The TSR Subramanian committee made no effort to safeguard environment security. It’s pro-industry bias was never in question
The Union Ministry of Environment and Forests (MoEF) has been a
popular fall guy for the nation’s economic woes. Long delays in grant of
environmental clearance to developmental projects have been frequently
cited as one of the key reasons upsetting the national economic growth
targets. While the records do not support the said ‘popular’ belief, the
above mentioned impression has unfortunately only got reinforced with
time.
It is no one’s case that the environmental governance in the country is
all hunky dory and that it does not require a serious review and a
stream lining of the concerned laws, rules and regulations and a
tightening of their implementation machinery. So, when the new
government set up a high level committee (HLC) in August 2014 under the
chairmanship of TSR Subramanian, a former Cabinet Secretary of India and
a person known for his fair and level thinking to review key
environmental laws in the country, expectations were raised, although a
short time frame of just 2 months given to it to review six laws was
thought to be unrealistic and unreasonable for the task at hand. It was
also feared that a HLC with two retired bureaucrats and two judicial
experts might not be representative enough for the task at hand.
No wonder then that what we have as a result from the HLC is an
unacceptable report that fails to do justice to either the cause or to
meet its terms of reference. And the reason for it seems to be not just
the short time frame with the HLC and its unrepresentative membership
but perhaps also the manner in which the HLC went about its task.
HLC claims to have held consultations with NGOs/Civil Society/Think
Tanks/Industry Associations/Academia/Public
Institutes/MoEF&CC/Department of E&F, other relevant Ministries
at central level and departments at the state level etc. Visits were
reportedly made to Bhubaneswar, Patna, Bangalore, Mangalore, Hyderabad,
Ahmedabad and Chennai. But a surprising lack of any details about these
meetings, or their minutes, if any appended to the report leaves one
wondering as to the level of seriousness, transparency and any
representativeness with which the so called consultations were carried
out.
It is also claimed that the HLC carried out a desk review of land mark
Judgments of Courts on Environmental Laws of the advanced countries and
other committee reports. But whether it made any effort to fulfill its
TOR number (ii) i.e., “To examine and take into account various court
orders and judicial pronouncements relating to these Acts” is neither
known, nor reflected in the report. Because if it had, then it would
have readily come to understand that the problem lies not in delays but
an unseemly haste with which large scale environmental clearances (ECs)
have been made in the past, often based on poor and sometimes
plagiarized EIAs and hijacked public hearings, resulting in a rather
miniscule number of those ECs getting challenged and the MoEF frequently
hauled up in the various courts.
What strikes one the most is the fact that despite its obvious
limitations, while the HLC has succeeded in correctly diagnosing in
chapter 1 (Preamble), the key lacunas and ills facing the environmental
governance in the country, it has in succeeding chapters completely
failed to address the ills it itself has listed. To our understanding
the reason for it presumably is a misplaced ‘brief’ with the HLC that
what needed fixing was the ‘perceived’ slow pace of environmental
(including forest) clearances and again a ‘perceived’ over reach by
judicial forums like the National Green Tribunal.
For at the end of the day, the HLC is seen to have tried to address
little else other than the above two so called road blocks in the
economic growth story of the nation. The HLC has made its bias amply
clear when it states that its recommendations are going to make “doing
business in India, easier”. Clearly protection of the nation’s
environmental security that it identified as a key task in chapter 1,
did not remain its priority as it went about penning its later chapters
or its final recommendations, unless we equate banning polythene bags in
wildlife protected areas; legal ban on noise pollution; authorize
officers of the wildlife crime bureau to file complaints in courts;
improved handling of the municipal solid waste etc with ensuring India’s
environmental security? It has been rightly observed by some that the
nation did not require such a HLC to highlight these mundane
recommendations. Any well meaning executive would have sensed and done
it.
Of greater concern is that how can now a report from a committee that
has failed to address adequately even one of its four TORs be considered
to be acceptable?
On the other hand the HLC in a rather cavalier manner has gone about
almost redefining its own TOR, and addressing and recommending changes
in acts like the Forest Rights Act, 2006 and the National Green Tribunal
Act, 2010, none of which were part of the six Acts that it was mandated
to review.
Unfortunately the HLC in its report has laid bare not just its
misplaced biases, but also its lack of knowledge or understanding of the
provisions of the Constitution or the laws that it was trying to review
and improve. Let us take few examples.
There is no mention of ‘water’ as a State list entry in Table 1 in
the report that lists subjects related to environment in the 7th
Schedule of the Constitution?
It was factually incorrect for the report to state on page 16 that the
1988 Forest Policy required a management plan for the “environment” with
enforcement regulations. What found mention in para 4.3.2 (of the
Policy) was that “no forest shall be worked without an approved
management plan”.
It was factually incorrect for the report to mention (3.3.5 on page
17 and 18) that “the network of protected areas is classified as
wildlife sanctuary, national parks, biosphere reserve and corridors.”
The fact is that section 24-A of the WPA 1972 (as amended in 2002)
defines “Protected Area” as a national park, a sanctuary, a conservation
reserve or a community reserve notified under sections 18, 35, 36-A and
36-C of the Act. Nowhere are “biosphere reserve” and “corridors” listed
as protected areas.
It is factually incorrect for the Committee to mention that WLP Act
1972 classifies the animals in 6 schedules. Fact is that WLP Act has 5
schedules listing protected animals (mammals, birds, amphibians,
reptiles, fishes, crustaceans and insects as well as vermin) and a
schedule 6 listing protected plants.
So, while the report is replete with factual inaccuracies it has not
shied away from contradicting itself in that while on one hand it
observes that “Our businessmen and entrepreneurs are not all imbued in
the principles of rectitude – most are not reluctant, indeed actively
seek short-cuts, and are happy to collaboratively pay the ‘price’ to get
their projects going” and then goes on to suggest the induction of the
concept of ‘utmost goodfaith’ in them (derived from the insurance
industry) recommending grant of clearances to them based on their
statements, which if proved wrong could involve spot fines or a threat
of cancellation of clearance. How and why this practice if implemented
could play havoc with the nation’s environmental security (a tree once
fraudulently felled cannot be restored back to life no matter how much
the fine?) and not lead to the need of a greater inspector raj and rent
seeking (after all who is going to find out the fraud or levy a fine?)
is anybody’s guess?
Surprisingly with hardly the said mandate with it, the HLC has gone
about recommending the creation of a new All India Service, viz., an
Indian Environment Service. Now if at all necessary then why the mandate
of the existing Indian Forest Service could not be enlarged with
appropriate changes in its recruitment and training rules and needs has
not been explained despite the fact that many of the pollution control
boards in various states of the union are already being manned by the
members of the said Service?
Finally a report with a welcome promise has awfully failed to deliver,
presumably on account of the agenda that seemed to be driving it. It
thus deserves rejection with a proviso that the incomplete task of a
proper review of environmental governance in the country must be carried
out by a well constituted and truly representative HLC with a clear cut
mandate, adequate time frame and an open mind (no prior briefs or
biases)….AMEN.