NEWS
28/07/2020 7:44 AM IST | Updated 28/07/2020 7:44 AM IST

EIA 2020: Documents Show How Modi Govt Misled Karnataka High Court

In a written statement to the court, the environment ministry mentioned its past communication with state governments and state-level green agencies about an older version of the proposed EIA law 2020 to claim that it gave the latest draft 'wide publicity'.

Hindustan Times via Getty Images
Minister of Information and Broadcasting and Minister of Environment, Forest and Climate Change Prakash Javadekar in a file photo.

NEW DELHI — The union environment ministry made a significantly misleading claim in a statement it filed in the Karnataka High Court to show that it had ensured “wide publicity” for the proposed new law for environment clearance, a review of the document by HuffPost India shows. 

The Ministry also said that it is not legally required to translate the draft of the controversial new law into India’s 22 local languages as ordered by the Delhi High Court for wider consultations with people. This means that millions of Indians who cannot read either Hindi or English may continue to remain in the dark about the draft Environmental Impact Assessment (EIA) 2020 notification— a far-reaching legislation that will significantly impact India’s natural heritage and the health and wellbeing of her citizens.

On 16 July, the Karnataka High Court directed the Union Environment Ministry to ensure “wide publicity” for the draft EIA 2020 notification, over two weeks after the Delhi High Court directed the ministry to translate the law into India’s 22 local languages. The Karnataka High Court was responding to a petition filed by the United Conservation Movement, a non-profit based in Bengaluru. The petition asked for more time for public consultation and translation of the draft notification into regional languages before it is made into a law.

On July 22, the environment ministry filed a “statement of objections” which, among other things, also claimed that a draft of the Environmental Impact Assessment notification was already shared with state governments and state-level bodies responsible for implementing environmental regulation almost a year ago.

“In order to elicit the views of the States/UTs, a zero draft of the said Notification on the name of Draft EIA, 2019 was sent to all States Governments; State Level Environmental Impact Assessment Authorities and State Pollution Control Boards / Union Territory Pollution Control Committees on 15th April, 2019, almost one year ago,” the environment ministry told the court in its written submission. This was one of the seven claims listed to argue that the centre had given the draft environment clearance law, released in March, ‘wide publicity’. 

Yet, a careful scrutiny of the 2019 draft of the law— technically called the Zero Draft – shows that it is substantially different from the latest version of the draft law officially called the draft EIA 2020 notification, which was uploaded on the ministry website on March 12 this year. The 2020 version of the proposed law has significantly fewer protections for the environment than the 2019 version, which itself significantly diluted the current law according to analysis by environmental groups. 

“These are two different documents,” Prince Isac, a lawyer for the United Conservation Movement in the Karnataka High Court, told HuffPost India, about the 2019 and 2020 drafts of the environment impact assessment notifications. He emphasised that, in the “statement of objections”, the environment ministry had sought to mislead the court by equating the two.

HuffPost India
Excerpt from the 'statement of objections' filed by the MoEF&CC in the Karnataka HC. Para 2(g) here lists the environment ministry's consultation with state governments and other state-level environmental bodies about the zero draft of EIA 2019 under a paragraph about 'wide publicity' given to the Draft EIA 2020 notification, 

In April 2019, the ministry had conducted a round of consultations with states on a proposed law for environment clearance. However, the draft new law unveiled in 2020 is so different that the 2019 discussions are rendered meaningless. 

Notably, in its ‘statement of objections’, the environment ministry also argued at length to assert why it was not obligatory on the centre to conduct public consultation by translating the draft law into 22 languages listed in the eight schedule, as directed by the Delhi High Court. 

“Further Articles 343 & 346 of the Constitution of India specify only English & Hindi as official medium of communication by the union,” the ministry said in its written statement. 

Advocate Isac found even this part of the document to be misleading. 

“The official languages are only restricted for inter-communication between the states and central government. So that is for the purpose of administration, and not for the purpose of making the people understand. If you want to make the people participate in this procedure, then you will have to communicate the thing in a manner in which the people know,” Isac said. 

“For instance, there are 6.5 crore people in Karnataka of which about 5 crore are unaware of any other language apart from Kannada. Only a minority can understand Hindi and English,” Isaac said. 

On July 23, the Karnataka High Court said that it does not agree with the ministry’s written statement that it need not translate the draft notification into regional languages. 

Previously, as HuffPost India  reported, the HC warned in its 16 July order that it may stay the controversial proposed law till wide consultation is conducted about the law. In its latest order on July 23,  the court has stated that it will consider United Conservation Movement’s request to stay the notification at its next hearing on August 5. 

HuffPost India has written to environment minister Prakash Javadekar, environment secretary R P Gupta and the ministry’s lawyer in this case, Shivakumar S,. to understand why such misleading claims found their way into the ministry’s written statement in court. This report will be updated if a response is received.  

HOW EIA 2020 DIFFERS FROM ZERO DRAFT 2019

In a recent report, HuffPost India relied on official documents accessed under the right to information to illustrate the difference between the Zero Draft of 2019, and draft EIA 2020.

The 2019 document was a product of former environment minister Harshvardhan’s tenure and priorities in the first term of the Modi government. 

The 2020 document is an outcome of the efforts of Harshavardhan’s successor Prakash Javadekar, who took over the environment ministry in May 2019. While the 2019 document also witnessed criticism, even if muted as it was released during the general election, the 2020 draft signed off by Javadekar has attracted much wider criticism. 

The 2020 draft has several controversial new provisions which were not even under discussion when the 2019 ‘zero draft’ document was discussed and prepared. 

While the 2020 draft document has legal provisions detailed over 27 paragraphs, the 2019 draft has merely 13. 

The 2020 draft has several controversial new provisions which were not even under discussion when the 2019 ‘zero draft’ document was discussed and prepared.

Among the most controversial new provisions in the 2020 draft is a provision to allow projects that have already violated environmental laws to get environmental clearance anyway by simply paying a fine. 

Even the Supreme Court has taken exception to this practice.

In a recent judgment, a two judge bench comprising Justice DY Chandrachud and Justice Ajay Rastogi explained that retrospectively giving environmental clearance, or ECs, to projects that were already underway without seeking this clearance, “would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment.”

Other provisions of Draft EIA 2020 which do not find mention in its 2019 predecessor include allowing certain kinds of dams to go ahead without public hearings amongst communities that will be affected by the dam. HuffPost India has reported about this in detail here and here

These are only two examples of the wide differences between the 2019 draft and the 2020 draft that is currently being argued in the High Court. 

MINISTRY FLIP-FLOP

Another significant issue with the environment ministry’s ‘statement of objections’ mentioned earlier in this report is that the government changed its position from accepting the Delhi and Karnataka High Courts’ orders directing it to translate the 2020 draft law into local languages to refusing any legal responsibility to do so. 

The issue of translating draft EIA 2020 into 22 local languages first arose in a petition filed before the Delhi High Court. At the time, the environment ministry agreed to translate the draft. 

The about turn in the Karnataka High Court is significant as the Karnataka HC told the environment ministry that it will consider staying the draft notification till consultations in local languages are conducted by the union government and its various organisations. 

However, the ministry returned to cite multiple laws and constitutional provisions to argue that it was under no obligation to do so and the Delhi HC’s order was not something they planned to comply with, instead it informed the court that an appeal had been filed with the Supreme Court against the high court decision. 

In response, the Karnataka HC’s two judge bench comprising Chief Justice Abhay Sreeniwas Oka and Justice M Nagaprasanna expressed its disagreement with the ministry’s stand and wrote in its order that it will consider the environmental non-profit’s prayer for granting an interim stay on the notification on August 5.