4 Procedural Environmental Rights

Ms Shibani Ghosh

1. Introduction

Article 21 of the Constitution of India recognises that every person has a right to life. This right to life has been interpreted by the Supreme Court of India to include several environmental rights – the right to clean and healthy environment, the right to pollution free air and water, the right to hygienic environment, etc. Indian courts have delivered many judgments in environmental cases primarily on the ground that these substantive rights – that form a part of the fundamental right to life under Article 21 – cannot be violated.

Apart from these rights there is another category of rights, which may be referred to as procedural rights. Procedural environmental rights ensure that the substantive rights mentioned above can be enjoyed effectively. Although procedural rights may appear to be facilitative in nature, they are by no means less important in law. In fact, the Supreme Court has held certain procedural rights to be fundamental rights under Articles 19(1)(a) and 21 of the Constitution.

Procedural rights in the context of environmental law include the right to information relating to decisions and processes that affect the environment and people’s lives and livelihoods; and the right to public participation and consultation in decision-making processes which impact the environment.

2.Learning Outcomes

This unit will discuss two important procedural rights in the context of environmental law – the right to information and the right to public participation and consultation in environmental decision making processes. After reading this unit, students will be able to identify certain environmental laws and regulations, which implement these procedural rights.

3. Right to Information

The right to information can be understood as a right to access information such as documents, reports, minutes of meetings, communications, etc. which are relevant to, have contributed to, or record, a decision or a decision making process of the government. For the purposes of this module, the information relates to a decision which impacts, or is likely to impact, the environment, and therefore the lives and livelihoods of persons.

An important aspect of this right is the right to be informed. If a decision or a policy is likely to affect the interests of a person, or a community, then such a person or community has the right to be informed by the decision makers about such a decision or policy before the same is made. The right to be informed is necessary to ensure that people have an opportunity to protect their interests before they are irreversibly affected.

The right to information is crucial for the effective democratic functioning of the country. Information about the decisions of the government, who will be affected by the decisions and in what ways, the rationale behind a decision, what were the alternatives/options that the government considered, which are the stakeholders the government consulted (if at all), etc. should be public information that is easily accessible.

The right to information finds its source in the Constitution of India. Part III of the Constitution guarantees certain fundamental rights. Two rights which may be highlighted for the present discussion are Article 19(1)(a) and Article 21.

Article 19(1)(a) provides-

19.  (1) All citizens shall have the right—

(a)  to freedom of speech and expression; Article 21 provides-

21.  No person shall be deprived of his life or personal liberty except according to procedure established by law.

The Supreme Court of India has interpreted both these fundamental rights to include the right to information. Therefore, even though the right to information is not specified in the Constitution as a separate fundamental right, a series of judgments of the Supreme Court have given this right the status of a fundamental right. Some of the important judgments on this point have been quoted below to understand the importance of the right to information (and the right to know), and to appreciate the rationale behind elevating this right to a fundamental right.

In State of Uttar Pradesh v. Raj Narain & Others, AIR 1975 SC 865, the Supreme Court held:…The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. … To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired.

The Supreme Court held in S.P. Gupta & Ors. v. President of India and Others, AIR 1982 SC 149: …The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest…

In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. & Others, (1988) 4 SCC 592, the Supreme Court held:

We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon the responsibility to inform.

In Research Foundation for Science Technology and Natural Resources Policy v. Union of India(UOI) and Another, (2005) 13 SCC 186, the Supreme Court has observed that:

The right to information and community participation for protection of environment and human health is also a right which flows from Article 21.

The right to information has been given a statutory basis in the form of the Right to Information Act, 2005 (RTI Act). The RTI Act gives every citizen the right to seek information from public authorities. Under this Act ‘information’ includes records, documents, memos, e-mails, file notings, advices, press releases, circulars, orders, reports, samples, models, data held in electronic form, etc. Information relating to a private body can also be sought if a public authority can access the same under any other law. In the context of environmental decision making, examples of information that may be sought under the RTI Act are data on emissions, EIA reports, minutes of meetings of expert committees, inspection reports, photographs, file notings recorded by government officials on a file, and circulars and orders passed in relation to environmental regulations like the CRZ Notification or the EIA Notification.

The RTI Act puts in place a mechanism by which such information may be sought, and provided in a time bound manner by Public Information Officers appointed by public authorities. If information is not provided within the time limit stipulated and without legal basis, penalty can be imposed on the concerned officials.

The right to access information also finds place in various environmental legal instruments. Three such instruments are discussed below:

Under the Water Act 1974 and the Air Act 1981

The Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and the Air (Prevention and Control of Pollution) Act, 1981 (Air Act) are two important environmental laws, which regulate water pollution and air pollution respectively in the country. These laws also identify the powers and functions of the Central Pollution Control Board and the State Pollution Control Boards (SPCBs). An important function of a SPCB is to grant consents to industries that are being set up in the state. These consents to establish and operate have to be obtained by an industry before it starts any operation. The consents typically include a list of conditions that have to be met by the industry, and a failure to meet these conditions could lead to the shutting down of the industry.

For example, under the Water Act the consent would include conditions on the nature and composition, temperature, volume or rate of discharge of the effluent from the premises of the industry. If the industry is found to be discharging more than the permissible amount of effluent or the nature of the effluent is different from that which has been permitted in the consent, or is found to be functioning without valid consents, it constitutes an offence under the Water Act. A complaint can be filed against the industry by the SPCB or any citizen before the Metropolitan Magistrate who can direct the imprisonment of officials of the industry. The SPCB also has the power to give directions for closure, prohibition or regulation of industry in case it is found to be polluting the air or water beyond permissible limits.

The Water Act under section 25(6) and the Air Act under section 51 provide for the maintenance of a register by the SPCBs which records the particulars of the persons to whom consent has been granted, the standards of emission laid down in the consent, and other particulars that may be prescribed. This register has to be made available for inspection at all reasonable hours by any person interested in or affected by such standards for emission.

Thus, these two laws make information about consents available to the public through themaintenance of registers by SPCBs. Information regarding whether an industry has been granted consent or not, and what are the conditions imposed on the industry in the consent, is crucial. It can prove important in cases against polluting industries, and to assist the SPCBs in regulating such industries. People have a right to access these registers and complain to the appropriate authorities in case these registers are not maintained.

Under EIA Notification 2006

The Environmental Impact Assessment (EIA) Notification 2006 issued under the Environment (Protection) Act, 1986 requires information about a proposed project to be made available to the public before a decision is taken about granting an environmental clearance to the proposed project. It also requires information about the clearance, once it is granted, to be published in a stipulated manner.

As part of the process to obtain an environmental clearance, project proponents have to undertake impact assessment studies. These studies are conducted based on Terms of Reference (ToRs) issued to the project proponent by Expert Appraisal Committees (for Category A projects) and State-level Expert Appraisal Committees (for Category B projects). [For details about Category A and B projects please refer to the unit on ‘Environmental Clearance’ in the Environmental Law module.] These ToRs are supposed to be displayed on the website of the Ministry of Environment, Forests and Climate Change (MoEFCC) or the State-level Environment Impact Assessment Authority (SEIAA). Public access to these ToRsis important as it facilitates assessment of the studies and verification of whether all the ToRs have been addressed and to what extent.

The public consultation stage in the environmental clearance process requires certain documents to be made available to the public thirty days before a public hearing can be held. This includes the draft EIA report prepared by the project proponent and a summary of the report. Both documents have to be in English and in the official language of the state in which the project is situated or the local language. Access to the EIA report and its summary allows people to understand the nature of the projects, its likely impacts on the environment and their lives, the factors taken into consideration while undertaking the impact assessment, mitigation measures proposed by the proponent and the compensation, rehabilitation and other ameliorative measures being promised by the proponent.

Based on this information, people, whether directly or indirectly affected, can raise objections, or request for clarifications, or place data or knowledge that contradicts the information relied on by the project proponent in its EIA report. This right to access the EIAreport is a valuable right of the people. If they are denied this right, i.e. if these documents are not made available in the format required and not made easily available in the places stipulated in the EIA Notification for the minimum required period of time, it would be a violation of the people’s right to information under the EIA Notification. It could prove to be a crucial legal ground in a case challenging a clearance granted to a project.

If a clearance is granted, the EIA Notification requires that the MoEFCC and the SEIAA have to make the clearance available on their website, and a copy of the clearance has to be sent to all the local administration offices like Panchayats and Municipal bodies, and they in turn have to display the clearance letter for thirty days in their offices. The project proponent of a Category A project has to publish information that the environmental clearance has been granted along with the conditions and safeguards included in the clearance letter in two local newspapers in the state where the project is located. The clearance has to be also permanently placed on the website of the project proponent. For Category B projects the information that the clearance has been granted along with the details of the MoEFCC website where the clearance letter can be found has to be published in the newspaper. Thus, the EIA Notification recognises the right to know that the clearance has been granted and, importantly, thedetails of the clearance.

If people are not aware of the grant of the environmental clearance, they will not only be unprepared for the future project work, they may also miss the opportunity to legally challenge the clearance granted to the project, as there is a limited period within which they can approach the court of law (in this case the National Green Tribunal). Knowledge about the conditions in the clearance letter is also essential as people can then verify whether the project proponent is complying with the conditions, and if not, report the same to the appropriate authorities.

Right to Public Participation and Consultation

The right to public consultation means the right of the people to be consulted before the government takes a decision which may affect their interests. It gives people the opportunity to express their opinion – objections or support – to a proposal or a plan being considered by the government. As it is their interests at stake, it is not only fair, but necessary to seek their views, and consider and incorporate their suggestions wherever possible. The expertise of the people – which may not be through some formal training but from daily experiences – is a valuable contribution to the decision making process, bringing to light issues which may have been overlooked during the process or giving an alternative perspective to the one that has been put forth to the government. A decision reached after effective public consultation has greater validity, and is likely to be far more acceptable to those whose interests are affected, even if adversely.

The right to consultation may be understood in the context of the Environment (Protection) Rules, 1986, the EIA Notification 2006, and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act).

The Environment (Protection) Act, 1986 and the Environment (Protection) Rules, 1986 framed under it permit the Central Government to prohibit or restrict the location of industries and carrying out of processes and operations in different areas – keeping in mind the environmental impact of such industries, processes and operations. While doing so there is a particular procedure that the government has to follow which is provided in rule 5(3). It has to, by notification in the Official Gazette, and in any other manner it may deem necessary, issue notice to the public of its intention to impose any prohibition or restriction on industries. This notification would include information about the area to which it relates, and the reason for proposing the prohibition or restriction on the industry. Any person can file an objection in writing against such prohibition or restriction. The notification has be open for public comment for at least 120 days after which the Central Government is expected to consider all the objections, and then issue a revised (if necessary) final notification.

This requirement to publicise the intention to issue a notification affecting industries and operations ensures that different stakeholders including those who support complete prohibition (not just restriction) of industries, or who want more stringent regulation of industry to minimize environmental damage, can express their opinion before the notification is formally issued. The government can then revise the proposed notification accordingly taking into consideration the different perspectives presented by the stakeholders.

It must however be pointed out that rule 5(4) permits the Central Government to do away with this requirement of public notice if it finds that in a particular case it would be in public interest not to undertake public consultation.

EIA Notification 2006

The environmental clearance process under the EIA Notification 2006 requires the government to undertake public consultation before any decision is taken with regard to a certain category of projects. This stage has two components – public hearing and written responses.

A public hearing has to be held at the site of the proposed project or in its close proximity. It is facilitated by the SPCB of the state in which the project is situated. The Member Secretary of the SPCB decides the date, time, and venue for the public hearing and a notice is issued to that effect at least thirty days before the date of the hearing. The notice also includes information about where the documents relating to the project such as the EIA report etc. can be found. The notice is published in at least two newspapers – a national daily and a daily regional vernacular. A public hearing once fixed can only be rescheduled if there is an untoward emergency. In such a case a notice in the same newspapers postponing the public hearing has to be issued, and once the new date is finalized the process of issuing a new notice has to be followed from the beginning.

The hearing has to be supervised by the District Magistrate, the District Collector, the Deputy Commissioner, or his or her representative not below the rank of an Additional District Magistrate, and he or she has to be assisted by a representative from the SPCB. The whole proceeding is video recorded by the SPCB.

There is no requirement for a quorum in a public hearing. Everyone present has to mark his or her attendance. The project proponent is allowed to make a presentation about the project and then everyone in the audience is given an opportunity to speak. The summary of the proceedings is prepared and the same is read over and explained to the public at the end of the public hearing. The agreed minutes are signed by the presiding official and sent, along with the response of the project proponent, the attendance sheet and the CD of the video recording to the MoEFCC or the SEIAA. The proceedings are also displayed conspicuously at the office of the local panchayat and other local administration offices. Any person who wishes to comment on the proceeding can send the same to the MoEFCC or the SEIAA.

The second component of the public consultation stage is that of written responses. Concerned persons having a plausible stake in the environmental aspects of the proposed project can send their comments about the proposed project to the MoEFCC or the SEIAA, and such comments are then forwarded to the project proponent.

The project proponent may revise its EIA report or conduct further studies to respond to the concerns raised during the public consultation stage. The revised EIA report and the proceedings of the public hearing and written responses, along with other documents, are considered by the expert appraisal committees before giving their recommendations to the MoEFCC or the SEIAA on whether to grant clearance or not.

The public consultation stage could therefore significantly influence the process of granting environmental clearance. If the process for conducting the public consultation is not followed correctly, and people are not given an effective opportunity to express their views, it would amount to a violation of their right to public consultation, for instance, if the notice for the public hearing is not publicized properly, the venue of the public hearing is very difficult to access, or people are not given an opportunity to speak during the hearing. Such procedural lapses could form legal grounds to challenge the final outcome of the decision making process.

Forest Rights Act 2006

The Forest Rights Act 2006 recognises several rights of Schedule Tribes and other persons and communities that primarily reside in, and who depend on forests for their livelihood needs. These rights include:

right to hold and live in the forest land,

right to own and to access, use and dispose minor forest produce,

right of use or entitlement to fish and other products in water bodies, grazing rights, traditional seasonal resource access, etc.

These rights may be claimed as individuals or as communities. The Forest Rights Act 2006 and its related Rules lay down a detailed process by which individuals and communities can claim these rights and requirestate governments to constitute various committees to settle the rights.

Gram Sabhas have been designated as authorities to initiate the process of determining the nature and extent of such rights. Gram Sabhas are village assemblies that include all adult members of the village, with full and unrestricted participation of women. They play a pivotal role in the entire process. Among other functions, they receive and hear claims for forest rights; prepare a list of claimants; give a reasonable opportunity to all persons to present their claims; and then finally pass a resolution on the claims. This process is an important illustration of public participation in decision making relating to natural resources – in this case, forests.

Before concluding this module, it may be stated that the right to effective access to justice in cases of environmental wrongs or environmental damage is often considered to be a procedural environmental right, particularly in international law. This right requires governments to ensure that people have an effective access to a grievance redress mechanism equipped to deal with environmental issues. This mechanism could be in various forms – a special environmental court or tribunal, or a dedicated bench of a regular court, which hears only environmental cases. Aggrieved persons should be able to use such a mechanism without facing much difficulty. If the mechanism can only be approached by a limited number of people (i.e. a strict application of the locus standi rule); or it is too expensive; or is located in a place which is difficult to reach; or people with limited means are constrained in any other way to rely on it – the mechanism does not provide effective access to justice. In India, this right is more in the nature of a substantive right. There are constitutional and statutory provisions which provide avenues for judicial redress of environmental cases. For more information on these provisions, please refer to the unit on ‘Judicial Remedies’ in the Environmental Law module.

5. Summary

In this unit we have discussed two important procedural rights in the context of environmental decision-making – the right to information, and the right to public participation and consultation. The unit gave an overview of case law establishing the right to information as a fundamental right, and then briefly referred to the relevance of the RTI Act 2005. It then discussed this right in the context of the Water Act 1974, the Air Act 1981 and the EIA Notification 2006. With regard to the right to public participation and consultation, the unit discussed the relevant provisions of the Environment (Protection) Rules, the EIA Notification 2006, and the Forest Rights Act 2006.