Representative image showing preparations being made mine iron ore in Goa, 2020. Photo: Reuters.
On September 7, 2020, the Karnataka High Court extended its interim order, until further orders, prohibiting the Centre from finalising the draft Environmental Impact Assessment (EIA) notification 2020.
Four days prior to that, the Centre – through the environment ministry – had filed a review petition before the Delhi high court requesting it to review its earlier judgment directing the ministry to translate the draft EIA in “at least” the 22 languages, mentioned in the eighth schedule of the Constitution.
According to the Centre, the exercise would open “flood gate of litigation due to multiple interpretation”, “meaning of words will be obfuscated and often lost”, “will lead to future demands of translation of all statutory regulations” and “create massive hurdle in performance of normal legislative and administrative functions”.
Its final words were that there is no “statutory and constitutional obligation” to publish the draft in vernacular languages and doing so in only English and Hindi (in Devanagari script) would suffice. Petitions were also filed in the Madras and Kerala high courts demanding Tamil and Malayalam translations.
In this process, something unique happened: the public debate on the draft EIA, which had started as a purely environmental issue, became one of language, of respecting and recognising cultural plurality and regional differences.
A path-breaking draft
The draft EIA is a unique text that places the violators of the law front and centre. It looks at environmental law through the eyes of the violators – in terms of the permissions to be sought, impact assessment studies to be conducted, EIA consultants to be compensated, people to be convinced and, of course, the bribes to be paid and processes to be surpassed.
After having identified the many problems and hardships faced by violators, the draft EIA deals with them one by one. If an ignorant industrialist or builder has invested a few hundred-crore rupees to illegally construct a shopping mall or power plant, the draft EIA implicitly recognises the ‘nation-building’ effort that this is, and stipulates that the violator will have to pay a princely sum of Rs 5,000 per day (at best). A mining cartel will end up paying Rs 1,000 per day for having illegally mined sand irrespective of the amount of sand that’s been extracted. In effect, the draft seeks to introduce the concept of reformative justice in environmental law.
Similarly, it recognises that violators will take note of their violations from the day they voluntarily inform enforcement agencies of the fact of their violation. This will surely end up eliminating the last remains of India’s ‘inspector raj’. Pollution control board officials can now wait in their offices for violators to knock on their doors, and not have to chase and harass the beleaguered fellows.
According to the Water (Prevention and Control of Pollution) Act 1974 and the Air (Prevention and Control of Pollution) Act 1981, it’s mandatory for an entity to receive consent before commencing construction and/or production work, called the ‘consent to establish and operate’. Violating the provisions under these laws invite penal consequences – a jail term of at least one-and-a-half years. These laws have been enacted by parliament.
However, the bureaucrats in the environment ministry have concluded that these laws could hurt the ‘ease of doing business’. So the draft EIA notification replaces ‘imprisonment’ with ‘atonement’. Specifically, according to the draft, project proponents are free to violate the law until they report their wrongdoings to the authorities suo moto. And after doing so, they can pay for the damages by implementing a so-called ‘community and natural resource augmentation plan’. This way, the government doesn’t have to wait for lengthy parliamentary procedures to conclude. And as such, environment ministry officials have thus introduced the concept of alternative sentencing or non-custodial sentences into India’s environmental law system.
The draft EIA has been circulated only in two languages for public comments: English and Hindi. The environment ministry seems to have recognised the fact that since the final decision with respect to India’s natural resources is to be made in Lutyens’ Delhi, sticking to these two tongues will save time and effort. After all, in a majoritarian democracy, what really matters is only the needs of the majority. So why bother translating the document into Bodo, Garo, Khasi or Mizo, all of them trivial minorities?
Recall how Dravida Munnetra Kazhagam leader C.N. Annadurai reacted to the argument that Hindi should be India’s national language, since it was spoken by more Indians than any other language: “If we had to accept the principle of numerical superiority while selecting our national bird, the choice would have fallen not on the peacock but on the common crow.”
However, since India’s corporates may have been adversely impacted by the pandemic and subsequent lockdown, the environment ministry has informed the Delhi high court that it wrote individual emails to 78,000 corporate entities, informing them of the draft and asking for their inputs. The ministry has thus set a new standard for free prior and informed consent – something the country’s rural and forest-dwelling communities have been demanding for decades, without much success.
While around the world public participation continues to become more important in decision-making, the draft EIA does the reverse. For example, the timeline to seek public comments on an EIA report has been reduced from 30 days to 20. This bold step will ensure a mega-dam that takes some seven or eight years to build will be completed about 10 days before its scheduled date. People’s homes will be lit now about a week before the scheduled date.
The draft EIA notification interestingly hasn’t found a place on the environment ministry’s homepage online. In fact, it’s to be found on a linked website called ‘Parivesh’. Parivesh is Hindi for ‘environment’. But for the ministry, parivesh is actually an acronym for ‘Pro Active and Responsive Facilitation by Interactive and Virtuous Environmental Single-window Hub’.
This is the sad reality. The draft, in the final analysis, is a step towards ensuring India’s environment ministry legally becomes a single-window clearing house to facilitate the destruction of our natural environment, and legitimise illegality. It will not be long before the nation realises that this action is clearly anything but virtuous.
Ritwick Dutta is an environmental lawyer.