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Part I

two

Procedural Environmental
Rights in Indian Law

Shibani Ghosh*

Introduction

The Indian judiciary in the past three decades has recognised a ‘right to environment’ or an ‘environmental right’. Courts have provided different formulations of this right and have traced its source, expressly or implicitly, to the Constitution of India and, in particular, to three constitutional provisions—Articles 21, 48A and 51A(g).1 To realise this larger environmental right, certain procedural guarantees are recognised in Indian law. These guarantees, often termed as procedural rights, are the right to access justice or means of grievance redressal, right to access information or be informed, and right to participate in decision-making processes or the right to be consulted. Although Indian courts have, on occasion, linked each of these rights to a fundamental right, giving them constitutional gravitas, these rights have evolved with considerable clarity as statutory rights outside the realm of constitutional law.

Procedural environmental rights perform an instrumental role in securing the substantive right to environment and improving environmental outcomes.2 In the international legal context, it is said that the reluctance on part of the states at the Stockholm Conference of 1972 to recognise a substantive right to environment, led scholars and activists to consider human rights in a more ‘instrumental’ fashion while populating the environmental right.3 They identified the procedural rights to information, public participation and remedies, which already existed as political rights, as prerequisites to effective environmental protection.4 These procedural rights, understood as environmental rights, were ‘an intermediate step between simple application of existing rights to the goal of environmental protection and recognition of a new full-fledged right to environment’.5

Subsequently, in 1992, states adopted the Rio Declaration on Environment and Development.6 In Principle 10 of the Declaration, the three procedural rights crucial for effective public participation in environmental matters were enshrined for the first time at a United Nations (UN)–wide level.7 The enunciation of these participatory rights has significantly influenced international environmental law. Before 1992, essentially no international environmental agreement included provisions that addressed the components of Principle 10. But almost all treaties adopted in or after 1992 provide for public access to information and/or public participation.8

At the national level, procedural environmental rights are valuable not only for their instrumental role, but because they represent ‘a true democratization of environmental decision-making’.9 Irrespective of the final outcome, exercising procedural environmental rights could give citizens a sense of empowerment, as they would have at least some engagement with decisions affecting them.10 The rights could also bring government decisions and actions under public and judicial scrutiny, thereby increasing transparency and accountability in governance. And finally, they make environmental justice more accessible overall. Historically, disadvantaged or under-served populations that (disproportionately) suffer the adverse consequences of poor environmental decision-making have at least a fighting chance if they are guaranteed procedural environmental rights.

Procedural environmental rights occupy a central role in Indian environmental law and litigation. Many of the landmark environmental judgments of the Supreme Court were delivered in cases which were either treated as public interest litigations (PILs),11 or in which the Court adopted unconventional techniques in its treatment of the case12—with the objective of making the judicial process more accessible and the outcome more ‘just’.

Procedural environmental rights are also shaping present day environmental litigation and its outcome. From the availability of the National Green Tribunal (NGT) to expeditiously decide environmental cases, to the use of information disclosed under the Right to Information Act 2005 (RTI Act), to making legal and factual claims regarding effective denial of a procedural right—these rights are indispensable tools for those trying to protect and improve the environment.

In terms of the judicial treatment of substantive and procedural environmental rights, there are at least two points of departure. First, when courts consider substantive environmental rights, they are required to recognise and enforce rights which are not clearly defined, either in the Constitution or in any statute.13 In the absence of judicially manageable standards,14 they occasionally venture into policy-making and the scope of their review goes beyond looking purely at the legality of the decision-making process. On the other hand, Indian constitutional and statutory law place procedural environmental rights on relatively firmer legal footing, with clear definitional limits and, therefore, the role of the courts is more precise—to ensure that the decision-making process is in accordance with the letter (and spirit) of the law—and very much within the mandate of judicial review.

Second, orders for protection and enforcement of procedural environmental rights are easier to issue and comply with than those for substantive environmental rights. In the case of the latter, courts often—because of the imprecise nature of the right and the expected outcome—issue elaborate orders. These orders are at times vague, requiring several agencies to undertake a variety of measures on differing timescales, only some of which are verifiable or even fully achievable. In contrast, the analytical framework for enforcing procedural rights is narrower and more objectively bounded.15 Compliance is more easily verifiable as there are often statutory requirements to be met.

As procedural environmental rights are a vital part of Indian environmental governance and the evolution of India’s environmental jurisprudence, how these rights have been interpreted in law and exercised in fact are relevant to other issues raised in this volume. This chapter analyses the legislative and regulatory framework fostering the three procedural environmental rights in India. The next three sections will examine each of these rights in detail—the relevant statutory provisions and the judicial approach—and discuss the impediments in exercising or claiming these rights. Each section also includes a brief overview of the evolution of these rights outside the realm of environmental law, as a context to understand the source of these rights in general law. The final section will provide brief concluding remarks.

It is important to acknowledge at the outset that the methodological approach of this chapter is different from others in this volume. Unlike the substantive right to environment and the principles of environmental law discussed in other chapters, procedural environmental rights in India are defined in statutory law. Judicial pronouncements specifically interpreting these rights are few—mostly focussed on their implementation or their role in guaranteeing better environmental outcomes. Therefore, the focus of this chapter is necessarily on the legislative and regulatory framework, referencing case law only where relevant. This chapter does not engage in doctrinal case law based analysis, as a majority of procedural environmental rights in India are defined in statutory law. These rights could be instrumental in realising principles of environmental law like sustainable development, polluter pays and precaution, but they are not founded in these principles.

The Right to Access Information

Roots in Indian law

The Supreme Court has traced the origin of its environmental rights jurisprudence to a 1984 judgment16 on the rights of persons working as bonded labour and the poor working conditions that they had to suffer.17 Almost a decade before this judgment, the Court had recognised the right of people to know ‘every public act, everything that is done in a public way, by their public functionaries’.18 The Court derived this right from the fundamental right to freedom of speech and expression. Some years later, the Court re-emphasised the importance of transparency in government functioning, and held:

[t]he 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.19

Although generally considered to be an established fundamental right under Article 19(1)(a),20 the Supreme Court has occasionally viewed this right to be an aspect of the right to life under Article 21.21 While the right to be informed of the affairs of the government is considered essential to constitutional democracies like India, Indian courts have recognised that in public interest the right may have to be curtailed.22

The right to know has been extensively discussed by the Supreme Court in the context of elections.23 The right also finds an important place in Indian administrative law24 and criminal law.25 An overarching right of citizens to access information held by public authorities, subject to certain exceptions, is statutorily recognised by the RTI Act.26

Right to Information in the Environmental Context

In India, the legal obligation to disclose environmental information could take (at least) five forms:27 First, disclosure of information relating to environmental impacts of activities to regulatory authorities by those undertaking such activities;28 second, disclosure of information relating to regulatory decisions and decision-making processes affecting the environment by the concerned regulatory authority;29 third, disclosure of information relating to specific processes and potential risks at workplaces for the benefit of employees as well as communities in close proximity;30 fourth, disclosure of information to consumers through labelling of products;31 and fifth, disclosure of information by companies of their sustainability practices.32 Some of these obligations arise from specific environmental regulations, while others from government schemes and policies. Separately, the RTI Act also places certain disclosure obligations on public authorities.

This section focusses on the first two forms of information disclosure by providing examples from the provisions of the pollution control laws—the Water (Prevention and Control of Pollution) Act 1974 (Water Act) and Air (Prevention and Control of Pollution) Act 1981 (Air Act); the Notification of 14 September 2006 issued under the Environment (Protection) Act 1986 (EP Act), also known as the Environmental Impact Assessment (EIA) Notification 2006; and the RTI Act.

Under the Pollution Control Laws

The Water Act and Air Act, two principal laws that regulate pollution in the country, require regulated entities to apply for consents to the State Pollution Control Boards (SPCBs), before commencing operations that potentially impact the environment.33 The application process34 and the conditions for grant of consent require mandatory disclosure of certain categories of environmental impact information. Compliance with these consent conditions has to be disclosed in an annual environmental statement.35

The two laws require the maintenance of a register by the SPCBs, available to the public for inspection. The register is meant to record the particulars of persons to whom the consent has been granted, standards of emission laid down in the consent and other particulars that may be prescribed.36 SPCBs are also required to provide copies of relevant reports on regulated entities to private persons who may have filed a complaint in court against an alleged offence.37

Functioning without a consent or in violation of consent conditions is a criminal offence punishable under the two laws. Therefore, whether the consent has been granted, and on what conditions, are important facts that could have serious legal consequences. Information contained in consents is relevant while assessing the environmental impact of the entity and, if necessary, to challenge its operation in an appropriate forum. Although SPCBs are required to monitor and enforce the compliance of consent conditions, for a variety of reasons including limited resources, lack of trained personnel and heavy workload, they do not.38 Making this information publicly accessible allows persons, particularly those directly affected by the polluting entity, to challenge violations of the law and demand regulatory compliance.39

While the law gives the public access to information regarding regulated entities, whether this statutory procedural right is effectively enjoyed is uncertain. SPCBs may refuse to provide copies of relevant reports to private complainants if, in their opinion, it would be against the ‘public interest’.40 What constitutes ‘public interest’ is left to the SPCBs’ discretion and no guidance is provided in the law. Performance audit reports prepared by the Comptroller and Auditor General (CAG) of India for several SPCBs over the years reveal that registers containing consent information are not maintained in accordance with law.41

Under the EIA Notification 2006

The EIA Notification 2006 requires certain categories of projects to obtain a prior environmental clearance (EC) before commencing construction.42 During this process, information about the proposed project has to be made publicly available before a final decision is reached. This includes disclosure of the Terms of Reference (ToR) issued by the regulatory authority for EIA studies, the draft EIA report and its summary prepared by the project proponent, in addition to the notice for, and the minutes of, the public hearing. Some of these disclosure requirements are included in the EIA Notification itself; others have been introduced and emphasised through executive orders.43

The High Court of Delhi, while emphasising the need to provide public information about a proposed project 30 days prior to the mandatory public hearing under the EIA Notification, held:

32. ... information about the project and in particular about the EIA report is not available to anyone in the public domain till the time of the public hearing. Till such time it is available only to the project proponent and the MoEF. Unless it is required to be made available mandatorily, it is unlikely that any member of the affected public can have access to such information. It is imperative for the affected person to be fully informed of the proposal (the EMP) submitted by the project proponent for dealing with the likely environmental damage that can be caused if the project is granted clearance.44

Once an EC is granted, information about the clearance has to be published in the stipulated manner.45 Publication of the EC letter in the public domain is crucial as it determines when the clock starts ticking for potential litigation before the NGT. It is only when the content of the letter is available that a prospective appellant would be able to effectively exercise her right of appeal before the Tribunal.46 The limitation period to file an appeal before the NGT is 30 days from the date on which the impugned order (in this case the EC) is ‘communicated’.47 The Tribunal has held that communication in this context ‘mean[s] and must be construed as meaning the date on which the factum and content both, of the Environmental Clearance order are made available in the public domain and are easily accessible by a common person’.48 The Tribunal’s interpretation of what constitutes communication is not only significant from the point of view of information disclosure, but also for ensuring that access to the Tribunal is not unduly curtailed by lax compliance of disclosure requirements.

Under the RTI Act

The RTI Act has been a useful tool in increasing transparency in environmental governance by making information relating to environmental decisions and policy-making more accessible. The Act puts in place a mechanism by which information may be sought from public authorities,49 and the same has to be provided in a time-bound manner by Public Information Officers (PIOs) appointed under the Act.50 The Act also provides for an appellate procedure, with the Central or State Information Commissions (quasi-judicial bodies) being the second and final appellate forum. Information can be exempt from disclosure on grounds specified in the Act.51 But if the public authority finds that public interest outweighs the interests protected by the exemption, it can direct the disclosure of the information.52 The right to information as defined by the RTI Act is quite broad in scope—it applies to public authorities at all levels of government, and even covers certain information held by private bodies.53

Information obtained under the RTI Act is routinely used in environmental cases, and has at times proven crucial to the final judgment. In Utkarsh Mandal,54 the High Court of Delhi set aside an EC granted to a mining project. One of the main reasons for its decision was that it found, based on evidence revealed under the RTI Act, that the credibility of the expert appraisal committee (EAC) was affected by its particular constitution and manner of functioning.55

The Central Information Commission (CIC) has played an important role in increasing transparency in environmental decision-making through its orders. It has directed documents relating to applications for EC and forest clearance, as well as minutes of committee meetings, to be made available on the website of the Ministry of Environment and Forests (MoEF), in a time-bound manner.56 Two significant orders of the CIC, discussed later, view access to information as a way to reduce distrust in government functioning.

The first relates to the disclosure of the report submitted by the Western Ghats Ecology Expert Panel (WGEEP) to the MoEF. The Ministry refused to disclose the report on the ground that the report was a draft still under consideration. The statutory first appeal was rejected on grounds that the disclosure of the report would affect strategic, scientific or economic interests of the State. In a subsequent appeal, the CIC directed the disclosure of the report. The Commission held:

The disclosure of the WGEEP report would enable citizens to voice their opinions with the information made available in the said report ... This would facilitate an informed discussion between citizens based on a report prepared with their/public money. MOEF’s unwillingness to be transparent is likely to give citizens an impression that most decisions are taken in furtherance of corruption resulting in a serious trust deficit.57

In a writ challenging the CIC’s order, the High Court, while upholding the order, observed that ‘[b]efore the formation of the policy, all the stakeholders should be able to deal with the report and consider whether to support or oppose the findings and recommendations made therein, and the policy should be eventually formulated after due consideration of all points of view’.58

In a second case, the CIC directed the disclosure of an expert committee’s report on the Coastal Regulation Zone (CRZ) and related documents. The committee had been set-up to look into the implementation of the CRZ Regulation 2011. After the committee submitted its report, the Regulations were amended several times. The appellant contended that a perusal of the report could reveal the basis for these amendments. The environment ministry refused to disclose the report as it had not been accepted yet—a ground summarily dismissed by the CIC. The CIC held that given the ecological importance of coastal regions, it was in public interest that the report was disclosed, and that suppression of the report was giving rise to suspicions.59

Although the RTI Act can be used to access information on various environmental indicators and decision-making processes, it may not always be possible to do so in a timely manner. This could be for a variety of reasons—information not being properly recorded and maintained by the public authority, PIOs not replying within the stipulated time frame or evading the application by providing incorrect or misleading replies, or information being provided in a language or format which the applicant cannot understand. Furthermore, the appellate process under the RTI Act takes a considerable amount of time to complete,60 and at the end of the process the information, if received, may no longer be useful to the applicant.

The higher judiciary’s record in upholding the right to information under the RTI Act has been mixed. In fact, the Supreme Court has held the view, though not in the context of environmental information, that the statutory exemptions from information disclosure need not be read narrowly but purposively, and as a means to protect equally important public interests that protect democratic values.61 Even though there is a statutory right to access information, its realisation is faced with several practical and legal impediments.

Right to Public Participation

Roots in Indian Law

Intrinsically linked to the right to information is the right to participate in the affairs of government, considered essential in democracies. The Supreme Court has recognised this right and held that ‘democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country’.62 The citizens’ right to participate in decision-making processes is not specifically enumerated in the Constitution. However, it may be derived from various provisions.

First and foremost, democratically elected representatives are the direct outcome of Indian citizens exercising their right to vote. Second, the right to life has been read to include the right to community participation for the protection of environment and human health.63 Third, implementation of directive principles of state policy (DPSP) by the government, in particular Articles 39(b) and (c), 47 and 48A, would be far more effective if relevant stakeholders are effectively involved in the decision-making process. And finally, arguably, the fundamental duty of every citizen under Article 51A(g) to protect the environment cannot be discharged without opportunities for participation in decision-making, along with access to information.64

Public participation may take place in many different forms—public hearings, stakeholder meetings, citizens’ jury, call for public comments on draft laws, etc.65 Besides the form of participation, whether the right to participate has been properly effectuated depends on various factors—who was consulted (or considered to be a stakeholder), at what point of the decision-making process did the consultation take place, how were the concerns addressed and how much weight was attached to the public participation process while reaching the final decision.66

In a recent case,67 the Supreme Court adopted the definition of public consultation provided by the Court of Appeal in England:68

108. ... To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken ... (emphasis supplied)69

The Supreme Court found that although the concerned regulatory authority had undertaken a comprehensive stakeholder consultation, there was no discussion or reasoning rejecting the arguments raised by some of the stakeholders, and therefore the authority’s decision against them was ‘not a conclusion which a reasonable person can reasonably arrive at’.70

Public Participation in
Environmental Decision-making

A citizen’s right to participate in the environmental decision-making process in India is a statutory right. The two principal avenues for public consultation and participation in Indian environmental regulation are the EP Act and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (the Forest Rights Act). The two pollution control laws—Water Act and Air Act—have very limited opportunities for public participation.71 This section discusses relevant provisions of the EP Act and the Forest Rights Act as well as opportunities for public participation under the EIA Notification 2006.

Under the EP Act 1986

At the rule-making stage, the EP Act has an important provision for public notice and comment. The central government is empowered to prohibit or restrict the location of industries and carrying out of operations and processes in different areas—keeping in mind the environmental impact of such industries, operations or processes.72 While doing so, the central government has to provide details of the prohibition or restriction—information about the area to which it relates, and reasons for proposing the prohibition or restriction—in a draft notification.73 The draft notification is made available for comment, providing stakeholders an opportunity to comment on the scope and impact of the proposed notification before it is formally issued,74 with the expectation that the central government will consider the comments while finalising the notification.

The central government can, however, do away with the public notice requirement if it would be in ‘public interest’ to refrain from undertaking such consultation.75 This overriding ‘public interest’ is not defined in the EP Act. In one instance, the central government considered unemployment of high numbers of persons in the state of Rajasthan due to closure of mines to be sufficient reason to exempt an amendment to the EIA Notification from public notice.76 Therefore, it appears that the public interest that needs protection need not be directly related to environmental concerns. In certain other notifications, the central government only states that in public interest it has done away with the public notice requirement, with no further explanation.77

It is certainly conceivable that situations may arise wherein the central government has to take urgent action and cannot engage in public consultation. However, this power should be exercised sparingly and primarily to avoid an imminent environmental threat; not, for instance, to introduce institutional or systemic changes. The rationale for such exceptional actions curtailing public participation must meet some threshold criteria that are in consonance with the preamble and objectives of the EP Act.

Under the EIA Notification 2006

The EIA Notification 2006 has a mandatory public consultation requirement for certain categories of projects before the proposed project is granted clearance. The EIA Notification defines public consultation as ‘the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate’.78 The public consultation component of the EC process has been considered ‘an embodiment of the principles of natural justice’.79 The consultation process includes two components—a public hearing (held in proximity to the proposed project site) and written responses sent by concerned persons to the relevant regulatory authority.80

The categories of projects that are exempt from the public consultation process are listed in the EIA Notification and can be changed only through an amendment to the EIA Notification.81 Existing projects which are planning to modernise or expand may be exempt from the public consultation process but only after due consideration by the EACs.82 Appendix IV to the EIA Notification explains the process of conducting a public hearing, and the regulatory requirements have been discussed in detail elsewhere.83 The advantage of a public hearing has been aptly described by the High Court of Delhi:

... it brings about transparency in a proposed project and thereby gives information to the community about the project; there is consultation with the affected parties and they are not only taken into confidence about the nature of the project but are given an opportunity to express their informed opinion for or against the project. This form of a social audit, as it were, provides wherever necessary, social acceptability to a project and also gives an opportunity to the EAC to get information about a project that may not be disclosed to it or may be concealed by the project proponent.84

Some of the typical issues faced in a public hearing are reflected in the following paragraph from a judgment of the High Court of Madras, while it was adjudicating on the legality of allotment of land for a solid waste management plant:

Such public hearings should not be a make belief affair, just to comply with the requirements of the notification. It is the responsibility of the District Magistrate or officers of equal status to see that all the affected persons are given audience. The panel of officers conducting the public hearing must remember that such hearings are conducted only to record the views of the affected parties. The statutory panel should hear the views of the affected persons and not those who have assembled in the meeting hall at the behest of the developer with a hidden agenda to block or prevent the opposition to the project ... the attempt should be to conduct the hearing in an open and transparent manner with opportunity to express even the dissenting views without fear ... The minutes of the hearing should contain a true note of what has transpired in the meeting. Such positive steps on the part of the statutory authorities would inspire confidence in the affected people.85

In several cases challenging the grant of environmental clearances to projects, appellants have raised the issue that the public consultation was not properly undertaken—either in letter or spirit of the law. In some cases, the courts have overlooked such challenges as being mere procedural oversight, not affecting the substantive decision.86 However, in some cases, courts have struck down the proposed project’s EC or kept it in abeyance because public consultation was not carried out properly. In Debadityo Sinha and Ors v. Union of India and Ors, one of the reasons the NGT set aside the EC granted to a super-critical coal-based thermal power plant was that the videography of the public hearing showed persons carrying guns present during the hearing.87 According to the Tribunal, ‘guns are bound to strike fear in the hearts of men around and dominate their free will’ and, therefore, it was difficult to call the public hearing as a free and fairly conducted public hearing.88 In another case, the NGT suspended the EC granted to a hydroelectric power project, inter alia on the ground that one of the impact assessment reports had been done after the public consultation process was over and therefore the public did not get a chance to express its views on it.89

The public participation process under the EIA Notification has repeatedly come under public and judicial scrutiny.90 There are several areas of concern with regard to the design and efficacy of the process.91 First, public consultation is conducted based on poor quality of information provided in the draft EIA Report and Environmental Management Plan. The fact that the project proponent commissions the EIA reports casts doubt on the credibility of the reports, and this concern is aggravated by the lack of mechanisms to hold those preparing inadequate or misleading reports accountable. Second, certain categories of projects are granted blanket exemption from the public consultation process on the questionable premise that either the nature, size or capacity of these projects renders their environmental impacts insignificant or that public consultation in such projects (for example, defence projects) should be dispensed with for other reasons. This list of exempted projects has only grown over the years, indicating the government’s preference to limit public participation. Third, the Notification gives the project proponent excessive discretion while responding to concerns raised during public consultation. The proponent is only expected to respond to ‘material concerns’. Materiality has not been defined leaving it entirely to the project proponent’s discretion.

Public participation in the EC process is primarily during, but not limited to, the public consultation process discussed earlier. The public could continue to engage with the process by writing to the relevant EAC, constituted under the EIA Notification, highlighting specific concerns during the final appraisal of a project proposal for the grant of EC. EACs have considered these representations to be valuable to their deliberations.92 However, during a meeting in December 2016, the EAC for River Valley Projects decided that it would not take cognisance of representations received from civil society groups.93 The EAC’s decision has been criticised for limiting public participation and, in the process, for seemingly compromising its role as an independent expert body.94

The EC process provides several opportunities for public participation. But these opportunities are under constant threat of legislative or executive actions that could amend the relevant provisions, narrowly interpret them, or disincentivise public participation through design or practice.

Under the Forest Rights Act

Decisions relating to access, use, and ownership of forest land and resources also involve some degree of public consultation. The Forest Rights Act recognises several rights of Scheduled Tribes (STs) and other persons and communities that primarily reside in and depend on forests for their livelihood needs. These rights include the 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.95 These rights may be claimed as individuals or as communities.96 The Act and its related rules lay down a detailed process by which individuals and communities can claim these rights. The Gram Sabhas have been designated as authorities to initiate the process for determination of the claims under the Act.97 The Gram Sabha includes all adults in a particular village,98 and its pivotal role in the entire process is an important facet of public consultation in forest governance in the country. 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.99

The Forest (Conservation) Act 1980 (FC Act) was enacted to combat the large-scale deforestation that the country was witnessing.100 The Act requires the prior approval of the central government before state governments can permit the use of forest land for non-forest purposes or dereserve reserved forests.101 This process, commonly referred to as the forest clearance process, requires several levels of forest bureaucracy to comment on and approve the application.102 Unlike the EC process, it is not open to public comment or consultation.

The situation changed in 2009 when the environment ministry issued a letter to all states requiring them to enclose evidence of settlement of rights under the Forest Rights Act, or evidence that the settlement would be completed before final approval is granted under the FC Act.103 This linkage was given statutory recognition in 2014, and now the settlement of rights in accordance with the Forest Rights Act has to be completed before the application for diversion of forest land is considered by the Conservator of Forests.104

In a case before the NGT, one of the grounds to challenge the forest clearance granted to a hydropower project was that the clearance condition to settle rights under the Forest Rights Act had not been complied with.105 The NGT, deciding on this limited point, directed that the entire proposal for forest diversion be placed before the Gram Sabha of four affected villages.106 It further directed the Gram Sabhas to consider ‘all community and individual claims which would bring within its ambit religious as well as cultural claims’.107

In a landmark judgment establishing the primacy of religious rights of tribals over mining activities, the Supreme Court discussed the role of the Gram Sabha in the decision-making process, both under the Forest Rights Act and the Panchayats (Extension to the Scheduled Areas) Act 1996.108 The Court was deciding whether forest land should be diverted for bauxite mining in Lanjhigarh in Odisha. It held that the Gram Sabha had the power to decide whether mining in an area of religious significance affected their religious rights, and to settle all claims arising under the Forest Rights Act relating to the forestland that was proposed to be diverted.109 After the Court’s judgment, Gram Sabhas unanimously rejected the proposed diversion of forestland for the mining project, and based on this rejection, the MoEF declined forest clearance under the FC Act.110

In the past few years, the environment ministry has been restricting the application of the Forest Rights Act, and as a result the role of the Gram Sabha, in the forest clearance process.111 Some of these efforts have been resisted by the Ministry of Tribal Affairs—the nodal agency for the implementation of the Forest Rights Act, but with limited success.112 There is also a legal challenge to the vires of the Forest Rights Act pending before the Supreme Court.113 At the same time, a ‘Citizens’ Report’ published to commemorate 10 years of the Forest Rights Act highlights the poor implementation of the Act.114 A law to recognise ‘tenurial and access rights’115 of forest dwelling Scheduled Tribes and other communities, the Forest Rights Act espouses a participatory process, but it faces serious legal, institutional, and political impediments.

The Right to Access Justice

Roots in Indian Law

The right to approach a judicial forum for an appropriate remedy is enshrined in the Indian Constitution as well as in the civil and criminal procedural laws of the country. Besides the conventional courts, various statutes passed by Parliament and state legislatures have created judicial, quasi-judicial, and administrative fora where specific grievances may be raised by statutorily identified persons. The Supreme Court has held that ‘access to justice is a human right. When there exists such a right, a disputant must have a remedy in terms of the doctrine ubi jus ibi remedium’.116

Article 32 of the Constitution recognises the fundamental right to approach the Supreme Court directly for the enforcement of fundamental rights, and Article 226 recognises the constitutional right to approach High Courts for the enforcement of fundamental rights or any other legal right. The Supreme Court and High Courts, when approached under Articles 32 and 226, respectively, may issue directions, orders, or writs including those in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of rights.117 Besides their extensive writ jurisdiction, these courts enjoy wide original and appellate jurisdiction. The power of judicial review enjoyed by the higher judiciary is considered to be part of the basic structure of the Constitution and, therefore, cannot be taken away even by a constitutional amendment.118

In a recent judgment, the Supreme Court reviewed case law on the right to access justice and held that the right to life, guaranteed under Article 21 of the Constitution of India, included the right to access justice.119 The Court observed, ‘[t]he right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens’.120 It identified four main facets that constituted the essence of access to justice: (i) the State must provide an effective adjudicatory mechanism; (ii) the mechanism so provided must be reasonably accessible in terms of distance; (iii) the process of adjudication must be speedy; and (iv) the litigant’s access to the adjudicatory process must be affordable.121

Public Interest Litigation

At the core of access to justice jurisprudence in India lies PIL, a form of proceedings fashioned by the Supreme Court and subsequently adopted by the High Courts. The origin and evolution of PIL in India has been reviewed extensively in academic scholarship.122 The original intent of encouraging PIL cases was to lend voice to marginalised and disadvantaged sections of society that would otherwise find the formal processes of the judicial system difficult to navigate.123 But it soon became a vehicle to challenge government inaction as well—to redress public wrong or injury, even though no specific legal injury was caused to an individual or a determinate class of persons.124 The Supreme Court relaxed several procedural norms to ease access to the Court. The Court observed that the traditional rule of locus standi need not be adhered to.125 The Court held that when a legal wrong or injury was caused to a person or a determinate class of persons, and such person/s could not approach a court for relief due to poverty, disability, or because they were in a socially or economically disadvantaged position, any member of the public could file a case on their behalf.126 Emphasising the need to do away with procedural technicalities in such cases, the Court held:

17. ... it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities ... The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning.127

Since the early 1980s, PILs have been argued and decided by the Supreme Court and the High Courts on a variety of issues of social, economic, political, and environmental relevance. Cases have been initiated by person/s adversely affected by an administrative wrong;128 person/s approaching the Court to vindicate the rights of other persons;129 or a public-spirited citizen who is not representing any particular class of persons, but is filing the case in her own capacity of being a citizen of the country to whom the Government owes a public duty.130

While many PILs begin their journey in the courts as a writ petition, courts have also exercised what has come to be termed as their epistolatory jurisdiction—accepting letters written to the court as writ petitions,131 and taken cognisance of issues suo motu (for instance those highlighted by newspaper reports).132

The proceedings, generally not adversarial, are meant to be more an exercise of cooperation and collaboration between different stakeholders.133 The reason for the court to move away from the conventional adversarial system was not to create a process wherein evidence was accepted without the opposing party getting an opportunity to cross-examine, but that the respondent, most often the state, should help the court to find the truth, as the litigation was not against the State but against the illegalities committed on its behalf.134

The response of the courts in PILs has also been different and, at times, innovative. To assist them, and the parties, in understanding and dealing with various aspects of the case, the courts occasionally appoint expert committees or commissions and amicus curiae.135 Sometimes a court issues orders in the nature of ‘continuing mandamus’—the court keeps the case under its judicial oversight for several years and issues orders and directions suited to the situation.136 On some occasions, after passing a detailed order, the Supreme Court has transferred the case to the appropriate High Court for further proceedings and compliance of its orders.137

Although the Indian judiciary is hailed for its ‘activist’ role in championing the cause of the underprivileged, and PIL has been considered ‘the judiciary’s most visible tool for marketing constitutionalism’,138 the PIL process has some inherent flaws.139 While some of these flaws relate to the outcome of the case140 and the enforceability of judicial directions,141 relevant for the present discussion is the potential of the PIL mechanism to limit access to justice rather than increase accessibility. On occasion, courts have not given important stakeholders an opportunity to express their opinion before issuing directions that affect them.142 Court-appointed amicus curiae has often become the focal point for submissions to the Court, excluding other parties.143 Courts still accept letter petitions, but these are screened by a PIL cell based on certain guidelines and only a selection of letters are placed before the courts.144 In 2014, 1.2 per cent, and in 2015, 0.5 per cent of the letters received by the Supreme Court were converted into Writ Petitions (Civil and Criminal).145 In 2010, the Supreme Court directed all High Courts to ‘properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives’.146 This ‘streamlining’ of PILs through rule-making147 could curtail the flexibility in procedure that the PIL mechanism is associated with.

Right to Access Environmental Justice

Judgments and orders delivered in PILs have significantly contributed to the development of India’s environmental jurisprudence.148 The recognition of the right to environment, and the incorporation of principles of international and foreign law in Indian environmental law, have been the result of some of the landmark environmental PILs. Environmental law cases, in turn, are important case studies in analysing the efficacy of PIL in addressing widespread and systemic problems, and achieving outcomes that are socially equitable and environmentally desirable.149 As other contributions to this volume discuss many of the cases in detail, this section focusses on statutory fora for environmental justice, in particular the NGT.

Parliament has passed three laws setting up special tribunals with the exclusive jurisdiction over environmental cases.150 The third statute—the one currently in force—is the National Green Tribunal Act 2010 (NGT Act). The NGT has been set up under this Act with the express objective of providing effective access to judicial proceedings in environmental cases.151 The Tribunal is a key player in present-day Indian environmental governance and regulation.152

Other than the NGT, discussed in greater detail later, there are a number of judicial and quasi-judicial fora available in India where environmental issues may be raised. Specific environmental statutes provide their own grievance redressal mechanisms. For instance, appellate authorities appointed under the Water Act and the Air Act are empowered to hear appeals against orders and directions issued by SPCBs.153 Appeals against the orders of the appellate authorities lie before the NGT.154 Complaints against persons violating the provisions of the Water Act, Air Act, and EP Act may be filed before the criminal courts by the appropriate regulatory agency or private persons.155 Under the Biological Diversity Act 2002, an appeal in case of a dispute between the National Biodiversity Authority and a State Biodiversity Board would lie before the central government,156 and an appeal against a determination of benefit sharing, or an order of the Authority or State Boards, lies before the High Court.157 Apart from these, environmental cases can be brought to the Supreme Court and High Courts under their writ jurisdiction, as certain environmental rights have been interpreted as fundamental rights. Environmental torts like nuisance and negligence are also recognised in Indian law, and complaints alleging nuisance and negligence have been brought before the courts.158

Special Environmental Courts

In the context of environmental disputes, the Supreme Court observed in 1986 that it was necessary that judicial decision-making was informed by scientific and technical expertise. In view of the fact that environmental cases involved assessment and evolution of scientific and technical data, the Court suggested that ‘it might be desirable to set up Environment Courts on the regional basis with one professional Judge and two experts’ with the right of appeal to the Supreme Court.159 In 1995, through an Act of Parliament, the central government was required to establish a National Environment Tribunal to hear cases on liability and compensation arising from accidents.160 The Act referred to the Rio Declaration in its preamble, specifically quoting from the text of Principle 13 on liability and compensation for environmental damage. This Act was not notified and never came into force.

In 1996, the Supreme Court reiterated its recommendation to set up special courts with exclusive jurisdiction on all civil and criminal matters relating to the environment.161 It highlighted the difficulties in the existing redressal mechanisms (that is, ordinary criminal courts)—workload of the courts, long pendency of cases, grant of interim orders which prevent authorities from implementing their orders and the lack of appreciation of the significance of environmental issues.162 Subsequently, ‘in view of recent pronouncements by the Supreme Court in certain public interest litigation cases involving environmental issues’,163 Parliament passed the National Environment Appellate Authority (NEAA) Act 1997. The Act set up an Authority with the jurisdiction to hear appeals against ECs granted (under the EIA Notification 1994).164

In 1999,165 and then in a follow up judgment in 2001,166 the Supreme Court yet again emphasised on the need for specialised environmental courts. The Court admitted to finding it difficult to provide adequate solutions to environmental problems. It was not in a position to monitor its orders on a regular basis or to issue urgent orders when necessary. It requested the Law Commission of India to review Indian environmental laws and the need for setting up environmental courts.167 The Law Commission submitted its report on the constitution of environmental courts in 2003. It recommended the setting up of environmental courts in each state, headed by a judge and assisted by a panel of experts, exercising original and appellate jurisdiction.168 The Commission categorically criticised the idea of constituting one appellate body based in Delhi, as it reduced effective access to justice for persons in remote parts of the country.169

No action was taken on the report of the Law Commission to set up state-wise environmental courts, and the NEAA with its seat at New Delhi continued to function with its limited mandate. The accessibility of this forum was questioned on various grounds—the Tribunal narrowly construed locus standi,170 it adopted a hyper-technical approach to procedural issues,171 and it was never fully constituted with judicial and expert members.172 In 2009, the High Court of Delhi passed adverse remarks against the central government’s prolonged ‘lackadaisical’ approach in properly constituting the NEAA, and observed, ‘[b]y rendering the NEAA ineffective, the government has denied the citizens the right of access to effective and efficacious justice in matters concerning the environment’.173 The central government challenged the High Court’s judgment before the Supreme Court174 and during the pendency of this case, the NGT Act was passed by Parliament.

The National Green Tribunal

In 2010, the NGT Act came into force.175 The Act in its preamble refers to India’s participation at the Rio Conference in 1992, and includes text from Principles 10 and 13 of the Rio Declaration. The Tribunal consists of judicial and expert members. The judicial members are former or sitting judges of the Supreme Court or High Courts.176 The expert members are persons appointed with knowledge and experience in varied fields like pollution control, hazardous substance management, environment impact assessment, climate change and forest conservation or with administrative experience.177 Every bench hearing a case has to have at least one judicial member and one expert member.178

Jurisdiction—NGT enjoys original jurisdiction over all civil cases where a substantial question relating to the environment arises from the implementation of provisions of laws listed in the Schedule to the NGT Act.179 It exercises appellate jurisdiction over certain orders and directions issued by government agencies.180 The limitation period for approaching the Tribunal ranges from 30 days to five years, depending on the cause of action.181 An appeal from the order of the NGT lies before the Supreme Court.182

In pursuance of the law laid down by the Supreme Court in L. Chandra Kumar,183 the NGT Act does not, and cannot, oust the writ jurisdiction of the High Courts.184 Hence, where there is a subject matter overlap between the NGT and the High Court (under Article 226), a petitioner has the statutory and constitutional right, respectively, to approach either forum. The Supreme Court185 and the Odisha High Court186 have held that writ petitions under Article 226 of the Constitution, raising issues of larger public interest or alleging violation of fundamental rights, need not be transferred to the NGT, even if the issues raised are within the Tribunal’s jurisdiction. However, certain High Courts have applied the principle of alternative and efficacious remedy, and dismissed writ petitions while considering the Tribunal to be the appropriate forum.187

In 2012, the Supreme Court directed the transfer of all matters covered by the NGT Act to the Tribunal to ‘render [...] expeditious and specialised justice in the field of environment to all concerned’.188 The direction was subsequently stayed by the Court in a different case and placed for reconsideration, but the question is yet to be decided.189 Meanwhile, the Supreme Court and the High Courts have been transferring at least some of the cases pending before them to the NGT for further adjudication.190

Accessibility—In terms of who can access the Tribunal, the statute is broadly worded. ‘Any person’ who is aggrieved by an order (specified in Section 16), or who wishes to seek relief or compensation or settlement of a dispute may approach the Tribunal. Person includes an individual, a company, an association, a local authority, etc.191 However, whether such a person needs to be directly aggrieved is a question settled in one of the Tribunal’s early judgments. The Tribunal adopted a liberal approach to locus standi and observed:

Once, the protection and improving the natural environment is the fundamental duty of a citizen, any person can approach this Tribunal and agitate his grievance as to protection and improvement of the natural environment. The statutory provisions are subservient to the constitutional mandates. The person as defined or person aggrieved as occurs in Section 2(j), 16 and 18 (2) of the NGT Act cannot be placed above ‘every citizen’ as appears in Article 51A of the Constitution of India.192

Therefore, with regard to legal standing, the Tribunal may be considered to be a highly accessible forum. But geographical accessibility of the NGT has been a concern from its inception. The principal bench of the Tribunal is in New Delhi and there are four regional benches with specified territorial jurisdiction.193 The Parliamentary Standing Committee considering the National Green Tribunal Bill had expressed a concern that if the Tribunal sat in only five cities, it would ‘lead to serious constraints of accessibility in the long run, especially to the poor and the tribal people who live in far flung areas’.194 The MoEF’s response was that the Tribunal would occasionally function in a circuit mode.195 Since it has been set up, on the Chairperson’s orders, the Tribunal has occasionally heard cases in cities other than those where the five permanent benches are situated. However, as the Tribunal enjoys jurisdiction over certain categories of environmental cases of civil nature, to the exclusion of other forums which may be geographically more accessible (like the district courts or the High Court), the question of accessibility is a live one.

The procedure for filing a new case or case-related documents in the Tribunal is governed by the National Green Tribunal (Practices and Procedure) Rules 2011. Applications and appeals have to be filed in the prescribed format only. The filing process in the Tribunal is not very different from a regular court. Although applicants need not engage a lawyer, and can file cases and appear in person, the procedural requirements could seem daunting to someone not conversant with the court system.

A new appeal or application has to be accompanied by a fee of Rs 1,000, if no compensation is claimed.196 If compensation is claimed, a fee equivalent to 1 per cent of the compensation amount claimed has to be paid along with the appeal or application.197 The rationale behind this was to discourage frivolous cases.198 However, high court fees could be a real disincentive for persons to file claims in the Tribunal. When this rule came into force, the inherent perversity was highlighted in the media.199 In response, the then Environment Minister issued a public notice proposing to modify this rule.200 The notice stated that though it was legal to charge such a fee, the Ministry did not intend for genuine litigants to feel discouraged from seeking justice and, therefore, the said rule would be removed. However, the 2011 rules remain unamended.

In practice, applicants may file an application for exemption from depositing these fees, stating their reasons for not being able to pay the court fees. The Tribunal may allow the application, and impose a condition that if compensation is finally awarded, the applicant would pay the court fees from that amount.201 But the risk of being required to pay a significant amount as fees, even before the case is heard, remains. While deterring frivolous litigation is an important policy goal, the same could be achieved, in part at least, by the Tribunal imposing costs under Section 23(2) of the NGT Act.202 The upfront payment of 1 per cent court fees seems unnecessary.

Decision-making Process—The NGT Act requires that the Tribunal deal with all cases ‘as expeditiously as possible’ and endeavour to dispose of cases within six months from the date of filing, and after giving all parties an opportunity to be heard.203 While there is no data on average time taken by the Tribunal to decide a case, anecdotal evidence from conversations with lawyers practicing before the Tribunal reveals that, in comparison to the Supreme Court and High Courts, cases come up for hearing before the Tribunal more frequently and are decided much sooner.

While adjudicating a case, the Tribunal has to apply the principles of sustainable development, precaution and polluter pays,204 and in case of an accident, it has to apply the no-fault liability principle.205 It has the powers of a civil court but is not bound by the procedure laid down by the Code of Civil Procedure 1908 or the rules of evidence contained in the Indian Evidence Act 1872.206 It has the power to regulate its own procedure and has to be guided by the principles of natural justice.207

The Tribunal considers a variety of evidence including expert committee reports and testimonials, media reports, academic work, data provided by parties on affidavit, etc. In certain cases, the Tribunal has adopted a mechanism it calls the ‘Stakeholder Consultative Process in Adjudication’,208 wherein stakeholder consultations that involve concerned government agencies, relevant industry associations and others are held, before issuing directions. The Tribunal can award relief in the form of monetary compensation or restitution of environment/property damaged, set aside orders and approvals granted by regulatory authorities, issue interim injunctions, direct reconsideration of decisions, amend conditions to approvals already granted, direct the setting up of committees, etc.

After final judgments are delivered, in some cases the Tribunal continues to oversee the compliance of its directions through a series of hearings and orders similar to the continuing mandamus exercised by the Supreme Court.209 In some cases, the Tribunal directs the setting-up of committees to monitor the implementation of its directions.210

The accessibility of the NGT as a grievance redressal forum for environmental cases may be assessed on a range of criteria such as geographical location, procedural and legal requirements in filing and hearing a case, and effectiveness of the adjudicatory process in protecting the environment. Whether the adjudicatory process is effective requires an in-depth analysis of the Tribunal’s judgments and their implementation, which is an important area of research, but beyond the scope of this chapter. On other criteria, the Tribunal gets mixed results. The Tribunal’s liberal approach to locus standi, the legal requirement to dispose of cases as expeditiously as possible and in accordance with principles of natural justice, admissibility of a variety of evidence and a reasonable application fee makes the Tribunal a fairly accessible forum. However, the fact that it functions through five benches makes it geographically less accessible for most parts of the country, and the possibility of having to pay 1 per cent of the compensation claimed, in addition to the adoption of procedures similar to conventional courts could act as a disincentive for litigants.

Conclusion

As the discussion in the preceding sections demonstrates, procedural environmental rights in India find expression in a variety of statutory mechanisms. The exercise of these rights, and in particular the right to access the higher judiciary in environmental matters, has contributed greatly to the evolution of India’s environmental jurisprudence. Present-day environmental advocacy and litigation benefit significantly from the existence of these rights, and Indian courts, to the extent they have engaged in the interpretation of these rights, have been mostly sympathetic and adopted a liberal approach. But the situation is far from satisfactory. It is important to recognise the limitations in the manner in which each of the three procedural environmental rights is currently defined, and the constraints in effectively enjoying them. The potential of the ‘rights language’—to ensure that the denial of these procedural guarantees results in consequences—has hardly been realised.

Of the three rights, the right to access environmental information is perhaps the most well-defined in law. Specific information disclosure requirements under environmental laws are complemented by the RTI Act that is applicable more comprehensively. However, the right to access information is incomplete if understood as accessibility of documents per se. The right must encompass the right of timely access to information, the right to accurate and comprehensible information, and the right to expect transparent governance (in other words, a duty on government agencies to make, or mandate, suo motu disclosures).

Timely disclosure of information is crucial to avert environmental problems, and to allow interventions in decision-making processes at the appropriate time. It is not uncommon for infrastructure and other developmental projects to commence construction without necessary approvals and, when challenged, resort to the fait accompli argument.211 Such actions are abetted by the fact that people are not aware about the illegalities until much later. The right to information is violated if information is obfuscated in any manner, either by providing inaccurate or misleading information, or by providing it in a form or language not commonly understood by those most directly affected/interested. Statutory recognition for some of these concerns212 are accompanied by poor compliance mechanisms. Transparency in governance and reduction in information asymmetries across stakeholders needs to be recognised as an important policy goal. Decisions and decision-making processes affecting the country’s environment must be opened to public scrutiny actively, and independent of external triggers (like RTI applications). Simultaneously, obfuscation of information has to be disincentivised through adverse regulatory consequences.

On the other hand, of the three rights, the scope to exercise the right to public participation is the most limited—by definition and in practice. With the exception of the EC process, and the settlement of rights process under the Forests Rights Act, people in India have very little say in the manner in which natural resources are utilised or affected. Under the Water Act and Air Act—potentially the most far-reaching national environmental laws—there are very limited opportunities for the public to intervene, by right. Even under the EC process, the public consultation requirements are neither designed nor implemented in a manner that would ensure that people’s views are actually taken into account while conceptualising or operationalising a project. These are treated as regulatory impediments which have to be overcome at least cost, and not as deliberative processes with important stakeholders. Public participation processes must not only be mainstreamed, but must also be carefully designed—inputs taken at a time which can influence the final outcome, stakeholders properly identified, and full disclosure of information relating to the decision.

The recognition of the right to access environmental justice in India benefitted from the rich access to justice jurisprudence and the PIL mechanism that had already developed. But just as environmental cases are excellent examples to study how the Indian judiciary came to adopt an activist avatar, they also demonstrate the limitations of relying on judicial fora for improved environmental outcomes. A constitutional or statutory right to approach a judicial forum is only the first of many steps to secure justice. The right is an empty promise if the forum itself is not accessible, either geographically or due to technical requirements; if the orders of the forum are not implemented in letter and spirit; or if the forum is unable to ensure compliance of its orders.

Procedural environmental rights are certainly on firmer legal foundation than substantive environmental rights in India. But there is hardly any space for complacency as even in their more preferred status, they are being regularly curtailed or denied. While substantive statutory revisions are required to integrate these rights in Indian environmental regulations, the judiciary, in the interim, must protect and uphold these rights even if it means going beyond the strict letter of the law—a jurisdictional crossover they have not hesitated to make in the past.