When the Ministry of Environment and Forests granted an environmental clearance to KGS Private Limited to build an airport in Aranmula, a small heritage village in Kerala towards the end of 2013, residents of the area were outraged. Aranmula is known for its rich and pristine paddy wetlands and its temple is a major tourist attraction. Five petitioners promptly challenged the clearance in the National Green Tribunal.
A few months later in May, the tribunal submitted a scathing judgment which exposed the claims that KGS had made in its environment impact assessment and the ministry's inadequate scrutiny of the project. The company, the judgment says, wilfully concealed the number of people who would be displaced by the project, it said it would fit a 2,300-m runway in a 515-m area and did not adequately assess the biodiversity of the area.
With all these factors in mind, the tribunal cancelled the airport’s environmental clearance. In November, the Supreme Court refused to stay the tribunal’s judgment.
This was a case of blatant misuse of the law that resulted in swift judgment. But if the recommendations of the TSR Subramanian Committee Report on altering environment laws are accepted, it might no longer be as easy for aggrieved parties like the villagers of Aranmula to pursue such cases.
No more single-window justice
The report, submitted in November, is replete with suggestions for streamlining the process of environmental clearances, including a single-window process of clearances based on the principle of “utmost good faith” by which it hopes that industry will honestly assess the impact of its own projects, and an umbrella law to manage existing environment laws.
But where the report attempts to unite other environmental regulators, the committee seems to find some logic in suggesting a split of the duties of the National Green Tribunal. This might send India four years back to when it had to rely on the joint efforts of a defunct National Environment Tribunal and a National Environment Appellate Authority.
“If the proposed structure for the administration of environment justice is adopted, the very purpose of establishing the green tribunal would be frustrated,” said Raj Panjwani, a senior advocate at the Supreme Court. “The efforts made by the Supreme Court and by the Law Commission over the last 15 years to ensure a fair and just environmental justice delivery system – the whole purpose will be lost.”
Ministry detractors believe that the committee recommends systematically diluting those aspects of environmental governance that have actually been functioning in favour of the environment and people’s rights.
“The National Green Tribunal is not the benign institution the government wanted to set up,” said T Mohan, an environmental activist based in Chennai. “The tribunal can’t wish away the fact that there is so much rot in the [clearance] system.”
In its report, the committee drafted an Environment Laws Management Act. As it emphasises in the report, this draft is only a suggested framework for the Ministry of Environment and Forests to act upon. If the ministry chooses to adopt this recommendatory framework entirely, it will lead to a complicated new judicial structure that redefines the scope of the National Green Tribunal Act.
The committee recommends instituting three bodies: a Special Environmental Court at a district level, an Appellate Board at New Delhi (with the possibility of seats elsewhere) and the National Green Tribunal itself with its existing five benches.
Environmental lawyers and activists have a few immediate problems with the functions proposed for the Appellate Board and the National Green Tribunal.
Appellate Board’s limited statute
The Appellate board, before which cases such as the Aranmula airport case would now go, will review decisions including clearances made by the ministry. It will give complainants 30 days, which may be extended by 15, to appeal against decisions made by the ministry or environment management authorities after orders are made.
This leads to two problems.
Even in the best of scenarios, 45 days are hardly enough to prepare a case that depends heavily on technical grounds of complaint. This number becomes even smaller when factoring in that environmental clearances are not well-publicised.
In the Aranmula case, for instance, KGS Private Limited failed to inform the public about its public hearing by constantly changing its dates. It did not fully publicise the details of the project in local newspapers. As of the May judgment, the environmental clearance was not even available on the ministry’s website.
According to a 2009 amendment to environment impact assessment rules, clearances are supposed to be published online and publicised in local newspapers. This is often not followed, according to Rahul Choudhary, another lawyer who specialises in environment cases.
“I have not come across a single clearance published in newspaper since 2009,” said Choudhary. "Communication is never done properly.”
Choudhary also noted that according the National Green Tribunal Act, 30 days were counted from the date of publication, not the date of the order as the Appellate Board seems to suggest.
In a conversation with Scroll.in, committee head TSR Subramanian maintained that despite this shorter statute of limitation, the burden of finding out when a clearance has been granted lay on potentially affected people and not the ministry.
“You know we have the Indian Penal Code which is notified through the Gazette on the internet,” he said. “It is not the duty of the government to tell every villager that it has been amended. If a major law has been made, should they inform every citizen? Ignorance of the law is not an excuse. If a person doesn’t know, that is no excuse.”
On being asked about how people might access these clearances in areas with poor internet connectivity, Subramanian said that a separate project is underway to get communication networks to 1.5 lakh villages across the country.
The situation is made graver by the power of the board to impose costs against people they find to be misusing the process.
“It is as if a villager in Marthandum or Kerala or Burdwan is supposed to check the website every day about some public hearing they might have attended some months back,” said Mohan. “The order has to be communicated to the people, but the tribunal shuts out access to justice by capping rigid timeframes by virtue of the internet. Given the digital divide of the country, this is not possible.”
Subramanian also defended the shorter statute of limitations.
“We don’t want someone to come five years later and file a frivolous case,” he said. “We are not saying people should not complain, but if the information is put in the public domain, they have to act on it.”
Choudhary countered that it is not possible for tribals or villagers to come to the court within such a short period. “It is not just the time taken to travel," he said. "You also have to get technical details, get all the papers, draft the petition. Thirty days is inadequate.”
No merit review for the green tribunal?
The National Green Tribunal will be left much diminished. It will continue to have civil jurisdiction over environment cases, but will only have the power of judicial review, which means it can no longer judge the merit of decisions, as it did in the Aranmula airport case.
The report only explicitly states that its powers will be that of judicial review.
The National Green Tribunal was established by an act in October 2010 to uphold the principle of “polluter pays”. It began functioning full time in May 2011. The tribunal handles all civil cases related to the environment. As of May 2014, it had delivered around 600 judgments, according to a study by the World Wildlife Foundation.
At present the tribunal functions as the single window for all civil environmental issues under the five laws the Subramanian committee reviewed. It has both original and appellate jurisdiction, which means it can evaluate both the process of decision making and the merits of these decisions.
Crucially, the report does not mention the tribunal's powers of appeal where it can examine the process of decision making, as well as the merits of the decision itself. The report does not clarify who, if anyone, will assume this role, but Subramanian says this task will devolve to the regular judicial system.
“In other courts, cases went on for 20 years, but the Appellate Board will finish appeals in two months,” Subramanian said. “After that, litigants can go to the National Green Tribunal, High Court or Supreme Court if they want.”
Even the National Green Tribunal is supposed to dispose of cases within six months, although cases often run on for longer.
Most baffling is the suggestion of the committee that no court or tribunal can ever question any of the decisions of the government or the environmental management authorities made under the proposed new act.
Going back in time
The appellate board and green tribunal have some precedence in two bodies constituted in the 1990s. The National Environment Tribunal of 1995 and the National Environment Appellate Authority of 1997 were both acknowledged failures.
While the appellate authority, meant to serve as a check for ministry clearances, functioned at full strength for three years, it did not ever bother to replace its chairperson after that.
At one point, the authority functioned with only one member. This was, incidentally, a certain VishwanathAnand who was vice-chairperson of the Appellate Authority between 2002 and 2005. He was also a member of the TSR Subramanian Committee.
As of 2009, the appellate authority had dismissed all but one case of appeal that appeared before it. Given this track record, it might be argued that the National Green Tribunalwas a runaway success.
As for the environment tribunal, it was never constituted in the first place.
Yet this overarching structure seems to be what the Subramanian committee recommends returning to.
This is the second of a three-part series on the overhaul of environment regulation suggested by a high level committee to the Ministry of Environment, Forest and Climate Change. Read the first part here.
A few months later in May, the tribunal submitted a scathing judgment which exposed the claims that KGS had made in its environment impact assessment and the ministry's inadequate scrutiny of the project. The company, the judgment says, wilfully concealed the number of people who would be displaced by the project, it said it would fit a 2,300-m runway in a 515-m area and did not adequately assess the biodiversity of the area.
With all these factors in mind, the tribunal cancelled the airport’s environmental clearance. In November, the Supreme Court refused to stay the tribunal’s judgment.
This was a case of blatant misuse of the law that resulted in swift judgment. But if the recommendations of the TSR Subramanian Committee Report on altering environment laws are accepted, it might no longer be as easy for aggrieved parties like the villagers of Aranmula to pursue such cases.
No more single-window justice
The report, submitted in November, is replete with suggestions for streamlining the process of environmental clearances, including a single-window process of clearances based on the principle of “utmost good faith” by which it hopes that industry will honestly assess the impact of its own projects, and an umbrella law to manage existing environment laws.
But where the report attempts to unite other environmental regulators, the committee seems to find some logic in suggesting a split of the duties of the National Green Tribunal. This might send India four years back to when it had to rely on the joint efforts of a defunct National Environment Tribunal and a National Environment Appellate Authority.
“If the proposed structure for the administration of environment justice is adopted, the very purpose of establishing the green tribunal would be frustrated,” said Raj Panjwani, a senior advocate at the Supreme Court. “The efforts made by the Supreme Court and by the Law Commission over the last 15 years to ensure a fair and just environmental justice delivery system – the whole purpose will be lost.”
Ministry detractors believe that the committee recommends systematically diluting those aspects of environmental governance that have actually been functioning in favour of the environment and people’s rights.
“The National Green Tribunal is not the benign institution the government wanted to set up,” said T Mohan, an environmental activist based in Chennai. “The tribunal can’t wish away the fact that there is so much rot in the [clearance] system.”
In its report, the committee drafted an Environment Laws Management Act. As it emphasises in the report, this draft is only a suggested framework for the Ministry of Environment and Forests to act upon. If the ministry chooses to adopt this recommendatory framework entirely, it will lead to a complicated new judicial structure that redefines the scope of the National Green Tribunal Act.
The committee recommends instituting three bodies: a Special Environmental Court at a district level, an Appellate Board at New Delhi (with the possibility of seats elsewhere) and the National Green Tribunal itself with its existing five benches.
Environmental lawyers and activists have a few immediate problems with the functions proposed for the Appellate Board and the National Green Tribunal.
Appellate Board’s limited statute
The Appellate board, before which cases such as the Aranmula airport case would now go, will review decisions including clearances made by the ministry. It will give complainants 30 days, which may be extended by 15, to appeal against decisions made by the ministry or environment management authorities after orders are made.
This leads to two problems.
Even in the best of scenarios, 45 days are hardly enough to prepare a case that depends heavily on technical grounds of complaint. This number becomes even smaller when factoring in that environmental clearances are not well-publicised.
In the Aranmula case, for instance, KGS Private Limited failed to inform the public about its public hearing by constantly changing its dates. It did not fully publicise the details of the project in local newspapers. As of the May judgment, the environmental clearance was not even available on the ministry’s website.
According to a 2009 amendment to environment impact assessment rules, clearances are supposed to be published online and publicised in local newspapers. This is often not followed, according to Rahul Choudhary, another lawyer who specialises in environment cases.
“I have not come across a single clearance published in newspaper since 2009,” said Choudhary. "Communication is never done properly.”
Choudhary also noted that according the National Green Tribunal Act, 30 days were counted from the date of publication, not the date of the order as the Appellate Board seems to suggest.
In a conversation with Scroll.in, committee head TSR Subramanian maintained that despite this shorter statute of limitation, the burden of finding out when a clearance has been granted lay on potentially affected people and not the ministry.
“You know we have the Indian Penal Code which is notified through the Gazette on the internet,” he said. “It is not the duty of the government to tell every villager that it has been amended. If a major law has been made, should they inform every citizen? Ignorance of the law is not an excuse. If a person doesn’t know, that is no excuse.”
On being asked about how people might access these clearances in areas with poor internet connectivity, Subramanian said that a separate project is underway to get communication networks to 1.5 lakh villages across the country.
The situation is made graver by the power of the board to impose costs against people they find to be misusing the process.
“It is as if a villager in Marthandum or Kerala or Burdwan is supposed to check the website every day about some public hearing they might have attended some months back,” said Mohan. “The order has to be communicated to the people, but the tribunal shuts out access to justice by capping rigid timeframes by virtue of the internet. Given the digital divide of the country, this is not possible.”
Subramanian also defended the shorter statute of limitations.
“We don’t want someone to come five years later and file a frivolous case,” he said. “We are not saying people should not complain, but if the information is put in the public domain, they have to act on it.”
Choudhary countered that it is not possible for tribals or villagers to come to the court within such a short period. “It is not just the time taken to travel," he said. "You also have to get technical details, get all the papers, draft the petition. Thirty days is inadequate.”
No merit review for the green tribunal?
The National Green Tribunal will be left much diminished. It will continue to have civil jurisdiction over environment cases, but will only have the power of judicial review, which means it can no longer judge the merit of decisions, as it did in the Aranmula airport case.
The report only explicitly states that its powers will be that of judicial review.
The National Green Tribunal was established by an act in October 2010 to uphold the principle of “polluter pays”. It began functioning full time in May 2011. The tribunal handles all civil cases related to the environment. As of May 2014, it had delivered around 600 judgments, according to a study by the World Wildlife Foundation.
At present the tribunal functions as the single window for all civil environmental issues under the five laws the Subramanian committee reviewed. It has both original and appellate jurisdiction, which means it can evaluate both the process of decision making and the merits of these decisions.
Crucially, the report does not mention the tribunal's powers of appeal where it can examine the process of decision making, as well as the merits of the decision itself. The report does not clarify who, if anyone, will assume this role, but Subramanian says this task will devolve to the regular judicial system.
“In other courts, cases went on for 20 years, but the Appellate Board will finish appeals in two months,” Subramanian said. “After that, litigants can go to the National Green Tribunal, High Court or Supreme Court if they want.”
Even the National Green Tribunal is supposed to dispose of cases within six months, although cases often run on for longer.
Most baffling is the suggestion of the committee that no court or tribunal can ever question any of the decisions of the government or the environmental management authorities made under the proposed new act.
Going back in time
The appellate board and green tribunal have some precedence in two bodies constituted in the 1990s. The National Environment Tribunal of 1995 and the National Environment Appellate Authority of 1997 were both acknowledged failures.
While the appellate authority, meant to serve as a check for ministry clearances, functioned at full strength for three years, it did not ever bother to replace its chairperson after that.
At one point, the authority functioned with only one member. This was, incidentally, a certain VishwanathAnand who was vice-chairperson of the Appellate Authority between 2002 and 2005. He was also a member of the TSR Subramanian Committee.
As of 2009, the appellate authority had dismissed all but one case of appeal that appeared before it. Given this track record, it might be argued that the National Green Tribunalwas a runaway success.
As for the environment tribunal, it was never constituted in the first place.
Yet this overarching structure seems to be what the Subramanian committee recommends returning to.
This is the second of a three-part series on the overhaul of environment regulation suggested by a high level committee to the Ministry of Environment, Forest and Climate Change. Read the first part here.
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