Leaked Report of the TSR Subramanian headed High Level Committee indicates fundamental, and regressive, changes to Environmental, Forest Protection and Forest Rights Laws of India in the offing
01 December 2014
From the time it was constituted in August 2014, the High Level Committee to review environmental and forest protection laws of India, set up by Prime Minister Narendra Modi, has been mired in controversy. While on the one hand the onerous task of reviewing all environmental and forest protection laws, including interpretative judgments and environmental jurisprudence, was to be done in two months, on the other, the Committee chose a method that was hardly inclusive. When Public Consultations were called, there was hardly any material shared priorly, such as in the form of a discussion paper, to frame the discussions. Seemingly, the exercise was one where anyone who wanted to represent their cause, or make suggestions, could do it online (in 1000 words), and by engaging in some consultations scattered across India. These consultations were sectoral, and some reserved for the public, but held with little notice and no prior information of the nature of the discussion to assist in an informed debate and discussion of reforms proposed or required.
Calls to democratise and decentralise this process and to include States and Local Governments in the debate and discussion, fell on deaf ears. The result was chaotic. Across India, many State Governments took advantage of this process and issued letters to their officials to rapidly put together ideas for "reform" of environmental and forest protection laws. For instance, the Karnataka Government's submissions to the High Level Committee (accessible at the link above) reveals that the exercise was opportunised to push for dilution of not only environmental and forest protection regulations, but also those protecting forest rights. Considering the fact that the Forest Rights Act, 2006 was enacted with unanimous support in both houses of Parliament, and with the intention of correcting heinous historical injustices committed by Forest Departments, industrialists and administration in general, to tribals and forest dwelling communities, the question looming large is whether a High Level Committee appointed by the Prime Minister can promote reforms of such a law that guarantees Fundamental Rights.
The entire exercise of the High Level Committee has been rushed that there hardly has been any possibility for deliberate and transparent discussion on the need for and nature of the reforms. The terms of reference for the Committee were deliberately worded in a vague manner, and efforts to secure an amendment to these terms and make them transparent, democratic and accountable was met with a reactionary approach by the Committee, as was the case in Bangalore (see below).
While in the past the Ministry of Environment and Forests has conducted Public Consultations, and extremely transparently, as in the case of those held by former Indian Environment Minister Jairam Ramesh during 2009-10 on the issue of release of GMO, the CRZ Notification and Green India Mission, and there is demonstrably capacity in the Government to hold such democratic debates and discussions on law reform nation-wide, the High Level Committee chose an extremely tokenistic approch that privileged only those with access to its unclear mandate and power. A large number of peoples movements and networks that have struggled for decades against environmental damage, displacement and loss of forests and forest rights, were almost entirely excluded from the discussions as a result. In some instances, such as in Bangalore, the High Level Committee chose to meet with certain groups and lobbies outside of the advertised public process, and there is no documentation available of who these people are. Given the lack of a rigorous Terms of Reference, a basic prerequisite for such critical exercises of executive power, a cavalier approach appears to have dominated the manner in which the Committe conducted its proceedings.
The report of the Committee was leaked to the media, and is now being widely circulated online. In the wider public interest, the leaked report is being shared by us on our website so that that the public at large may be assisted in informing itself on the nature of changes in environmental, forest protection and forest rights laws Prime Minister Narendra Modi's administration is likely to promote in the immediate future.
Environment Support Group - Team
Read below the release made on the Bangalore "Public Consultation" of the High Level Committee
High Level Committee of Ministry of Environment and Forests and Climate Change walks out of Public Consultation in BangaloreCommittee Called the Public Consultation to Review Proposed Amendments to Environmental, Forest Conservation and Pollution Control Laws
The High Level Committee headed by Mr. T. S. R. Subramanian, former Union Cabinet Secretary, constituted by the Union Ministry of Environment and Forests and Climate Change to review environment, pollution control and forest conservation laws, invited the public at large for a consultation between 12 and 1.30 pm today (27th September) at Vikas Soudha, the high security office complex of the Government of Karnataka. Advertisements to this effect had been issued by the Karnataka Department of Forest, Ecology and Environment in various newspapers on 21st September 2014, followed up by various press releases inviting the public to interact with the Committee.
When various individuals and representatives of public interest environmental and social action groups turned up for the meeting, the police prevented their entry at the gates. It was only following a spot protest that the police consented to allow them to participate in the consultation. Despite this indignifying experience, all who gathered proceeded to the meeting hall with the intent of engaging with the High Level Committee.
The meeting commenced with introductory remarks by the Chairperson Mr. Subramanian. Broadly, he shared that the intent of the Committee was to hear views from across India on the type and nature of changes that were required in the environmental and forest protection laws. He stated that the Committee had the mandate of the Government to propose necessary changes that would help improve the quality of life and environment. But he said the need to ensure develop was primary, as the country was very poor (over 80% were poor he claimed) and thereby it is found essential to streamline environmental clearance processes that thwarted growth. Mr. Subramanian also shared that it was a matter of concern to the Government that several development projects were getting mired in litigation on environmental grounds, leading to needless delays. Concluding his introductory remarks he shared that the Committee is not in any manner guided by the Ministry and their recommendatory report would be submitted to the Union Government. The Committee's proceeding, he clarified, were not open to the public, unless the committee decided to engage with the public. Responding to a question, Mr. Subramanian said that nothing that was submitted to the Committee would be shared with anybody, and that only the report would be submitted to the Government. Mr. Subramanian also said that the Ministry never proposed a public consultation exercise, but he had suggested this should take place.
Mr. K. N. Bhat, Senior Advocate and a member of the Committee, shared that there were a variety of submissions the Committee had received and each of this would be considered. He aired that environment and development should go side by side and the objectives of the laws if not found sufficient to address current needs, need for their review exists. The industry in particular, he said, had raised concerns over delays in environmental and forest clearances when the Committee met with them.
On these introductory notes Mr. Subramanian asked the members of the public to suggest changes to the existing environmental law framework. Officials assisting the Committee did not provide any rationale for the Ministry proposing changes to existing laws. The Committee also did not have any procedure, excepting online submissions of opinions on the Ministry's website (limited to 1000 words).
When the turn of the public came, a submission was made by the Karnataka Planters Association about procedural difficulties in securing forest clearance and conforming with pollution control norms, and sought amendments for the benefit of plantations. Thereafter, Mr. A. C. F. Anand, an RTI Activist, suggested that all environmental laws must be translated so that it would be understood by all and thus the compliance rates improved.
Speaking next, Mr. Leo F. Saldanha of Environment Support Group requested the Committee to address the basis for its functioning, and whethere the TOR constituting the Committee was sufficient for such a massive and onerous task that involved fundamentally reviewing all environmental laws that were intricately linked to Right to Life, Clean Environment and Livelihoods. He sought to know what it meant, as is main TOR, “"(t)o recomment specific amendments needed in each of these Acts so as to bring them in line with current requirements to meet objectives".
Mr. Subramanian responded that neither he nor any other members of the Committee were influenced by the TOR in any manner and that they worked per their own understanding of the mandate given to them by the Government. But when Saldanha pressed to know how a Committee consisting of high ranking former civil servants, a former Judge and a Senior Advocate could at all have agreed to such vague terms, Mr. Subramanian reacted dismissively. He claimed that this was a non-substantive issue and sought to move on to hear others. Saldanha argued that it is disturbing that Mr. Subramanian unilaterally rules a legitimate concern over vague and weak TORs as being of trivial concern, when, in fact, it would have been fit and proper for the Committee to have first explained in the interest of public accountability and transparency how they found the terms rationale and acceptable to them. And in case the terms were acceptable, then the High Level Committee, unshackled as it were by the bureaucratic norms of the Ministry, could have provided a clear note on the nature of the reforms being considered and also explicated on the procedure of consulting and receiving criticisms from various sectors, peoples, regions, geographies, etc.
Mr. Vinay Sreenivasa of Alternative Law Forum submitted that the process by which the Committee was conducting the consultation was rather opaque. The vague TOR and the fact that the Committee was constituted by a Government that sought to belittle the importance of the National Wildlife Board and rush pet projects through the clearance mechanism, seemed to suggest the entire exercise appeared to be merely ritualistic. Ms. Aruna Chandrasekhar of Amnesty International - India sought to know what specific amendments were being proposed or demanded by industry/corporate sectors, and requested the Committee put it all out. But Mr. Subramanian waved away this request too.
Prof. Puttuswamy wanted to know how a High Level Committee sought to improve environmental laws when notifications of Ministry were being issued to dilute the laws. To which Mr. Subramanian responded saying he is not a “Postman” for the Ministry. Ms. Priti Rao, meanwhile, asked for decentralised solid waste management. Mr. Vijayan Menon shared that even though he was not an official, he had walked into the Committee's immediately preceding engagement with Government officials where a clear set of amendments were being proposed. He expressed surprise that this presentation was not being made for the benefit of the general public.
Ms. Bhargavi Rao of Environment Support Group wanted to know how law could be reformed when forest officials are unaware of biodiversity protection laws that had been passed over two decades ago and asserted that this rushed exercise in reviewing environmental laws had all the trappings of making light of people's fundamental rights and concerns. Justice A. K. Srivatsav (Retd. Judge of the Delhi High Court) and a Member of the High Level Committee stated at this juncture that the public must have confidence in a Committee in which a senior retired Judge is a member. By which time Mr. Subramanian had remarked several times that the public was wasting the Committee's time and there was no point continuing with this procedure. Several who had gathered protested such an assessment by the Chairman of the High Level Committee. Mr. Srinivas of Mavallipura sought to speak, saying he represents a community impacted by mal-development and waste dumping in his village, and he too was brushed aside.
At this point, Mr. Subramanian got up and said “We will end the joke here!” and walked out. He was followed by the rest of the Committee.
When Mr. Subramanian walked out, it was 1 pm. Members of the common public who had travelled great distances to engage with the Committee protested Mr. Subramanian taking them for granted and dismissing their views as of trivial concern. They demanded that the Committee return to hear the public and as advertised remained in the Hall till 1.30 pm. Neither did the High Level Committee return, nor did any official of the Ministry of Environment and Forests or Karnataka Environment Department come back to explain to the public why the High Level Committee had behaved in this manner. In fact, throughout the engagement with the public, not one Karnataka Government official was present in the Hall.
The undersigned are deeply disturbed by the manner in which the T. S. R. Subramanian headed High Level Committee has treated this public consultation process. The undersigned demand that the Ministry of Environment and Forests and Climate Change call off this exercise as it has all the markings of being a ritual exercise. In its place the undersigned demand that the Ministry must constitute a Committee that has a clear rationale for reform and Terms of Reference that are democratic, consultative and transparent. In particular, the following demands are made:
Environment Ministry must first come out with a White Paper discussing the nature of the reforms that it proposes in environmental, forest conservation and pollution control laws.
On the basis of such a Paper, an accessible Committee must be constituted that would hear peoples responses across the biologically, culturally and linguistically diverse country and also from various sectors equally.
The membership of the Committee should be so constituted that it would reflect diverse concerns and sectos, and in particular ensure that members conversant with tribal and human rights, environmental management, conservation biologists, biodiversity, risk assessment, planning, etc., and not merely ex-bureaucrats or members of the legal fraternity were included Particularly important is the need to ensure there is adequate representation of women on the High Level Committee, which presently is constituted only of men.
The process of the consultation to be followed has to be meaningful and conform with Principle of Prior and Informed Consent, even if this is not a consenting process.
The timeline for the Consultation mechanism for such a critical review has to be reasonable as laws sought to amended, or tweaked, fundamentally affect theRight to Life and Livelihoods, and Right to Clean Environment.
The entire process has to be transparent, all meetings must be recorded publicly, none of the deliberations must be in camera (as it appears to be the case now), and all proceedings, submissions, minutes and reports must be in the public domain.
Adequate facilities must be made to ensure that anyone interested can participated with dignity and without being inhibited by language or geographical location. To ensure this, the process must be devolved by enlisting the support of State and Local Governments.
Mr. Leo Saldanha; Environment Support Group, firstname.lastname@example.org. Cell: 9448377403
Mr. Vinay Sreenivasa; Alternative Law Forum. Cell: 9880595032
Ms. Bhargavi Rao; Environment Support Group; email@example.com Cell: 9448377401
Ms. Aarthi Sridhar; Dakshin Foundation, firstname.lastname@example.org. Cell: 9900113216
Mr. Vijayan Menon; email@example.com
Mr. Davis Thomas; Environment Support Group; firstname.lastname@example.org. Cell: 9036180914
Ms. Swapna; email@example.com
Ms. Priti Rao; firstname.lastname@example.org
Ms. Padma Ashok; Save Tiger, email@example.com
Mr. Ashok Hallur; firstname.lastname@example.org
Mr. Rajeev Mankotia; email@example.com
Mr. Sandesh Udyawar; firstname.lastname@example.org
Ms. Marianne Manuel; Dakshin Foundation, email@example.com
Ms. Shivani Shah; Greenpeace; firstname.lastname@example.org
Mr. Sohan Pavulari; email@example.com
Ms. Sangeetha Kadur; firstname.lastname@example.org
Mr. Bhaskar Bhatt; email@example.com
Mr. Rohan Kini; firstname.lastname@example.org
Mr. K.N. Somashekar; email@example.com
Mr. A.C.F. Anand; firstname.lastname@example.org
Ms. Shashikala Iyer; Environment Support Group; email@example.com
Mr. Leon Louis; Environment Support Group; firstname.lastname@example.org
Mr. Mallesh K.R; Environment Support Group; email@example.com
Mr. Prashanth; Environment Support Group; firstname.lastname@example.org