The government’s refusal to make the draft Environmental Impact Assessment accessible in regional languages is a violation of the fundamental rights of Indians and also a violation of India’s international obligations
While the entire world is coping with the novel coronavirus disease (COVID-19) pandemic, our government is trying its best to finalise that the Draft Environmental Impact Assessment Notification 2020 (Draft EIA 2020).
In this article, I will attempt to show the sheer disregard the government and specifically, the Union Ministry of Environment, Forest and Climate Change (MoEF&CC), has shown to its statutory mandate, orders of our constitutional courts and the fundamental rights of its citizens due to its failure in making the Draft EIA available in vernacular languages.
Let’s understand the chronology
The Union government published the Draft EIA 2020 Notification in the official gazette on April 11, 2020. (According to its statutory mandate, there was a 60-day notice period for objections to expire on June 11)
This notification was only published online and only in English and Hindi, with no translations into India’s other languages. If we look at the 2011 population census, we find that only 43.65 per cent of our population speaks Hindi or English as their mother tongue.
Furthermore, the data released by the Telecom Department of India in 2019 shows that only 25.36 per cent of the rural population of India (the ones who will be most affected by EIA 2020) have access to the internet. Let’s come back to this later.
Proceedings before Delhi High Court
On June 8, the MoEF&CC decided to extend the notice period by a further period of 60 days (which would be August 11). However, the cut-off date was arbitrarily fixed as June 30.
This anomaly was brought to the notice of the Delhi High Court, that extended the notice period to August 11, while also directing the government to translate the EIA notification into the other languages listed in the Eight Schedule of our Constitution to ensure effective dissemination of information, within 10 days of the order. Almost two months have passed since and the order has not been complied with, in clear contempt of the court’s direction.
Source: Delhi HC Order in W.P.(C) No.3747/2020 on 30.06.2020
Proceedings before Karnataka High Court
Meanwhile, another petition was filed before the Karnataka HC, praying for the notice period to be extended till December 31. It also prays for directions to be issued to MoEF&CC to publish a draft in all vernacular languages, in websites of state pollution control boards, in leading newspapers in all states in all languages to allow citizens to effectively comment on the draft.
On the second hearing of the petition, the government submitted that it had directed the State Environment Impact Assessment Authorities (SEIAAs) to publicise the EIA notification in local languages.
Source: Karnataka HC Order in W.P. 8632/2020 on 16.07.2020
On July 22, in a shocking U-turn, the government filed an objection against the prayer for translation of the EIA 2020 in all vernacular languages of India. The government sought to argue that the Official Languages Act, 1963, prohibits publication in local languages — an argument which was not raised before the Delhi HC at all and not even in the hearing prior to this, before the Karnataka HC.
The Karnataka HC heard the petition again on July 23, wherein it observed that the objection filed by the government was in clear contradiction of the court’s earlier order.
The court prima facie refused the government’s objections that the Official Languages Act, 1963, based on the Official Languages Act, 1963 and it noted that the notice period for EIA 2020 should be extended to allow SEIAAs to translate the draft in the vernacular languages.
On August 5, the Karnataka HC asked the status of translations but the response of the Union government was again inconsistent to its stand.
The HC noted that prima facie it appeared that the rights of the citizens of raising objections to the Draft had been taken away. It granted limited interim relief and restrain the respondents from publishing final notification on the basis of the impugned Draft Notification 2020 till September 7.
No Intention to Translate: Why?
Instead of falling in line and complying with the orders of two high courts, the government decided to prefer an appeal against the Delhi HC’s order, 18 days after the period laid out by the Delhi HC to carry out translations lapsed.
The Supreme Court in the appeal, allowed the government to file a review petition before the Delhi High Court and stayed the contempt proceedings initiated by the Delhi HC (the high court had issued notice in contempt proceedings because of the government’s failure to publish the draft notification in regional languages).
Why public participation is important
I would argue here that the government’s refusal to make the draft EIA accessible in regional languages is a violation of the fundamental rights of Indians and also a violation of India’s international obligations.
The Supreme Court has held that it is important to publish subordinate legislation suitably, this is because, while acts of legislature are debated and passed in Parliament by authorised representatives of India, the subordinate legislations are passed by authorities and thus need widespread publication. [DB Raju vs. HJ Kantharaj, (1990) 4 SCC 178 Para 14, BK Srinivasan vs. State of Karnataka, (1987) 1 SCC 658 Para 15]
Further, the Supreme Court has held publication of subordinate legislation is a requirement of the principles of natural justice, which are a part and parcel of Article 14 [Union of India vs. Tulsiram Patel, (1985) 3 SCC 398 Para 95]
The government’s refusal to publish the EIA notification in the regional languages is thus a violation of Article 14.
Article 19(1)(a) protects the right to receive information. This includes the right to be aware of the law. The purpose of the right is to enable citizens “to take part in participatory development in the industrial life and democracy.” [Reliance Petrochemicals Ltd vs. Indian Express Newspapers, (1988) 4 SCC 592 Para 34]
The government’s refusal to publish the EIA in vernacular languages directly affects this right of citizens who do not know Hindi and English, which according to the 2011 census is around 56 per cent of our population.
The courts have held that the right to information and community participation necessary for the protection of the environment and human health is an inalienable part of Article 21. [Research Foundation for Science Technology National Resource Policy vs. Union of India, (2005) 10 SCC 510 Para 37]
By refusing publication in vernacular languages, the government is taking away the right to effective public participation in the discussion on a notification that will change the entire landscape of environmental protection in India.
This Agreement, to which India is a signatory, states in Article 12 that: “Parties shall cooperate in taking measures, as appropriate, to enhance climate change education, training, public awareness, public participation and public access to information, recognising the importance of these steps with respect to enhancing actions under this Agreement.”
Principle 10 of the Declaration states: “At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available.”
Both these international conventions emphasise on the importance of public participation in decisions on environmental policies, and the government is in clear violation of these obligations as less than a week from the deadline for the notice period, it had refused to make EIA 2020 available in vernacular languages.
It can only be hoped that the Supreme Court of India and the several High Courts hearing the related matter, rise to the occasion and do the needful — which is to remind the MoEF&CC of its responsibilities, legal and otherwise.
It has to be held to be in contempt of the Delhi HC order and immediate translation of Draft EIA 2020 should be ordered in all 22 languages in the 8th Schedule of the Constitution.
The notice period should be extended until at least the end of the year, or 60 days from the date on which the last translated version is released in the public domain. This will allow all citizens of this country to understand what the draft projects as our environmental goals and they may raise objections, as they have a right to under the law.
By stifling public discourse and disregarding judicial processes, it is only giving more credence to the notion that it will push through the draft notwithstanding the genuine concerns that are being raised and this should not be acceptable in a democracy.
Pranav Narsaria is a lawyer practicing in Mumbai
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