NEW DELHI—Citing the “catastrophic” impact on the environment that may result due to the “regressive” provisions of the draft environment impact assessment notification 2020—the Narendra Modi government’s proposed law for environment clearance—a petition filed in the Karnataka High Court is seeking to prohibit the publication of a final notification based on the controversial draft.
So far, all petitions regarding the proposed law—which is widely referred to as EIA 2020—have cited concerns about the inadequate and non-inclusive way in which public consultation about the draft have been conducted. HuffPost India has reported them in detail here.
However, the petition filed by the Bangalore Environment Trust makes a bunch of requests which, if the court grants them, could effectively scrap the draft notification in its present form.
Some of the significant requests in the petition include: a) quashing the “regressive” provisions of draft EIA 2020 that dilute the existing EIA notification 2006; b) restraining the union environment ministry from “taking retrograde/regressive steps” in excess of its powers under Section 3 of the Environment (Protection) Act, 1986 and Rule 5(1) of the Environment (Protection) Rules, 1986; c) constitution of an Expert Committee led by a retired judge of the Supreme Court or any high court to oversee the objections, suggestions and recommendations received from people about the draft EIA 2020; and d) setting up a national regulator, an independent body outside of the environment ministry, to grant clearances.
Explaining why it is making such requests, the petition states, “It is submitted that if a Final EIA Notification is issued along the lines of the Draft EIA 2020 in its current form along with its dilutory and regressive provisions, the result would be drastic and catastrophic on the environment as a whole and would shake the very foundation of Environmental jurisprudence in the country, breach India’s Commitment under International Conventions, and impede Article 48A of the Constitution of India.”
Article 48A of the Indian constitution puts the onus of environment and wildlife protection on the state. “The state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country,” it states.
The petition, drafted by advocate Vanshdeep Dalmia and filed in court by advocate Pradeep Nayak, came up for consideration on Monday morning before the Karnataka High Court, which issued notice. A reply from the Union environment ministry to the petition is expected to be given in the next hearing.
This public interest litigation has been tagged with a related petition seeking translation of the draft law into Kannada, in which the court directed the environment ministry to undertake translation and public consultation accordingly. The court had also stayed the final notification based on the draft until translation and public consultation are conducted in Kannada, giving the government time until September 7, in its previous order. However, since the environment ministry has not said anything about translation so far, the court on Monday extended this order till further notice.
‘REGRESSIVE PROVISIONS’ CITED IN THE LATEST PETITION
The Bangalore Environment Trust’s petition details the ‘dilutions’ of legal provisions for the protection of environment in the draft EIA 2020, as compared with the EIA notification 2006, in the following categories: a) substantive dilutions b) procedural dilutions and c) violation of Supreme Court judgements.
There are at least four provisions cited each in the substantive and procedural dilution categories and 10 judgments of the Supreme Court cited in the petition to make its case.
Among substantial dilutions, the petition has cited exempting the requirement of seeking prior environment clearance for mining minor minerals such as ‘ordinary earth’, which requires a detailed screening under the 2006 version of this law. Similarly, the draft law does away with any need for prior clearance for activities like dredging ports and harbours. Similar dilutions are in place for small firms involved in potentially polluting activities like petrochemical units producing black carbon and graphite, cement plants, chemical processing units for ores/concentrates etc.
In this category of dilutions, the petition also cites the re-categorisation of certain kinds of projects and activities as a means of diluting the stringent requirement of prior screening. HuffPost India has reported the role of two environment ministers Harshvardhan and Prakash Javadekar in ensuring this particular kind of dilution here.
For describing what it considers to be procedural dilutions, the petition notes that the draft EIA 2020 does away with the requirement of conducting public consultations about the potential impact of certain kinds of projects on people. “Public Consultation is dispensed with for all projects under Category B2, all projects involving strategic considerations as determined by the government, all building construction and bridges projects and also those relating to the Secondary Metallurgical industry, soda ash industry, chemical fertilizers, manufacturing of acids, pesticides, synthetic chemicals, petrochemical based processing units, manufacturing of paints, varnishes etc,” the petition notes.
It also cites the most widely criticised provision of the draft EIA 2020—clause 22. The environment ministry has argued that this clause provides a way to deal with those who violate environmental laws and bring them in compliance with the laws. However, environmental lawyers and experts have criticised it, stating that it gives a window for violators of the law to pay a fine against their violations and legalise their projects.
The petition argues that this clause, in fact, violates two Supreme Court judgments—Common Cause vs Union of India judgement dated 2 August 2017 and a judgement in Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati & Ors dated 1 April 2020.
In both judgments, the petition states, the court “has taken a consistent view that prior Environmental Clearance is the norm and Ex-post facto clearance is “alien to Environmental Jurisprudence”. Despite these decisions by the Hon’ble Supreme Court, Clause 22 has been introduced with further impunity and is nothing but a blatant violation of the judgment of the Apex Court.”
While the above cited reasons give a basic idea about some of the controversial provisions about the draft EIA 2020 cited in the provision, the document details several other things which it considers problematic as well.
Having explained these issues, the petition argues why it is seeking, among other things, to prohibit the final publication of a notification based on this draft.
“A Writ of Prohibition is a pre-emptive remedy to dissuade and prevent an authority from exceeding its jurisdiction under the respective law,” the petition states.
“Certain provisions proposed under the draft notification are ostensibly dilutory and regressive in nature, being retrograde steps which threaten to violate the fundamental right of members of the Petitioner and the Public at large, to clean and safe environment which is covered under right to life under Article 21 of the Constitution of India and further violate the precautionary, sustainable development, polluters pay, and inter-generational equity principles recognized by the Hon’ble Supreme Court from time to time and statutorily incorporated in Section 20 of the National Green Tribunal Act, 2010,” it adds.