Fissures in federalism

India, the largest democracy in the world, is in the process of electing citizens’ representatives for the lower house of the Parliament. The national election process is expected to conclude by the first week of June. By then the citizens of 28 states and nine Union territories of the country will elect their representatives, and a new Union government, headed by a Prime Minister for administering the nation for the next five years, will be formed.

While the states are administered by the respective Chief Ministers, the Union Territories (UTs) are administered by the President through an administrator appointed by him/her. Actually, the Union government administers the UTs directly. Unlike the UTs, the states have their elected governments, which have the right to frame their laws. A state has its own Legislative Assembly and a Chief Minister, for administration. During the last five years, the number of UTs has increased from seven to nine, as in August 2019, the state of Jammu and Kashmir was downsized into two Union Territories — Jammu & Kashmir and Ladakh. Thus, the number of states has come down to 28 from 29.

In addition to the UTs, the Union government now directly administers the exclusive economic zone (EEZ) of India, and through an amendment in the Forest Act, the Union government is in the process of directly controlling huge forest areas across the international land borders of the country. Thus, the Union government encircles all the border and coastal states of India for exploiting and protecting the natural resources of the vast areas directly administered by it.

Though growing discontent of the state leaders on sharing of tax proceeds between the Union and State governments are often flagged in the election rallies, the sensitive issues on the sharing of natural resources from the administered areas of the Union government and on the continuous encroachment in the federal rights of the state governments have not yet received proper attention of the citizens. This article will briefly deliberate on these two issues.

Areas under direct control of the Union Government

In addition to the Union Territories (UTs), the Union Government directly administers the country's exclusive economic zones (EEZs) and international land borders.

India is a large country with a coastline of 7,516.6 km, of which 5,422.6 km is attached to the mainland and remaining 2,094 km encircle island territories. Compared to India’s land area of 3,287,263 sq km, its continental shelf is larger at 372,424 sq km. Its exclusive economic zone (EEZ) has an area of 2,141,200 sq km, and the area of its territorial sea (up to 12 nautical miles) is 193,834 sq km.

The Union Government also administers 15,106.7 km of land border. Country wise, the length of borders are: Bangladesh 4,096.7 km — the fifth-longest land border in the world, China 3,488km, Pakistan 3,323 km, Nepal 1,751 km, Myanmar 1,643 km, Bhutan 699 km, and Afghanistan 106 km. West Bengal is the only state which shares borders with three countries, namely, Bangladesh (2,217 km), Bhutan (183 km) and Nepal (97 km). The 2,217 km long international border between West Bengal and Bangladesh is the fifth longest land border in the world.

Importance of the blue economy

The blue economy/ocean economy comprises the economic activities that create sustainable wealth from the world’s oceans and coasts. The OECD has defined ‘ocean economy’ as the sum of the economic activities of ocean-based industries, together with the assets, goods and services provided by marine ecosystems. For proper regulation, the seas and oceans are divided into distinct maritime zones, each with its own legal framework and implications. International waters play a crucial role in international law, navigation, and resource extraction. A few important globally accepted definitions for proper regulations of the sea are:

The territorial sea: It is the area adjacent to a coastal state’s land territory. It extends up to 12 nautical miles (22.2 kilometres) from the baselines, which are the low-water lines along the coast. It is also known as a fishing zone.

Continental shelf: It refers to the seabed and subsoil of the submarine areas that extend beyond the territorial sea, up to 200 nautical miles or beyond, where the natural prolongation of a coastal state’s land territory exists. Coastal states have sovereign rights over the exploration and exploitation of natural resources, both living and non-living, within their continental shelf.

Exclusive Economic Zone: One important issue that regulates the blue economy is the demarcation of the exclusive economic zone (EEZ), as defined under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It is an area of the ocean extending up to 200 nautical miles (370.55 km) immediately offshore from a country’s land coast in which that country retains exclusive right to the exploration and exploitation of natural resources.

A UN report suggests that every year, the ocean economy has an estimated turnover of between USD 3 and 6 trillion. This includes employment, ecosystem services provided by the ocean, and cultural services. With 3.4 million square nautical miles (4 million square miles) of ocean, the US’ EEZ is larger than the land area of all 50 states combined and is one of the largest EEZs in the world. It contains a vast array of natural resources, such as seafood, critical minerals, medicines, and areas of significant ecological and conservation value.

With massive areas of continental shelf and exclusive economic zone, which are larger than its land mass, India also has the huge potential in the emerging blue economy of the world.

A study by geologist GS Roonwal, 2008, revealed that the mineral potential of India’s EEZ includes well‐known monazite‐ilmenite‐rutile placers, calcareous aggregates and sands in the shallow waters. There is also potential for cobalt‐rich crusts in several locations. In addition, hydrocarbon deposits in the offshore areas are already attracting long-drawn-out activity. Realising the significance of the blue economy, the Union Government’s interim budget 2024-25 allocations for 'Blue Revolution' have been increased from Rs 2,025 crore in fiscal year 2023-24 to Rs 2,352 crore for current fiscal year, reports Deccan Herald.

Role of coastal states

In India, the Ministry of Earth Sciences (MoES) is the nodal ministry responsible for implementing India’s Deep Ocean Mission. This multi-institutional ambitious mission consists of the following six major components:

* Development of technologies for deep-sea mining, and manned submersible;

* Development of ocean climate change advisory services;

* Technological innovations for exploration and conservation of deep-sea biodiversity;

* Deep-ocean survey and exploration;

*Energy and freshwater from the ocean;

* Advanced marine station for ocean biology.

Article 297 of the constitution primarily deals with what to include within territorial waters, continental shelf, and exclusive economic zone. It says:

(1) All lands, minerals, and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union.

(2) All other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union.

(3) The limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zones of India shall be such as may be specified, from time to time, by or under any law made by Parliament.

Nine coastal states of India have 5,422.6 km of coastlines attached to them. Table 1 suggests that Gujarat has the longest coastline, followed by Tamil Naidu. Barring West Bengal and Karnataka, EEZs of other seven states far exceed their land areas. In the case of Tamil Nadu, the size of EEZ is over three times of its land area. In the case of Kerala its size is over five times. But the coastal states do not enjoy any power to enact an Act on EEZ.

In this context, it may be mentioned that royalty from offshore fields such as Mumbai High is paid to the Union Government, but in the case of onshore production, it is paid to the state where the field is located. For example, in 2012-13, ONGC paid royalty of Rs 3,940 crore to the Centre for offshore fields and Rs 6,879 crore to states for onshore output.

Till now, Indian coastal states have no significant role in managing the blue economy. In near future, share of royalty payment from offshore mining might become a contentious issue between the coastal states and the Union Government.

Forest (Conservation) Amendment Bill, 2023

In 2023, both the houses of the Parliament passed the Forest (Conservation) Amendment Bill, 2023, which seeks to exempt land within 100 km of the country's borders from the purview of conservation laws and permits setting up of zoos, safaris and eco-tourism facilities in forest areas.

The Forest Conservation Act (FCA), 1980, made it mandatory for anyone to seek a government clearance for using any forest land for non-forest purposes. The Forest Conservation Amendment Act received the President’s assent on August 4, 2023. It will come into effect once the Union Government notifies it in the gazette.

One of the main provisions of the 2023 amendment said that FCA would be applicable only to the land that was notified as forest in government records. But this went against a 1996 order of the Supreme Court in which it had clarified that FCA applied to not just notified forest land, but any land that was forest according to the dictionary meaning, reports the Indian Express.

India, with a 15,106.7 km land border, can theoretically exempt 15,106,00 sq km of forest land from the purview of conservation laws. The bill also seeks to empower the Union Government to specify, by order, the terms and conditions subject to which any survey, such as, reconnaissance, prospecting, investigation or exploration including seismic survey, shall not be treated as non-forest purpose, reports Economic Times.

West Bengal, with the longest international border of 2,497 km, is likely to be the worst hit. The world’s largest mangrove forest, Sundarbans, shares a long boundary with Bangladesh. In fact, the major part of the forest is extended to the Bangladeshi soil. The new bill will allow the Union Government to grab forest land up to 100 km of the international border. The other vulnerable area in West Bengal is the Siliguri corridor — a 60-kilometre long and 22-kilometre wide corridor, also known as the “Chicken’s Neck”, which connects India’s north-eastern states with the rest of the country. The Siliguri Corridor also links India to neighbouring Nepal, Bangladesh and Bhutan.

Critics allege that the new amendment is a prelude to a “land grab” in the name of development in India’s sensitive north-eastern border region. Reacting to the new Bill, the Naga People’s Front has termed the new law to be “anti-tribal” and demanded that the Nagaland state assembly should pass a resolution against it. It is observed that the amended bill completely undermines the powers of the state government. “Earlier, they would need state’s permission for forest-related matters. Now they don’t,” said Nagaland lawmaker Azo Nienu, leader of the front.

400+ ecologists and activists have also written to the environment minister, flagging their concern on the amended bill. In the letter, they pointed out that the Amendment would remove the necessity of forest clearances for security-related infrastructure within 100 km of international borders. These areas are home to the most ecologically important ecosystems in the country, including the forests of northeast India, the high altitude deserts of Ladakh and Spiti, the alpine forests of Uttarakhand and Himachal Pradesh, and the open scrub and desert ecosystems of west India. Other security-related infrastructure in different parts of the country is also exempted from forest clearances, which means that every part of the country could be impacted by military infrastructure. However, the need for fast-tracking should not imply the complete elimination of the need for appraisal, they observed.

Observations

With the invention of new marine technology, the potential of the ocean/blue economy will increase substantially in the near future. For proper sharing of benefits of the emerging blue economy between the coastal states and the Union Government, a Commission on Blue Economy (a la Finance Commission) may be created at the earliest to uphold the spirit of cooperative federalism. As millions of citizens residing in the coastal states depend on the marine ecosystems for generation of livelihood, the state governments should also be involved in the formulation of sustainable development strategies for the blue economy.

The newly passed Forest (Conservation) Amendment Bill, 2023, allows the Union Government unrestrained access to forest lands of the international border states and Union Territories. It completely undermines the power of the state governments to protect indigenous forest dwellers and valuable forest resources. This new bill further strengthens the power of the Union government destroying the spirit of federal governance as assured by the Constitution.

Views expressed are personal