This past October saw two very significant orders related to environment governance passed by the Central Information Commission (CIC). The orders were passed by Ms. Annapurna Dixit, one of three recently appointed Information Commissioners. While the first order pushed the National Biodiversity Authority (NBA) towards disclosing documents related to the approvals it has granted, the other pushed the Ministry of Environment and Forests (MoEF) to provide information related to discussions within the ministry related to proposed amendments to the Environment Impact Assessment (EIA) notification.
The introduction of the Right to Information (RTI) Act in 2005 has critically transformed the way citizens can seek transparency in decision making and implementation of policies, programmes, legislations in any given sector or particular project. At the same time the Act allows one to demand for disclosure of information which an authority or department has failed to suo moto put in the public domain. When it comes to environmental governance, RTI undoubtedly is a key advocacy tool. Groups all across the country have been using it to seek information related to clearances of development projects, government expenditure on programmes as well as development of legislations.
However, the information sought has not always been forthcoming. Typically, a tedious process needed to be followed before favourable and just decisions were made. With the new rulings, one hopes that will change.
Approvals under the Biodiversity Act
It has been six years since India passed the Biological Diversity (BD) Act. This legislation was drafted to fulfill India's commitment to the Convention on Biological Diversity (CBD), signed in 1992. It was also meant to be a response to check the alarming increase in biopiracy and restrict bio-based trade. Also, it intended to look at conservation of biodiversity and traditional knowledge as a whole, and not only through sector-specific laws on of forest, wildlife, water and pollution (See here and here).
One of most active aspects of the implementation of BD Act has been a series of approvals granted by the National Biodiversity Authority (NBA), which is based in Chennai. To date, 315 approvals have been granted by the NBA. However until April 2008, only a listing of the approvals granted were available on the website of the organisation. There were no approval letters, copies of agreements that could be accessed by citizens to verify what the particular biological material or related traditional knowledge is being accessed for. Since the framework of the law does not allow citizens to adequately participate in this highly controversial and vital decision making process, such disclosure becomes even more important.
With this background in mind, an RTI application was filed by Shalini Bhutani as part of the Campaign for Conservation and Community Control over Biodiversity on 14 September 2007 before the MoEF, which implementations the Act. As there was no response received the first appeal was filed in October 2007 and the second appeal before the CIC was sent on 12 March 2008. It was only after the second appeal that MoEF sent a letter to the NBA directing them to provide the applicant with all the information. This was March 2008.
Soon after, the Member Secretary of the NBA, K Venkatraman sent a packet with details of 56 approval letters and agreements that were finalized. Ironically the NBA website at that point listed that it had granted clearance to over 90 applications. The actual figures were even higher, but this became known only later. The applicant filed a complaint before the CIC, pointing to the incompleteness of the information provided.
The appeal was heard on 3 October 2008. Two days prior to this, additional information was received by the applicant. At the hearing, the Information Commissioner directed the NBA to provide copies of the agreements of the approved projects and minutes of the meetings in which these approvals were granted, free of cost, to the appellant. It also asked the NBA to provide updated information to the pubic at regular intervals of time which including putting up on the website details of projects awaiting approval.
The order of the CIC is fairly detailed, and amongst other things says:
"... The respondents submitted that delay in reply was due to the fact that the copy of the RTI petition was misplaced and the Ministry did not receive the appeal of 31.10.07. With regard to the approvals they stated that only those projects which have been signed by both the parties are considered as approved by the NBA and details of all approved projects have been put up on the NBA website. At present only 33 agreements have been approved and around 230 are pending approval. Details of the 33 approved projects have been provided to the appellant.
The Commission directs the NBA to provide copies of the agreements of the approved projects and minutes of the meetings in which these approvals were ranted, free of cost, to the appellant. NBA also has to take steps in accordance with the requirements of Section 4, subsection (2) of the Act to provide updated information to the pubic at regular intervals of time which includes putting up on the website details of projects awaiting approval.
Transparency in EIA notification, 2006 amendments
Since 1994, the Environment Impact Assessment (EIA) notification has been the key mechanism through which environmental clearance of development and industrial projects have been determined. In 2006 the notification went through its 14th and biggest amendment, with some very significant changes made to the decision making process. This was done amidst stiff protest from civil society groups, as well as requests from several members of Parliament to the MoEF to put the notification on hold until the process of decision-making is made inclusive and transparent.
In early 2008, environmental groups learned through newspaper reports that newer amendments to the 2006 notification were being discussed within the corridors of MoEF. Till then there had been no public discussion or disclosure. On 5 February 2008, Manju Menon, my colleague at Kalpavriksh filed an RTI application seeking information on whether any amendments are in fact being proposed and also demanding access to correspondences, draft notification and presentations related to any such proposed/cleared amendments. Almost immediately on 27 February 2008, a letter was received from S K Aggarwal, Director and Public Information Officer (PIO) stating, "amendments to various Notifications including the EIA notification, 2006 is evolving process."
What this meant, in short, was that in principle the MoEF was not inclined to share information related to amendments when it is being internally discussed. They would be willing to disclose it only after the draft was finalised and thereafter opened to public comments for a 60-day period, if they so desired. Unfortunately, this non-disclosure stand of the PIO was upheld by the Appellate Authority, Nalini Bhat (Advisor) within the MoEF. After the first appeal was filed, the applicant was called for a personal hearing on 30 May 2008. At this hearing the applicant was told that the information regarding amendments cannot be disclosed to the applicant as it was an "evolving process". An order on the first appeal was passed on 3 June 2008.
The applicant then took the matter to the CIC, which was heard on 23 October 2008 and an order was passed, but not before significant debate before the Information Commissioner. In this instance the Information Commissioner did not direct but instead stated that the CIC "urges the Ministry to consider making the whole notification process more participatory in nature, holding more consultations at Central and State levels with all stakeholders even before the draft notification is finalised in the inter-ministerial consultation. A practical regime of right to information for citizens to secure access to information is possible only when the public authority makes the information available through various means."
The order also added: "... the Public Authority is urged to put up different drafts on the internet, as they evolve, so that the stakeholders are continuously aware of the concerns being deliberated upon and incorporated ..." It finally asked MoEF to provide all concerned information sought by the applicant. (See also: here)
Significant steps
Each of the two orders is significant in its own right. Together, they give thrust to two important points - that of suo moto disclosure of information by public authorities even before the information is sought by the public; and also that decision making needs to be open and transparent. These are two very critical principles of the RTI Act.
But the reality is also that these orders took 8-9 months to be realised, and did not come easily. This isn't an exception, as anyone using or following the implementation of the RTI Act will know. One can only hope that orders such as these act as precedents and lessons for other instances of disclosure and fair decision making. And more importantly, this should be a reminder to the power structures that they must not allow themselves to reach a point where the RTI Act has to be used to appeal and fight for a space that should have been given to citizens by right in a democracy.
