The “High-Level Committee constituted for review of
Environment and Forests Laws” (the TSR
Subramanian Committee) has recently submitted its report to the MoEF.
Preliminary information about its report indicate that its recommendations are a
sure recipe for serious dilution of environmental protection regime in the
country, which is not too effective in any case; and that its
recommendations seem to have ignored the lessons and experience of last few
decades since the operation of the Environment Protection Act and other
laws.
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| Laws based on the Committee's Report are unlikely to ensure environmental protection |
The note below presents some comments on the recommendations
of the TSR Committee Report. It should be noted that comments are limited only
to some recommendations. Second, as of now, only the executive summary (ES) of
the report is available in the public domain, so the comments are based on the
ES only. Some of the comments could be revisited when the detailed report is
made public.
Report finds legal framework robust, yet recommends
changing it drastically
The Committee was set up to review six environment related
legislations, and suggest amendments to them. However, what the Committee found
was that
“While India has a strong
environmental policy and legislative framework, much of the problem related to
weak implementation of the various acts and the rules there under.”
Clearly, if we already have a strong environmental legal and
policy regime, then the recommendations should have pretty much left it alone. As
they say, “If it ain’t broke, don’t fix it”. Yet, the Committee has suggested
sweeping changes in the laws. Most of
the changes appear to weaken environmental protection, which then seems to be
very purpose. Why else should the committee recommend sweeping changes in the
laws when it itself found the regime to be robust?
In fact, it should have focussed mainly on suggesting ways
to make implementation stronger.
Ironically many of the changes suggested are likely to
decrease accountability, weakening implementation further, or allowing weak
implementation to continue.
Winding up or Dilution of National Green Tribunal on Cards
The recommendation of the Committee to have an “appellate mechanism against
the decision of the NEMA [National Environmental Management Authority] and SEMA
[State Environmental Management Authority]” appears to be aimed at doing away with
the National Green Tribunal (NGT).
This is ironic in context of the Committee’s finding that implementation is
the key issue; as the NGT has been the main, one can even say the only
mechanism that has brought in some semblance of accountability to the
environmental protection regime. In spite of this, or may be because of this, there has been a clamour
against the NGT and a dilution has been
talked about a lot. The Committee seems to have gone along with this clamour.
Apparently, the reason to bring in an Appellate mechanism is that the first
forum of appeal should not be a judicial one. However, the Committee report is
silent on whether the NGT would still remain and be the second level of appeal.
In any case, if such a new Appellate mechanism is brought it, the least of provisions
should be that the Environmental or Forest Clearance (or other decisions) of
NEMA/SEMA that are being challenged should automatically be suspended once the
appeal is made. Otherwise, the appeal would drag on for months if not years,
and the work on the project would continue. After that, any appeal at the
higher levels is likely to be doomed from the very start as the project would
be a fait accompli. Of course, the Committee recommends that every
appeal has to be disposed-off in three months, but experience of such
mechanisms shows that this is likely to be breached more than honoured.
Utmost Good Faith Mechanism
A measure most disconnected with the
Indian situation is the recommendation
of legislating a concept of “Utmost Good Faith”. As the Summary notes:
“A new concept of ‘utmost good faith’ has been
inducted, through a new legislation, to ensure that the applicant for clearance
is responsible for legally for his statements, but would be severely penalised,
as prescribed, for any deliberate falsehood.’
This is supposed to ease implementation by significantly reducing inspector
raj.
However, this exhibits a complete disregard for the Indian situation. The
real question is not whether industries
or corporates will not exhibit good faith – the real issue is whether the
Indian state will be able to (or will want
to) take strict action.
The problem is that the Indian political, bureaucratic and technocratic
establishment has no political will or intention to take strict action and
penalise offenders, often in lieu of extra-legal considerations.
Of course, this is very easy for the Government to contradict, if they want.
All they have to do is to show such action – for which there is ample scope
even within today’s legal regime. Indeed, such a demonstration of the Government’s
ability to act strictly need not wait any new legislation, and rather, must
form a prerequisite for even thinking of any new legislation of ‘utmost good
faith’.
Delinking Compensatory Forestation from Project
One of the important recommendations of the Committee is
“…delinking the project proponent from Compensatory
Afforestation obligations after he
fulfils the necessary financial
commitments…”
Ethics demands that the responsibility and accountability to carry out
environmental compensatory measures must lie with the one who is responsible
for destroying it – in this case, the project promoter. And if he is not able
to ensure compensation, then he should not be allowed to destroy.
It is true that even today, the project proponent pays the money to the
afforestation fund, and the responsibility for carrying out afforestation is
that of the government forest departments. But the final responsibility remains
that of the project proponent. The proponents have a grievance that they are
being made responsible for afforestation
but they don’t have any control on it, and this certainly has some merit. But
the solution cannot be in delinking the project completely from the afforestation,
for then one is likely to defeat the very purpose of environmental regeneration
and it also goes against the principle that responsibility for ensuring compensatory
measures must lie with the one who is responsible for destroying it
There is also a practical consideration. Experience of last several decades
has shown that the main motivation for carrying out the afforestation (and any
other environmental protection scheme or rehabilitation processes) in time
would be of the project proponent and that too only if his project is likely to
be delayed in case of default.
No Provision for Participation
While the Committee has recommended sweeping changes in environmental laws
in spite of finding that the regime is robust, it has not made recommendations
for the one most glaring lacunae in the current legal regime. This is that the
current legal regime has almost no place for participation of local
communities, affected people and ordinary citizens in the assessments of
impacts, in environmental decision making, or in monitoring of implementation
of environmental measures.
Such participation is most crucial in ensuring proper implementation of
environmental laws and for ensuring environmental protection measures.
Unfortunately, the Committee has lost the opportunity for introducing
comprehensive provisions for meaningful participation of people. Possibly, its
very limited consultations and the limited exposure of its members to relevant
aspects of environmental regime has been responsible for this omission.
It is imperative now for the MoEF not to rush into implementation of the
Committee’s recommendations, but put them in the public domain and first have
extensive consultations on these.
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