The Ministry of Environment, Forest and Climate Change (MoEFCC) before the national lockdown has issued the Draft Environmental Impact Assessment (EIA) Notification 2020 for public consideration and comments. The draft notification is issued under the powers vested in the central government under the Environment (Protection) Act, 1986 to take all such measures for “protecting and improving the quality of the environment”. India notified its first EIA norms in 1994, setting in place a legal framework for regulating activities that access, utilise, and affect (pollute) natural resources. Every development project has been required to go through the EIA process for obtaining prior environmental clearance ever since. The 1994 EIA notification was replaced with a modified draft in 2006. The proposed draft notification is to incorporate the amendments and relevant court orders issued since 2006, and to make the EIA “process more transparent and expedient.”
Key Changes under the Draft EIA
From bare reading it appears that the draft proposes new regime, which dilute EIA norms and public participation, protect project proponents, dilutes the existing mandatory provisions to discretionary ones, safeguarding violators and bring unaccountability and non transparency. However, the Government argues that the new draft notification is being brought in order to make the process more transparent and expedient by the implementation of an online system, further delegation, rationalisation and standardisation of the process. The Key features of the proposed notification include:
The draft has added almost sixty new definitions. The 2006 notification did not have any definitions clause, which made it difficult to ascertain the meaning of various terms used in the notification ;
The draft mentions two types of approvals for e.g. prior environment clearance with expert committee’s appraisal and environmental permission without an expert committee’s appraisal for different category of projects;
All infrastructure projects and activities will be divided into three categories based on their potential social and environmental impacts and the extent of such impact;
The draft proposed new expert body, namely, ‘the Technical Expert Committee’. The sole function of the TEC is categorising and re-categorising of projects as A, B1 and B2 on scientific principles on a regular basis. At present this is done by the environment ministry;
The draft exempts certain projects from public consultation. These include all building, construction and area development projects, inland waterways, expansion or widening of national highways, and modernisation of irrigation projects;
The draft allows for postfacto approval for projects, meaning that the clearances for projects can be awarded even if they have started construction without securing environmental clearances;
The draft seeks project promoter to file a compliance report once a year, explaining the activities carried out by them according to the allotted permissions. The 2006 EIA notification asks the promoters to file a compliance report every six months.
The draft proposes environment clearance validity for three phases with increased duration. The phases are construction or installation, operation and redundancy, closure and dismantling. Under the draft validity for mining projects will be increased to 50 years (currently 30), river valley projects to 15 (currently 10), and all others to 10 (currently seven);
The draft notification proposes new norm “Dealing with violation cases”, it states that cognizance of environmental violations will be taken in four ways; suo moto application of the project proponent; or reporting by any government authority; found during the appraisal by Appraisal Committee; or any violation found during the processing of the application, if any, by the regulatory authority;
The draft notification seeks to fast forward clearances by digitising the process and standardising the approvals needed.
Issues in draft EIA Notification 2020
The eighty three page long draft notification consists of various new proposals and changes, which executive needs to revisit before its finalisation for betterment of environment protection. The major issues pertaining to draft notifications are as follows:
Categorisation of Projects: Under the draft notification, all projects and activities have been divided into three categories – ‘A’, ‘B1’, and ‘B2’ based on “the potential social and environmental impacts and spatial extent of these impacts” due to which 25 red and orange industries will be moved from Category A (which needs expert appraisal) to Category B1 or B2, which requires lesser EIA processes. These industries, including chemical processing and acid manufacturing, will be brought under Category B2, which doesn’t need public consultation. Real Estate projects are exempted from environmental clearances and public consultation by adding them under the B2 category, which goes contrary to NGT directions, wherein, the exemptions give to real estate projects in 2016 under 2006 notifications were set aside.
No Consultation with States: The draft notification does away with the requirement of committees to be set up “in consultation” with state governments and gives the central government more control over the constitution of state level regulatory authorities and expert committees. The central government can appoint and dismiss the members on all the state level committees responsible for appraisals and project approvals;
Public Hearing: Public consultations are a prominent feature of the EIA. It allows all concern to come together and discuss the environment impact through a meaningful and democratic process and brings transparency in the project. In Samarth Trust v. UOI, W.P. (Civil) 9317 of 2009 the Delhi high court had considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jan sunwai, where the community is the jury.” The draft notification is to do away with the mandatory process of public consultation for a wide range of projects for e.g. irrigation, acid and fibre manufacturers, bio-medical waste treatment plants, building construction, all projects concerning national defense and security or involving “other strategic considerations” as determined by the central government. The exclusion of public consultation implies that local and indigenous communities will have no representation or platform to raise their voice or grievances. The draft also proposes to reduce the public commenting period from 30 days to 20 days and requires that the public hearing process be completed in 40 days, compared to 45 days under the 2006 notification. The reduction of time would particularly pose a problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process itself.;
Post facto Approval: The draft notification allows for post-facto approval for projects, meaning that the clearances for projects can be awarded even if they have started construction without securing environmental clearances, which violates ‘precautionary principle’ on which the EIA notification is grounded and the orders of the National Green Tribunal which had ruled against post-facto approvals. The Apex Court recently also struck down ex post fact grant of EC in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors, Civil Appeal No. 1526 of 2016, wherein the Court held that the concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994… The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. ;
Compliance: The new notification requires the promoter to submit a report only once every year. During this period, certain irreversible environmental, social or health consequences of the project could go unnoticed because of the extended reporting time. However, providing a longer period for filing reports can lead to disastrous consequences. In such a situation, the concerned authority will not have the opportunity to question the promoters for not following the terms of clearance. The only remedy would be to impose a fine or punishment; but that would not reverse the detrimental consequences on the environment. The notification requires the promoters to file the documents on which the environmental impact is to be assessed. This leaves a lot of room for promoters to pick and choose the data and information which is to be supplied.
This draft seems to be appeasing the business and economic interests over environmental interests. The draft notification if issued in current format will be a mockery for the country’s environmental jurisprudence. This will make the process of ‘environment clearance’ redundant and a rubber stamp approval. Therefore, the Government needs to revisit the entire draft notification and make its provisions more transparent, democratic, pro environment and in compliance of international norms and Court directions.
Vaibhav Choudhary, Managing Partner, YHprum Legal.
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SEBI v/s RIL : Review Petition Admitted
The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies.
The Supreme Court in the case Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors observed and has allowed for listing of the instant petition in open court.
The bench comprising of the Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari and the Justice HimaKohli observed while considering the facts and circumstances of the case and on the submissions made by the counsel in the review petition. The bench deemed it appropriate to allowe the application filled for the listing of the instant petition in open court.
Background of the Case:
The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies. In 2020, a complaint was filled by S Gurmurthy, the regulatory initiated probe into the alleged irregularities. An opinion was sought by SEBI of former Supreme Court judge Justice BN Srikrishna twice and also the opinion of a Chartered Accountant named YH Malegam.
It was requested by the RBI for disclosure of these opinions and related internal documents. The RIL filed a writ petition before the Bombay High Court, when SEBI turned the request and the same was dismissed in February 2019.
A Criminal complaint was lodged by SEBI in 2020 before Special Judge, Mumbai against RIL alleging offences punishable under SEBI Act and Regulations. The same was rejected by the Court as time-barred. A revision petition was filled by the regulatory before the Bombay High Court challenging the dismissal of the complaint. However, in SEBI’s revision petition, RIL filed an interlocutory application seeking the disclosure of the documents. The High Court adjourned RIL’s application on March 28, 2022 by stating that it can be considered only along with the main revision petition. Therefore, this led to filling of the special leave petition before the Supreme Court.
On September 29, 2022., the matter was circulated in the Supreme Court. Accordingly, the court listed the review petition for next hearing on 12.10.2022.
Case Title: Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors
Case No: W.P.(C) No. 250 of 2022 & W.P.(C) of 1167 of 2022.
Coram: Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari, Justice Hima Kohli
Date Of Order: 29th Day of September, 2022.
Supreme Court: All Women Are Entitled To Safe And Legal Abortion, Distinction Between Married And Unmarried Women Unconstitutional
On Thursday, the Supreme Court in the case X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi observed and has declared that unmarried women are also being entitled for seeking abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.
It was ruled by the Court that exclusion of unmarried women who conceive out of live-in relationship from the Medical Termination of Pregnancy Rules is unconstitutional.
The court stated while noting that the 2021 amendment to the Medical Termination of Pregnancy Act does not make a distinction between married and unmarried women, all women are entitled to safe and legal abortion.
In the present case, the issue relates to whether the exclusion of unmarried woman, whose pregnancy arises out of consensual relationship, from Rule 3B of the Medical Termination of Pregnancy Rules is valid. It was mentioned in Rule 3B the categories of woman whose pregnancy in the duration of 20-24 weeks can be terminated.
However, the distinction between married and unmarried women is unsustainable.
The bench comprising of Justice Chandrachud read out the excerpts of the judgment that if Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities. Thus, this is not constitutionally sustainable. It cannot sustain the artificial distinction between married and unmarried women. However, the women must have autonomy to have free exercise of these rights.
The Court added that the rights of reproductive autonomy give an unmarried women similar rights as a married women and the object of section 3(2)(b) of the MTP Act is in allowing woman to undergo abortion after 20 to 24 weeks. Including only married and excluding unmarried woman will be violative of Article 14 of the Constitution of India.
The Reproductive right part of individual autonomy
However, the foetus relies on the woman’s body to sustain and the decision to terminate is firmly rooted in their right of bodily autonomy. It will amount to an affront to her dignity, if the State forces a woman to carry an unwanted pregnancy to the full term.
The bench comprising of Justice D.Y. Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala in the case on August 23 had reserved judgment.
It stated that the law must be interpreted keeping in mind changing social mores
It was largely concerning the married woman, when the MTP Act was enacted in 1971 but as societal norms and mores change the law must also adopt. While changing the social mores must be borne in mind while interpreting provisions. It is indicated in social realities that the need to recognise legally non-traditional family structures.
The Judgment delivered on International Safe Abortion day.
A lawyer informed the bench that today happens to be the international safe abortion day, after the judgement was pronounced.
It was remarked by Justice Chandrachud, “We had no idea that this would coincide with safe abortion day. Thank you for informing us”.
Which are the categories of women to be included in Rule 3B?
(a) the survivors of sexual assault or incest or rape;
(b) the minors;
(c) the change of marital status during the ongoing pregnancy (divorce and widowhood);
(d) The women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) The mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such mental or physical abnormalities to be seriously handicapped; and
(g) The women with pregnancy in humanitarian settings or emergency or disaster situations as may be declared by the Government.
Accordingly, these categories were added in the MTP Rules by the Central Government following the 2021 amendment to the MTP Act, which raised the ceiling limit for termination of pregnancy.
Bombay High Court: Limitation Period Starts After Affixing Signatures On GST Registration Cancellation Order
The Bombay High Court in the case Ramani Suchit Malushte Versus Union of India and Ors observed and has held that the limitation period would start only after the affixing of signatures on the GST registration order of cancellation.
The Division bench comprising of Justice K.R. Shriram and the Justice A.S. Doctor observed and has stated that only on the date on which the signature of Respondent issuing authority was put on the order dated November 14, 2019, for the purpose of attestation and would time to file an appeal commence.
It was observed by the court that unless a digital signature is put by the issuing authority, the order will have no effect in the eyes of the law.
In the present case the petitioner/assessee assailed an order passed on August 2, 2021, but issued on August 4, 2021, by which the petitioner’s appeal was dismissed on the ground that it was not filed within the period of three months as it is provided under Section 107(1) of the CGST Act.
It was contended by the petitioner that the order in the original dated 14.12.2019, which was in the appeal filed before the respondent, had not been digitally signed. However, the said order was not issued in accordance with Rule 26 of the CGST Rules. Thus, the time limit for filing the appeal would begin only upon digitally signed orders being made available.
Further, it was specifically stated in the affidavit in reply that the show cause notice was digitally signed by the issuing authority, but when it refers to the order in the original dated 14.12.2019, there was total silence about any digital signature being put in by the issuing authority.
It was contended by the department that the petitioner could not take the stand of not receiving the signed copy because the unsigned order was admittedly received by the petitioner electronically.
However, the Court observed that if the stand of the department has to be accepted, then the rules which prescribe specifically that a digital signature has to be put in place will be rendered redundant.
Accordingly, the court while overturning the order, returned the appeal to the respondent’s file and instructing him to consider the appeal on its merits and issue whatever order he deemed appropriate in accordance with the law.
Supreme Court: Speaker Can’t Deny Pension & Other Benefits To MLAs While Disqualifying Them Under 10th Schedule
The Supreme Court in the case Gyanendra Kumar Singh and Ors. Versus Bihar Legislative Assembly Patna and Ors observed and has held that under the Xth Schedule of the Constitution, the Speaker of a Legislative Assembly does not have power to deny pension and other benefits available to a former MLA while deciding a disqualification petition against him.
The bench comprising of Chief Justice of India UU Lalit, Justice Ravindra Bhat and Justice JB Pardiwala observed while considering a set of appeals by then four JD(U) MLAs – Neeraj Kumar Singh, Gyanendra Kumar Singh, Rabindra Raiand Rahul Kumar, who were not only disqualified but was also denied for pensionary benefits on November 11, 2014 by the 15th Bihar Legislative Assembly Speaker.
The bench observed that in our our considered view, the Speaker was not within his jurisdiction to issue such directions (other than the direction of disqualification). Therefore, the court set aside the directions issued by the Speaker in Paragraph 28 of the order. The court have not gone into the question of disqualification and all questions are left open.
It was observed that since the 15th Legislative Assembly is no longer functioning, and the 17th Legislative Assembly is currently going on, the Court observed that it need not go into the basic issue that whether the order of disqualification issued by the speaker of the Assembly was correct or not.
According to the bench, before the court, the only question was to consider the effect of the directions issued by the Speaker in his disqualification order (apart from the disqualification) i.e., denying pension and other benefits.
During the hearing, the counsel, Senior Advocate Devdutt Kamat appearing for the appellants submitted that the directions issued by the Speaker on November 1, 2014 went beyond the scope of his powers.
The Counsel, relied on the Supreme Court decision in the case Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka Legislative Assembly, the operative part of which reads that in exercise of his powers under the X schedule, the Speaker does not have the power either to indicate the period for which the person would stand disqualified or to bar any person from contesting in election.
Adding to it, the court asked the opposing counsel that, where does the Speaker get the power that pension can be withheld?
It replied, “They have been disqualified and that the same consequences flow in”.
The Court orally observed that we need not go into the issue of disqualification on the ground that whatever is there, whatever happened in Rome, happened there and once you come out and it’s not there…It’s not a permanent disqualification or a debarment or something. All it has been said by him is that the pension need not be stopped.
The Counsel, Kamant added, “Pension and other emoluments”.
It was stated by the speaker that the above 4 Hon. Members will not get any facility and that is not sanctioned.
Chhattisgarh High Court Clarifies: Writ Petition Can Be Dismissed Even After Admission; Alternate Remedy
The Chhattisgarh High Court in the case Mangali Mahinag v Sushila Sahu observed and has made it clear that there is no such rule that a writ petition, once admitted and it cannot be dismissed on the ground of availability of an alternative remedy.
The bench comprising of Justice Arup Kumar Goswami and Justice Deepak Kumar Tiwari observed that as proposition of law it cannot be countenanced that once a writ petition is entertained and admitted and the same cannot be dismissed on the ground of availability of the alternative remedy at the time of hearing.
Against the order of a single judge, the instant writ appeal was preferred wherein dismissing the writ petition filed by the Appellant on ground that there was an alternative remedy available.
It was observed that both the Appellant and Respondent had applied for the post of ‘Angwanwadi Karyakarta’. However, the petitioner was declared successful in the selection process, the Collector had set aside his appointment on an appeal made by the Respondent. Aggrieved with the same, the Petitioner had approached the writ court.
After admitting the petition, the Writ court relegated the Petitioner to avail alternative remedy. Thus, this appeal.
The petitioner relied on the case Durga Enterprises (P) Ltd. & Anr v. Principal Secretary, Govt. of UP & Ors., wherein the Supreme Court had held that the High Court having entertained the writ petition, in which pleadings were also complete, ought to have decided the matter on the merits instead of relegating the parties to a civil suit.
On the other side, it was argued by the State that there is no proposition in law that once a writ petition is admitted, the petitioner cannot be asked to avail alternative remedy. Further, it was submitted by the respondent that the facts and circumstances of each individual case will determine whether the Court would decide the writ petition or the petitioner would be asked to avail alternative remedy.
It was concurred by the High Court with the State’s submissions. The Court observed that the findings in Durga Enterprises (supra) were based on the fact that the writ petition was pending for a long period of 13 years.
Similarly, the court observed in the case State of UP v. UP Rajya Khanij Vikas Nigam Sangharsh Samiti that the issuance of rule nisi or passing of interim orders is a relevant consideration for not relegating the petitioner for availing an alternative remedy if it appears to the High Court that the matter could be decided by a writ Court.
In both the case, it was observed by the High Court that the Supreme Court did not lay down as a proposition that invariably whenever a writ petition is admitted, the matter has to be heard on merit and the writ Court cannot exercise discretion to relegate the petitioner to avail an alternative remedy.
Accordingly, the Court dismissed the writ appeal.
SC to begin hearing 300 oldest cases from Oct
In an effort to resolve pendency of cases in the Supreme Court, Chief Justice of India Uday Umesh Lalit issued orders on Wednesday asking that 300 of the oldest cases from October be listed for hearing.
The oldest such pending case dates back to 1979, and over 20 cases are from the period of 1990 to 2000.
The notification released by the Registry of the Supreme Court on Wednesday said, “Take notice that 300 oldest after notice matters of which list is appended below are likely to be listed before the courts on non miscellaneous days beginning Tuesday, October 11, 2022.”
The cases that will be listed also include a PIL that was filed in 1985 by lawyer and environmental activist MC Mehta and kept languishing in the Supreme Court’s records for almost 37 years. Most of the cases have either lost their significance as a result of the passage of time or because the immediate issue they attempted to address in their petitions was resolved long ago. However, these petitions persisted in the SC docket, increasing the Supreme Court’s statistics on cases still pending.
As of September 1, the Supreme Court has 70,310 cases outstanding, according to information posted on the court’s website.
The Chief Justice of India’s most recent ruling is a continuation of his efforts to clear out old cases and Constitution bench cases from the court system. Every Tuesday, Wednesday, and Thursday since becoming CJI on August 27, Justice Lalit has scheduled normal issues, which are older cases that have been lingering for more than ten years, in the morning session while the second half of the day is reserved for hearing of new matters.
To handle the majority of the 493 Constitution Bench cases (including connected cases) in the top court, CJI Lalit also formed five separate Constitution Benches, each with five judges. Of these, 343 are five-judge bench matters, 15 are seven-judge bench matters, and 135 are nine-judge bench matters.
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