Who Will Guard the Guardians? State Accountability in India's Environmental Governance

It was a dreary monsoon morning in the coal-rich areas of Sundergarh, Odisha. The Basundhara coal mines managed by Mahanadi Coalfields (MCL) is all set to expand. Sunil, an Adivasi from Tumulia village, carries a file along – an archive of the struggle that he and other community members have waged against MCL. The mine's expansion would have devastating consequences for the environment and undermine community forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). Sunil tells us that his battle for realising community forest rights entails confronting a collusive web of relationships between the state and the mining companies. Sunil cannot quite figure out why the state prioritises extraction over environmental conservation and social justice.¹ Neither could the young Fridays for Future India (FFFI) activists, who launched an email campaign to urge the environment minister to reconsider the proposed amendments to the Environmental Impact Assessment (EIA) notifications, 2006. 

Some frame India's environmental governance as a trade-off between local versus national development or environment versus development. However, as former Prime Minister Indira Gandhi stated in her historic speech at "the inherent conflict is not between conservation and development but between environment and the reckless exploitation of man (sic) and earth in the name of efficiency" (Ramesh 2010). The mantra of efficiency is often no more than an excuse for promoting crony capitalism. For example, why would the Indian government prioritise and expand coal mining when the cost of solar-powered electricity is already 14% lower than that of coal-fired power (Sanghera 2020). Understandably, the coal industry and ministry would have vested interest in perpetuating this socially regressive and environmentally degrading energy source. However, why would the Ministry of Environment, Forests, and Climate Change (MoEFCC) support these projects by engaging in a frenzy of regulatory clearances? Why is the MoEFCC so oblivious to public interests in mitigating pollution and environmental degradation more broadly? All of this points to a fundamental question that has yet to be debated adequately in India's environmental regulation and governance: Who will guard the guardians?

Along with others, we have argued that the binaries of environment and development cannot explain the failure of India's efforts to protect the environment (Menon and Kohli 2015; Kashwan 2017; Lele and Sahu 2017). Contrary to the former environment minister Jairam Ramesh, we do not believe that the fabled differences of the hedgehogs and foxes offer an accurate description of the dilemmas we face as a nation. It is not a battle between the hedgehogs, who have one big idea they pursue relentlessly, and the foxes, who are pragmatists willing to adapt to achieve their goals (Sengupta 2011). We will avoid suggesting a rival analogy that portrays a non-human species negatively. It is evident that reigning in the predatory action of powerful political and economic actors, including policymakers, industrialists, and corporations, has to be a top priority for maintaining the integrity of India's environmental regulations. India's environmental governance failures are rooted in the discretionary power and unaccountable authority that the MoEFCC enjoys in the regulation of India's environment and forests. 

Despite various policy shifts since 1980, the centralisation of the decision-making authority in the hands of the MoEFCC remains one of the main features of India's forest and environment governance. Some exclusionary conservationists and environmentalists believe that such centralised control helps maintain a strong and effective regulatory regime. Such arguments rely on a fundamental misunderstanding of what constitutes environmental governance and what makes it most effective in a large and complex society such as ours. There is no evidence to suggest that the centralisation of power and authority serves any kind of public interest, let alone serve the goals of environmental stewardship. Indeed, the centralisation of authority and the failures of public accountability mechanisms have helped push through the recent attempts to undermine the integrity of environmental governance.  The current administration's ongoing efforts to dilute the EIA guidelines and weaken the FRA are especially significant. While much attention has focused on FRA provisions related to community forest rights and local forest governance, the FRA's potential to improve public accountability in India's environmental regulatory framework more broadly has yet to be researched adequately. As we show below, it is a mistake to think of the FRA as a law relevant to forest-dependent people only. On the contrary, the FRA has a broader significance because it presents the first major statutory challenge to the heavily centralised and unaccountable environmental regulatory regime in India.

The article begins with an exploration of the MoEFCC's discretionary powers grounded in the colonial-era forest laws. We briefly touch on the role that the Supreme Court (SC) of India plays in plugging in some of the environmental regulatory framework gaps. However, our core argument focuses on the presence of accountability mechanisms related to the FRA and the recent policy efforts put forth by the MoEFCC to undermine such means of accountability, especially under the guise of "coordination" with the Ministry of Tribal Affairs (MoTA). Departing from the popular tropes that suggest inter-ministerial coordination as a means of more effective implementation of programs, we examine the implications of "coordination" between two ministries with highly unequal resources, powers, and authority. Drawing on the arguments about inter-ministerial accountability developed elsewhere (Kashwan 2017), we show that the recent restructuring of inter-ministerial coordination would erode the mechanism of ministerial accountability and state accountability more broadly. We conclude by arguing that MoEFCC and other government agencies' efforts to shun public accountability require vigorous public scrutiny. Effective public accountability is a prerequisite for the diverse goals of protecting India's environment and the environmental human rights of all Indians.  

MoEFCC: An Authority without Accountability?

The MoEFCC's view of “'forest governance” is shaped by the colonial-era Indian Forest Act (IFA), 1927, which remains the central pillar of forest governance to this date. The IFA gave the colonial forest officials absolute authority over the "natives." While the colonial forest administration sought to facilitate the exploitation of forests in the colonisers' service, post-independence era forest governance evolved to serve the goals of state-driven exploitation of forests. The enactment of the Forest (Conservation) Act, 1980 helped incorporate forest and wildlife conservation goals into forest policy documents. However, such a broadening of the policy's scope further entrenched forest bureaucracy's power and authority. The unilateral and absolute power that forest laws grant to the MoEFCC and state forest departments (SFDs) allows them to control forests and forestlands – nearly 23% of India's territory – without effective public accountability measures. Lack of accountability has undermined environmental protection goals both at the national and local levels (Kashwan 2017; Kodiveri 2018a). 

Conservation organisations invested in promoting the exclusionary and non-sustainable protected area-based conservation models have sought to portray the MoEFCC and the SFD as upholders of conservation and environmental sensibilities. Yet, the available evidence suggests that such a concentration of unquestioned power in the hands of MoEFCC or the SFD has undermined these agencies' ability to pursue effective conservation (Kashwan 2016). For example, numerous reports by the Controller and Auditor General (CAG) have implicated the MoEFCC and SFDs in mismanaging funds from Compensatory Afforestation Management and Planning Authority (CAMPA) and Green India Mission (Telang 2019; Bisht 2019). However, these reports rarely translate into the MoEFCC or SFD officials called to account for the law's frequent violation under their watch (Karthik and Kodiveri 2018). Such an utter lack of consequences for regulatory failures breeds impunity, as evident in the frequent revelations by investigative journalists, such as granting environmental clearances and approvals for forest diversion and mining without following the due legal processes (Nandi 2020). Or the MoEFCC ministers bragging about the speed and number of clearances granted instead of explaining to the public what they had done to protect the environment and public health and wellbeing. 

Judicial Interventions in India's Environmental Governance

True to its reputation as an activist court, the SC has intervened in environmental governance quite frequently. However, the net effect of this judicial activism is far from certain. In many instances, the Court has stepped in to fill major voids in the regulatory environment. For example, responding to a lawsuit filed by non-governmental organisation (NGO) Samaj Parivartan Samudaya in 2011, the SC suspended iron-ore mining in Karnataka's Bellary district (Samaj Parivartana Samudaya and Ors v State of Karnataka and Ors (2009)). Even though the Court reconsidered its decision subsequently, it ordered to shut down the mines that had encroached beyond 10% of the leased mining land. Noticeably, the SC needed to step in because the MoEFCC failed to intervene despite the Lokayukta report documenting several mines operating without necessary environment and forest clearances.² 

In a well-documented verdict in 2013, the SC recognised the rights of Dongria Kondh and other forest-dependent people to withhold consent for the diversion of forestland for a $2 billion Bauxite mining project proposed by the London-based Vedanta Resources with the state government's support (Dasgupta 2013). The SC also responded favourably to a report by the Shah Commission and a plea from the Goa Foundation to stop mining-related environmental violations in Goa (Goa Foundation v Union of India (UOI) and Ors (2012)). Similarly, responding to a case filed by NGO Common Cause, in 2017, the SC terminated leases for the mining operations that the Shah Commission had found to violate forest and mining laws (Common Cause and Ors v Union of India (UOI) and Ors (2014)). More importantly, the court instructed the government of Odisha to use the fines paid by the offending mining companies to compensate the local communities that these mining operations harmed. The SC interventions have made some impact, though the MoEFCC's regulatory framework remains seriously compromised. As a 2016 report by the CAG stated, despite the SC's instructions in July 2011, the MoEFCC failed to appoint a Regulator at the National level "to carry out an independent, objective and transparent appraisal and…monitor(ing) the implementation of the conditions laid down in the Environmental Clearance"(Ministry of Environment, Forest and Climate Change of India 2016). 

Such interventions notwithstanding, the SC does not always defend the rule of law or those who need its support the most. On 13 February 2019, the SC asked state governments to dispossess an estimated 18.9 lakh Adivasis, and other forest-dependent families whose forestland claims under the FRA were rejected, in most cases wrongfully (Sethi 2019). Swift counter-mobilisation by social activists, including via social media, forced the government to backtrack, and the SC to put its orders on hold. Over the years, the SC stances have ranged from micromanaging India's environment and natural resources (for example, its interventions in the forest sector) to a general indifference to India's progressive weakening environmental regulatory frameworks. While this is a complex question that requires deeper investigation, it is evident that the SC lacks a nuanced understanding of its role in India's environmental governance.

Public Accountability via the FRA and the MoEFCC's Counter-mobilisation 

The structure of divided jurisdiction, in which a powerful public agency's actions are monitored by another agency with equivalent statutory status, has proved effective for ensuring the accountability of public agencies internationally (Kashwan 2017). The inclusion of forest on the concurrent list of subjects in which both central and state governments have a say, could be useful for creating a productive division of powers and authority in forest and environmental governance. However, as research on 'forest federalism' shows, the MoEFCC holds disproportionate power and authority (Chaturvedi 2016). As a result, it is difficult to recall a major pro-environmental decision that resulted from the federal division of jurisdiction over forests. 

The FRA allocates important statutory powers to MoTA, making it an important actor with counter-powers that could help hold the MoEFCC accountable. The following provisions within the FRA, if implemented properly, have the potential to alter the status quo of environmental governance: (i)  MoTA is designated as the main nodal agency for FRA, which gives it an important standing power in defining the rules and strategies for the implementation and monitoring of the FRA; (ii) the implementation of FRA at the district and sub-district levels led by the district collector and elected representatives, while giving advisory roles to forest officials; (iii) locally elected FRA committees and gram sabhas have the authority to implement the FRA, including the operationalisation of the provisions of community forest rights; (iv) the FRA rules stipulate that all government agencies, including forestry agencies, must seek the free, prior, and informed consent (FPIC) of the locally elected gram sabhas before allowing non-forestry activities in areas including community forests; (v) the FRA provisions for setting up of critical wildlife habitats under Section 2(b) of the FRA, requires a truly scientific approach with transparent engagement of social activists, community representatives, and wildlife experts (see Kashwan 2016). 

The FRA offers both procedural and substantive safeguards against the enforcement of exclusionary conservation in the IFA and the Wildlife Protection Act, 1972. However, as evident from the files in the Prime Minister's Office accessed by a journalist, the MoEFCC sought "to consciously sabotage" the FRA (Rajshekhar 2009: 31). Despite the best efforts from the then Prime Minister, the MoEFCC successfully introduced a loophole in the FRA: Section 13 of the FRA states that the FRA provisions shall be in addition to, and not in derogation of, the provisions of any other law..." On the other hand, section 4 requires that forest rights be recognised despite other laws in force. Even though the spirit and the intent of FRA are clear to those familiar with its evolution, the FRA's ambiguities are a cause of confusion for many others. A senior bureaucrat, who had worked hard to implement the FRA in his capacity as the district collector in Kandhamal suggested that the FRA fails to "overcome the conflict within the forest law regime. The rights within [the FRA]…are considered forest offences within the IFA." ³ According to this official, the task of reconciling these laws falls on the local bureaucracy, which often exploits its discretionary power to serve commercial interests (Kodiveri 2018a).

These challenges are not limited to state bureaucrats. At the central level, the MoEFCC has often bypassed the FRA provisions time and again, either by trying to circumvent the FPIC requirements by resorting to the outdated and ludicrously inadequate joint forest management provisions instead of the FRA provisions of community forest rights (CFR), (Bijoy 2020). To be clear, even if the MoEFCC was concerned about wildlife conservation, the FRA's critical wildlife habitat (CWH) provisions are a much stronger tool compared to the critical tiger habitat (CTH) of the Wildlife Protection Act, 1972 (Kashwan 2016). However, because the MoTA does not command sufficient power, authority, and resources to counter the dominance of the MoEFCC, it fails to enforce the FRA's stronger environmental protections. Under the conditions, strengthening MoTA's ability to hold MoEFCC accountable, would strengthen the enforcement and efficacy of environmental governance. 

On the contrary, MoEFCC continues to weaken these relations of accountability, albeit in the guise of inter-ministerial coordination. In September 2020, the central government established an inter-ministerial coordination committee, including MoTA's Joint Secretary (FRA) and MoEFCC's Inspector General of Forests. As reported by environmental journalist Ishan Kukreti, this inter-ministerial committee plans to "draft a joint communication…to the chief secretaries of states on the need for implementation of the FRA" (Kukreti 2020b). This sounds good, especially if one could ignore the litany of MoEFCC actions directed at weakening the FRA provisions. However, a close reading of the minutes of this committee's first meeting reveals the likely motivations and effects of this seemingly positive development. 

This joint communication will ask states to report any legal inconsistencies between state laws and the FRA, which could be used to further undermine the FRA. More importantly, the  minutes refer to the settlement of forest rights in "in areas where leases had been granted to private players or forest land had been alienated for government purposes…" with specific reference to "displaced individuals/families who have not received any rehabilitation" (Kukreti 2020b). This is an overly narrow view of the rights recognised under the FRA, which includes the community rights to withhold FPIC in cases where such projects undermine the integrity of local sociocultural, economic, or environmental systems. Instead of promoting sets of rights and relationships that would foster more robust governance of forests, the coordination committee seems keen to "settle" the rights to legitimise environmentally destructive coal mining. Overall, the discussions at the coordination committee's first meeting suggest an intent to neutralise the checks and balances that the FRA introduces to strengthen the regulatory process for forest land allocation for non-forestry purposes.

The inter-ministerial committee discussions also contained some startling observations about the FRA implementation. The participants argued that "there was no conflict in terms of the legal framework for the implementation of the act," while blaming "the reluctance of the state forest departments" for problems in FRA implementation (Bijoy 2020). This interpretation seeks to exonerate the MoEFCC for its role in weakening the FRA implementation while passing the buck on to the SFDs, led by senior Indian Forest Service officials. This statement also puts the SFDs at the centre of the FRA implementation, which would be against the Parliamentary intent to keep the SFDs out of the FRA's decision-making processes. The lawmakers believed that the MOEF and SFDs had vested interests in the non-resolution of forest rights questions (Kashwan 2017). 

The FRA gives MoTA and forest-dependent communities the power to scrutinise, amend, and evaluate the various decisions and actions of the MoEFCC and SFDs. By undermining MoTA's autonomy and taking away the FRA right holders' statutory powers, the inter-ministerial coordination committee process undermines the most pro-environmental aspects of the FRA. The coordination committee's continued functioning along the lines indicated in the first meeting would further weaken public accountability within India's environmental governance.

The (In)visible Hand of Corporate Power 

The debates on public accountability are more urgent than ever before because of the many tell-tale signs of the business and industrial interests capturing India's environmental regulations. The centralisation of power and weakening of accountability is quite evident in the context of the EIA amendments proposed by the Modi government (Rathore and Kodiveri 2020). Similarly, the 'structural reforms' introduced amid the COVID-19 pandemic to allow private sector bidding for mining leases reinforce the trend of prioritising commercial interests at the cost of environmental and social interests. Yet, it would be a mistake to see such 'neo-liberal' reforms in isolation from the state-led exploitation of natural resources. 

The MoEFCC and SFDs continue to cash in on their presumed "ownership" of forestland as a means for securing international and multilateral conservation and carbon forestry investments. The now-abandoned attempts at bringing in the new forest policy included provisions that would make it easier for the MoEFCC to denotify forest areas or hand them over to private actors (Kukreti 2019). The proposed amendment to the Indian Forest Act, 1927 introduced in March 2019, included a provision for 'production forests' to allow private companies to grow commercial plantations on public forestland. After a spirited resistance from civil society, in November 2019, the MoEFCC abandoned its plans to amend the Indian Forest Act to make it more pro-industry. However, threats to India's environmental governance continue in multiple other venues, including at the state level.

Madhya Pradesh has launched a new initiative to offer forestland units, as large as 500 to 1,000 hectares, to private corporations on 30-year leases, ostensibly for more efficient reforestation operations (Dhar 2020). Going several steps beyond the private sector's involvement in commercial forestry, the state governments in Odisha and Jharkhand have created land banks, including large swathes of forestland (Kodiveri 2018b).  These land banks are designed to attract private investments and could be given to any industry, not just for the purposes related to forest development. Simultaneously, a finance ministry panel has recommended privatising prominent environment and forestry research institutions, including the Indian Institute of Forest Management (IIFM) (Kukreti 2020a).  Overall, India's environmental sector confronts the prospects of hyper-privatisation in an era defined by the ongoing climate crisis. 

Conclusion 

The recent protests against the EIA amendments, led by FFFI activists, highlighted a peculiar problem: the MoEFCC that presides over India's environmental governance seeks to hollow it out from the inside. In this, the MoEFCC has the backing of an increasingly authoritarian state, as evident from the Delhi police accusing the young FFFI activists of undermining India's "sovereignty and integrity" and threatening the use of the dreaded anti-terrorism law, the Unlawful Activities (Prevention) Act (UAPA). As the noted environmental journalist Bahar Dutt noted in her efforts to secure some media coverage on this issue, "no one in the news television business would touch the story," because the MoEFCC minister also happened to be the Information and Broadcasting minister (Dutt 2020). 

The vendetta that those in power unleashed on the young FFFI activists demonstrates the importance of our central claim: strengthening public institutions' accountability is a prerequisite for thwarting the ongoing efforts to undermine India's environmental regulatory framework. Ironically, India's regulatory regime's decimation is being carried out from within, led often by those responsible for protecting it. The SC interventions have neither been as impactful nor very innovative in democratising environmental jurisprudence as some scholars had hoped for a decade back (Sivaramakrishnan 2011). Indeed, the SC itself has demonstrated a worrying lack of respect for public accountability in recent times. Under these conditions, inter-ministerial and inter-agency checks constitute an important, yet understudied, means of public accountability. 

We have suggested here that the FRA provisions exemplify innovations crucial for the transformation of India's environmental governance. Therefore, proper implementation of the FRA is essential, not only for the goals of social justice but also for maintaining India's environmental regulations. Unless the relations of accountability between different ministries, the SC, and the CAG are determined and enforced, India's forests, ecosystems, and environment will continue to suffer. At the same time, those in power will continue to sacrifice the environment with vacuous slogans of national development. To be sure, the relations of accountability we discuss here cannot be instilled merely by enacting and enforcing legal arrangements. Public agencies' efficacy often depends very significantly on the broader political context that structure bureaucratic behaviour (Fleischman 2017; Kashwan 2017). Public accountability must be studied as a product of an entire ecosystem of actors, agencies, and institutions. That would be a worthy undertaking as strengthening public agencies' accountability is a prerequisite for ensuring the inclusivity and effectiveness of environmental regulations.