Green Access Discussion Paper

DP-2015-007

Implementation of Principle 10 in India: Issues and Challenges

Ritwick Dutta
2015/3/3

4-4-15 dutta

International Workshop on "Participation Principle Indicators
under the Environmental Law: Towards Establishing
International Collaboration in Pursuit of Environmental Justice"
at 9th-10th March 2015
Organizers: GREEN ACCESS PROJECT II “Review of Legal Indicators for theParticipation Principle in Environmental Matters - Promotion of an International Cooperation
towards Strengthening the Environmental Democracy” (JSPS Grant-in-Aid), OSAKAUNIVERSITY, PROJECT TIGER “Policy decision-making and public participation onenergy, chemicals and water management: an international comparative study” (Global
Initiative Program), and MITSUI & CO., LTD., ENVIRONMENT FUND – Project“Proposing an Asian Version of the Aarhus Convention – Constitution of anInternational Cooperation for Implementing the Environmental Justice”

GREEN ACCESS PROJECT II
Osaka University

Implementation of Principle 10 in India: Issues
and Challenges
Ritwick Dutta1
Abstract
India’s commitment towards the implementation of Principle 10 of the Rio Declaration is evident
from the series of statutory enactments since 1992 which aims at increasing access to
information, public participation and access to justice in matters concerning the environment.
India has without doubt showed political, administrative and judicial will to ensure that
Principle 10 is implemented in letter and spirit. The various environmental legislations viz. The
Environmental Impact Assessment Notification, 2006, the National Green Tribunal Act, 2010,
the Coastal Regulation Zone Notification, 2011 among a host of other legislation have contributed
to the implementation Principle 10. One of the most important factors contributing to theeffective implementation of Principle 10 of the Rio Declaration is the vibrant civil society groupand robust environmental movement in the country. The environmental jurisprudence in India,
is replete with instances where the Courts have highlighted the importance of ‘access rights’.
However, recent legal developments in India show that the much the gains made previously so
far as access rights are concerned is being undermined. In its obsession for ‘economic growth at
all cost’, the foundation of environmental democracy is today under increasing threat and there isan urgent need for concerted effort to protect the existing legal framework.

Introduction
Principle 10 of the Rio Declaration emphasises on the need to share information,
provide opportunities for public participation in the environmental decision
making process and provide access to justice. The ‘three pillars’ of environmental
democracy are interdependent on each other and each of the ‘pliiars’ complement
each other. Thus, there can be no effective participation unless there is access to
information and without avenues for participation, there is little that citizens
can do with the information in their possession. Finally, the denial of
information or opportunity to participate needs to be legally challenged before an
independent judicial forum. This paper focus on how, the three pillars ofenvironmental democracy has been put into practice in India and theeffectiveness of the same so far as achieving environmental democracy isconcerned.
Public Participation
The Supreme Court in Research Foundation for Science Technology and National
Resources Policy v Union of India2 has held that “The right to information andcommunity participation for protection of environment and human health is also
a right which flows from Article 21. The Government and authorities have, thus
to motivate the public participation’.

1

Environmental Lawyer and Managing Trustee, Legal Initiative for Forest and Environment and Coordinator,
The Access Initiative, India
2[(2005) 10 SCC 510]

Public participation in the environmental decision making process is provided
through the Environment Impact Assessment process in India. Though, the EIA
process in India was introduced in the year 1992, it was in 1994 that ‘Public
Hearing’ became mandatory for a range of projects in India. Public Hearing
became the only opportunity for affected communities to raise their concernswith respect to the environmental aspects of a project. A whole range of projects
require public hearings in India.
A revised Environment Impact Assessment Notification was introduced in theyear 2006. The revised notification of 2006, provided for a process of Public
Consultation as opposed to only a hearing. The public consultation process
comprised of two stages : Public hearing at the project site or its close vicinity
and written representation for those who have a plausible stake in theenvironmental aspects of the project. The relevant paragraph in the EIA
Notification reads as follows:“Public Consultation” refers to the process by which the concerns of local
affected persons and others who have plausible stake in theenvironmental impacts of the project or activity are ascertained with aview to taking into account all the material concerns in the project or
activity design as appropriate
Public Hearings opened a new window of opportunity for people to voice theirconcerns with respect to a new project. Given the rapidly growing nature of the
Indian economy, large number of public hearings take place across the lengthand breadth of India. The analysis of the public hearings brings about some of
the key challenges in the process as it exists today.
Lack of information is a critical challenge: Public hearings becomes aneffective tool for ensuring public participation in the decision making process
only if the public has access to the information with respect to the proposed
project. Information with respect to projects are shared with the public throughthe disclosure of the Environment Impact Assessment Reports (EIA). There are
however certain hurdles in the way of securing this information: Firstly, thepublic has direct physical access to only the Executive Summary of the EIA
report and not the full EIA Report. To explain it further, only the hard copy of
the Executive Summary of the EIA Report is distributed among the public andnot the hard copy of the Full EIA Report. The Executive summary does notreflect the true scenario and does not disclose the basis on which the conclusions
are arrived. The full EIA report is available on the website of the project
proponent as well as some of the designated government agencies. However, in acountry where not more than 3 % of the population have access to the internet,
the reliance on internet is misplaced.
One sided Information in the EIA Report:
The EIA Report is supposed to present an unbiased opinion about a proposed
project to the decision makers as well as to the public. This never happens. The
EIA report, which is prepared by an EIA Consultant at the behest of the Projectproponent is aimed at justifying the project and only recommends mitigative
steps in order to deal with the environmental and social consequences of the
project. The ‘pros’ and ‘cons’ of the project, which is critical for the public is nevera part of the EIA Report, which makes the process an empty formality. This
aspect has been highlighted by the Himachal Pradesh High Court in Him
Parviesh Environmental society versus Union of India3 where the Court
observed as follows:
There is no use of having a public hearing if the public is not aware of theeffects of the project both positive and negative. We have not come across asingle case in the last two years, during which we have been hearing
environmental cases where the Pollution Control Board or the MoEF haveactually brought such facts to the notice of the Public during public
hearing. A public hearing without first informing the public is a total
sham.
Despite specific observations and directions from the various courts, thesituation remains largely the same.
The Local versus Outsiders Challenge:
The Public Hearing process as per the Notification is to be limited to ‘locallyeffected persons’ or others who have a plausible stake in the environmental
aspects with respect to a project. Both these terminology has led to confusionand problems so far effectiveness of public hearing is concerned. This was
highlighted by the Delhi High Court in Samarth Trust versus Union of India4:…The second aspect of the public consultation, as already mentioned
above, is obtaining responses in writing from other concerned persons
having a plausible stake in the environmental aspects of the project or
activity. If this is contrasted with a public hearing (which is confined to
locally affected persons in the close proximity of the project site) then it
appears, prima facie, that the responses are required to be invited frompersons not necessarily in the close vicinity of the project site (andtherefore at a distance). A condition attached to this is that those persons
should have a plausible stake in the environmental aspects of the projector activity. It is not clear who determines (and how) whether or not a
person has a "plausible stake" in the environmental aspects of the projector activity
Consultation versus Consent: As per the EIA Notification, 2006, there is amandatory requirement of Public Consultation. Consultation is not the same asconsent. Thus, the process requires that the view of the people likely to beaffected are to be heard but it is nowhere stated that there is a requirement that
Authorities must necessarily act in accordance with the wishes of the people. As
a result of this limited interpretation, public hearing process was reduced to an
3

CWP No.586 of 2010.

4

http://indiankanoon.org/doc/192020890/

empty formality so far as the opinion of the public is concerned. The trend
continued from 1994 till the around 2008-2009. However, judicial interpretation,
has not favoured this limited and narrow interpretation. The first major change
took place with the Delhi High Courts decision in Utkarsh Mandal Versus
Union of India5 where the High Court held as follows:
The public hearings conducted by the MOEF in terms of the EIA
Notification dated 14th September 2006 is indeed a public act and the EIA
Report is certainly a matter relating to such a public act of the central
government. The construction that has to be placed……..must be such thatwill enhance the quality of the ultimate decision taken and also consistent
with the requirement of the participation of those affected in a fully
informed and effective manner. The opportunity to participate and voicean opinion on the project has to be a meaningful one.
The requirement of an administrative decision making body to givereasons has been viewed as an essential concomitant of acting fairly.
Given that such a decision is in any event amenable to judicial review, thefailure to make known the reasons for the decision makes it difficult forthe judicial body entrusted with the power of reviewing such decision as toits reasonableness and fairness. The decision must reflect theconsideration of the materials available before the decision maker and theopinion formed on such material.
The decision of the Delhi High Court has been followed in a number ofsubsequent cases where the National Green Tribunal has emphasized on theneed to give reasons as to how the objections raised by the public have beentaken into consideration in the ultimate decision. This view has resulted inapprovals granted for many projects being set aside on the ground that theconcerns of the people as raised in the public hearing have not been taken into
consideration.
Access To Information
Access to information with respect to the environment is among the mostimportant pillars of environmental democracy. Information is the key which
provides the public with the tools to engage in the decision making process. In
this context a reference may be made to the decision of the Supreme Court in
People's Union for Civil Liberties v. Union of India 6 where in the context ofdeclaring the right to vote as being part of the fundamental right of expression of
the voter under Article 19 (1) (a) of the Constitution of India, it was held that "awell informed voter is the foundation of democratic structure." In his leading
opinion M.B.Shah., J. observed (SCC, p. 432):"(the) right to participate by casting vote at the time of election would bemeaningless unless the voters are well informed about all sides of the56

http://indiankanoon.org/doc/188721650/(2003) 4 SCC 399

issues, in respect of which they are called upon to express their views by
casting their votes. Disinformation, misinformation, non-information, allequally create an uninformed citizenry which would finally makedemocracy a mobocracy and farce."
In his concurring opinion P.V.Reddi. J., explained that (SCC, p.454) "the right ofthe citizens to obtain information on matters relating to public acts flows fromthe fundamental right enshrined in Article 19(1) (a)."Though there has been significant progress with respect to the issue of access to
information with respect to environment, yet critical information is still beyond
the reach of the public at large. The Right to Information Act, 2005 brought
about a sea change so far as information access is concerned. However, so far as
environmental information is concerned, the impact has been mixed. The reason
being that communities and affected people have now to take recourse to theprovisions of the Right to Information Act to procure information held by theGovernment and there is very limited pro active disclosure of information. The
Central Information Commission 7 has passed specific directions in order toincrease public access to environmental information which includes the following
information which is required to be displayed on the website of the Ministry:a. Copies of applications and related documents submitted by the Project
Proponent while seeking prior environmental clearance, particularly thefollowing documents:
b. Additional information submitted to the Expert Appraisal Committees by
the Project proponent.
c. Reports/studies commissioned by the Expert Appraisal Committees fromindependent agencies/ sub-committees.
Following information relating to post-clearance compliance of conditions
stipulated in the environmental clearance letter and monitoring of the samea. Six-monthly compliance reports that are to be submitted to the Ministry ofEnvironment and Forests.
b. Reports of committees which may have been constituted to monitor thecompliance of conditions by the project proponent.
c. With regard to certain projects, the Ministry of Environment and Forests
stipulates that certain additional studies/ reports such as mitigation plans
have to be done after the clearance has been granted. These studies/
reports should be made available.
Despite such specific directions, information with respect to projects is lacking inmost cases with respect to projects across the country and this leads toinformation gap so far as affected communities are concerned.

Access to Justice:
7

Shibani Ghosh Versus Ministry of Environment and Forest [http://indiankanoon.org/doc/83958888/]

Access to justice in environmental matters has been through the Public Interest
Litigation before the High Courts and the Supreme Court through the invocationof the Writ jurisdiction of the High Court and the Supreme Court under Article
226 and Article 32 of the Constitution.
The relevant Article reads as follows:
Article 32: The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition,quo warranto and certiorari, whichever may be appropriate, for the enforcementof any of the rights conferred by this Part.

Article 226 : Notwithstanding anything in Article 32 every High Court shallhave powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in appropriate cases,
any Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto andcertiorari, or any of them, for the enforcement of any of the rights conferred byPart III and for any other purpose.
In M. C. Mehta & Another v. Union of India & Others8, the Supreme Court observedthat Article 32 does not merely confer power on this Court to issue direction,order or writ for the enforcement of fundamental rights. Instead, it also lays aconstitutional obligation on this Court to protect the fundamental rights of thepeople. The court asserted that, in realization of this constitutional obligation, "ithas all incidental and ancillary powers including the power to forge new
remedies and fashion new strategies designed to enforce the fundamental rights".
The Court realized that because of extreme poverty, a large number of sections ofsociety cannot approach the court. The fundamental rights have no meaning forthem and in order to preserve and protect the fundamental rights of themarginalized section of society by judicial innovation, the courts by judicial
innovation and creativity started giving necessary directions and passing orders
in the public interest.
One of the most significant development in recent years in the field ofenvironmental law and access to justice has been the establishment of the
National Green Tribunal in India. The National Green Tribunal [‘NGT’ in short]
has emerged as the most active and without doubt a forum where the maximum
number of environmental cases are adjudicated on a daily basis 9 . There isperhaps no comparison anywhere in the world in terms of its volume and rangeof cases which the NGT deals with on a daily basis. The various decisions of the
NGT has led to the development of a new environmental jurisprudence in the
country. In addition, the NGT is also ensuring that the various environmental
statutes are implemented in letter and spirit. Despite the challenges, there areissues which need to be addressed in order to make the NGT an effective forum
for redressal of grievances with respect to the environment.

8

9

AIR 1987 SC 1086

On an average about 150 cases are adjudicated on a daily basis on any working day in all the Benches of the
Tribunal in India.

Following the observations made by the Supreme Court of India and thePrinciples laid down in the international conferences held at Stockholm and Riode Janeiro, the Law Commission of India, undertook an extensive study on theestablishment of separate and specialized environmental courts. The Law
Commission in it’s 186th Report, has inter-alia recommended establishment of aseparate ‘Environmental Courts’ in each State, consisting of judicial andscientific experts in the field of environment for dealing with environmental
disputes besides having appellate jurisdiction in respect of appeals under thevarious Pollution Control Laws. The Commission has also recommended for
repeal of the National Environment Tribunal Act, 1995 and the National
Environmental Appellate Authority Act, 1997.
As a cumulative effect of all the factors narrated above, the National Green
Tribunal Bill was introduced in Lok Sabha by the then Minister of Environment
and Forests on Jairam Ramesh on 31st July, 2009. Based on the comments bymembers of the Parliament and recommendations of the Parliamentary Standing
Committee, the Central Government made seven amendments to the National
Green Tribunal Bill, 2009. The amendments broadened the definition of “persons
aggrieved” to allow individuals to approach the Green Tribunal. It also outlined
the “foundational principles” of precautionary principles, polluter pays principle
and inter-generational equity that would govern the Tribunal.
The Jurisdiction of the National Green Tribunal:
All civil cases where substantial question relating to environment arises withreference to implementation of the Acts mentioned in the schedule are to be
decided by the Tribunal. Jurisdiction of the civil courts has been excluded under
Section 29 of the NGT Act. In terms of Section 29 (1), from the date ofestablishment of Tribunal under the NGT Act, no civil court shall havejurisdiction to entertain any appeal in respect of any matter, which the Tribunal
is empowered to determine under its Appellate jurisdiction, while under subsection (2), no civil court shall have jurisdiction to settle dispute or entertain any
question relating to any claim for granting any relief or compensation or
restitution of property damaged or environment damaged which may be
adjudicated upon by the Tribunal, and no injunction in respect of the action
taken shall be granted by the civil court.
The Tribunal is vested with three kinds of jurisdiction within the framework of
the NGT Act:(I) Original Jurisdiction: Section 14 gives original jurisdiction to the
Tribunal. It is provided that the Tribunal shall have jurisdiction overall civil cases where a substantial question relating to environment(including enforcement of any legal right relating to environment), is
involved and such questions arise out of implementation of theenactments specified in Schedule I to the NGT Act. In terms of Section
14 (2), this Tribunal shall hear the disputes arising from the questions
in sub-section (1) and settle such disputes and pass orders thereon.

(II)Appellate Jurisdiction:
The legislature has conferred upon the
Tribunal an Appellate Jurisdiction. Section 16 contemplates that any
person aggrieved by the orders passed by the authorities or bodies
under clause (a) to (j) of Section 16, may file an appeal to the Tribunal.
The NGT in J Wilfred versus Union of India, has held:
There is nothing in Section 16 of the NGT Act that specifically oreven by necessary implication provides that the appellate
jurisdiction of the Tribunal is circumscribed by any limitation. The
Tribunal shall be the Appellate Authority competent to decidequestions of law and fact both. It may be noticed that the procedurelaid down by the Code of Civil Procedure, 1908 (for short 'CPC'),
does not apply to the proceedings before the Tribunal stricto sensu
and the Tribunal is to be guided by the principles of natural justice.
It is further stipulated under Section 19(4) of the NGT Act that the
Tribunal is vested with the same powers as are vested in a civil
court under CPC and would have specifically the powers
enumerated under clause (a) to (k) of sub-section (4) of Section 19.
Under the provisions of CPC, particularly Order XLI, the Appellate
Court, particularly, the First Appellate Court is a Court of both fact
and law. It is a settled principle of law and in fact has been
consistently adopted by the Higher Courts. Thus, the questions oflaw or fact arising before the Tribunal in the Appeals preferred by
the aggrieved persons can be examined by the Tribunal.

(III) Relief and Compensation: The third kind of special jurisdiction thatis vested in the Tribunal emerges from the provisions of Section 15 of
the NGT Act. This Section empowers the Tribunal to order relief andcompensation to victims of pollution and other environmental damage
arising under the enactments specified in the Schedule I, forrestitution of property damaged and for restitution of the environment
in such area/areas, as the Tribunal may think fit.
The Jurisdiction of the NGT has been further enhanced with the Supreme
Court directing that environmental matters should be adjudicated before the
National Green Tribunal. In Bhopal Gas Peedith Mahila Sanghathan Verus
Union of India 10 , the Supreme Court has specifically directed thatenvironmental cases should be filed before the National Green Tribunal andfurther all pending cases before the High Court be transferred to the NGT.
The relevant paragraph from the Judgment reads as follows:
38. Keeping in view the provisions and scheme of the National Green
Tribunal Act, 2010 (for short the ˜NGT Act particularly Sections 14, 29,
30 and 38(5), it can safely be concluded that the environmental issues
and matters covered under the NGT Act, Schedule 1 should beinstituted and litigated before the National Green Tribunal (for short
10(2012) 8 SCC 326

NGT). Such approach may be necessary to avoid likelihood of conflict oforders between the High Courts and the NGT. Thus, in unambiguous
terms, we direct that all the matters instituted after coming into forceof the NGT Act and which are covered under the provisions of the NGT
Act and/or in Schedule I to the NGT Act shall stand transferred andcan be instituted only before the NGT. This will help in rendering
expeditious and specialized justice in the field of environment to allconcerned.
39. We find it imperative to place on record a caution for considerationof the courts of competent jurisdiction that the cases filed and pending
prior to coming into force of the NGT Act, involving questions ofenvironmental laws and/or relating to any of the seven statutes
specified in Schedule I of the NGT Act, should also be dealt with by the
specialized tribunal, that is the NGT, created under the provisions of
the NGT Act. The Courts may be well advised to direct transfer of suchcases to the NGT in its discretion, as it will be in the fitness ofadministration of justice.
So far as the jurisdiction is concerned, the NGT in Kalpavrikshversus Union of India and ors11 have held:‘The jurisdiction of the Tribunal is thus, very wide. Once a casehas nexus with the environment or the laws relatable thereto,the jurisdiction of the Tribunal can be invoked. Not only thecases of direct adverse impact on environment can be brought
within the jurisdiction of the Tribunal, but even cases whichhave indirect adverse impacts can be considered by the Tribunal’

SOME KEY DECISIONS OF THE NGTNGT on the Application of the Precautionary Principle
The NGT Act mandates that the NGT shall be bound to apply the Precautionary
Principle while deciding an Appeal or Application. The Precautionary Principle
was dealt in Goa Foundation versus Union of India where the Court elaborated
on the jurisdiction of the Tribunal vis a vis the Precautionary Principle:
An anticipated action will also fall within the ambit of the jurisdiction of
the Tribunal. Section 20 of the NGT Act provides that, while deciding cases
before it, the Tribunal shall take into consideration the three principles -principle of sustainable development, precautionary principle and thepolluter pays principle. The precautionary principle would operate where
actual injury has not occurred as on the date of institution of an
application. In other words, an anticipated or likely injury to environment
can be a sufficient cause of action, partially or wholly, for invoking the
11

NGT, Application No 116 of 2013 THC

jurisdiction of the Tribunal in terms of Sub-sections (1) and (2) of Section
14 of the NGT Act. The language of Section 20 is referable to thejurisdiction of the Tribunal in terms of Sections 14 and 15 of the Act. The
precautionary principle is permissible and is opposed to actual injury or
damage. On the cogent reading of Section 14 with Section 2(m) and Section
20 of the NGT Act, likely damage to environment would be covered under
the precautionary principle, and therefore, provide jurisdiction to the
Tribunal to entertain such a question. The applicability of precautionary
principle is a statutory command to the Tribunal while deciding or settling
disputes arising out of substantial questions relating to environment. Thus,
any violation or even an apprehended violation of this principle would beactionable by any person before the Tribunal. Inaction in the facts andcircumstances of a given case could itself be a violation of the precautionary
principle, and therefore, bring it within the ambit of jurisdiction of the
Tribunal, as defined under the NGT Act. By inaction, naturally, there will
be violation of the precautionary principle and therefore, the Tribunal will
have jurisdiction to entertain all civil cases raising such questions ofenvironment.

NGT on Burden of Proof
The National Green Tribunal Act, 2010 empowers the Tribunal to grant thefollowing types of relief:(i)Relief and Compensation to the victims of pollution and otherenvironmental damages arising out of enactments in Schedule I of
the NGT Act(ii)

Restitution of the property damaged(iii)

Restitution of the environment of such area or areas

In Ossie Fernandes Verus Union of India12, the National Green Tribunal has
clarified on the nature of burden of proof in environmental cases. The relevant
paragraph reads as follows:
We are aware that in the matter of environment, the burden is always on
the project proponent. But that does not mean that the appellants cannot
make a submission giving details of the environmental damage that may
be caused in the given circumstances as an initial burden. Unless until aparticular nature of environmental threat, prima facie made out by theappellant, it may be difficult for the project proponent to discharge hisburden in the wilderness.

12

Appeal No. 12 of 2011,

NATIONAL GREEN TRIBUNAL ON DUTY TO GIVE REASONS:
One of the most significant contribution of the NGT has been its insistence thatdecisions with respect to the environment must be based on reasons.
Environmental decisions and specifically approvals given to various
infrastructural related activities including extractive industries is marked bylack of transparency and arbitrariness. As per the statutory scheme in India,
industrial and construction related projects beyond a certain threshold requires
an approval under the Environment Impact Assessment Notification, 2006. The
projects are appraised by the Expert Appraisal Committee (EAC) at the Federal
level and the State Environment Impact Assessment Authority at the State/
Provincial level. The EAC or the SEIAA is required to undertake a detailed
scrutiny of the proceeding and outcome of the Public hearings/ public
consultation as well as analyze the Environment Impact Assessment Report.
This procedure is rarely followed in letter and spirit. The NGT over the last four
years has rendered numerous judgments wherein it reiterated the requirementthat every administrative decision must be based on reasons and that it must be
evident from the records that that the EAC/ SEIAA or the Ministry ofEnvironment and Forest as the case may be has applied its mind to the various
relevant aspects under consideration. The failure to give such reason would
render the decision liable to be struck down on ground of arbitrariness. Some of
the key decisions of the NGT on this issue are as follows:
Gau Raxa Hitraxak Manch and Gauchar Paryavaran Pouchav Trust, Rjula v.
Union of India13,“ii) The Authorities – Environment Appraisal Committee (EAC) and
Ministry of Environment and Forests (MoEF), shall pass “speaking orders”
giving reasons either for recommendation/non-recommendation of
approval or rejection, whatsoever it may be, in support of
Appraisal/EC, done on reconsideration of the issues/objections.”
Swami Gyan Swarup Sanand and ors. V. Union of India and ors14.
“5. ......There are a number of judgments signifying the need of recording
the reasons for its decisions/ orders passed by an administrative
authority/ judicial/ quasi- judicial body which serves a salutary purpose,
namely, it excludes chances of arbitrariness and ensures a degree of
fairness in the process of decision making. Ultimately what is necessary isthat the reasons are clear and explicit so as to indicate that the authority
has given due consideration and applied its mind to the points incontroversy. Therefore in our opinion the requirement of recording thereasons is very essential and that should be the basis for governing thedecisions of the Committee exercising the administrative power.”
13

14

M. A No. 94/ 2014 in APPEAL No. 16/ 2014 order dated 17.11.2014
M.A No. 461/ 2013 in Original Application No. 26/ 2011 order dated 20.02.2014

Rudresh Naik v. Goa State Coastal Zone Management Authority 15“12. It is a settled rule of law that administrative authorities which aredealing with the rights of the parties and are passing orders which will
have civil consequences, must record appropriate reasons in support oftheir decisions. Certainly, these reasons must not be like judgments ofcourts, but they must provide an insight into the thinking process of theauthority as to for what reasons it accepted or rejected the request of theapplicant. The authority concerned should provide a fair and transparent
procedure and the authority concerned must apply its mind and dispose of
the matter by a reasoned or speaking order.”Ossie Fernandes v. Ministry of Environment and Forests16“There appears to be no improvement in following the procedure requiredin conducting PH, in spite of a catena of judgments rendered by the Hon’ble
Supreme Court and Hon’ble High Courts across the country laying down
the principles to be followed in conducting Public Hearing and subsequentappraisal of project by EAC. In view of our bad experience in dealing with
the issue of preparation of draft EIA Report in consonance with the ToRand conducting PH, before parting with the judgment, we propose tosuggest the following to be included either as part of executive instructions
or rules, as the case may be. This may ensure proper appraisal of thesuggestions/ objections raised during the PH, by the EAC, and even when
they are challenged before the courts of law.”(Page 20)
“EAC minutes should incorporate detailed reasons, in writing, foracceptance or otherwise against each issue arising out of PH and brought
before it.”(Page 22)
Jeet Singh Kanwar v. MoEF and Ors17“21.The EAC in the 56th meeting dated 13.10.2009 considered the issues
raised during the public hearing, viz. impact on environment due tooperation of proposed project, location of ash pond; capacity for utilizationof ash; development of green belt to arrest air pollution; measures for giving
compensation to 22 families (homestead losers) and 212 land losers; waterrequired from other sources having not been mentioned in EIA; impact due
to land acquisition; acquisition of agriculture land; impact on ground15[2013 ALL (1) NGT REPORTER (2) (DELHI) 47]

16[Appeal No. 12/ 2011][2013 ALL (1) NGT REPORTER (DELHI) 129

17

water; providing civic amenities to villagers by project proponent;
providing free tree/fruit saplings for cultivation; impact on agriculture
land due to proposed ash pond etc. Though, the EAC was cognizant of theabove issues which are stated in the minutes yet it is not at all clear as to
how the EAC was satisfied with responses of the Project Proponent and thecumulative effect of the issues raised in the course of public hearing.”
Samata v. Union of India18
54……..The detailed scrutiny as required by the notification in order tomake an evaluation of the project has not been done since there is nothing
to indicate in the minutes of the meeting that in respect of the issues raisedat the time of public hearing in respect of each issue i.e., objections raisedat the public hearing and what was the correspondence and clarification
made by Project Proponent thereon and why and for what reasons thoseobjections were negatived and the clarifications of the Project Proponent
were accepted. Thus, the Tribunal is able to notice a thorough failure on
the part of the EAC in performing its duty of proper consideration andevaluation of the project by making a detailed scrutiny before approving thesame. The contentions put forth by the learned counsel for the respondents
that number of specific condition were stipulated by the EAC at the time ofrecommendation and without proper consideration of both objections andconcerns at the time of providing and proper responses made by the Project
Proponent, those conditions could not have been stipulated cannot becountenanced. It is true that the EAC while recommending the project for
the grant of EC has stipulated conditions. Mere stipulation of specificconditions ipso facto cannot be an answer, while the minutes recorded
above clearly indicate that there was no appraisal wherein an evaluation
by detailed scrutiny of the project is required as per the mandatory
provisions of EIA Notification, 2006. The Central Government, in its
wisdom thought it fit and necessary and circumstances also warranted
issuance of the EIA Notification, 2006 superseding the earlier Notification,
1990 whereby EAC has been constituted for all projects in Category A andSLEAC for Category B for the purpose of screening, scoping and appraisalof the projects. The EAC is constituted consisting of a Chairman andnumber of members who are experts from different fields only with the sole
objective of national interest in order to ensure establishment of new
projects or expansion of already existing activity without affecting theecological and environmental conditions. Thus, a duty is cast upon the
EAC or SLEAC as the case may be to apply the cardinal and Principle of
Sustainable Development and Principle of Precaution while screening,scoping and appraisal of the projects or activities. While so, it is evident in
the instant case that the EAC has miserably failed in the performance of its
duty not only as mandated by the EIA Notification, 2006, but has also
18

Appeal No. 9 of 2011

disappointed the legal expectations from the same. For a huge project as theone in the instant case, a thermal power plant with an estimated cost of Rs.
11,838 crore, covering a total area of 1675 acres of land, the consideration
for approval has been done in such a cursory and arbitrary manner even
without taking note of the implication and importance of environmental
issues. On the same day the EAC took for appraisal not only the thermal
power plant in question, but also other projects which would be indicativeof the haste and speedy exercise of its function of appraisal of the project. It
castes a doubt that whether the EAC would have accepted the response
made by the Project Proponent in respect of the objections and concerns
raised at the time of public hearing as a Gospel Truth. Thus, the EAC has
not conducted itself as mandated by the EIA Notification, 2006 since it has
not made proper appraisal by considering the available materials andobjections in order to make proper evaluation of the project before making a
recommendation for grant of EC.” (emphasis supplied)
The Way Ahead:
India has made substantial progress with respect to the implementation of
Principle 10 of the Rio Declaration. The enactment of new laws and Rules,
including the Environment Impact Assessment Notification, 2006, the National
Green Tribunal Act, 2010 have contributed towards access to information, public
participation and access to justice. However, some of the positive developments islikely to be overturned since the new Government which came to power in mid
2014 wants a complete overhaul of the environmental law in order to make it‘business friendly’. A High Level Committee headed by retired civil servent, wasconstituted in August, 2014 with the made to review existing environmental
laws. The Committee submitted its report to the Government towards the end of
2014. The Government has expressed its willingness to accept the report. The
Report if accepted will gravely impair the rights of citizens which is not only
provided in the Rio Declaration, 1992 but will also be against the Constitution.
Two of the important areas where the committee has emphasized on dilution arewith respect to ‘access to justice and public participation.
Public Participation
Amongst the most damaging aspects of the report is its absolute contempt forpeople’s voices in the environmental decision making process. In the largest
democracy in the World, the High level Committee report severely recommends
curtailing the democratic space existing in the environmental laws of India for:projects of ‘national importance’; projects of ‘strategic importance’; projects to be
setup in industrial zone, manufacturing zone; projects in areas of high pollution
load; projects which are located away from settlements; and linear Projects
including transmission lines, roads, irrigation canals, etc.;

The committee also recommends that the issues that can be raised in public
hearings is to be limited only to environmental, rehabilitation and resettlement
issues. It further recommends that only ‘genuine local participation’ should bepermitted.19
Access to Justice
The Committee recommends overhauling the environmental justice processes
and remedies, which will adversely affect access to justice of communities across
our country. The existing law allows an Appeal to be filed before the National
Green Tribunal by any aggrieved person within 90 days. The National Green
Tribunal, established under the National Green Tribunal Act, 2010, has powersof both the ‘judicial review’ (that is, review of the decision making process) as
well as ‘merit review’ that is, review of the merits of the decision). Further, theTribunal has both original jurisdiction and appellate jurisdiction.
The Committee recommends that appeals against decisions of MoEF can be filed
by an aggrieved person before an Appellate Board (comprising only of judicial
and administrative members) within 45 days. An Application for Review against
the decision of the Board can be filed before the National Green Tribunal. In
effect, this takes away the process of merit review of environmental decisions byspecialized courts altogether.
The HLC has recommended the setting up of special environmental courts at the
district level. However, the recommendation contains a condition that a memberof the public may file a complaint only after providing ‘credible evidence of his
bona fides’. This puts an unnecessarily high burden of proof, not at the stage ofadjudication, but at the stage of approaching the courts itself. The Committee
also recommends penalties against persons found to be abusing the process –which could work as a double-edged sword, and could be used instead as an
intimidation/deterrent for civil society participation.
In sum, the Report of the HLC is regressive, is aimed at dismantling the legal
framework which exists for protection of environment. It recommends for newlaw, Rules and procedures which is solely aimed at ensuring that environmental
quality as well as peoples voice is silenced.

19

It is pertinent to point out that the present EIA Notification, 2006 allows all persons to participate in
the public consultation process.

Final Words:
India’s environmental law framework has given importance to access rights.
However, there is a need to translate the letters of the law into action. The
various institutions including civil society can play a complementary role. Yet, it
is important that the direction of change is towards increasing transparency andenhanced public involvement and not one which scuttles people’s voice. If one
sees the legal developments in the recent months, it the latter approach which
has dominated the Governments’ approach to environmental law.