The Legal Arc Volume 1 Issue 1 Articles
Kshitij Kasi Viswanath is a second-year Law Student at NMIMS Kirit P Mehta School of Law, Mumbai. His areas of research interest are environmental law and international jurisprudence.
Yash Sinha is a second-year Law Student at NMIMS Kirit P Mehta School of Law, Mumbai. His area of research interest is Constitutional Law.
The environment, in itself, is an important aspect and a debated subject around the world. We have noticed the concerns of developed, developing and underdeveloped nations at the Paris accord. Every country requires holistic growth in every sector, but that should not come at the expense of environmental concerns. There has been a total turnaround in the global scenario due to the on-going phase of COVID-19. The political affiliations and balances have seen dramatic changes around the world. Various countries like Australia, the United States, some European countries, and some of the ASEAN countries are confronting China because of COVID-19 at various platforms. Even India is facing various issues regarding China including the on-going border dispute. The GDP of all the above countries, by and large, has faced negative growth due to the pandemic. Unemployment is rising and several reports also suggest that many companies settled in China are intending to shift to a different country which has the basic requisite infrastructure, simplified regulations, and most important of all, ‘availability of license and environment clearance in a time-bound process’. India should take advantage of this opportunity and create an environment that welcomes all such investments, given that our GDP is not decent and negative growth is speculated for the future. This is a very suitable time to make changes in the Environmental policies to increase FDI (Foreign Direct Investment) and local investments. This could have been only done by making the existing policies more expedient and transparent as proposed in the EIA draft 2020. This draft seeks to bring some leniency in the clearance process and to reduce red-tapism. The idea is simply to make the process of giving clearance faster and ensure proper monitoring of the same.
There are certain changes proposed by the government in the policy, which has created space for contention as well as criticism. One of them is the introduction of the word “strategic”. Under the topic, ‘Categorization of projects and activities’ point number seven mentions that “all projects related to national defence and security or involving other strategic considerations, as will be determined by the Central government shall require prior-EC from the ministry without any change in the category of the project”. No information related to such projects will be brought into the public domain. Now, this is justifiable to the people if the matter is related to defence or national security. However, the addition of the point that the government can make any project “strategic” as per its own criteria and that would not fall under the ambit of RTI (Right to information) is contentious. The criticism is that this is diluting the policy rather than strengthening it and simultaneously reducing the transparency of the whole process. People are afraid that this would lead to an increase in crony capitalism. Even the government’s decision of terming any project strategic is in question concerning the benefit the ministry might receive or it could be a possibility that this step becomes dependent on the benefit the ministry gets off the record rather than on actual merits. This could also become a new way for some companies or projects to evade responsibilities through public consultation by funding the government inappropriately to get the ‘strategic’ tag.
The government, however, with our understanding has tried to project a different perception. The perception they are trying to purport is that it is more in line with national interest that any of the future investments that are brought to India with probable impact on the country’s development and economy, will get a direct environmental clearance or permission from the ministry without any delay. The idea is to keep such investments in India rather than losing the same due to the clearance process and RTIs because there are many countries which have the same infrastructure as we have and need such investments. Howsoever, even in our understanding, we believe that it is still something on which the government should provide proper clarification. There should be at least a proper definition of the term ‘strategic’ as mentioned by various critics of the policy. It should be also taken into consideration that this was just a draft notification and that the government has collected all the suggestions for the same. They may or may not bring about these changes when this policy is passed in the parliament, or they could even come up with a definition of the term ‘strategic’.
Another criticism that the environmental policy faced is the application of its provisions on an ex post facto basis. This essentially means that the provisions of the policy can be applied in a retrospective sense, giving a chance to industries with incomplete or no environmental clearance to obtain the same, despite violating the earlier provisions.
The need for economic growth and investment through industries has pushed the government to allow for the relaxation of norms to induce industries to invest in India, sacrificing the standards of safety.
The ex post facto application story has two sides. While numerous environmentalists and conservationists have argued that this particular provision is and will be an excuse for industries to abandon their liabilities, leaving other stakeholders in the environment in a vulnerable position.
The government defends this stance by stating that it was providing these industries with a ‘second chance’ by allowing them to make amends. The defence to this would be that the government would re-enter these industries through the process of environment clearance and would only provide them with such documentation if they made changes, after payment of a fine.
However, simply paying a fine has more significance than just its pecuniary value, rather the symbolic value has a greater, more adverse effect. The bailout of these polluting industries by a simple payment of a fine represents a dangerous precedent by allowing industries to pay themselves out of trouble that they have caused, rather than being held liable for the same.
To conclude, we can say that the environmental policy is a diluted form of the erstwhile policies from 2006. The implication of this would be vast and from the face of the provisions, we can say that the policy was drafted merely to meet the needs for expansion of infrastructure.