Rule of policy as against rule of law

If policy decisions override statutory provisions, then such decisions are clearly questionable.

With the onset of winter, air pollution gains prominence as an issue of grave public concern. Despite its predictability, the central and the state governments have failed to take a single concrete step to deal with this environmental crisis.

An ‘action plan’ was framed to deal with the issue but in reality all that one had was only ‘plan’ and no ‘action’.  Political parties also remained silent. Just like the people who hoped that a fresh wind will blow away the polluted air, the political parties have adopted silence as the most effective mitigation measure on the issue of air pollution, or for that matter, any environmental crisis.

In such situation the people were left with no option but to approach the National Green Tribunal (NGT).  The NGT intervened directing that all the government shut down all stone crushers, construction activities, brick kilns and plying of old vehicles in the National Capital Region (NCR) for a week, in order to control the level of pollution. During the recent hearings before the NGT, the secretaries to the government dealing with environment in Delhi, Haryana, Punjab and Uttar Pradesh admitted that they have never bothered to even read the various direction passed by the NGT on  air pollution.

Before the NGT, the bureaucrats appear to be meek public servants who are subjected to political pressure and excessive work load, not to mention frequent transfers. Yet, behind the bureaucratic veil, hectic work is underway to dismantle India’s environmental law and weaken institutions. One victim of the dilution as been the requirement of prior environmental clearance for building and construction projects. It is pertinent to point out that the building and construction sector is a significant contributor to air pollution.

The existing law – the Environmental Impact Assessment Notification, 2006 – requires that all building and construction projects which involve 20,000 square metres or more should obtain prior Environmental Clearance from the State Environmental Impact Assessment Authority (SEIAA). The SEIAA is required to evaluate the likely environmental impact due to the proposed construction and decide as to whether the project should be approved or not. Any person can approach the NGT in case they want to challenge the grant of clearance or if there is violation of the clearance/ approval conditions.

Construction projects such as flyovers, bridges, shopping malls etc, require environmental clearance if the construction is equal or more than 20,000 sq m.  It is because of this provision that citizens have been able to approach the NGT to challenge ecologically unsustainable constructions, including the steel flyover and constructions on wetlands and around lakes in Bengaluru.

On December 9, the Centre issued amendments to the EIA Notification, 2006 as part of its ‘Ease of doing Responsible Business’ policy, under which it has exempted most construction up to 1,50,000 sq m from the Environment Impact Assessment process. This is mischievously called ‘Climate Resilient  Constructions’.  Strangely, there is not a word in the Notification, on how exempting construction projects from the Environment Impact Assessment process will make them climate resilient. Even more shocking is that the exemption is being justified under ‘housing for all’. The fact is that if housing for all is the purpose, why is the new notification exempting shopping malls, multiplex and office complex from the EIA process ?

Vacancies galore

At an institutional level, the NGT is functioning below its statutory strength. No new appointments have been made in recent months and out of the statutorily mandated 40 members, only 14 members are presently in office. This shortage is adversely affecting the functioning of the Tribunal. The vacancy here is an issue of serious concern. Unfortunately, when there is nearly 43% vacancy for judges in the high courts, the vacancy in the NGT does not seem to be the priority of either the judiciary or the executive.

The process of dilution of environmental laws is being undertaken to implement policy decisions of the government. The Government of India is keen to project the image that India is the ideal place to not only do business but also set up manufacturing units. There is nothing wrong in both of them. However, if the policy decisions override constitutional rights and statutory provisions, then such policy decisions are clearly questionable.

Specifically, if the policy decisions are to be implemented by diluting environmental safeguards, it will only aggravate the existing environmental crisis. Laying down red carpets for business entities, both national and MNCs, must be matched with strong safeguards for protecting the rights of the people and environment in order to protect them from the additional pollution load.

Unless, this is done, the people and ecology will end up being consumers of the toxic cocktail of air and water pollutants emitted by the industries while business entities reap profits. It will be a sad instance of the people  of the largest democracy in the world  being subjected to the ‘Rule of Policy’ rather than the ‘Rule of Law’.

(The writer is a New Delhi-based environmental lawyer)