The Preamble of the Constitution of India rests on four crucial pillars, which help realise the spirit of democracy: Justice (social, economic and political), Liberty (of thought, expression, belief, faith and worship), Equality (of status and opportunity) and the promotion of Fraternity, which has to assure dignity of all individuals. These principles are supposed to guide the manner in which the country is governed.

The right of the citizens of the country to participate in decision-making processes can draw substantially from these principles. Such participation might mean exercising powers of consent, or voicing dissent or simply getting equal opportunity to be a part of public hearings, without any fear or pressure. It also means being able to invoke administrative and judicial processes in order to ensure compliance of laws.

Partnerships in determining impacts of land use change, auditing performance of government schemes, monitoring application of environmental safeguards are all suggestions which have been made time and again to strengthen governance in the country. This is especially true in the arena of environment, forests and land use change.

Over the years, continuous advocacy, litigation and demands to strengthen public participation in legal processes and realise localised consent had resulted in some progress. At the same time, the nature and extent of participation determined by state actors also came under question.

Mere participation in a public hearing is not tantamount to playing a role in deciding whether a project should come up in a particular site or not. Consultative processes are not a substitute for free prior informed consent (FPIC). At the same time constitutional amendments such as the 73rd and 74th Amendment and the enactment of laws like the Panchayat Extension to Schedule Areas (PESA) Act have empowered communities at least in letter and spirit, though there is much to be realised in the administrative implementation of the same.

However, in the last few years, while there have been several gains in terms of ensuring that consent procedures are added to processes related to land acquisition and forest diversions, there have also been consistent attempts to dilute procedures, paving the way for a public interface or consent provisions in environmental decision making.

More recently, there have been several executive orders, proposed amendments and directives, which either seek to curtail avenues of consent and participation or do away with them entirely.

Public hearings under the EIA Notification, 2006

When public hearings were made mandatory under India’s Environment Impact Assessment (EIA) notification, it was with a view to ensuring that the opinions of affected people and concerned citizens were heard prior to appraising an application for “environment clearance.” Over the years, the public hearings became a critical event, which brought the project authority, government, affected people and environmental groups in one common space. It took several forms, all the way from scientific questioning to political assertion.

In 2006, when the EIA notification was amended, the scope of public hearings and the list of those who could participate in it were curtailed.  This is when participation in a public hearing was limited to the locally affected people and those with a plausible stake in the project.

None of these terms were defined: “local”, “affected”, “plausible stake”, which meant that if a presiding officer so wished, he or she could either allow or restrict one’s representation at a public hearing. While people continue to use this space as creatively as possible, there are evidence-based stories about how this has over the years been reduced to ticking off administrative formality rather than legislatively empowering the space.

Since June 2014 there have been several clarifications issued as part of the EIA notification, bringing in exemptions to the public hearing requirements.  For instance, as per the notification dated 25 June 2014, all irrigation projects with a capacity of up to 2000 hectares of culturable command area are now exempt from going through the environmental clearance process entirely, including the public hearing clause.

The public hearing of Parsa coal mine in Chhattisgarh. Pic: Chhattisgarh Bachao Andolan

Possible exemptions from public hearings have also been introduced for coal mining projects which require a one-time capacity expansion, with the production capacity exceeding 20 MTPA (OMs dated 28 July 2014 and 2 September 2014).  This exemption will apply to public hearings subject to a ceiling of up to 6 MTPA of additional production capacity, and if the transportation of additional coal produced is proposed by means of a conveyor and/or rail transport.

However in both these instances, exemption is also subject to the Expert Appraisal Committee (EAC) applying “due diligence” and “satisfactory compliance with environmental clearance(s) issued in the past as judged by the EAC.”

Another instance where public consultations have been sought to be compromised is that of “all linear projects such as Highways, pipelines, etc.” in states having international borders. This was proposed through a draft notification issued on 30 September 2014 that also invited public comments. However, there has been no final notification yet, indicating whether this change has been accepted or not.

Land acquisition and consent of affected people

One of the most controversial legal changes that have been brought about by the current government is the passage of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCLARR) Ordinance, 2014.

It seeks to replace several clauses of the 2013 law which had made significant gains by introducing clauses that required consent to be sought from affected people prior to land acquisition for projects being set up entirely by the private sector or through public-private-partnership (PPP). 

What this means is that under the new law, while the government will go out of its way to acquire land for the private sector for a range of activities related to defence, rural infrastructure, affordable housing for poor people, all industrial corridors and all infrastructure projects, the role of those affected will be reduced to just receiving compensation.

The process of seeking the consent of 70 percent of affected people for PPP projects and 80 percent for private sector projects has been done away with. What has also been hemmed is the applicability of a Social Impact Assessment (SIA) to determine who the affected people are. This process had also included a public hearing.

Though the said ordinance will still need to be placed before the parliament in the upcoming session, its provisions are clearly in response to the pleas of project developers who consider these democratic processes merely a hindrance.

Being true to processes involving SIAs and consent seeking requires two things: faith in the constitution of the country and openness to being rejected by citizens who are empowered through law. Few businesses, however, have the heart to take this on.

Forest diversion and consent of gram sabhas

Another forum of intense conflict has been that in which the consent of the constitutionally recognised gram sabhas (village assemblies) is sought before any diversion of forest land for non-forest use.

On 3 August 2009, a circular was issued by the environment ministry, which, among other things, clarified that no diversion of forest land for non-forest use would take effect unless the process of recognition of rights had been completed.

The process for forest diversion is carried out in accordance with the Forest Conservation Act, 1980, under the jurisdiction of the ministry of environment. The recognition of rights is determined through the provisions of the Scheduled Tribes and Other Forest-Dwellers Recognition of Forest Rights Act, 2006.

The above circular meant that the state government would have to submit a range of documents which certify that the rights process has been duly completed. This would have to come with an explicit written consent or rejection of the diversion proposal by the gram sabha.

But there have already been some exemptions made to this process. On 5 February 2013, the then MoEF issued a clarification on its August 2009 circular and said that linear projects such as roads/canals, laying of pipelines, optical fibre lines and transmission lines would be exempt from seeking gram sabha consent. This not just undermined the constitutional and legal rights of the forest dwelling communities, but also completely disregarded the fact that many of these projects can’t be viewed in isolation.

Transmission lines, roads are often integral components of power plants, mines, and industrial estates and removing them from the overall context of land use change can lead to a fait accompli situation. The project proponent, having invested in a road and railway line, is like to negotiate with an upper hand, citing that it has already “invested” in the project and thereby demanding speedy approval for other components.

A public hearing for the Kandla Port Trust Project in Kutch, Gujarat. Pic: Bharat Patel

HLC report and public participation

In August 2014, the Ministry of Environment, Forest and Climate Change (MoEFCC) set up a High Level Committee (HLC) to review six major environment and forest laws of the country. This HLC set up under the chairmanship of ex-Cabinet Secretary, Shri T.S.R. Subramanian concluded its work and submitted its report, ten days prior to its term expiring on 28 November 2014.

According to the HLC recommendations, public hearings under the EIA notification “may be dispensed within the locations where the optimum pollution load or the cumulative pollution load is pre-determined, such as in a planned industrial zone or manufacturing zone.”

Our current environment laws leave it to the concerned Pollution Control Boards (PCBs) or regulatory institutions under the EIA process to pre-determine optimum pollution loads. This is completely devoid of any external input from affected people or concerned citizens, including environmental organisations.

Under the circumstances, public hearings are the one and only space where people get an opportunity to flag issues, including the inadequacy of assessments which need to be rectified by regulatory authorities and expert consultants before decisions are to be taken.

The HLC also recommends that there is no necessity for public hearings in locations, where settlements are located away from the project sites. Fishing grounds, forest areas, grazing lands do not always have permanent human settlements. However, these areas have thriving local economies dependent on them.  Therefore, such a provision, if operationalised will only further exclude people from the already limited space that public hearings provide today.

When one reads this with the continued attempts of EIA consultants and project authorities to only partially disclose population figures and livelihood dependence, this exemption only serves to remove the affected people further away from avenues of justice.

To illustrate, in the case of an EIA report for the establishment of integrated facilities in the Kandla Port Trust, eventual submissions had highlighted that the draft EIA report grossly underestimated the impacts on the livelihoods of fishing communities spread across nine harbours, 37 functional saltpans and livestock pastoralist (maldharis) directly dependant on the area.

If one were to go by the disclosure of the EIA report alone, there were hardly any settlements in the project site which included setting up of new jetties, railway lines, ship building facilities etc.

The HLC committee also further endorsed exemption from gram sabha consent to linear projects.

The challenged public and its consent

The popular understanding of democracy is that it allows for active participation of its citizens in shaping priorities in politics, civic amenities and decision-making around resources, which the state holds custodianship.

Critics will rightly argue that excessive reliance on participation can also be incapacitating for a government agency to perform its duties. Moreover, public opinion is not above being politically motivated and misguided. But even if one acknowledges these possibilities, curbing involvement of one set of people to the advantage of another is not an acceptable trend.

Binding itself to profit margins, trade figures and global growth targets, the government today is consciously failing its duty of being fair and impartial. Creating private enclosures and ousting the public from decision-making are far from the good governance mantra that successive governments in the country continue to articulate.