A Revist To The Proposal On Umbrella Green Laws By - Supriya

A Revist To The Proposal On Umbrella Green Laws

Authored By - Supriya

ABSTRACT

The Indian Constitution consists of bunch of laws and policies which are formed to protect every sphere of environment. To accomplish it, the State had introduced numerous legislations such as Air (Prevention and Control of pollution) Act, 1981; Water (Prevention and Control of pollution) Act, 1974; Wildlife (Protection) Act, 1972 etc. The preamble of every environment Act not only aims to protect living things (flora and fauna) but also non- living things (air and water). The presence of every element of environment is necessary for the sustenance of human beings and other living creatures. The purpose of introducing Umbrella Green Law was to amalgamate these Environmental Protection Acts under one single law. The recommendations for formulation of umbrella green law were provided by the Subramanian Report in 2014 to streamline the procedure of environment clearance for development projects in the country and to meet the “current requirements and objectives”[1]. Undoubtedly, the proposal on umbrella green law is of great importance and therefore a revisit to this proposal has been made after several years. After thorough analysis of the report, PSCST advised for the establishment of new high level committee which was accepted and currently, the process of forming a new common law is in continuity. It is a moral and a legal obligation of every person to respect the environment and to promote sustainable development. The thought to protect the environment came when India participated in United Nation Conference in 1972 held in Stockholm. All acts, duties, rights embedded in the Indian Constitution, various reports, proposals recommended and treatises signed nationally and internationally point to a  common principle i.e., to safeguard the environment from any damage. 

INTRODUCTION

The demographic trends such as population growth, urbanisation and industrialisation, economic development have become a threat to environmental development. Higher these trends, more disturbing and harmful it is to the environment. Demand and supply patterns are putting pressure on it, consequently, the barriers to protect the environment is breaking. Environmental management is viewed as an anti- thesis to development[2]. The core aim of environmental laws is to ensure improvement and enhancement of quality of surroundings and stabilising the ecological balance. The first umbrella act came in 1986 which is famously known as Environment (Protection) Act, 1986. There was need to introduce this law because of Bhopal Gas leak in December 1984. This umbrella law empowered the centre to set normative standards and control the emission of air pollutants, prevent accidents etc. According to Environmental (Protection) Act, 1986, “Environment includes water, air and land and the inter –relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro – organisms and property”[3]. As the law makers identified greater environmental issues, more statutes and legislations were formed such as – National Green Tribunal Act, 2010; Biodiversity Act, 2002; Handling and Management of Hazardous Waste Rules in 1998 and in 2008 etc. However, the plethora of laws implemented is overlapping and intertwined, consequently leading to ambiguity, slow judgement and greater loopholes. In a period of time, it should be admitted that policies adopted by and legislative framework of India are strong, but the problem lies in its implementation. Section 2(a) of Air (Prevention and Control of Pollution) Act, 1981 provides the definition of air pollutant as, “any solid, liquid or gaseous substance (including noise) which is harmful to living and non living things”. Theoretically, this provision seems to be free from all loopholes, but practically we can see violations in every aspect of this statement. For example – Use of loudspeakers during prayer by different religious communities are causing pollution. Delhi has been declared as the most polluted city in the world, despite of the punishment provisions present. Contamination of river Ganga and Yamuna could be seen. Chemical discharge by industries and agricultural discharge contribute to such contamination. Sometimes, air pollution in the form of forest fire is caused without human intervention. It is generally caused due to excess heat. 

“The weed destroys the whole plant”, similarly, difficulty and delay in enforcement of various acts reduces the worthiness of the whole policy and it has to go through the cycle of approval again.  “We need major reforms in green laws and institutions that implement these laws. The present system is just not working for the environment,” Chandra Bhushan, deputy general of CSE has stated[4]. The time has come to replace the existing legal framework in environment sector with a better systematic mechanism. 

ABOUT THE RESEARCH

This research was conducted to highlight the changes in the current environmental policies of the government. Indian Constitution has very stringent provisions in respect to environment and therefore, it is necessary to understand all such provisions and various amendments introduced. This research paper has critically analysed the proposal on umbrella green law, opinions of stakeholders and recommendations made by the standing committee. The report was written by focusing on three main objectives –

i) Understanding the terminology “Umbrella Green Law” and introduction of such proposal by establishment of High level Committee.

 ii) Reasons for the rejection of Subramanian report by Standing committee and its critical analysis.

iii) Giving top priority to the implementation of consolidated law.

By using primary and secondary research method, the information on the topic was collected. Self analysis was made on provisions of Subramanian report and recommendations given by experts.

The scope of this research paper is limited only to above three objectives. It was strenuous to provide reviews of certified scholars on this topic because it is still an unfamiliar topic and the final decision is yet to be made by the centre.

ELMA – THE UMBRELLA ACT

In the race of development of the country which ought to improve the quality of human life, the relationship with the environment has lost sight. To cultivate the harmonious relationship with the environment, India participated in United Nation Conference in 1972. Through Stockholm Declaration, India took an oath to take appropriate steps for the preservation of natural resources of earth. The basic object of this declaration was, “to create a basis for comprehensive consideration within the United Nations of the problems of human environment and to bring the attention of the government and encourage public opinion of various countries on the importance of the problem”[5]. Thereafter, various laws in environment sector came into existence and are amending as and when required.

The intention to introduce a unique law on environmental protection was made in 2014 with the aim to subsume all the environment related legislation under a common law. A new model of umbrella law, Environmental Laws (Management) Act is hoped to be introduced. The draft model of ELMA, 2014 has been provided which mentioned that the act would be enforced in every state and union territory except Jammu and Kashmir. According to section 2(d) of the draft model, “Environmental laws” consist of all the six laws under review and this draft hasn’t provided definition of forest under section 2(e).

Such reforms in green laws are more of an excellent opportunity than oppression and are required to avoid multiplicity of laws and regulations and to reduce any ambiguity related to it. For this, Ministry of Environment, Forest and Climate Change constituted a high level committee, namely, “Subramanian Committee” which was directed by TSR Subramanian and other five members. To quote and unquote as said by Holland and Rawles, “Environmental conservation is about negotiating the transition from past to future in such a way as to secure the transfer of maximum significance[6]”. The committee was conferred with a task to review six key environment laws – Environment (Protection) Act, 1986, Forest Conservation Act, 1980, Wildlife Protection Act, 1972, Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and later on the colonial law of Indian Forests Act, 1927 was added in the list. The report given by this committee focused on four main terms of references – to assess the implementation status and objectives of the six acts, to examine all the decisions of different courts with respect to these acts, to recommend the amendments required in these acts and bring them in line with current needs and lastly, to draft the amendments recommended in the acts. 

Mere tinkering of the acts is not sufficient for the enhancement of quality of management of environmental issues. For the betterment, suggestions for the necessary amendments have been covered under the ambit of this committee.  Accordingly, the committee has not just suggested a new legislation but has also provided a road map for amending the existing rules and regulations.[7]

RECOMMENDATIONS OF SUBRAMANIAN COMMITTEE

The statistics have shown decline in the quality of forest cover, protected areas have expanded and wildlife has been significantly reduced. To further prevent increase in this alarming situation, the committee has recommended attracting fresh investments and distinguishing between forests and tree lands. Keeping in mind, Wildlife Protection Act and Rules, enhanced punishment for any offence under Wildlife Protection Act has been suggested along with stringent and strong process of prosecution. The Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB) as mentioned under individual Acts will be encompassed into newly created statutory body, i.e., National Environmental Management Authority (NEMA) and State Environmental Management Authority (SEMA). These new bodies will be responsible for providing “single window clearance” in a time bound manner to reduce the processing time. Clearance means approval of the government for establishment and changes in the project related to environmental matters. Presently, there are individual clearances required such as environment clearance; wildlife clearance; clearance from different pollution control boards etc. All these clearances are mere paper work with delayed enforceability and are unnecessarily consuming time. Under this clearance mechanism, the report has provided with GIS maps, satellite imagery for relief and topography, underground water resources etc [8].

REJECTION OF THE RECOMMENDATIONS

All the recommendations made might look relevant and foolproof at first glance. But these recommendations were provided by the high level committee within three months and were rejected. Almost all the representatives of civil societies/ NGOs and stakeholders deposed before the committee. After reviewing the opinions of these people and entities, it could be concluded that the criticisms are valid and reasonable. The foremost problem is the composition of the committee. None of the members of this committee are experts in environment related matters. The members inclusive of the chairman have never participated or campaigned in support of the environment and while some of them are bureaucrats, others merely have a legal background. Along with this, a major question is whether the Ministry of Environment, Forest and Climate Change empowered to constitute this committee because as per the rule, a high level committee can be established only by the Prime Minister of the country and not by individual ministries.  Another issue located was the transparency in the formation of the committee. The selection criterion is still unknown and non- transparent which in itself raises many questions. Considering the incompetency of the members and anonymous basis of selection, the committee has lost its worthiness and confidence of the people that it could effectively govern the environmental issues.

This draft on introducing umbrella law was open only to the people involved in it. It did not welcome public opinion which in itself is a huge question mark on democracy and the right to information. People are the ones who are most affected by environmental mismanagement and it is their voice which needs to be strengthened and not oppressed in the process[9]. These proposals were made for the general good of the society which is the part of the environment but here, public participation and opinion was silent. Ms. Sejal Worah of World Wildlife Fund for Nature India stated “the big area of concern was the issue of public participation and the project approval procedure. There are a number of things about genuine public participation, what was allowed in a public participation, who is allowed to participate, etc. The fact that people away from the actual project site might be even more affected than people near the project site and to not allow them a say in the public hearing process is completely unacceptable. There is a need to look at these clauses again because it just dis-empowers civil society in the process and it will probably lead to just more unrest and more delays and more problems”[10]. Why was there a need to hide this report from the public? This question is still unanswered.

The nucleus of the proposal was introduction of Environmental Laws Management Act (ELMA) and to merge Air Act, Water Act with Environmental Protection Act. This idea is admirable but the problem lies in its implementation. The report is vague on providing the procedure on strict implementation and governance. The present legal framework is primarily aimed to enhance environmental components but the legislations are weak, monitoring is weaker and enforcement is the weakest. Ritwick Dutta of Legal Initiative for Forest and Environment (LIFE) has stated, “It is practically impossible to subsume environmental laws in one act. It has never happened anywhere in the word and it is not only impossible to draft such legislation but also implementation will be impossible”. He is an environment lawyer who spoke against this proposal, “It is important to appreciate that environment is a complex subject and given the environmental challenges, there is an urgent requirement for more specific laws to deal with environment related problems. To subsume all laws in a single legislation is in simple words a plan that is designed to fail at the very inception itself[11]”.

ANALYSIS OF THE UMBRELLA LAW

The main aim of the draft was to reduce multiplicity of institutions and to prevent unnecessary separation of power. Ironically, this draft proposes to establish more institutions with limited and divided power. Statutory authorities such as National Green Tribunal, District courts, High courts and Supreme Court are already established and the committee recommended for the additional establishment of National Environmental Management Authority (NEMA) and State Environmental Management Authority (SEMA). Constituting additional agencies is completely irrelevant as it would simply lead to greater confusion and delay in giving judgments and the idea of “single window clearance” would be a lost cause.

The report has also mentioned about enhanced punishments under Wildlife Protection Act and Rules. Increasing the penalties will be of no use until the application of such penalties is supervised or monitored. As stated earlier, the crux issue is in the implementation. Merely tinkering of the act will not help in achieving the objective; focus should be given in strict prosecution of offenders by using existing penalties. The courts should maintain reasonable amount of rigidity while declaring the judgments along with valid ratio- decidendi.   

THE WAY AHEAD

Considering and analyzing these objections, the standing committee took the right decision to dissolve the Subramanian Committee and advised for the establishment of a new committee starting with fresh recommendations. It should be noted that the committee cannot be blamed completely for poor proposal because the time period given was not sufficient to address this complex framework. There is no plausible reason to hurry with the report without in-depth and comprehensive analysis of each and every provision of all the six acts. Parliamentary Standing Committee on Science and Technology suggested taking all the objections raised, heavily into consideration. The new committee that would be formed by concerned authority should maintain transparency in selection process and it is important that those experts become the members who are competent and have required knowledge on environment related matters along with a legal background. After a new report is formed, it should encourage public opinion because all these laws are formed for the people and if there is any overlooked factor, it can be rectified. The draft did not provide the definition of forest, thus it is important to cover up the gaps in the policy as soon as possible.   

No doubt, environment is a complex subject and unifying the laws together and forming a single legislation for it is going to very arduous. But if we successfully pass this proposal, then it is going to be a win – win situation as no country in the world has ever done that yet. Impressively, the centre has again revisited the seven year old proposal and is exploring new ways to draft the new umbrella green law. The State has been moving forward at a great pace as this proposal was declared a top priority and became a part of sixty point action plan. Sixty point action plan is a plan with sixty new ideas to be implemented ranging from reducing the cost of doing the business to amalgamating environment related legislations. This can be viewed as a positive step towards environmental governance. Under this action plan, Ministry of Environment and Forest has been asked to draft a procedure to curtail the number of clearances required, to simplify the process of providing automatic clearance and enhance the registration process. Realizing that there are numerous legislations which are overlapping each other in the environment sector, the ministry is obligated to form a plan to replace it with a circumscribed Environment Management Act. 

[1] Centre revisits 2014 panel's proposal on new umbrella green law; what you need to know, (2021), https://www.firstpost.com/india/centre-revisits-2014-panels-proposal-on-new-umbrella-green-law-what-you-need-to-know-10071791.html/amp

[2] Ministry of Environment, Forest & Climate Change, Government of India, Report HIGH LEVEL COMMITTEE to review various Acts, (2014), https://www.naredco.in/notification/pdfs/Final_Report_of_HLC.pdf

[3] The Environment (Protection) Act, 1986, § 2(a), Acts of Parliament, 1986, (India)

[4] Srestha Banerjee, Parliamentary Standing Committee rejects TSR Subramanian report on environmental laws, downtoearth, (2015)

[5] Souradh C.Valson, Everything you need to know about the Stockholm Declaration, IPLEADERS, (Aug. 20, 2022, 9:30 PM), https://blog.ipleaders.in/everything-need-know-stockholm-declaration/

[6] Ministry of Environment, Forest & Climate Change, Government of India, Report HIGH LEVEL COMMITTEE to review various Acts, (2014), https://www.naredco.in/notification/pdfs/Final_Report_of_HLC.pdf

[7]Id. at 10

[8] Centre revisits 2014 panel's proposal on new umbrella green law; what you need to know, (2021), https://www.firstpost.com/india/centre-revisits-2014-panels-proposal-on-new-umbrella-green-law-what-you-need-to-know-10071791.html/amp

[9]High Level Committee Report to Review Various Acts Administered by Ministry of Environment, Forest & Climate Change, 3, (2015), http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20S%20and%20T,%20Env.%20and%20Forests/263.pdf

[10]Id. at  4

[11] Vishwa Mohan, Government revisits proposal of 2014 panel on new umbrella green law, TOI, (2021)