Updated: Dec 29, 2020
Research Intern, Legit
The principle of Public Participation in the decision-making process is increasingly been recognized as crucial in creating environmental governance more nuanced and welfare-oriented in democratic and participatory societies. An increased emphasis on democratic mechanisms in environmental governance is for a range of reasons, primarily for addressing the concerns of all the stakeholders involved to create a sustainable model of development where all the stakeholders stranded to have the maximum benefit, with the least degrading cost involved to the environment and its surrounding, in addition to furthering justice and equity and to form participative or thoughtful measures as alternatives to representative democracy. This is also done to the improvement of the legitimacy of disputed environmental choices. The principle of Audi Alteram Partem is best embodied here as the normative benefits for representative democratic systems accruing from these democratic policies are well established, since public participation appear to boost transparency, responsibility, and implementable of public decision-making, and prompt a wider vary of democratic deliberation. These mechanisms additionally highlight a psychological feature improvement of choices due to inputs from a plurality of views, as well as through a widening of the technical and scientific bases for public choices. The large-scale industrial enterprise of science for industrial, economic, and social application, and therefore the incidental involvement of considerations of profit in company investment are seen to affect analysis agendas of the scientific enterprise. Public participation is commonly regarded as an important avenue for filtering problems that are disregarded in technical advances in environmental and health regulation, because of the potential difficulties arising out of the said changes within the scientific enterprise. The idea of Public Participation is also elaborated upon in the Rio Declaration of “which calls for the conferring of appropriate access to information, the opportunity to participate in decision-making processes, and effective access to judicial and administrative proceedings for environmental issues towards the realization of sustainable development through better connections between the governed and those who govern.’’ (Public Hearing and Environmental Protection, 2017)
2. The Process of Environment Impact Assessment and Public Participation in India
The event of Bhopal Gas Tragedy in 1984 precepted the discussion on Environmental Pollution and the impact on the surrounding residents around it off, therefore, the Environmental Protection Act 1986 came about. The Environment Impact Assessment (EIA) comes under this Act in the year 1994. However, for the first time, the EIA Notification brought in a policy for the public involvement with the environmental clearance decision making process through the general public hearing mechanism, which was later codified in 1997. It laid down the condition that the findings of the impact assessing authority ought to be based, among other things, mostly on the main points of the public inquiry. The project proprietor needs to submit twenty sets of documents for approval to the state pollution control board. Subsequently, the board needs to offer notice of hearing in two newspapers of wide circulation within the vicinity of the area, one that ought to be communicated and comprehended through the vernacular language. The notice ought to mention the date, time, and place of the public hearing. Recommendations, views, comments, and objections of the general public are invited thirty days from the date of the publication of the notice. The key change within the notification was amended in the year 2006, whereby the project was classified into A and B. Furthermore, class B was additionally divided into B1 and B2. It is to be noted that the Clearance for class A projects is given by the Ministry of Environment, Forest and Climate Change( MoEF), while class B projects are given clearance by the State Environmental Impact Assessment Authority (SEIAA). Furthermore, projects categorized under B2 are not mandated to undergo an environmental impact assessment report. The mechanism of EIA involves four crucial stages: Screening, scoping, public consultation, and appraisal.
Under stage III, the provision of the public hearing is embedded. The stakeholders of the project, particularly the people impacted by this project, which would be set up in their vicinity are called upon to make their concerns and opinions to be known, so a judicial decision can come across with regards to the application created for seeking prior environmental clearance. The process of Public Hearing is open to everyone who may want to let their grievances and concerns regarding the project known. The objective of conducting these consultations is to determine all the aspects regarding the initiation of construction of industries and its consequent impact on the environment and the individuals around it, to make a decision that could safeguard both the interests of the locals and the industries involved, especially in ecologically sensitive areas. As stated before, the process of public consultation/hearing isn't needed for certain industries as fixed below the EIA notification of 2006. For instance, the enlargement of national highways does not need public consultation.
The provision is intended to facilitate in bridging the gap of understanding between the project sponsors and also the members of the general public and produce public confidence in the method of higher deliberative and collaborative efforts. It helps in making certain public acceptance of development selections, where the general public has a defined involvement in any step of the process.
3. The Role of Judicial Process in Environmental Clearance
Within such a democratic paradigm, there are a variety of legal instruments that underline the overall importance of public participation and therefore, demonstrate the specific need to institutionalize a regulative framework that enables public participation in decision making relating to the protection of surroundings and acceptable use of natural resources. This was witnessed in cases such as the Taj Trapezium case, the Kanpur Tanneries case, Delhi vehicular Pollution case, and Vellore citizens Forum case that demonstrates the desirability of the involvement of judiciary and the general public relating to grant of environmental clearances
On numerous occasions, the Supreme Court and the High Courts have been insisting on the necessary implementation of the EIA and implicitly or explicitly promoted the general public participation in the environmental decision-making process by the authorities. In one of the most defining cases of Environmental Law in India, in Narmada Bachao Andolan v. Union of India (2000)the environmental clearance was given by the Central Government in 1987, abundant before the above notification of 1994. Even the dispute concerning the raising altitude of the dam (2000) was settled by an award given in 1978. Thereafter, the development was preoccupied in 1987. The judicial writ was filed to challenge the development and raising the altitude of the dam in 1994. The Supreme Court held that as the project has already been started and crores of rupees from the taxpayer’s money have been spent, the petition seeking to stop increasing the height of the dam could not be entertained, as the project had been greenlighted long before the notification, therefore is not mandated to conduct an environmental impact assessment. However, on the other end of the spectrum, in M.C. Mehta v. Union of India (1986) the Court took the stance and explicitly clarified that while the 1994 notification doesn’t apply to minor issues but about an issue as critical as the degradation of the environment and risk concerned to human health and ecology, the EIA is mandatory. Moreover, after the mining in the Haryana region of Aravalli Hills was challenged, it was held that the notification is applicable. The Supreme Court-appointed a ‘Monitoring Committee’ to look after the difficulty with mandated directions. In a different PIL case, the direction of the Supreme Court visited the extent of spreading environmental awareness and accomplishment also explored the launching of environmental education not solely at the school level, however additionally at the university level. In M.C.Mehta v. Union of India, the Supreme Court stressed the necessity for introducing such public narrative and education, with the perspective that for human conduct to be following the prescription of law it's necessary that there ought to be appropriate awareness concerning what the law needs. Such innate knowledge of what the law requires t could be attainable only when efforts are taken within the adequate measures to create individuals conscious of the indispensable necessity of their conduct being bound per the necessities of law. The consequence of such an undertaking by the court is seen with the Bar Council of India introducing Environmental Law as a required paper for legal education at the graduate level.
The decision and therefore the directions of the high court of Gujarat in the Centre for Social Justice v. Union of India (2000) have a persuasive impact on the event of the conception of public participation in India. during this case, the court has issued the following directions associated with public participation in environmental decision-making deliberations:
A. The place of the public hearing shall be as close to as attainable to the planned web site and both distant from the headquarters of the taluka, wherever the location is planned. Notice of the public hearing shall be printed in 2 newspapers that have wide circulation in the region. The Local Authorities must also be asked to provide promotional material to the notice. The minimum amount of notice shall be thirty days. This was changed during the 2020 amendment to the act.
B.The executive outline of the project ought to be created accessible the least inconvenience as possible to the remote regions and places a minimum of thirty days before the date of the public hearing.
C.Outline of the EIA report within the native language additionally shall be created offered to the involved person on demand.
D. Gathering of the hearing panel shall be one 1/2 the overall membership. Representatives from the board and state environment department, one senior citizen, and a conservationist appointed by the collector are present there to mark their attendance and represent the various stakeholders
E. The committee will decide such numbers of hearings as are found necessary by observing the impact of the project on the environment. there's no laborious and quick rule out this respect
F. The state pollution board on demand shall furnish minutes of the hearing as imperiously as attainable. The Central Government shall cause publication of the gist of clearance certificate in newspapers within which the notice for the public hearing is revealed seven. there's no damage if the board makes an affordable levy on provision copies of the records-executive outline of the project, outline of the environmental assessment.
The EIA notification 2006 has accepted several principles arranged down within the above judgment, however, it's not incorporated the rules given for the gathering of attending publicly inquiry. The growth of the rule of locus standi has inspired folks to fight for the causes of the environment. the various cases filed by mister. MacMath and numerous NGOs show the positive results of the event of the participation of individuals in implementing the correct setting. The successful implementation of principles of property development in India is the result of the citizen’s right to enforce the basic right to a clean environment. The courts of late, particularly the Supreme Court have elaborated that the right to life as enshrined under Article 21 of the Indian Constitution also includes the right to get pollution-free and clean water and air. Therefore the right to a pollution-free environment is a fundamental right. Hence the role of the Judiciary, particularly the Supreme Court in India has not only articulated and developed the right to the environment as a fundamental right but also came forward to strike a balance of the inherent conflict of development versus environmental protection. While promoting the very concept of sustainable development, the Supreme Court in India has tried to balance to economic interests of the state with the interests of the locals and prevent the industries from exploiting the environment indiscriminately. (Review of Judicial Intervention: Hearings in Environmental Clearance, 2016)
4. The Impact of 2020 Amendment
Given the importance of public hearings in the environmental clearance process, it was therefore surprising for many to see the 2020 amendment to the bill, which reduces the period of public hearing from 30 days to 20 days, where Appendix –I (procedure of public consultation) clause 3 subclause 1 states that:
“The Member-Secretary of the concerned SPCB or UTPCC shall finalize the date, time, and exact venue for the conduct of public hearing within ten days of the date of receipt of application with the consent of the officer presiding over the public hearing. He shall advertise the same in one major National Daily and one Regional vernacular Daily or Official State Language in another five days from the date of the consent of presiding officer. A minimum notice period of twenty days shall be provided to the public for furnishing their responses.”
According to this clause, an individual barely has twenty days to place forth all his issues and problems concerning the project. Moreover, Clause 5 Subclause 7 of the draft 2020 states that every project regarding national defence and security or involving different strategic thought and consideration shall be exempted from the scope of public consultation and no data concerning such projects shall be placed within the public knowledge. The extremely wide scope of interpretation of the term “Strategic Considerations” poses an issue as the definition would be interpreted at the mercy of the Government's interests. This is also extremely limiting as Public Hearings are often the only channel through which the public can raise their grievances. History is replete with instances of activists embattling themselves for saving the inexperienced against indiscriminate modernization and industrialization taking a toll on the environment and the local people's livelihood.
This Amendment was particularly welcomed by the mining sector and the objective of this amendment was to have a streamlined process that will lead to substantive investments, increase self-sufficiency in the income and create employment opportunities in the country. With the impact of the pandemic being felt drastically in the economy, this amendment is an attempt to restore the economy into a semblance of normalcy by creating livelihoods and posing as an investment-friendly market for tech giants to relocate. However, the amendment is regressive in the scope of the global approach which recognizes climate change and environmental protection as an urgent issue and believes in a transparent accountable process that takes into consideration the concerns locals have to create a sustainable economy. Furthermore, the amendment invalidates the checks and balances placed by the 2006 notification by stating that violations can only be reported by the project proponents or the government officials and not by the citizen themselves, which distances the citizens from the actual decision-making process even more and cast doubt over the credibility of the entire process. The reduction in the number of days of public hearings was justified by the government arguing that the public had the access to the information via the internet and smartphones hence they didn’t need much time to access the information on the project, however, fails to consider that the idea of the public hearing was to build transparency in the process where the public can have their concerns addressed and not merely gain information on the project. Experts also fear that the obscure wording of the draft may give way to industries exploiting the loopholes and set up plants in Ecologically Fragile Zones( EFZ) such as the Western Ghats and the Himalayas and escape the scrutiny of any kind under “ strategic considerations”. It is concerning that the draft 2020 (vide Clause 22) has excluded the locus of social activists or NGOs in conveyance the violations against the 2006 notification, in which principally, we see the government embrace capitalistic modernization over the concept of sustainable development.
While the policy in spirit was to bring out the ideas laid down on sustainable development and create a more democratic notion of environmental conservation and development, the recent changes to the act have put the intention behind it in jeopardy. While the world grapples with the consequences of exploiting the ecologically fragile environment for rapid industrialization, this policy is a step backwards in limiting the general public’s input in the conceptualization of the project and having a restrictive period to voice their opinions.
Public Hearing and Environmental Protection. Poddar, Arup. 2017. 3, Kolkata: International Journal of Law, 2017, Vol. 3. 2455-2194.
—.Poddar, Arup. 2017. 3, s.l. : International Journal of Law , 2017, Vol. 3.
Review of Judicial Intervention: Hearings in Environmental Clearance. M.P Ram Mohan, Himanshu Pabreja. 2016. 50, s.l. : Economic and Political Weekly, 2016, Vol. 51.
1986.M.C. Mehta v. Union of India. 1987 SCR (1) 819, AIR 1987 965. New Delhi: Supreme Court of India, 1986.
2000.Narmada Bachao Andolan v. Union of India and Ors. 10 S.C.C 664, New Delhi: Supreme Court of India, 2000.
2000.Centre for Social Justice v. Union of India. AIR 2001 Guj 71, 3 GLR 1997. Ahmedabad: Gujarat High Court, 2000.
K.C.Deepika. 2020. Draft EIA Notification 2020 could spell disaster for the Western Ghats, say, experts. The Hindu. 2020.
Happy to announce that, Legit by Internationalism, The Magazine on Legal Theory by Internationalism, is featured in the Top 100 Legal Blogs of India, by Feedspot.
Find the link here: