The Ministry of Environment published the Draft Environment Impact Assessment (EIA) 2020 notification for public consultation on April 11, 2020 when the whole nation was reeling under a pandemic situation. It has been more than a month since the window for public consultation ended but there is no clarity on the current status of the draft. This is further complicated by multiple petitions in various courts amidst public actions being taken by citizen groups.
On Wednesday, a case filed by a Delhi-based activist and a review petition filed by the Government of India will come up for hearing in the Delhi High Court. What follows is a summary of the legal challenges to the Draft EIA 2020 in various fora across India.
Petition filed in Delhi High Court
Delhi-based activist Vikrant Tongad filed a petition in the Delhi High Court on June 30 seeking an extension of time for public consultation due to the pandemic, and publication of the draft EIA notification in the 22 languages mentioned under Schedule VIII of the Constitution of India. The Delhi High Court ordered extending the period of public hearing to August 11. The court also ordered the Ministry of Environment to publish translated versions of the draft on all the government websites within 10 days. The Ministry failed to do so.
Instead, it challenged the said order in the Supreme Court (SC) on July 28. The Delhi High Court on August 11 issued a notice to the Union government on the contempt plea moved by the petitioner against the Government for “willful disobedience” and “deliberate defiance” of the court order. The Union government approached the SC and secured an injunction on the contempt proceedings. However, on August 13 the SC ordered a stay on the contempt proceedings initiated against the Union government. The highest judicial court in the country also allowed the Centre to withdraw this petition and opt for review/re-examination of the Delhi High court order. But the Chief Justice of India (CJI) also observed that they agree with the spirit of the High Court’s order and many in rural areas don’t know Hindi and English which created ambiguity among people.
Parallelly on August 31, Vikrant Tongad approached the Delhi HC to further extend the deadline to submit objections against the draft by 60 days from the date on which all the translated copies of the draft become available for the public. The HC sought the Centre’s response on the same and announced the next date of hearing as September 23.
Following the SC order, the government filed a review petition on September 4 objecting to publishing the draft in languages other than those mentioned under the Official Languages Act, 1963. They argued that translation into regional languages will lead to loss of meaning of words due to “interpretation issues” resulting in a floodgate of litigations. They alleged that this will create a precedent and lead to future demands of translation of all statutory regulations making it difficult for the government to perform administrative functions. This matter will also be heard on September 23.
Petitions filed in Karnataka High Court
United Conservation Movement filed a petition in the Karnataka High Court seeking extension of time to file objections on the Draft EIA 2020 notification till December 31, 2020. On August 5, the Karnataka High Court directed the Union government not to publish the final notification of the draft EIA till September 7, observing that the draft was not publicised in vernacular languages. The HC then extended the interim order and the stay on the publication of the final notification based on the Draft EIA 2020 until further notice as the Centre did not file any response. This gives some relief in terms of time for environmental action groups to advocate against the draft.
Meanwhile, Bangalore Environment Trust filed a writ petition in the Karnataka HC on September 2 seeking to prohibit the publication of the final notification based on the Draft EIA 2020. The critical prayers of the petition were quashing the “regressive” provisions of the draft EIA that dilute the existing EIA notification 2006, restraining the union environment ministry from “taking retrograde/regressive steps” in excess of its powers under the Environment (Protection) Rules, 1986, constitution of an Expert Committee led by a retired judge of the Supreme Court or any HC to oversee the objections, suggestions and recommendations received from people about the draft EIA and setting up a national regulator, an independent body outside of the environment ministry, to grant clearances.
A bundle of connected prohibitory writs have been called along with the primary petition filed by United Conservation Movement. The court heard these petitions on September 7 and issued notice to the Ministry of Environment to reply to the petition in the next hearing. Since the Karnataka HC had stayed the publishing of the final notification based on the Draft EIA 2020, no special mention for interim relief was necessary in this case.
Petition filed in Madras High Court
A petition was filed in the Madras High court by Meenava Thanthai, an organisation working for the cause of the fishermen community, to direct the government to translate the Draft EIA 2020 into regional languages, and provide sufficient time to submit objections. On August 13, the Union government informed that the Tamil translation of the draft was ready and will be published soon. It has been more than one month and still the Tamil translation is not available for the public.
Meanwhile, the Union government is knocking all doors to avoid publishing the draft in regional languages. This clearly indicates that the government is intimidated by informed citizens who could collectively oppose the draft if it is published in regional languages. Hence, their allegation of administrative difficulties or legal hindrance in translating the draft into regional languages is just an eyewash.
On August 24, the Madras HC issued notice in another plea urging for translation of the draft into vernacular languages and extension of the time granted to file objections to the draft (B Ramkumar Adityan v. Union of India). The bench directed that this be linked with the above mentioned plea.
Review of public comments by Ministry of Environment – Response from government
The Ministry has appointed the National Environmental Engineering Research Institute (NEERI), a subsidiary of Council of Scientific and Industrial Research (CSIR) created and funded by the government, to compile and streamline the suggestions/comments received from the public. Following this, the final draft will be placed before a committee headed by SR Wate for scrutiny, during which experts from various sectors will participate.
Apparently, SR Wate, former director of NEERI, headed the Wate Committee which was given the mandate to “Review/re-engineering of EIA Notification, 2006” in 2018 and many of the changes brought in the Draft EIA 2020 is based on the suggestions of this committee. SR Wate also chaired the 11-member panel created by the Ministry of Environment in 2017 for appraisal of Post Facto environmental clearance. This is a clear case of inefficiency of the government by appointing a prejudiced person for scrutiny of the Draft EIA 2020. Also, NEERI has a history of being criticised by various environmental groups for misrepresenting data and for lethargic studies and appraisals.
In conclusion
The draft has unacceptable dilution of an already weak EIA framework. It appears to be an attempt to promote the growth of business and corporate communities over that of human rights, environment and biodiversity. The active involvement of citizens and youth groups led to a major upsurge in the campaign against the Draft EIA 2020 and has had an impact on the government. The ministry claims that it received around 2 million responses from across the country and this has been solely due to active youth participation while the government stooped to the level of blocking websites and filed UAPA cases against a few environmental groups.
The legal route taken by few groups has made the overall campaign multi-dimensional. In a culturally diverse country like India with multiple linguistic groups, translation into regional languages is imperative for citizens to exercise their rights. So, the government should perceive translation of important legislations into regional languages as their pertinent duty rather than as a burden on administration. The responses from the government, be it refusing to translate the draft or appointment of NEERI to streamline suggestions or media outreach in favour of the draft by Rajiv Kumar, Vice-Chairman of Niti Aayog, are nothing more than knee-jerk reactions. The campaign against the Draft EIA 2020 is far from over and we have to keep the enthusiasm intact.