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The committee cop-out

The Indian government seems to resolve all contentious issues related to environment and economic growth by setting up more committees, writes Milind Wani

Environmental protection

The Indian government seems to think that all contentious issues related to economic development which involve natural resource systems can be resolved by setting up committees whose panel members -- drawn largely from the bureaucracy and urban elite -- dictate what they think is best for the nation. The Cabinet Committee on Investment (CCI), the committee headed by Pulok Chatterjee (the prime minister’s principal secretary) and the committee under Planning Commission member K Kasturirangan are cases in point.

The creation of the CCI, an initiative of the finance ministry, that is in the offing (with the blessings of the Prime Minister’s Office [PMO]) to hasten environmental and forest clearance for projects, will render the environment minister completely powerless and the environment ministry superfluous. The minister for environment had indeed written to the prime minister expressing her “very serious concern” at the setting up of the CCI to provide fast-track clearances for major infrastructure projects, saying that the “concept is unacceptable”.

On the other hand, K C Deo who is in charge of the Ministry for Tribal Affairs (MoTA) had, in a strongly worded letter dated November 19, 2012, critiqued the Ministry of Environment and Forests (MoEF) for diverting forest land for projects in violation of the Scheduled Tribes and Other Forest-Dwellers (Recognition of Rights) Act 2006 (also called the Forest Rights Act [FRA]), thus highlighting the MoEF’s own culpability. In his letter, Deo argued that:

  • Steps described in the 2009 order (to ensure that diversion of forests under the Forest Conservation Act 1980 does not result in violation of the rights and powers of the forest-dweller under the FRA) should be followed before granting clearance in accordance with the law, and no “in principle” clearance or environmental clearance should be given without a certificate from the gram sabha certifying that the rights of forest-dwellers were  recognised and that they had consented to the diversion.
  • Keeping in view that the diversion of forest land affects the rights of forest-dwellers, MoTA, because it is the nodal agency for forest rights, should be represented on the MoEF’s Forest Advisory Committee (FAC) set up to give forest clearance.
  • In order to ensure transparency and reduce the possibility of disputes and conflict, gram sabha meetings discussing such diversions should be videotaped.

In retrospect, Deo’s concerns over the MoEF’s culpability were justified. After a hue and cry, the environment minister finally came around to the PMO’s point of view: the CCI will be formed to expedite clearances for projects (initially to deal with infrastructure projects only) entailing investments of Rs 1,000 crore and more. The body will be a cabinet committee headed by the prime minister and modelled on the lines of the Cabinet Committee on Infrastructure. As a consolation, a MoEF representative will be part of it.

To his credit, the MoTA minister did not give up. In a letter (dated December 7, 2012), he fired another salvo at the MoEF minister, raising concerns that the MoEF’s order dated August 3, 2009 “appears to be honoured in the breach”. Highlighting the “extremely significant” aspect of the preamble of the FRA -- to recognise (and record) the rights of forest-dwellers and empower their community institutions -- he stressed that the 2009 order also “correctly states” that it is the gram sabha or village assembly that the FRA empowers, through Section 6 (1) and Rule 11, to initiate rights recognition. Hence, “it is this institution that must certify that the above processes have been done”. Consent of the gram sabha, with at least a 50% quorum, is “the bare minimum that is required to comply with the Act before any forest can be diverted or destroyed”.

In a further development, yet another committee, headed by Pulok Chatterjee, was formed and will attempt to push MoTA and MoEF to bypass the FRA for most projects. As seen above, at present forest areas cannot be handed over to industry without the rights of tribals being settled in the impacted area, following which there has to be explicit consent from the affected gram sabha. The PMO has asked the environment ministry (which gives forest clearances) and the tribal affairs ministry (the nodal point for the FRA) to dilute these regulations. The Pulok Chatterjee committee’s report says that in cases where public consultations have (already) occurred for other clearances, consent of the gram sabha should be done away with. This would make the consent of affected tribals irrelevant in most cases. The decision effectively rolls back the UPA’s flagship FRA mandate to set right a “historical injustice” to forest-dwellers. It also makes a mockery of the position taken by the government before the Supreme Court in the high-profile Vedanta case where the government had said tribal forests cannot be diverted for projects at all.

Civil society has been up in arms, as the two processes (public hearings and gram sabha consent) cannot be equated because:

  • These are two very different processes; one is an open public process for all directly and indirectly involved stakeholders whereas the other is specific to a village and its gram sabha members.
  • In reality, many affected people are completely unaware of the place and timings of most public hearings.
  • The decisions of the public hearing are in no way mandatory on project proponents or the government.
  • The requirement of completing the process of recognition of forest rights before diversion (a requirement in the circular) cannot be achieved or ensured through a public hearing or through a mere statement from the state government.

The panel has apparently recommended the supersession of all earlier MoEF circulars and the issue of a new one stipulating that a proposal for unconditional forest clearance would require merely a state government certificate. This is contrary to the position taken by the MoEF in its 2009 order, where, in keeping with the FRA, it asks for gram sabha approval for any acquisition of forest land. It also goes against the aforementioned appeals by MoTA minister Deo about the need to safeguard the FRA whilst considering clearances for forest land. As if this were not bad enough, in the case of linear projects, a certificate from the state government stating that processes under the FRA have been completed is adequate. Unfortunately, the honourable minister of tribal affairs has also agreed with these latter recommendations. We will await his reasons for doing so.

A new development along these lines is that the environment ministry will now review the “kind” of project that will require environmental clearance from the Centre. No marks for guessing how this will be done. By setting up another committee for the purpose! The committee will be under Planning Commission member K Kasturirangan, and will review projects that can be dealt with at the state level and those that require a central nod. This is expected to reduce the number of projects that will have to seek approval from Delhi. At the moment, projects below a certain size or of a certain nature require clearance only from the state-level environmental authority; the rest are sent to expert panels set up under the environment ministry in Delhi. Not surprisingly, the move comes following a push from the PMO, the infrastructure ministry and industry. The PMO, along with several states, has been pushing for a change in criteria to make the clearance process simpler for industry and infrastructure. There is an advantage here for both project developers and state governments (state governments will find it easier to get projects cleared by state-appointed expert panels). But what about the forests, and communities that are dependent on them? Presently, projects are referred to the Centre if they are located in whole or in part within 10 km of the boundary of either national parks and sanctuaries or critically polluted areas as notified by the Central Pollution Control Board or notified eco-sensitive areas or inter-state and international boundaries. The Kasturirangan panel is expected to come back with a set of “reforms” after taking a re-look at these restrictions as well as the overall classification of projects for different levels of clearance.

Several questions arise out of this strange form of decentralisation. Firstly, it will dilute the powers of the Centre. Correspondingly, it could increase the powers of regional political satraps and the industrial class to influence state governments. Secondly, it will bring about competitive bidding amongst the different states to woo multinational investments at a potentially severe cost to the environment. Thirdly, the advantage of a system of checks-and-balances between the Centre and the states that is built into the federal nature of India’s polity will be lost. There will be no guarantee that once the Centre’s prerogative is removed, state governments will necessarily act responsibly. Fourthly, avenues for recourse to justice by appeals to the Centre could become complicated considering the fact that the National Green Tribunal (NGT) that is expected to address such issues is itself fraught with problems.

Each of these initiatives -- the decision to form the Cabinet Committee on Investment, the Pulok Chatterjee Committee’s recommendations and the mandates of the Kasturirangan panel -- will reinforce one another’s agenda. Together, they portend the further abdication of government from its responsibility towards the integrity of the natural world and communities that depend on it. These decisions also run counter to an Act (the FRA) that has been passed after much debate, discussion and consultation.

There seems to be an increasing tendency to resolve seriously contentious issues that are fraught with ethical and legal dilemmas by setting up committees in which the PMO or a panel/committee under its jurisdiction has unilateral powers, with the single-point agenda of fostering economic development (even if this does involve environmental depredation and violation of human rights). Whatever happened to democracy? Should these issues not be discussed within the ambit of both houses before unilateral decisions about forming panels and committees are taken?

(Milind Wani works with Kalpavriksh-Environment Action Group and edits People In Conservation)

Infochange News & Features, February 2013