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A Good Late Realisation

The environment minister has stated that prior clearance for projects will now be the norm. It is good that this principle has now been reaffirmed since this very ministry's established policy of giving "in-principle clearance" was illegal all along. While this change is welcome, it should also lead to punishment of those who started projects without prior clearance and have thus been in clear contravention of the laws.

COMMENTARY

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A Good Late Realisation mandate under the various environment
laws. The environment impact assessment
(EIA) notification, 2006 requires project
proponents to have “prior environment
Videh UpadhyaY clearance” (popularly referred to as EIA

The environment minister has stated that prior clearance for projects will now be the norm. It is good that this principle has now been reaffirmed since this very ministry’s established policy of giving “in-principle clearance” was illegal all along. While this change is welcome, it should also lead to punishment of those who started projects without prior clearance and have thus been in clear contravention of the laws.

Videh Upadhyay (videhup@gmail.com) is a lawyer and counsel for the Delhi Pollution Control Committee.

We now want one clearance in one go. –Jairam Ramesh

“Much needed” and “Better late

than never” are the best things

that can be said about the above recent statement of the Union Minister of State of Environment and Forests, Jairam Ramesh. It has taken a long time for an environment minister to finally realise that all the environment clearances under various environment laws had the mandate of “one clearance in one go” all along. The word “now” in the statement of the minister also shows that all these years this was one mandate that was not realised

– and hence not honoured. Thus, not surprisingly, there have been countless examples of projects, including mega projects, which commenced construction based on some “in-principle approval” policy of the Ministry of Environment and Forests, especially over the last decade or so.

To be sure “one clearance in one go” is also not a precise phrase to reflect the

October 31, 2009

clearance). Likewise, section 2 of the Forest Conservation Act, 1980 says that “...no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing…

(ii) that any forest land or any portion thereof may be used for any non- forest purpose…”. The fine point that needs to be understood here is that the policy of “inprinciple approval” – which meant that a formal prior approval under these laws would have to follow the in-principle approval at some later stage – made a mockery of the mandate under these laws. The in-principle approval was used as the basis to commence constructions. Procuring “prior approval” subsequently, under these laws, then became an empty formality. The Dibang hydro electric project in Arunachal Pradesh, where Prime Minister, Manmohan Singh had laid the foundation stone without the project having requisite approval, was just one well reported example out of the many which formed part of a dominant trend in recent years.

vol xliv no 44

EPW
Economic & Political Weekly

COMMENTARY

A closer look will make it clear that the “in-principle approval” policy cannot be sourced to any of these laws. In fact, one may safely agree with the observation that the policy was “handed out in abandon to appease the project developers even before mandatory assessment studies were completed”.1 The following words shall help appreciate better as to why exactly the “inprinciple approval” policy militates against the letter and spirit of the applicable laws.

Only Prior Clearance

It has been pointed out above that prior environment clearance is envisaged under the EIA notification, 2006 and prior approval of the central government for diver sion of forest land is mandated by the Fore st Conservation Act, 1980. Intere stingly, not very long ago, in a case before the Kerala High Court it was sought to be argued that what is intended under section 2 of the Forest Conservation Act is only “due approval” and not “prior approval”. The high court held that the argument was “wholly against the plain words contained in the Section and no Court is entitled to substitute or add new words in the place of the original words contained in the statute unless there is some ambiguity.2 …What Section 2 plainly says and intends as well is ‘prior approval’ of the Central Government”.3

The Mumbai High Court has also noted that “prior” and “previous” permission was distinct from general permission.4 The Supreme Court has also delved into the meaning of prior approval and its observations in the case of Life Insurance Corporation of India vs Escorts Ltd are especially useful for the present purposes:

... the Parliament has not been unmindful of the need to clearly express its intention by using the expression “previous permission” whenever it was thought that “previous permission” was necessary. The distinction made by Parliament between permission simpliciter and previous permission in the several provisions of the same Act cannot be ignored or strained to be explained away by us. That is not the way to interpret statutes. The proper way is to give due weight to the use as well as the omission to use the qualifying words in different provisions of the Act. The significance of the use of the qualifying in one provision and its non-use in another provision may not be disregarded.5

It was precisely the disregard of the significance of the word “prior” in the laws that allowed the policy of in-principle approval

Economic & Political Weekly

EPW
October 31, 2009

to take root. What was even more surprising is that this policy of in-principle approval was used most by project proponents in case of clearance under the Forest Conservation Act even while there were repeated orders in the Godavarman case before the Supreme Court (arguably the biggest forest court case of the world), from 1996 onwards, which made it obvious that prior approval of the central government is required for any non-forest activity within the area of any forest.6

In view of the specific nature of prior approval/clearance as the only clearance allowed under the laws, and in view of the specific procedure laid down under these laws to procure these clearances, the invention of “in-principle approval” policy have be regarded as not only improper but illegal too. This is also because it is well settled that where a law requires a particular thing to be done in a particular manner, it must be done in that manner and other methods are strictly forbidden.7 The minister may surely want that there needs to be from now, “one clearance in one go” policy but further, accepting the policy of in-principle approval as illegal will be difficult even for him. That then, at least in theory, opens the question of whether the ministry itself should be held liable for violating the mandate of the law all these years. As for the project proponents who commenced constructions in recent years with in-principle approvals without waiting for the formal approval, as envisaged under the laws, there was clearly a violation of the law. As any violation of the law must entail punishment, should not some civil liability/ environmental damages be imposed, at the very least, on these project proponents? But then do we have a legal framework than can help impose of such damages? Clearly, the acceptance that the law was regularly misread is fraught with far-reaching consequences. It is better for the minister to couch “one clearance in one go” as representing a mere policy revision rather than doing away with an illegal practice.

Notes

1 Dasgupta Debarshi, “Autumn Sonata: The Environment Minister Is on Clean Up Operation”, Outlook, 12October 2009.

2 The court further explained as follows: “A statute, even more than a contract must be construed, ut res magis valeat guam pereat so that the Intentions of the legislature may not be treated as vain or left to operate in the air” [Curtis vs Stovin, (1989) 22 QBD 513]. The said maxim means this: It is better for a thing to have effect than to be made void. [Notham vs Barnet London Borough Council, (1978) 1 WLR 220].

3 Further the court added that Section 3(1) of the Act says, “the grant of approval under Section 2” and that means it is only “prior approval”… Nature Lovers Movement vs State of Kerala, AIR 2000 Ker 131 at Para 52.

4 Goa Foundation vs State of Goa, AIR 2001 Bom 318 at Para 15.

5 Life Insurance Corporation of India vs Escorts Ltd, MANU/SC/0015/1985.

6 See for just one example, T N Godavarman Thirumulpad vs Union of lndia, MANU/SC/0278/1997.

7 M/s Golden Granites vs K V Sahnmugam, AIR 1998 Mad 150.

Stree (positive)

vol xliv no 44

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