The High Level Committee, entrusted to review and suggest appropriate amendments to the environmental laws in force ,has proposed the creation of a new Act (Environment Law (Management) Act), which appears to be contra bono
Laws are enacted and enforced to resolve the problems of individual and society. It is necessary to balance the conflicting interests in society. Thus, the need for making new laws arises with the change in demands of society. The need to amend an existing law or to create a new law in every nation irrespective of developed or under developed demands with the change in time. India is no exception to such necessity.
The initiative taken up by the Ministry of Environment, Forest and Climate Change (MoEF&CC) is a timely step to address the problem of environmental degradation in India. The High Level Committee to review various Acts administered by MoEF&CC (herein after referred to as High Level Committee or HLC), was able to submit its recommendation within the allowed short period of time (about three months) despite the vastness of the laws to review and the enormity of cultures in a country like India.
The High Level Committee was entrusted to review and suggest appropriate amendments to bring in line with the objectives of various statutory environmental laws viz. Environment (Protection) Act, 1986, Forest (Conservation) Act, 1980, Wildlife (Protection) Act, 1972, The Water (Prevention and Control of Pollution) Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981 and the Indian Forests Act, 1927. The Terms of Reference of the Committee were: (i) to assess the status of implementation of each of the aforesaid Acts vis-à-vis the objectives, (ii) to examine and take into account various court orders and judicial pronouncements relating to these Acts, (iii) to recommend specific amendments needed in each of these Acts so as to bring them in line with current requirements to meet objectives, and (iv) to draft proposed amendments in each of the aforesaid Acts to give effect to the proposed recommendations.
The High Level Committee worked, applying the principles, like primacy to conservation of the environment, transparency, to provide more freedom to private actors, ease the process of approvals without compromising the sanctity of the environment, to bring technology and science into play in the decision making processes, improvement in the quality of management of all elements of environment in an integrated form, capacity building for management of the sector, elimination of avoidable litigation, etc. Thus, the principles are noteworthy with the present needs of the nation and, if implemented, would result in the finest nation building and abatement of environmental degradation.
POLICIES FOR FARM AND SOCIAL FORESTRY recommendations of policies for farm and social forestry are concerned. However, the recommendation to allow activity in strongly protected areas (“no go” areas) when there is an overwhelming advantage in terms of economic development is a loophole and hence a direct invitation for exploitation in the hands of industrialists. The word “overwhelming advantage in terms of economic development” appears to be vague, as the HLC has not laid down the prerequisite circumstances that would sum up to overwhelming advantage. In absence of this, copious ways would be available to annihilate the reserved assets of the nation. Thus, the said recommendation is a dilution.
The next major issue is on forest clearance. The HLC recommendation to remove Gram Sabha from the process of approval in linear projects to reduce time is not prudent. Even though, it may help in saving time but the question remains to be answered for the rural population whose needs are more vital than a linear project. Law is not to be designed only for a section of the society. The government exists for vindication of misery of the poor and the needy. When the voice of the needy are ignored, then, the downfall of a nation is inevitable.
Thirdly, to open window for making compensatory afforestation on severely degraded forest land is a brilliant step for conserving and reinstating the nation’s rich forest cover, however, the HLC has not used the term “severely degraded forest land” in the recommendations but have only used ‘private lands’. Thus, an integrated meaning of ‘severely degraded forest land’ needs to be elaborated.
The recommendations of the HLC on Wild Life Act, 1972 is a step forward from the view of hunting, poaching, man-animal conflicts, wild life management plans, alteration of boundaries in protected areas, prohibition on manufacture and possession of mouth and leg hold traps found outside protected areas, settlement of rightsproceedings, restrictions on pollutants in protected areas, delineation and demarcation of eco-sensitive zones, permission for observational research and loss of corridors. However, the recommendations suffer from the most important subject of threat of destruction of habitat and ecological sustainability from developmental projects.
In environmental governance, the recommendations of the HLC ought to be thrust aside. The Committee by recommending special treatment in some linear projects has accepted the importance of benefit for the community at large. However, their acceptance appears to be absurd when Gram Sabha is excluded from the approval process. The consequence of which, would be autocratic and against the principles of democracy. The committee’s recommendation of benefit for the community at large appears to be in consonance with Article 48A of the Constitution of India, however, when the grass root level of a nation is barred from the decision making process which is to directly to effect them, then the objective of the constitutional provision becomes nugatory.
The concept of “utmost good faith” as recommended by HLC in the Legal Frame Work is not pragmatic. A simple affidavit certifying that ‘the facts stated are true and that no information that would be relevant to the clearance has been concealed or suppressed’ is inadequate to establish the truth in practice. India has adopted the principle of ‘precautionary principle’ and hence it would be futile to punish the offender after irreversible degradation and destruction of environment. Secondly, prescribing new offences and punishments including prosecution and arrest is praiseworthy. However, establishment of special courts may not be required as the cognizance and trail of that can be taken up in criminal courts and the National Green Tribunal (NGT). Should the Committee’s recommendation of establishing special court and appeals to NGT be accepted, in effect, it undervalues the merit review of environmental decisions rendered by specialized courts in toto.
Finally, the most important recommendation of the Committee is the proposal of an umbrella law called “Environment Law (Management) Act” (ELMA). The proposed law recommends constitution of National Environment Management Authority (NEMA) at the centre and State Environment Management Authority (SEMA) at the state level. The purpose of the proposed law with NEMA and SEMA is to facilitate the approval process through a single window clearance as opposed to the existing clearance system. The Committee’s aim in proposing a single window clearance is to avoid unnecessary delays in sanctioning developmental projects. Thus, the Committee’s determination for speedy economic development of the nation is well founded.
However, the proposed single window clearance eliminates grass roots participation in decision making. It is the local people who are to be directly affected in case of a mishap of developmental projects, and hence the single window clearance takes away the voice of the locals. The single clearance window also exhibits the possibilities of arbitrary exercise of power by the authorities.
The High Level Committee was entrusted to review and suggest appropriate amendments to bring in line with the objectives of various statutory environmental laws in force as stated hereinbefore, but, the Committee in the conclusion of its recommendations proposed the creation of a new Act (Environment Law (Management) Act), which appears to be contra bonos mores of environmental justice. Instead of giving effect to environmental justice the recommendations seems to be one sided and thus regressing. Economic development is indispensable for a nation however not at the cost of human environment. To sum up, the Committee failed to re-call the concept of environmental sustainability by giving more weightage to economic development.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
