The report of the High-Level Committee (HLC) on a review of environmental laws may no longer be in the news, but its potential for impacting environmental governance in the country has not diminished. That potential will become real soon enough. A note of caution at this stage is therefore warranted.
Assuming that the process of examination and clearance of ‘projects’ by the Ministry of Environment and Forests (with Climate Change now added to its title) was not operating well, and was taking far more time than it should have, what needed to be examined was the operation of the clearance procedure and not the laws, unless the examination of the procedure pointed in that direction. The HLC’s work should have been essentially examining detailed case studies of hundreds of projects that had passed through the machinery, and not a review of the laws. Thus, the very formulation of the task was wrong.
Moreover, the task so formulated could not possibly have been completed within the derisory period of two months (extended to three) given to the Committee. There was also a fundamental ambiguity in the Terms of Reference set by the Ministry. The crucial portion is: “To recommend specific amendments needed in each of these Acts so as to bring them in line with current requirements to meet objectives.” What are these “current requirements” and “objectives”? Was the Ministry interested in enhancing the effectiveness of the environmental laws in conserving and protecting the environment, or was it primarily, if not exclusively, interested in ensuring the fast clearance of projects under these Acts?
Given those two problems — very limited time and an ambiguous ToR — one wishes that the HLC had declined the assignment or insisted on a one-year period (if not two years) and a clear definition of the purpose that the government had in mind in setting up the Committee.
There is universal agreement that the HLC simply did not undertake extensive consultations with the State governments, subject matter specialists or with the people in different parts of the country. The Committee will doubtless claim that it did what was feasible within the time available, but that is no answer. It does not alter the fact that what needed to be done was simply not done.
In this article I will confine my observation to a few selected recommendations that will bring out the thrust of the report.
‘No go’ areas and forests The HLC wants to confine the ‘No go’ classification of forests to areas with 70 per cent canopy (apart from Protected Areas). An area with 70 per cent canopy will be a very dense forest. With that criterion for ‘No go,’ the classification will cover only a minuscule fraction of the country’s forest area. This will reduce the ‘No go’ classification to a mockery. Further, an area with a modest or low canopy may earlier have been a dense forest and may have deteriorated because of human activity. In such a case, should we try to regenerate the lost forest cover or open the area to further depredation by denying it the ‘No go’ classification? Besides, is ‘canopy’ the only consideration in determining the value of a forest and its place in people’s lives? The Committee has enhanced the extent of compensatory afforestation needed for diversion of forest land and also raised the Net Present Value (NPV) payment required for permitting diversion. However, what the Committee has failed to consider is the dubious nature of the very idea of compensatory afforestation. Once a forest is allowed to be diverted to non-forest use, the ecological system is gone and cannot be restored.
That loss cannot be compensated. The conclusion that this leads to is that the diversion of a forest to non-forest use, or (in the case of a dam project) the submergence of a forest, should as far as possible be avoided, and resorted to only minimally and in unavoidable cases. The HLC shows no awareness of this point. When diversion of forest land has necessarily to be done, there should of course be ‘compensatory afforestation’ elsewhere and NPV payments, but these conditions are by no means effective deterrents of diversion.
The Committee wants to confine the mandatory statutory public consultation to environmental, rehabilitation and resettlement issues only; permit only genuine local participation; and dispense with public hearing in situations where local conditions are not conducive to the conduct of hearing, or in the matters of projects of strategic importance and national importance, etc. This precludes any discussion of the merits of the project and the options available for the ends in view. The underlying discomfort with the very idea of a public hearing, the desire to whittle it down as much as possible, and a distrust of the local community, are evident. This is an inadvertent revelation of a bureaucratic or technocratic attitude and contempt for the people.
The HLC wants to dispense with consultation with the gram sabha in the case of so-called ‘linear projects’ (a dubious categorisation). In the constitutionally mandated democratic decentralisation scheme (i.e., Panchayati Raj), the gram sabha is a crucial institution. The Committee cavalierly recommends a reduction of its role. A bizarre recommendation is the invocation of the principle of the presumption of ‘utmost good faith.’ What this means is that the government will accept all statements, data, reports, and other material submitted by the project proponent as true and valid, and make its decisions on that basis, subject to the invocation of penal provisions in the event of the subsequent discovery of mala fides. The report itself had pointed out earlier that “our businessmen and entrepreneurs are not all imbued in the principles of rectitude” which implies that we must presume mala fides rather than good faith. If the basis on which the clearance is given turns out later to be false, the government can doubtless put the person concerned in jail or impose heavy fines on the violator, but can the damage done to nature, ecology or communities be reversed?
Problematic recommendation The recommendation of an overarching Environmental Laws Management Act (ELMA) is very problematic. Normally, from a law we proceed to rules for implementation or administration. The rules constitute subordinate legislation. In the HLC’s recommendations, we proceed from one set of several laws (substantive ones) to another law, a single one (a ‘management’ law, i.e., a procedural or institutional one). This is not a case of subordinate legislation; the management law will be as much a law passed by Parliament, as the substantive laws. As a matter of fact, please note that in order to achieve quick, single-window clearances, the substantive laws are to be subordinated to the management law (Section 3 of the proposed ELMA). In reality, the sole purpose of ELMA is not the protection of the environment or forests or wildlife, but the facilitation of clearances. As this will be the overarching law, the substantive laws will stand downgraded. This will trivialise all the important concerns underlying those laws.
To sum up, one might say that having readily accepted the government’s identification of ‘development’ with industrial and mining projects, its misplaced focus on speed of clearance, and its wrong attribution of delays to the environmental laws, the HLC has produced a hasty, half-baked, inadequately thought-through report. If accepted by the government and implemented, it will have serious adverse consequences. The report needs to be totally rejected.
(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)