The advancement of environmental procedural rights in India

This article delves into environmental procedural rights, encompassing the right to information, public participation, and access to justice. It discusses relevant laws and judicial decisions, such as the 1986 Act, 2006 Notification, and 2020 Draft Notification. Barriers to public participation under the 2006 Act are explored, along with accessibility to redressal fora like the National Green Tribunal established in 2010, ultimately concluding that despite statutory provisions, these rights in India are often restricted or denied.

The importance of Environmental Procedural Rights (EPRs) is widely acknowledged, serving as safeguards for a healthy environment and enhancing participatory democracy and public involvement in environmental conservation. These rights also aid in monitoring and enforcing compliance with environmental laws. In India, courts have recognized a ‘right to a healthy and wholesome environment’ for three decades, often linked to constitutional articles. Indian laws provide procedural protections for these environmental rights, including access to justice, information, and participation in decision-making processes. EPRs have gained recognition globally, with Principle X of the Rio Declaration outlining key aspects such as access to information and environmental justice. However, the Rio Declaration lacks legal binding force, leading to potential procedural rights through international legal frameworks. Inclusion of EPRs is crucial for safeguarding the right to a healthy environment, promoting citizen participation, and enhancing government accountability. A review of EPRs in India is presented, covering conceptual challenges, origin, development, and identified issues within the legal framework, with concluding remarks and suggestions provided.

India’s legal framework empowers Environmental Protection Rights (EPRs), notably through the liberal interpretation of the Constitution by the Supreme Court, enabling access to justice through PIL and the NGT. The NGT’s broad interpretation of the Rio Declaration’s principles encourages citizen engagement in environmental protection, holding both public and private entities accountable. While the NGT operates within its statutory framework, its activism extends beyond, impacting society and the economy.

The judiciary’s role in environmental preservation is significant, fostering a shift in societal attitudes through increased public awareness. Despite advancements, challenges remain, with limited efforts to fully realize procedural protections. Among these, the right to access environmental information stands out, supported by the RTI Act.

However, challenges persist, such as the inadequacies in the EIA notification process, particularly in ensuring meaningful public participation. Projects often affect tribal and rural areas, exacerbating issues of literacy and community vulnerability to promises of economic gain.

Furthermore, public hearings lack clarity and transparency, with documents often inaccessible and recommendations not binding. The judiciary has played a crucial role in safeguarding environmental rights, but legislative reforms are necessary for comprehensive integration.

Public participation remains limited due to regulatory hurdles, emphasizing the need for improved consultation processes. Access to justice, while established, faces implementation challenges, highlighting the need for legislative and procedural reforms.

Overall, while EPRs are legally recognized, substantive environmental rights in India require further legislative integration and judicial enforcement to ensure comprehensive environmental protection in India.

In addressing the outlined issues and hurdles within Environmental Protection Rights (EPRs), the authors propose several measures for improving each procedural right:

Right to Access Information: Timely compliance with RTI Act provisions and enhancing public officials’ awareness through training workshops are recommended.
Right to Public Participation: Holding officials accountable for misleading EIA reports, mandating EIA for all projects, and standardizing criteria for determining question materiality are suggested.
Right to Access Justice: Revising PIL frameworks, specifying matters entertainable via PILs, and setting criteria for costs in frivolous PIL cases are proposed.

Implementing these suggestions could bolster EPR enforcement and monitoring. Additional recommendations to safeguard public participation rights include: increasing awareness and adherence to the Pre-Legislative Consultation Policy, defining “Public Interest,” ensuring remedies for those impacted by environmental harm, transparency in citizen complaints and government responses, institutionalizing effective public participation through proactive policies, and establishing targets for participation objectives.

Source:

Gururaj Devarhubli & Alaukik Shrivastava (2024) The advancement of environmental procedural rights in India: an analysis of issues, problems and prospects, Cogent Social Sciences, 10:1, DOI: 10.1080/23311886.2024.2312949