• Procedural Environmental Rights in Indian Law 

    Shibani Ghosh and Saptarishi Bandopadhyay

    July 26, 2019

    In their effort to adjudicate complex disputes with serious environmental repercussions, involving the interplay of multiple social, economic and political factors, the Indian courts have developed a framework of environmental rights and legal principles, which now forms an integral part of Indian environmental jurisprudence. The judiciary invokes this framework creatively to identify constitutional, statutory and common law obligations of public and private actors to protect the environment, and to enforce the performance of related duties. There is, however, limited in-depth study of these crucial rights and principles in existing legal literature.

    Edited by Shibani Ghosh, Indian Environmental Law: Key Concepts and Principles fills this gap through its critical analysis of the evolution of this environmental legal framework in India. It studies the origins of environmental rights, substantive and procedural, and the four most significant legal principles— principle of sustainable development, polluter pays principle, precautionary principle and the public trust doctrine—and elaborates how Indian courts have defined, interpreted and applied them across a range of contexts.

    The following are excerpts from the chapters "Procedural Environmental Rights in Indian Law" and "Sustainable Development and Indian Environmental Jurisprudence" of the book.

    Image courtesy Orient Blackswan

    Procedural Environmental Rights in Indian Law 

    The Indian judiciary in the past three decades has recognised a 'right to environment or an 'environmental right'. Courts have provided different formulations of this right and have traced its source, expressly or implicitly, to the Constitution of India and, in particular, to three constitutional provisions Articles 21, 48A and 51A(g).1 To realise this larger environmental right, certain procedural guarantees are recognised in Indian law. These guarantees, often termed as procedural rights, are the right to access justice or means of grievance redressal, right to access information or be informed, and right to participate in decision-making processes or the right to be consulted. Although Indian courts have, on occasion, linked each of these rights to a fundamental right, giving them constitutional gravitas, these rights have evolved with considerable clarity as statutory rights outside the realm of constitutional law.

    Procedural environmental rights perform an instrumental role in securing the substantive right to environment and improving environmental outcomes.2 In the international legal context, it is said that the reluctance on part of the states at the Stockholm Conference of 1972 to recognise a substantive right to environment, led scholars and activists to consider human rights in a more ‘instrumental’ fashion while populating the environmental right.3 They identified the procedural rights to information, public participation and remedies, which already existed as political rights, as prerequisites to effective environmental protection.4 These procedural rights, understood as environmental rights, were ‘an intermediate step between simple application of existing rights to the goal of environmental protection and recognition of a new full-fledged right to environment’.5

    Subsequently, in 1992, states adopted the Rio Declaration on Environment and Development.6 In Principle 10 of the Declaration, the three procedural rights crucial for effective public participation in environmental matters were enshrined for the first time at a United Nations (UN)-wide level.7 The enunciation of these participatory rights has significantly influenced international environmental law. Before 1992, essentially no international environmental agreement included provisions that addressed the components of Principle 10. But almost all treaties adopted in or after 1992 provide for public access to information and/or public participation.8

    At the national level, procedural environmental rights are valuable not only for their instrumental role, but because they represent 'a true democratization of environmental decision-making.9 Irrespective of the final outcome, exercising procedural environmental rights could give citizens a sense of empowerment, as they would have at least some engagement with decisions affecting them.10 The rights could also bring government decisions and actions under public and judicial scrutiny, thereby increasing transparency and accountability in governance, And finally, they make environmental justice more accessible overall. Historically, disadvantaged or under-served populations that (disproportionately) suffer the adverse consequences of poor environmental decision-making have at least a fighting chance if they are guaranteed procedural environmental rights.

    Procedural environmental rights occupy a central role in Indian environmental law and litigation. Many of the landmark environmental judgments of the Supreme Court were delivered in cases which were either treated as public interest litigations (PILs),11 or in which the Court adopted unconventional techniques in its treatment of the case12—with the objective of making the judicial process more accessible and the outcome more 'just'. 

    Procedural environmental rights are also shaping present day environmental litigation and its outcome. From the availability of the National Green Tribunal (NGT) to expeditiously decide environmental cases, to the use of information disclosed under the Right to Information Act 2005 (RTI Act), to making legal and factual claims regarding effective denial of a procedural right—these rights are indispensable tools for those trying to protect and improve the environment.

    […]

    Conclusion

    As the discussion in the preceding sections demonstrates, procedural environmental rights in India find expression in a variety of statutory mechanisms.The exercise of these rights, and in particular the right to access the higher judiciary in environmental matters, has contributed greatly to the evolution of India’s environmental jurisprudence. Present-day environmental advocacy and litigation benefit significantly from the existence of these rights, and Indian courts, to the extent they have engaged in the interpretation of these rights, have been mostly sympathetic and adopted a liberal approach. But the situation is far from satisfactory. It is important to recognise the limitations in the manner in which each of the three procedural environmental rights is currently defined, and the constraints in effectively enjoying them. The potential of the ‘rights language’—to ensure that the denial of these procedural guarantees results in consequences—has hardly been realised.

    Of the three rights, the right to access environmental information is perhaps the most well-defined in law. Specific information disclosure requirements under environmental laws are complemented by the RTI Act that is applicable more comprehensively. However, the right to access information is incomplete if understood as accessibility of documents per se. The right must encompass the right of timely access to information, the right to accurate and comprehensible information, and the right to expect transparent governance (in other words, a duty on government agencies to make, or mandate, suo motu disclosures).

    Timely disclosure of information is crucial to avert environmental problems, and to allow interventions in decision- making processes at the appropriate time. It is not uncommon for infrastructure and other developmental projects to commence construction without necessary approvals and, when challenged, resort to the fait accompli argument.13 Such actions are abetted by the fact that people are not aware about the illegalities until much later. The right to information is violated if information is obfuscated in any manner, either by providing inaccurate or misleading information, or by providing it in a form or language not commonly understood by those most directly affected/interested. Statutory recognition for some of these concerns14 are accompanied by poor compliance mechanisms. Transparency in governance and reduction in information asymmetries across stakeholders needs to be recognised as an important policy goal. Decisions and decision-making processes affecting the country's environment must be opened to public scrutiny actively, and independent of external triggers (like RTI applications). Simultaneously, obfuscation of information has to be disincentivised through adverse regulatory consequences.

    On the other hand, of the three rights, the scope to exercise the right to public participation is the most limited—by definition and in practice. With the exception of the EC process, and the settlement of rights process under the Forests Rights Act, people in India have very little say in the manner in which natural resources are utilised or affected. Under the Water Act and Air Act—potentially the most far-reaching national environmental laws—there are very limited opportunities for the public to intervene, by right. Even under the EC process, the public consultation requirements are neither designed nor implemented in a manner that would ensure that people's views are actually taken into account while conceptualising or operationalising a project. These are treated as regulatory impediments which have to be overcome at least cost, and not as deliberative processes with important stakeholders. Public participation processes must not only be mainstreamed, but must also be carefully designed—inputs taken at a time which can influence the final outcome, stakeholders properly identified, and full disclosure of information relating to the decision.

    The recognition of the right to access environmental justice in India benefitted from the rich access to justice jurisprudence and the PIL mechanism that had already developed. But just as environmental cases are excellent examples to study how the Indian judiciary came to adopt an activist avatar, they also demonstrate the limitations of relying on judicial fora for improved environmental outcomes. A constitutional or statutory right to approach a judicial forum is only the first of many steps to secure justice. The right is an empty promise if the forum itself is not accessible, either geographically or due to technical requirements; if the orders of the forum are not implemented in letter and spirit; or if the forum is unable to ensure compliance of its orders.

    Procedural environmental rights are certainly on firmer legal foundation than substantive environmental rights in India. But there is hardly any space for complacency as even in their more preferred status, they are being regularly curtailed or denied.While substantive statutory revisions are required to integrate these rights in Indian environmental regulations, the judiciary, in the interim, must protect and uphold these rights even if it means going beyond the strict letter of the law—a jurisdictional crossover they have not hesitated to make in the past.


    1. See Lovleen Bhullar, 'The Judiciary and the Right to Environment in India: Past, Present and Future' in Chapter 1 of this volume; Michael R. Anderson, 'Individual Rights to Environmental Protection in India' in Alan Boyle and Michael R. Anderson (eds) Human Rights Approaches to Environmental Protection (Clarendon Press 1998) 199; Lavanya Rajamani, `The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?' (2007) 16(3) Review of European Community and International Environmental Law 274. 
    2. Philippe Cullet, ‘Definition of an Environmental Right in a Human Rights Context’ (1995) 13 Netherlands Quarterly of Human Rights 25; See also Richard Desgagne, ‘Integrating Environmental Values into the European Convention on Human Rights’ (1995) 89(2) The American Journal of International Law 263.
    3. Dinah Shelton, ‘Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized?’ (2006) 35 Denver Journal of International Law and Policy 129, 132.
    4. Ibid.
    5. Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103,117. See generally Donald K. Anton and Dinah L. Shelton, Environmental Protection and Human Rights (CUP 2011), Chapter 6.
    6. UN Conference on Environment and Development (UNCED), 'Rio Declaration on Environment and Development' (14 June 1992) UN Doc A/CONF.151/26 (Vol 1) Resolution 1, Annex I, reprinted in 31 ELM 874 (1992) (Rio Declaration).
    7. Rio Declaration, Principle 10:

    Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. 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. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. 
    See Jonas. Ebbesson, 'Principle 10: Public Participation' in. Jorge E. Viñuales (ed.) The Rio Declaration on Environment and Development: A Commentary (OUP 2015) 287. 
    8. Ebbesson, ibid., 308. See also Jonas Ebbesson, 'The Notion of Public Participation in International Environmental Law' (1998) (8)1 Yearbook of international Environmental Law 51.
     
    9. Culler (n 2) 36; Patricia Birnic, Alan Boyle and Catherine Redgwell, International Law and the Environment (3rd edition, OUP 2002), Chapter 5, 288 89.
    10. J.C. Gellers and Chris Jeffords, 'Procedural Environmental Rights and Environmental justice: Assessing the Impact of Environmental Constitutionalism' (2015) Human Rights Institute University of Connecticut Economic Rights Working Paper No. 25 <http://web2.uconn.edu/economics/working/HR125.pcif> accessed 30 March 2017.
    11. For example, Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (1985) 3 SCC 614; Indian Council for Enviro-legal Action v. Union of India, (1996) 3 SCC 212.
    12. For example, M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 (the Supreme Court took cognisance of a newspaper article reporting environmental damage); Vellore Citizens' Welfare Forum v. Union of India and Ors (1996) 5 SCC 647 (the Supreme Court gave directions for the constitution of an authority to 'deal with the situation' of pollution caused by tanneries). 
    13
    Manoj Misra v. Delhi Development Authority and Ors, OA No. 65/2016, order dated 9 March 2016, NGT (Principal Bench); Him Privesh Environment Protection Society v. State of Himachal Pradesh (2012) SCC OnLine HP 2690.
    14. For example, under the RTI Act, non-disclosure of information could result in the imposition of a penalty. Under the EIA Notification 2006, applications for EC could be rejected if information provided in the application is found to be false. 


     

    Shibani Ghosh is a Fellow at the Centre for Policy Research, New Delhi, where her research and writing focuses on environmental law and governance. She is also an Advocate-on-Record at the Supreme Court of India, and practices before the Supreme Court and the National Green Tribunal.

    Saptarishi Bandopadhyay is Assistant Professor, Osgoode Hall Law School, York University, Toronto.

    These are excerpts from Indian Environmental Law: Key Concepts and Principles edited by Shibani Ghosh and published by Orient Blackswan. Republished here with permission from the publisher. 

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