. The closing of the NH will result in the serious decline of the economic conditions of  Wayanad resulting in poverty and other major economic problems. Sulthan Bathery taluk of Wayanad  will exhibit the first signs of the closure of the NH as it is the place that shares boundaries with  Bandipur National Park. The livelihood of the people of Sulthan Bathery is dependent on Gundlupet,  in Karnataka, where they have cultivation lands and other trading activities. People of Gundlupet also  depend upon the daily wage jobs in Sulthan Bathery. 

REASONABLE SOLUTION 

The ban of traffic, between 9pm and 6am, through the NH, imposed by the Hon’ble High Court of  Karnataka was the biggest step taken by the State to protect the habitat in the National Park.  According to the Bandipur Tiger Reserve project director, animals’ fatalities have come down  significantly. Before the ban the stretch was reporting 100 odd animals’ deaths in accidents, but now  it has come down to 5 to 10. If the highway is opened, fatalities would increase manifold. So, it is  important to maintain the ban. The State should strive to promote the welfare of its citizens as per the  Directive Principles of State Policy, complete closure of the NH as per Supreme court will adversely  affect the residents of the district of Wayanad. They will lose their livelihood and may also lead to the  destruction of one of the core tourism centres of Kerala. State also gives prime importance for the  conservation of forests and wildlife, which makes the State liable to safeguard its vast biodiversity. Complete closure may solve the latter as it amounts to a major step for the conservation of wildlife but drives the people to the verge of poverty. Lifting the ban, however, solves the problem of the  former, i.e. the welfare of the people will be promoted as more opportunities of job, trade and tourism  flourishes, but on the other hand the wildlife and forest will suffer serious damage from the increasing  human interference. As there exists a dilemma between the conservation and development or welfare  of the people, the best solution will be to maintain the status quo. Animals in the National park and  Wildlife Sanctuary have adapted to the timing imposed by the Karnataka High Court which is  reflected in the decline of the animal fatality rate. Also, as the transportation between states is  partially banned, 9pm to 6am, it does not pose a threat to the livelihood of the people living in both  states.

CONCLUSION 

The ban of traffic, between 9pm and 6am, through the NH 766, imposed by the Hon’ble High Court  of Karnataka was the biggest step taken by the State to protect the habitat of the National Park.

However, complete closure of the NH as per Supreme court will adversely affect the residents of the  district of Wayanad. As far as the facts and reports of experts are analyzed, the most appropriate  decision is to maintain the status quo, i.e. to uphold the existing night traffic ban between 9pm to 6am  which will result in sustainable development in both States.  

The Environment has become a major concern not just in India but all around the world. Many  Governmental and Non- Governmental organisations have come up with various measures to protect the endangered environment. Environment law in India is growing and evolving year by year. The  right to a healthy environment under Article 21 of the Constitution of India, mandates the State and  the citizen alike to protect and improve the environment. Emphasis on the concept of sustainable  development continues to find its well-deserved place in judicial reviews and environmental decision  making. The importance laid by the courts on sustainable use of natural resources is remarkable.  Sustainable development is the future we want for all. It offers a framework to generate economic  growth, achieve social justice, exercise environmental stewardship and strengthen governance. Every  state should strive to achieve social justice and generate economic growth without destroying the  environment to let all the living creatures on the planet lead a harmonious life.

CITATIONS

1. Satheesh Kumar, N. S, Forest resource conservation and management for sustainable development a case study of Bandipur, Shodhganga (University of Mysore) (Oct 11, 2020, 02:13 PM), http://hdl.handle.net/10603/136216. ↩
2. Night traffic ban on NH-766: Kerala CM seeks Gadkari’s intervention, TI Express (, Oct 11, 2020, 08:08 PM), https://indianexpress.com/article/india/night-traffic-ban-on-nh-766-kerala-cm-seeks-gadkaris-intervention-6046310/. ↩
3. The Wildlife (Protection) Act, 38V, 1972. ↩
4. The State of Kerala v. L. Srinivasa Babu & others, SC SPL No.13838/2010. ↩
5. Supra note 4. ↩
6. M. C. Mehta v. Union of India, AIR 1987 SC 965. ↩

REFERENCE 

1. The Indian Express. “Night Traffic Ban on NH-766: Kerala CM Seeks Gadkari’s Intervention,” October 2, 2019. https://indianexpress.com/article/india/night-traffic-ban-on nh-766-kerala-cm-seeks-gadkaris-intervention-6046310/.
2. Accessed October 11, 2020. https://bandipurtigerreserve.in/.
3. The State of Kerala Transport vs L. Srinivasa Babu And Ors. on 7 August, 2019.” Accessed October 3, 2020. https://indiankanoon.org/doc/182926637/.
4. Manual, Universal’s Legal. Environment Laws. S.l.: Universal Law Publishing – An imprint of LexisNexis, 2015.
5. “M.C. Mehta & Anr. Etc vs Union Of India & Ors. Etc on 17 February, 1986.” Accessed October 12, 2020. https://indiankanoon.org/doc/1599374/.


aviation law

Impact Of The Pandemic In India’s Aviation Sector; A Brief Analysis

Leave a comment

Sivadath Madhu Menon

Government Law College, Thrissur

N. Arun Vaidyanath

School of Law, Sastra University

The Novel Coronavirus COVID 19, which was declared a pandemic by the World Health Organisation (WHO) in March 2020 has caused huge damage to human health and the global economy. It has caused a great depression to the World Economy and affected all kinds of people from rags to riches without sparing anybody. Strict quarantine protocol and travel ban have been imposed by the government to check the phenomenal growth of the global pandemic. On 24th March 2020, The Government of India headed by the Prime Minister Mr Narendra Modi ordered a 21 days nationwide lockdown which restricted the movement of 1.3 billion people of the country and almost all economic activities in the country, which resulted in a loss of 7-8 lakh crore for the economy1.

The imposition of a travel ban resulted in the suspension of non-essential public and private transport. India, which is considered the fastest-growing aviation market in the world according to the International Air Transport Association (IATA), is suffering from huge economic loss due to the lockdown. According to reports2The Aviation sector in India has suffered a loss of 3.3 to 3.6 billion USD in the first quarter of this financial year and the average loss per day stands at 75 to 90 crores per day. India is the world’s third-largest civil aviation market in terms of passengers, domestic and international combined. The depth of the economic crisis caused by the COVID 19 is massive all over the globe and India is no exception. Thousands of people get laid off everyday and many others are working without remuneration. In this difficult time, the approach of the airline companies towards their customers whom they claim to treat as their kings is very disappointing. The impact of the pandemic is not limited to the aviation industry alone, but to the entire industrial world. Other industries do not enjoy the privilege of holding on to the money rightfully due to the customers. but the Airline companies do enjoy the right and privilege of keeping their refund deductions with themselves. This does not mean that in such situations or circumstances they have the right to keep the money which is fully entitled to the customer as a credit shell for the time frame fixed by the airline companies themselves. In the present scenario, many people who have booked their Air tickets before the lockdown and during the lockdown are expressing their anxieties about the refund policies of their airline tickets by the companies. The Airline companies are transferring the amount which is due to the customers into their credit shell3 account which should be used within the time specified by airline companies.

The office memorandum4 dated 16 April 2020, directs the airlines to make a full refund to the customers who have booked their tickets during the initial lockdown. Further to this, the Central Government extended the lockdown from 15th April 2020 to 3rd of May 2020, and another order was issued by the Directorate General of Civil Aviation (DGCA) to all the Airlines to fully refund the money to those who have booked their tickets during the 2nd phase of lockdown. Even though passengers are the ones who have to decide on the transfer of money to the credit shell, the Airlines are transferring the money to the credit shell account of the customers without their consent. Airline companies are using this as an advantage and are transferring the amount to the customers’ credit account thereby ensuring that they do not lose any income from a ticket booked for a journey during the lockdown. Pursuant to the impugned notification issued by the DGCA, only the passengers falling in the first and second phase are entitled to a full refund of air ticket amount upon cancellation and the passengers in the third and fourth phase are arbitrarily excluded from availing the refund of air ticket amount from their respective airline companies. Moreover, on cancellation of the ticket by passengers falling in the third group contrary to the full refund, the full ticket amount goes into the credit shell of the passenger which he/she can avail within a period of 1 year. It is worth mentioning that the credit shell accounts are not transferable, i.e. only the same passenger can use it and further, the credit shell would elapse within a period of one year.

Responding to the petitions filed by Pravasi Legal Cell and others5 which sited that the approach of making credit shell mandatory by refusing the refund is in clear violation of the Civil Aviation Requirements Act, 2008 issued by the Directorate General of Civil Aviation (DGCA) which states that “The option of holding the refund amount in credit shell by the airlines shall be prerogative of the passenger and not a default practice of the airline”. The DGCA came up with a few proposals6 which were later accepted by the Supreme Court which mandates that the passengers who had made their booking during the lockdown for a travel between 24th March 2020 and 24th May were entitled to a full refund within three weeks if the airline has received the payment in the aforementioned time frame, if the tickets were booked through a travel agent in such cases the full refund was to be credited to the travel agent’s account which must be immediately transferred to the passenger’s account and for the tickets booked for a journey after 24th May 2020, the refund will be made according to the guidelines mentioned in the Civil Aviation Requirement Act, 2008. The Supreme Court bench comprising Justices Ashok Bhushan, Subhash Reddy and M R Shah further stated that airlines which are facing financial constraints may offer a credit shell which is valid up to 31st March 2021 and must refund the same to the passengers if it remains unused.

Conclusion

The above-mentioned approach of the airline companies towards their7 passengers is unfair and the  method of classifying passengers based on their date of booking and  date of travel vide office memorandum dated 16th April by the DGCA violates the basic fundamental right of equality available in the  Indian Constitution.  Article 14  of the constitution states “Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Every person has the  right to equality which means that  the state has to treat “equals equally”, This, sadly, is not the case when Airlines are treating the customers  unequally. The recent proposal of the DGCA has indeed provided relief for the passengers and the Airlines which are facing financial constraints during these uncertain times.

Citations

1. World’s Biggest Lockdown May Have Cost Rs 7-8 Lakh Crore to Indian Economy, Economic Times (Apr. 13, 2020, 09.00 PM), https://economictimes.indiatimes.com/news/economy/finance/worlds-biggest-lockdown-may-have-cost-rs-7-8-lakh-crore-to-indian-economy/articleshow/75123004.cms. ↩
2. Effect of Novel Coronavirus (COVID 19) on Civil Aviation: Economic Impact analysis, ICAO (Oct. 10, 2020, 9.30 PM), https://www.icao.int/sustainability/Documents/COVID-19/ICAO_Coronavirus_Econ_Impact.pdf ↩
3. GoIndigo, Know Your Credit Shell, Indigo Airlines (Oct. 9 , 2020, 11.00 PM), https://www.goindigo.in/information/credit-shell.html#:~:text=1.What%20is%20a%20credit,by%20us%20against%20your%20PNR. ↩
4. Usha Padhee, Office Memorandum, Directorate General of Civil Aviation (Oct. 9, 2020, 11.15 PM), https://dgca.gov.in/digigov-portal/jsp/dgca/homePage/viewPDF.jsp?page=topHeader/COVID/Circular%2016.4.2020.pdf ↩
5. Pravasi Legal Cell V. Union of India ICL 2020 (10) SC 457. ↩
6. Arpan Chaturvedi, Supreme Court Accepts DGCA Proposal for Flight Ticket Refunds, Bloomberg Quint (Oct. 9, 2020, 11.50 PM), https://www.bloombergquint.com/law-and-policy/supreme-court-accepts-dgca-proposal-for-flight-ticket-refunds. ↩
7. INDIA CONST. Art 14. ↩

References

  1. Constitution of India.
  2. Directorate General of Civil Aviation, Government of India (https://dgca.gov.in/digigov-portal/).
  3. International Civil Aviation Organization (https://www.icao.int/Pages/default.aspx).