By Armin Rosencranz, Preeta Dhar and Nirmal John
During the two years of the Modi Government, there have been substantial changes in the framework of environmental regulation in India. These are briefly highlighted and discussed below:
Recognition of important issues
Soon after assuming office, the Ministry of Environment and Forests was changed to the Ministry of Environment, Forest and Climate Change. In a related measure, the name of the Ministry of Water Resources was changed to the Ministry of Water Resources, River Development and Ganga Rejuvenation. The change in nomenclature seems to signal a new attention to climate change, river ecosystems and the rejuvenation of the Ganges.
International environmental negotiations
India has signed the Paris climate agreement and has actively worked on a bilateral and multilateral basis to commit to new and renewable sources of energy. The International Solar Alliance – launched by India and France – is an important milestone. At the domestic level as well, new and renewable sources of energy have been supported and incentivized.
Waste management issues
The Swachh Bharat mission is a national campaign by the Modi Government to clean the streets, roads and infrastructure of the country. The Ministry has also substantially revived the legal framework for waste management. Most prominently, the Solid Waste Management Rules, 2016 which replaced the 2010 Municipal Solid Waste Rules, are much wider in its application – and necessarily so. New rules on hazardous wastes, plastic waste and electronic wastes have been introduced as well, replacing earlier rules on these issues.  In addition, the Government has notified the new Construction and Demolition Waste Management Rules, 2016. These rules are, by and large, a significant improvement over the existing legal framework for waste management.
The Ministry has made some positive introductions for industrial norms. For instance, polychlorinated biphenyls have been banned and phased out.  A draft notification has been issued for the regulation of lead content in household and decorative paints to 90 ppm.  Revised standards for coal based thermal power plants contain significant improvements on water consumption and particulate matter impacts.
Environmental issues and concerns
Destruction of natural habitats
There has been, on the whole, a greater pressure on natural habitats over the last two years. While there has been some discussion of protecting certain wildlife species, the emphasis has been restricted to population statistics, poaching and illegal trade. The general natural habitat – particularly protected areas and wildlife corridors – are facing increasing pressures from development projects.
While the draft National Wildlife Action Plan acknowledges the need for strengthening and improving the Protected Area Network, the development of industrial activities and projects has had a contradictory effect in such areas. The development of river basins for large hydropower projects in dense clusters leads to fragmentation of migration paths of important aquatic species. Proposals for mining in dense forest areas of Madhya Pradesh, Chhattisgarh and Uttar Pradesh threaten tiger habitats and corridors.
Ambitious projects like the Sagarmala project for development of ports, inter-linking of rivers and inland waterways have been actively promoted without adequately addressing the concerns raised regarding improper planning, the lack of viability and the irreversibility of potential environmental impacts. Such development activities without an assessment of their impact on critical ecological and wildlife areas pose a fundamental and intrinsic threat.
Quality of approvals assessed only in terms of ‘speedy clearance’
The thrust of this Government has been to modify environmental norms to enable ease of doing business. The recommendations of the High Level Committee (HLC) set up under T.S.R. Subramanian in August, 2014 are heavily aimed at “making doing business easier in the country”. To illustrate, the issue of environmental clearances is discussed primarily in terms of the speed of granting clearances.
The primary indicator for the performance of the Environment Ministry is effectively the number of projects granted clearance, and the period taken in the process of granting clearance. In a public statement, the Environment minister highlighted the work of the department by stating that 943 projects entailing investments worth Rs 6.72 lakh crore received environmental clearance in the last 20 months, and that the time taken for giving environmental clearance was reduced from 600 days to around 192 days.
Emphasizing ‘speedy clearance’ comes at the cost of relaxation of some of the nation’s Environment Impact Assessment (EIA) processes, including removal of the requirement of public hearing for certain types of projects.  A circular was issued restricting the seeking of additional studies and information beyond those prescribed at the time of issuing the Terms of Reference of the EIA study.
The EIA process, a vital tool for ensuring planned and sustainable development, should be assessed in terms of the quality of approvals and not the quantity and the speed of such approvals.
Poor implementation and further dilution of existing frameworks
Important legal requirements prescribed under different laws have not been implemented. For instance, the process of recognition of forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, has been poor. In some instances, recognized forest rights have been cancelled because of the conflict over natural resources by traditional forest communities and industries. 
The mapping of the coastal areas, preparation of the Coastal Zone Management Plans and identification and planning of ‘Critically Vulnerable Coastal Areas’ under the Coastal Regulation Zone Notification 2011 have not been done. The recommendations of a carrying capacity study of the coastline and a cumulative impact of the existing and proposed developments – which was recognized as a preliminary requirement before considering any new projects  – have been ignored.
Not a single State has identified ‘protected wetlands’ under the Wetlands Rules, 2010. Even the Ramsar sites included in the schedule are under threat due to the lack of adequate measures to protect wetlands.
The requirement of ‘Eco-Sensitive Zones’ around Protected Areas to act as a ‘buffer zone’ has been, in many cases, reduced to a meaningless formality. These Eco-Sensitive Zones, initially conceived to be of at least 10 km around the boundary of Protected Areas – in practice is frequently reduced to as little as 20 meters.
Greenwashing – Semantics vs Reality
There are also measures for using semantics to downplay the environmental impacts of certain activities. For instance, in June 2015, the Environment Minister Prakash Javadekar suggested terming diversion of forests to ‘reforestation’  – on the assumption of successful compensatory afforestation that has remained largely on paper.
In a recent categorization, certain industries which have been described a ‘practically non-polluting’ have been categorized as ‘white industries’. These industries would not even require consent to operate from the State Pollution Control Boards. Some of these industries, like mini hydel projects, which could have disproportionate impact on the environment and fragile ecosystems, have been removed from the regulatory purview entirely.
Transition in the NGT
Since the Modi government’s election in May 2014, the powers with which the National Green Tribunal has been vested by Parliament appear to have weakened significantly. In the process, it has only served to highlight the pro-business stance of the Bharatiya Janata Party (BJP). The draft Environment Laws (Amendment) Bill, 2015 published by the Ministry of Environment, Forest and Climate Change (MOEFCC) gives the executive more power at the expense of the NGT. In particular, the proposed Bill creates a two-person adjudicating authority, independent and separate from the NGT.
Additionally, the bill has curtailed the right that citizens have to approach the NGT, and instead encourages them to make use of the remedies offered by this two-person adjudicating authority, whose power and functions are yet to be clarified. Previously, the National Green Tribunal had given the term “Aggrieved Person” a wide interpretation, thereby giving any and every citizen the right to approach any NGT with complaints of breaches of environmental laws. Samata v. Union of India is one such case which clarified who is an aggrieved person.
Finally, the NGT has lost the political support that would have been vital in helping the body with the power it has to assess substantial environmental damage. A classic example of this lack of support is the recently concluded Art of Living Foundation, where the National Green Tribunal imposed a fine of 5 crore rupees for environmental damage. The Foundation refused to pay this fine despite the fact that the foundation has assets worth 200 crore and 80 crore in revenue. In this case, it appears that the Foundation rather than the NGT received political support for an event that was clearly in violation of the NGT orders. Furthermore, the NGT was quick to point out that there were various government agencies that colluded to allow the event to take place. It was attended by the likes of the Delhi Chief Minister Arvind Kejriwal, Prime Minister Modi and several of his cabinet colleagues.
Since the Modi government assumed power, there have been numerous occasions where judges in the Supreme Court have taken the lead in shaping policy. The judges have exercised this sort of authority on matters related to bullfighting, the size of the Simla airport, a tax on commercial vehicles entering the national capital, the legality of 4G mobile phone licenses and perhaps most controversially, the Court struck down a constitutional amendment that would give politicians a role in picking judges — the landmark NJAC judgement.
More recently, the Supreme Court has passed a series of orders to check pollution levels in the nation’s capital. While the Supreme Court appears to have understood the importance and need for clean air, the directions that they have issued has thrown the concept of separation of powers into disarray. Under our Constitution, there is a broad separation of powers between the judiciary, executive and the legislature. None of the organs of the state are to encroach into the domain of another. However, the Supreme Court in Ram Jawaya Kapur v. State of Punjab observed that the Indian Constitution has not recognized the doctrine of separation of powers in its absolute rigidity but has differentiated the roles of the different branches of the Government. Although the doctrine of separation of powers has not been recognized under the Indian Constitution in its absolute rigidity, the framers of our Constitution have elucidated the functions of various organs of the state and no organ is to usurp the functions assigned to another. While it is quite clear in this case, that the executive has failed in effectively carrying out its function (to check air pollution), the Court can only go to the extent of directing the executive to exercise its function.
The Diminishing Influence of Right to Information (RTI)
Since the BJP came to power, there appears to have been deliberate attempts to restrict access to information. According to an annual report made by the Central Information Commission (CIC) for the annual year 2014-15, the number of instances where information was denied for reasons other than those permitted under the Act has risen. The CIC has stated that out of the 755,247 RTI applications that were received between 2014-2015, nearly 8.4% of these were rejected, up from 7.2% in the previous year. Furthermore, whatever information has been given to applicants in recent times has been far from satisfactory. Needless to say, the little information that the commissioners disclose were not provided in a timely manner nor do the commissioners seem committed to ensuring transparency. The commission has itself been reluctant to impose penalties on officials delaying grants of information to those seeking them. The numerous instances of denial of RTI to applicants poses a danger for those who are making active attempts to safeguard the environment. The Right to Information intended to equip every Indian citizen with a tool to fight individual battles that are of socio-economic and political relevance.
The Right to Information is an especially useful tool in ensuring environmental protection because it enables citizens to question polluting units and regulatory bodies. The position of central Chief Information Commissioner (CIC) has remained vacant since August 2014. In the CIC’s absence, 39,582 appeals were pending before the commission between August 2014 and May 2015. The lack of transparency over these last two years has meant that few have been able to pressure public authorities to close certain polluting units; stop projects that could harm the environment; pressure public authorities to adhere to norms and standards prescribed by the regulatory bodies; and compel officials to face the risk of being exposed for violating environmental norms. These RTI restrictions seem a deliberate attempt on the part of the Modi government to weaken the influence and power of the RTI.
On balance, it seems clear that the environment has been superseded by development through the Modi government’s actions and inactions over the last two years.
Armin Rosencranz is Professor of Law, Jindal Global University. Preeta Dhar is a graduate of National Law School, Bangalore. Nirmal John is a 4th year student at Jindal Global Law School.
- The Hazardous and Other Waste (Management and Transboundary Movement) Rules, 2016 replacing the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008; the Plastic Waste Management Rules, 2016 replacing the Plastic Waste (Management and Handling) Rules, 2011 and the E-Waste Management Rules, 2016 in supersession of the E-waste (Management & Handling) Rules, 2011.
- Regulation of Polychlorinated Biphenyls Order, 2016
- Regulation on Lead contents in Household and Decorative Paints Rules, 2016
- Projects located within industrial estates and parks, expansion of coal mining projects
- Nitin Sethi, “Chhattisgarh Govt Cancels Tribal Rights over Forest Lands”, 18 February, 2016, Business Standard, available at http://wap.business-standard.com/article/bs/chhattisgarh-govt-cancels-tribal-rights-over-forests-to-facilitiate-coal-mining-116021601327_1.html
- OM No. 15-3/ 2009-IA.III dated 21 August, 2009, available at http://www.moef.nic.in/sites/default/files/OM_coast.pdf
- Jay Majoomdar, “Don’t say ‘diversion’ of forest land, say ‘reforestation’, says Prakash Javadekar” The Indian Express, 29 July, 2015. Available at http://indianexpress.com/article/india/india-others/dont-say-diversion-of-forest-land-say-reforestation-prakash-javadekar/