Project Constitutionalism is about to have a live discussion on "Public Participation In Environmental Policy and Accessibility Of Laws Through The Lens Of Language In India."

The discussion will be facilitated by a panel of Ritwick Dutta, Founder of LIFE foundation, Kanchi Kohli, Senior Researcher at Centre for Policy Research and Arpitha Kodiveri, Doctoral Researcher at European University Institute.

The event can be accessed here live

The event has started. Mr. Prasanna S, Advocate on Record, Supreme Court of India also the founder of Project Constitutionalism and Mr. Abhishek will be moderating the event.

Mr. Ritwick Dutta: One of the important issues of the webinar today is the issue of language itself. The fact that EIA notification is on a draft stage is largely because of issue of language.

“Its important to keep in mind that when we talk about constitution 42 Amendment Act, Art. 51 (a) (g) and Art. 48 A, the subject of forest and cruelty and protection of wildlife came within the concurrent list. When Wildlife Act was enacted, it was the subject of state list.”

Mr. Ritwick Dutta: When Water Act was introduced, it still remains in the state list but because of Stockholm declaration, the law itself was passed.

“If we look at the Constitution, environment protection does not find a place in the three lists. The only politician who has demanded environment to be included in concurrent list is Nitish Kumar.” He continues.

Mr. Ritwick Dutta: When we talk of the issues of Environment Protection Act, the first issue is whether the Central Government itself is empowered to enact or law or notification which is not for the purpose of environmental protection itself.

Mr. Ritwick Dutta: Sec. 3 of the Act states that the Central Govt must take all steps necessary for purpose of protection and conservation. If Central Govt does anything contrary to Sec. 3 then itself the law or notification is bad in law.

Mr. Ritwick Dutta: The recent attempts of the Govt to dilute the provisions of the law has been set aside by the Supreme Court and NGT which clearly held that Govt cannot issue a notification granting post facto notification.

Mr. Ritwick Dutta: The second issue is that this notification is contrary to the Environment Protection Act. It is a settled law that a notification issued under one law cannot dilute the provisions of other laws.

Mr. Ritwick Dutta: What is invalid under Water Act and Air Act is legitimized under the 2020 notification whereas the executive today issues an order to set aside or dilute the law made by parliament.

Mr. Ritwick Dutta: Other problem is that it suffers from the principle of excessive delegation and unrestrained restriction. The Central Govt today can declare any project to be of strategic importance and then it can do away with the process of public consultation.

Mr. Ritwick Dutta: Today every single highway, airport, road or drain is of strategic importance. The Central Govt is empowered today to categorize any project as strategic importance.
"This law goes against the Rule of Law itself. " he continues

Mr. Ritwick Dutta: the maximum penalty of violation under this law is Rs. 5000 per day. When we talk of issue of language, this case is a wake up call.

Mr. Ritwick Dutta: Not only does the Govt of India but a significant population of India believes that hindi is the national language of India. Its not. Less than 25% of Indians speak hindi as their mother toungue.

Mr. Ritwick Dutta: Hindi is only the official language of India. This is not even In the case of State Govts. The fact that the law should be there only in the official language of union is only possible if legislation is in the union list.

Ms. Kanchi Kohli: There are issues where people have tried to democratize the law to address these challenges. I will focus on how can we the language of law itself.

Ms. Kanchi Kohli: Public participation in the making of public policy and actual structure of law itself, there are many aspects to it. I will dig a little deeper to making the law and policy which was the trigger of this discussion.

Ms. Kanchi Kohli: We have situation where we have draft EIA 2020 and why it was implemented in pandemic and who was consulted. These discussions are much about intent of govt and the constitutional values it intends to uphold.

Ms. Kanchi Kohli: If there is an intent then you do not even go down that track. The demand to translate laws like EIA 2020 and its communication is a first step in a pursuit to democratize the language of law.

Ms. Kanchi Kohli: language alienation is actually built in the ways in which laws are written and communicated by executive and court. This is important for laymen who are not able to understand or are unfamiliar with language.

Ms. Arpita Kodiveri: We need to locate the question of public participation within the economic community we are situated in at the moment.

Ms. Arpita Kodiveri: Ease of doing business has become a buzz word from the past 5 years. But prior to that we have seen amendments to industrial policies of different states and I look at Orissa closely.

Ms. Arpita Kodiveri:What it does is that it provides a three tier structure for clearance process. There is a single window clearance committee at district level, another at state level which funnels or speeds up the process.

Ms. Arpita Kodiveri: the district collector interestingly is the nodal officer of the single window clearance committee and creating an enabling environment for public consultation/ hearing or ease of doing business.

Ms. Arpita Kodiveri: The district collector tends to interpret the applicability of the laws and this goes back to the point of excessive delegation and excessive discretionary power. It is largely unregulated.

Ms. Arpita Kodiveri: it cancels and marginalized the ability of marginalized communities to participate. This is one of the challenges on the part of agencies to democratize the process in India.

Ms. Arpita Kodiveri: James Holston argues the concept of an insurgent practice of citizenship. Laws has been made through public participation and the claims made by people to the State.

Ms. Arpita Kodiveri: The EIA which is going to affect the everyday lives of citizens staying in forests and cities, if they aren’t able to critique it and participate in its making, what is the relationship between citizens and State.

Mr. Ritwick Dutta: There is nothing where we have ever worked with the regulatory scheme. We have very permissive society and we don’t have agencies to stop pollution. They are only to permit pollution.

Ms. Kanchi Kohli: There has been high level of non compliance of law and approval conditions have been there for a long period of time. There is a fundamental problem of letting go of power in which you can talk about partnerships of people most affected by system of regulation.

Mr. Ritwick Dutta: This is not a notification. It has been structured like a law, unlike the case with 2009 notification. This version has definition clause, has provisions which are very substantial in nature.

“It creates structures which find place in the Act itself. It provides for a provision for condoning violation which is not provided in parent law. This law couldn’t have been enacted by the executive itself.” He continues.

Mr. Ritwick Dutta: If you are changing the laws in one go, this is a serious constitutional issue. Even if this law is presented in the parliament today, the parties including the opposition are not taking environment seriously.

Ms. Arpita Kodiveri: the youth movement is also very encouraging. Similarly the movement that is going in Goa. This also resonates the protest happened at the time of CAA where citizens pushed for an alternative legal discourse.

Ms. Kanchi Kohli: Nobody will disagree that parliamentary scrutiny is not essential, but the question before us is that environment law and regulation comes way downstream in decision making in India.