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Who will benefit from "green" courts?

Kalpana Sharma

What is worrying is not just the precise nature of the proposed Environment Tribunal Bill but the motive behind it.

IT IS still under wraps. Despite an effort made through the Right to Information, no one outside government has seen it. The Ministry of Environment and Forests (MoEF) has proposed to introduce the Environment Tribunal Bill, which envisages the setting up of "green" courts to deal with environmental disputes. Why is this necessary? How will the "green" courts work? Who will benefit from them?

These are just some of the questions people involved in the environmental movement are asking. The substance of the proposed law should be in the public domain and ought to be debated by people beyond those in government before it is presented in Parliament. But none of this will happen if the MoEF has its way.

For more than two decades, groups concerned at the environmental impact of infrastructure and industrial projects have had to turn to courts for redress. The results have been patchy. Court intervention has sometimes helped. At other times, even when the court laid down criteria to ensure that environmental considerations are incorporated, those implementing projects have blatantly ignored the suggestions.

As a result, environmental groups have had to spend many frustrating years fighting the same issue in courts. The decade-long struggle of the Narmada Bachao Andolan against the Sardar Sarovar Project is a classic illustration. Despite the Supreme Court's directive that rehabilitation and ameliorative steps to minimise environmental damage must precede the construction of the dam, this has not happened. Thousands await rehabilitation even as the dam nears completion.

Environmental law in India has developed partly in response to demands by environmental groups and partly as a result of international conventions. The laws to protect biodiversity were a direct outcome of the International Convention on Biodiversity. After the 1992 United Nations Conference on Environment and Development in Rio de Janeiro, a number of laws were changed or new rules drafted to conform to international agreements. Local environmental groups played an important role in bringing in the Coastal Regulation Zone rules, an outcome of growing awareness of the impact of development along the coasts on marine resources.

Similarly, campaigns by civil society groups led to changes in antiquated forest laws that had not heeded the presence of forest-dependent communities and viewed forests only as an economic resource. After the 1984 Bhopal Gas disaster, there was much greater awareness of hazardous chemicals resulting in rules and laws governing their manufacture, use and transport.

Although by no means perfect, India's environmental laws have the potential to make a difference if they are properly implemented. To implement them, apart from regulatory bodies such as the Pollution Control Boards, the MoEF had set up "expert" committees that looked at projects and evaluated their impact on the environment. These committees included representatives of non-governmental organisations with a long track record of monitoring environmental impact. Even if the government did not accept all the suggestions made by the NGO members, several important interventions were accepted over the years. More important, these members were considered as "expert" as anyone with formal qualifications in one of the sciences or in economics.

In addition, on specific issues, monitoring groups were established that had the authority to check if a particular project, or development in a particular area, conformed to the environmental laws and regulations. For instance, an ecologically fragile area like Dahanu, north of Mumbai along the western coast, had the Dahanu Taluka Environment Protection Authority (DTEPA). It was set up following a long battle by local farmers and environmentalists against the 500-MW coal-fired power plant located in the area. Although the power plant was built and is functioning today, it was compelled to take measures to limit its polluting impact on the environment, and the DTEPA continues to monitor its performance. Similarly, the Mahabaleshwar Panchgani Monitoring Committee played a crucial role in protecting the popular hill stations from being destroyed by unchecked construction. The committee's term ran out in January 2005 and since then it has not been renewed.

This, in fact, seems to be the emerging pattern, indicative of the Ministry's approach to such committees. It seems unconcerned and unimpressed with their work and probably prefers that they be wound up.

The most important of such groups is the Central Empowered Committee (CEC), which has made many significant interventions where forestlands are concerned. It has not always agreed with the Ministry and, more often than not, rejected proposals that would endanger India's already dwindling forest cover. The term of the CEC is due to end in May and it is generally believed that the MoEF will not renew its mandate. Even if it is done, the committee will probably be reconstituted.

The excuse being used to set up an environmental tribunal is that there are too many cases pending in courts. A Central tribunal in Delhi and regional ones, it is argued, will take the burden off the courts. The plan is based on the assumption that the groups presently taking matters to court will be satisfied with the civil remedies that the environmental tribunal will offer. What is not so well known is that apart from communities with grievances, proponents of projects can use the tribunals to clear their projects if they feel aggrieved that they have been denied permission on environmental grounds. The government would argue that such a set-up would obviate the need for specific committees as the tribunal could set up its own committees to look into specific projects.

On the surface, this appears reasonable. But people selected by the government will man the tribunals. When the majority of the cases that land up in court concern government policy and the perception of groups and communities that the government is violating its own laws, how can such tribunals be viewed as impartial?

Fortunately, people's fundamental rights to turn to courts and use public interest litigation cannot be affected by this new set-up. Environmental groups have used this to fight for environmental justice, although the outcome has not always been positive. But the avenue remains open and if the tribunals turn out to be what environmentalists suspect they will be, a process to rubber-stamp government proposals, these groups will have to continue to use the courts to seek justice.

Definition of `expert'

It is also significant that the Ministry wants to change the definition of the word "expert." It restricts it to people with certain educational qualifications as well as people with experience in administration. In other words, people with science and economics degrees will qualify as also retired bureaucrats but people with decades of experience in understanding and monitoring the environment and the inter-linkages between different aspects of the environment will be kept out. This appears a deliberate attempt to exclude the activists who have served with distinction on numerous "expert" committees over the last two decades and who have also been the ones asking uncomfortable questions.

None of this bodes well for the future of environment in India. What is worrying is not just the precise nature of the law being proposed, but the motive behind it. The Ministry seems to have forgotten that the very reason environmental laws were enacted, or even a separate Ministry for environment and forests was created, was to ensure that development went hand in hand with environmental protection. Objections consistently raised by environmental groups to cursory handling of environmental concerns should have been welcomed rather than viewed as an irritant that needs to be removed.

A case in point is the way Environmental Impact Assessment (EIA) is done for projects. Rarely is the intent sincere to ensure that a new project minimises adverse environmental impact. Instead, EIAs routinely try to underplay negative impacts to ensure speedy clearance of projects. When these adverse impacts become so obvious that they cannot be ignored, it is most often too late. The project is already in place and communities around it have to resort to a long and complex struggle through courts.

India's natural environment is as much its wealth as the minerals that lie below the ground or the land that can be used for other purposes. Development versus environment is just not a debate any more. There is enough evidence to support the belief that the best possible form of development is that which integrates the concerns of environment and of people.

The tragedy about the way the MoEF is proceeding to "clear" environmental challenges shows that it has not accepted this basic premise. What environment and what forests will such a Ministry protect?

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