Issue and Concerns with respect to the High Level Committee on Review Environmental Law A note by Adv.Ritwick Dutta Background The Ministry of Environment, Forest and Climate Change has on the 29-8-2014 constituted the High Level Committee (HLC) for the review of various acts administered by the Ministry of Environment and Forest . These laws (though not limited to) the following: (i) The Air (Prevention and Control of Pollution) Act,1981 (ii) The Water (Prevention and Control of Pollution) Act, 1974 (iii) The Forest (Conservation) Act, 1980 (iv) The Environment (Protection) Act, 1986 (v) The Wildlife (Protection) Act, 1972. The following specific terms of Reference (TOR) has been stipulated: (i) To assess the status of implementation each of these Acts vis a vis their objectives. (ii) To examine and take into account various Court orders and judicial pronouncement with regard to these acts. (iii) To recommend specific amendments needed in each of these Acts to bring them in line with current objectives to meet requirements. (iv) To draft proposed amendments in each of the aforesaid Acts to give effect to the proposed recommendations. This is first time such a herculean task is being performed. It is beyond doubt that the right to review the implementation of laws and bring about amendments is an inherent right of any Government and it would be totally unreasonable to question such a task undertaken by the Government. However, such a task cannot be undertaken in the absence of clear objective and reasonable time frame as well as without following a detailed participatory process. The following aspects needs to be taken into consideration and deserve urgent attention of all: (i) The Objective of the Review : It is not clear as to why the review is being done. The Order issued by the Ministry of Environment, Forest and Climate Change nowhere states clearly the purpose of the review. At one place it is stated that its purpose is to ‘recommend specific amendments needed in each of these acts so as to bring them in line with current requirements to meet objective’. It is not clear as to what is meant by ‘current requirements’ and ‘meet objectives’. It is important that the MoEFCC clearly stipulates the main objective of the review exercise. (ii) Lack of clarity about the scope of the Review: The Terms of Reference of the HLC states that it will review various laws and this includes the Environment (Protection) Act, 1986. It needs to be clarified as to whether the review will be limited only to Environment (Protection) Act, 1986 or to all the notification issued under the Act. If the review includes all the notification, it is clearly a massive task. The Environment (Protection) Act, 1986 essentially operates through various notifications and Rules which includes the EIA Notification, 2006, the CRZ Notification, 2011, the Wetland Rules, the Hazardous Waste Relates notification to name a few. At present the terms of Reference nowhere provides clarity on this critical issue. (iii) Composition of the Committee: The High Level Committee is headed by the former Cabinet Secretary and has Former Additional Solicitor General, Former Environment Secretary and former Judge of the Delhi High Court as member. A Committee to review environmental laws cannot be limited to only retired persons. Given the complex nature of subject matters to be reviewed there is a clear need for representatives from various specialized environmental sectors who are tuned to the current developments and threats facing the environment. A review of this nature requires a high level of expertise in the field of environment. It is clear that the existing members have held ‘high level’ posts which does not suggest or imply that they have a high level of expertise in the field of environment to undertake such a task. It is therefore of utmost importance that the Government ensures that the Committee is reconstituted in a manner wherein persons with expertise in the subject are part of such an important exercise. It is surprising that a committee to review environmental law does not have a single person with expertise either on environment or environmental law. Given the huge task of the Committee, there is a clear need to broaden the membership to people in the committee to include ecologist, environmentalist and those working on issues concerning tribal’s, forest dwellers and other marginalised communities. (iii) Unrealistic Time Frame: As per the Government Order, the High Level Committee is to submit its report within a period of two months. This is highly unrealistic. It needs to be kept in mind that India’s environmental laws have evolved over decades through detailed deliberations, struggles and efforts at various levels. Many a times it was an outcome of detailed consultative process such as the process adopted for the Forest Rights Act and the CRZ notification. It is pertinent to point out that detailed consultative processes were adopted not just for the Statutes but also for Notifications issued under the respective Acts. The process of review cannot be undertaken within a period of two months. It is not clear as to why such a crucial process is being done in such great hurry. The Ministry of Environment and Forest should immediately ensure that a realistic timeframe is stipulated in order to undertake a effective review. (IV) Lack of Public Consultation: The Government Order constituting the Committee does not anywhere require the committee to hold public consultation or even invite public comments. The Government Order states that the ‘meeting of the Committee shall normally be held in Delhi but could also take place elsewhere’. It is important to point out that the word used is ‘meeting’ and not ‘public meeting’. As of date two meetings have taken place where the public was allowed to participate. The first one in Bhubaneshwar and the second in Patna on 17-9-2014. However, it is pertinent to point out that: (i) There was no advanced notice about the public. The details of the meeting was not provided either in any newspaper or even the website of the MoEF. It has been a selective exercise. (ii) No lead time was given to the public. Many came to know only from articles in newspaper about the meeting. It cannot be therefore be termed a public consultation. The MoEF should immediately ensure that the process is transparent and participatory. Details of the Public consultation should be informed in advance through all possible modes and public consultation should not be limited only to capital cities. (vi) Character less suggestions : The website of the Ministry of Environment and Forest which has the link to the HLC has a column seeking public comments and suggestions. However, the Government order nowhere requires the HLC to seek public inputs, comments and suggestion. The procedure to be followed by the HLC as stipulated in the order only requires the HLC to hold a meeting. Thus there is no mandate given to the committee to invite suggestions. However, the Website of the MoEF does have a template for inviting comments. Strangely, it states that the comments cannot exceed 1000 characters. This translates into approximately 200 words or 1/3rd of a A 4 size paper. It is absurd to think that any worthwhile comments could be made within such strict word limit. The Ministry of Environment, Forest and Climate Change to rethink and review the Order dated 29-8-2014 constituting the High Level Committee. The present Government Order would not allow a realistic, participatory and holistic review of environmental laws which is essential to strengthen the environment protection and conservation regime in the country and ensure that the legal and fundamental right to clean environment and a balanced ecosystem is ensured.
Posted on: Tue, 30 Sep 2014 11:12:02 +0000
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