ENVIRONMENT IMPACT ASSESSMENT, VIOLATIVE OF THE CONSTITUTION OR NOT?

Author: Shrasti Awasthi, University of Mumbai Law Academy Briti Das, Symbiosis Law School, Hyderabad

Editor: Mohit Meena, Gujarat National Law University

INTRODUCTION

India is a country where the environment is not at the forefront in the minds of many; each state under the Directive Principles is expected to provide a clean and safe environment for their people but it is not a binding order. In the recent years however, India has become an important member of numerous conventions in a bid to protect the environment globally:

  • VIENNA CONVENTION

With over 197 states ratifying the same, the Vienna Convention came into effect post research on CFC (chlorofluro carbon) and its harmful effects on the ozone layer which in turn affects health increasing the threat of cancer. A panel was constructed following the convention which meets every three years analysing and assessing ozone depletion through a report which is then released to the Conference of Parties. The convention has been helpful in reducing ozone depletion, in 2019 NASA has released images and information declaring the ozone hole has reduced to its smallest size since its discovery in 1982[1].

  • MONTREAL PROTOCOL,

Much like the Vienna convention the Montreal Protocol was also adopted to combat ozone depletion and as such was ratified by all countries, the first to do so. The UNEP Ozone Secretariat[2] has all the information with relation to the protocol and the same is updated periodically.


  • BASEL CONVENTION[3],

The convention could be considered one of the crucial conventions of all time, with over 187 countries party to the convention, it tackles an issue which plagued the world for years, the transfer of bio-hazardous waste. It was an old practice where bio hazardous waste was shipped from the first world counties to the third world countries, affecting the environment and the people. The countries raised their voice against the practise refusing to allow the barges full of waste in the country or sending them back. The convention regularised the shipment of waste through stringent provisions which are to be followed, however the provisions do not have any enforcement provisions of the convention is broken. There has been an amendment following the convention where the EU countries have declared the convention to be legally binding on its people with multiple countries following suit.


  • KYOTO PROTOCOL,

Currently with 192 member the protocol was put in effect to control pollution from CO2 emissions from the greenhouses, a major cause of global warming. The protocol ran according to commitment periods, the latest which is to expire in 2020 which led to the adoption of the Paris Agreement which is considered to be a long-term solution.


Moving on we will be touching upon the provisions available under the Constitution of India regarding the safe keeping of the environment:

Indian constitution is semi rigid, this ensures that arbitrary change cannot be brought to the provisions in the constitution, but if the need arises then change can be brought in response to the changes in society which is a dynamic object, changing with each generation and each advancement. Initially when constitution of India was adopted there were no provisions related to environment and pollution control as such, but later on many legislations have been made and different regulations have been issued. As a result various environmental regulatory authorities developed. The topics on which the state can create regulations are government health, hygiene, agriculture, soil, water, and fisheries. The union list includes items such as oil fields and resources, interstate rivers and valleys, nuclear energy and fisheries for which only parliament has the power to make laws.


The constitution of India has embedded in its articles the provisions to protect its citizens and also give its people rights and duties which they are expected to exercise with caution.

Article 21 of the Indian constitution has been expanded by the judiciary to include the right to a clean, healthy and pollution free environment in the case of Subhash Kumar v. State of Bihar[4].

Article 48 A is one of the Directive principles of state policy that creates an obligation on the state to protect and safeguard our environment.


Article 51 A (g) deals with fundamental duties of the citizens, and states that “it shall be the duty of every citizen of India to protect and improve the natural environment. Article 48 A and Article 51 A (g) were added in Indian constitution by 42nd amendment 1976, due to the increasing awareness towards environmental crisis and rapid industrialization.


The environment has been protected through various provisions as stated in the constitution of India, the judiciary has a responsibility to uphold the provisions of the constitution to ensure a healthy, hygienic environment for all is citizens. As discussed, prior in the article, environment is the interrelation between natural resources like water, air, land and human beings as defined in section 2(d) of the National Environment Tribunal Act of 1995. However, what would fall under the ambit of “environment” beyond natural resources? According to the case of Virender Gaur v State of Haryana5 a hygienic atmosphere with an ecological balance would also fall under the same.

In order to concentrate solely in the environment, the ministry of environment, forest and climate change released a notification with regards to the ENVIRONMENT IMAPCT ASSESSMENT NOTIFICATION, 2020 with the powers conferred under sub-section (1), and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 notifying the public of restrictions and such when it comes to certain projects which may have an impact on the environment. Feedback regarding the notification is accepted by the government within a certain time period. The latest notification however has come under fire due to its controversial provisions.

Environment Impact Assessment Notification,2020 has been analysed by the public and feedback has been accepted by the High Court of Delhi. The changes proposed in the notification has made activists raise their issues with regards to notification as they believe the present notification is regressive in nature as compared to the one of 2008.


India was a signatory to the Stockholm Declaration of 1972, was a result the country enacted laws to aid with the water and air pollution laws in the years 1974 and 1981 respectively. However, post the Bhopal gas tragedy an umbrella act was enacted as the Environment Protection Act of 1986 which provided a legal framework for the protection of natural resources from pollutants. The contention with the present notification was the fact that despite it seeming on the surface being protected through the legal framework but internally it is merely a range of concessions to be enjoyed by the industries such as the post facto approval for projects where numerous projects harmful for the environment may get approval despite the dangers they pose.


The public is always given a period of time to voice their dissatisfaction with the notification, the union however originally gave the public 20 days to respond, which was later extended till 10th august post public outrage.


There were multiple red flags in the 2020 drafts as it does not remedy the political stronghold on the act and as a result the industries end up overriding the act. The notification proposes to limit the public engagement in safeguarding the environment and on the other hand it bolsters governments discretionary power. According to this new notification, an information with regards to a project considered “strategic” is not to be released on any public domain and thus it enables the government to tag any project as strategic without disclosing the fact to the public. Among the projects that would be excluded from public knowledge post the new notification projects with regards to pipelines would also fall under the new definitions as under the notification.


Another issue that has become evident post the new notification is the change is the exemption when it comes to construction, prior to this notification any building construction exceeding 20,000 sq m were to apply for clearance under EIA, the new provisions extends the area to over 150,000 sq m which is a drastic change. Any project which encompasses an area of less than 150,000sq m doesn’t not have to get an appraisal as mentioned under page 44 of the notification thus potentially increasing the amount of pollutants through the transfer of material and such.

Conclusion

This notification has raised issues in the minds of the public who are questioning the motives of the notification as merely an aid to the industries without any care to the environment. There is no provision under the Fundamental Rights, however, the Directive Principles of State Policy aims to provide its people a hazard free environment, the present notification on the other hand seems to undermine those efforts.

References

1. 2019 Ozone Hole is the Smallest on Record Since Its Discovery. NASA. (2019). Retrieved 13 August 2020, from https://www.nasa.gov/feature/goddard/2019/2019-ozone-hole-is-the-smallest-on-record-since-its-discovery.

2. https://ozone.unep.org/

3. http://www.basel.int/

4. Subhash Kumar v. State of Bihar MANU/SC/0106/1991

5. Virender Gaur v State of Haryana MANU / SC / 0629 / 1995

6. NOTIFICATION. Environmentclearance.nic.in. (2020). Retrieved 13 August 2020, from http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf.

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