On 22^nd May 2018, Thoothukudi (Tuticorin) in the Tamil Nadu state of India, turned violent when protest demanding the closure of Vedanta’s Sterlite Copper unit entered in a clash between the protestors and the police, killing 11 people. These protests began nearly two decades ago intensifying after the company announced its expansion. A stay was put on the expansion insisting that the company should seek public consultation first. However, the plant got an environmental clearance in 1995 without even conducting the mandatory EIA. Moreover, Sterlite, which falls under the Hazardous Red Category large industry, in order to avoid a public hearing, claimed that its new project site fell within the SIPCOT Industrial Complex which is exempted under the EIA notification. These events have brought in limelight the loopholes in public consultation under EIA in India.

Today, when the nature of sustainability has gone complex and multi-pronged, it is suggested that no single institution can be expected to hold all expertise knowledge for decision-making. In International Law, public participation was introduced by Aarhus Convention, 1988. The Convention is a legally consolidated measure to enhance public participation in decision making and access to justice. There are other instruments like Convention on Environmental Impact Assessment (Art 16) and North American Agreement on Environmental Cooperation (Arts 13–14) which contains public participation clauses, thus highlighting the importance of public participation.

Indian Constitution is one of the few constitutions of the world which acts as grund norm for national environment law. The Constitution under Part III guarantees fundamental rights which are essential for the development of every individual and to which a person is inherently entitled by virtue of being human alone. The right to live in a healthy environment as part of Article 21 was first recognized by the Supreme Court in Rural Litigation and Entitlement Kendra vs. State.

In India, EIA is the only environmental tool which legally ensures that any new project be installed in a way that is not detrimental to the environment. In 1994, an EIA notification made Environmental Clearance (EC) mandatory for any expansion or modernization activity or for setting up new projects listed in Schedule 1 of the notification. This was followed by an EIA notification, 2006  which elaborates EIA as a multi-step process where a proposed project has to undergo: Screening, Scoping, Public Consultation and Appraisal. Subsequently, an Expert Appraisal Committee undertakes a detailed scrutiny of the documents on the basis of which the concerned Ministry issues its final decision. In India, the foundation for public participation in EIA was laid down in a 1988 conference titled the International Conference on Environmental Impact Analysis for the Developing Countries held in New Delhi. Interestingly, despite considerable debate centred on the role of public participation, there was no representation at the conference from public interest groups themselves. This would gradually become the norm, as the public interest was simply understood to be represented through the roles of various others – especially funding agencies and the government.

Specifically, the element of public consultation has been a failure in India due to:

1. Firstly, easy ways by project proponents to exempt themselves from holding public consultations. For instance in projects of Delhi Metro Rail Corporation Ltd., New Delhi and the Commonwealth Games Village over river Yamuna in New Delhi, India.
2. Secondly, evasive nature of its proceedings. For instance, improper method of voting at Nuclear Power Plant of NPCIL at Gorakhpur, Haryana or violence during public hearings of Jindal Group’s Coal mines.

EIAs have eventually become a ritualistic farce in each country in addition to governmental prejudice against environmental activists. The process is weakened by the prioritization of infrastructure development, a focus on mitigation measures rather than prevention of harm, lack of accountability, a general disrespect of local people’s perspectives (especially in rural, traditional and poor areas)  and bias of some environmental impact statements (EISs). Moreover, most EISs hardly provide any useful data to decision makers thereby failing to adopt standard scientific methods.

Any developmental activity, especially mega projects like Sterlite have a consequential and associated impact of a greater magnitude on both the environment and human life. It thus becomes imperative to make EIAs more objective and verifiable, such that all information related to a proposed project must be open to the public ensuing public hearings. Being a systematic process, it should ensure that public consultations take place in the early stages of planning and design in order to eliminate any potential problems that might be a hindrance to the goal of sustainable development.

ABOUT THE AUTHORS

Mahvish Shahab

Mahvish Shahab is a fifth-year law student at Jamia Millia Islamia. She has an interest in human rights law and has worked across various interdisciplinary human right issues.

Pranav Tanwar

Pranav Tanwar is a fifth-year law student at Jamia Millia Islamia, he has a keen interest in almost everything about law, sports, and people. Apart from reading and writing, he manages Indian Journal of Law and Public Policy.