ENVIRONMENTAL IMPACT ASSESSMENT DRAFT NOTIFICATION

2020: AN ECLIPSE OF ADIVASI RIGHTS IN INDIA

Keywords – Environment, EIA, Adivasi, Industries

Table of Contents:
1. Abbreviations
2. Index of Cases
3. Abstract
4. Introduction
4.1 The EIA process
4.2 Forms of Impact assessment
5. Historical development of EIA
6. Cases that formed EIA
7. Why is there a need for an environmental assessment?
8. Current Scenario of EIA in India
9. Adivasi’s rights and Environmental Impact Assessment
10. Conclusion and recommendations
11. References
1. Abbreviations:

1. EIA – Environment Impact Assessment

2. HIA – Health Impact Assessment
3. SIA – Social Impact Assessment
4. SEA – Social Environmental Assessment
5. NEPA – National Environmental Policy Act, 1970
6. OECD – Organization Economic Corporation and Development
7. UNCED - United Nations Conference on Environment and Development
8. Espoo - Convention on Environmental Impact Assessment in Transboundary
Context
9. LPG – Liberalization, Privatization and Globalization
10. MoEFCC – Ministry of Environment, Forests and Climate change
11. EC – Environment Clearance
12. EPA – Environment Protection Act, 1986
13. NGT – National Green Tribunal
14. OIL – Oil India Limited
15. PIL – Public Interest Litigation
16. FRA – Forest Rights Act, 2006
17. PESA – Provisions of the Panchayat (Extension to Scheduled Areas) Act, 1996

2. Index of Cases:
1. Narmada Bachao Andholan vs State of Madhya Pradesh – [2000] 10 SCC 664
2. Union Carbide Case – 1990 AIR 273, 1989 SCC (2) 540
3. Utkarsh Mandal vs. Union of India – (9340) of 2009 DH
4. Adivasi Majdoor Kisan Ekta Sangathan and Another v. Ministry of Environment and
Forest and Others - Appeal No. 3/2011 (T) (NEAA No. 26 of 2009). The judgment of
Principal Bench of the National Green Tribunal on 20 April 2012.
5. Common Cause v. Union of India – MANU/SC/0821/1994
6. Alembic Pharmaceuticals vs Rohit Prajapati & Ors. – (2020) 4MLJ 277
7. T. Murugandam v. Ministry of Environment and Forests - MANU/GT/0033/2012
8. Ossie Fernandes v Ministry of Environment and Forests - MANU/GT/0035/2012
9. Vikrant Tongad v. Union of India - MANU/DE/1326/2020
3. Abstract:

Environmental Impact Assessment1 is defined as a study to assess the effect of a proposed

activity or a project on the environment. The social, cultural, environmental and health effects
are considered as an integral part of the environmental assessment process. It is assumed and
understood that with the practice of environmental assessment, there could be prevention,
mitigation and offsetting the adverse effects of the proposed undertakings. The purpose of
EIA is to provide information for decision making on the environmental consequences of
proposed actions. Additionally, it serves to promote environmentally sound practices through
the identification of appropriate enhancement and mitigation measures.

The EIA is practised in many developed and is being adopted by developing countries. India
in the year 1994 has adopted a legislation for the environmental impact assessment under the
Environmental (Protection) Act of 1986 and subsequently the legislation was amended time
to time with growing needs of the country through various notifications. In 2020 a draft
notification was published which supersedes the 2006 notification.

The new notification exempts a list of projects from previous requirements-mainly projects
involving renewable energy, solar thermal power projects, coal and non-coal mineral
prospecting. Further, the latest EIA notification endangers public participation. The period
for public consultation is reduced from 30 days to 20 days. This reduction could exclude
some marginalized groups of people from consultation.

This paper aims to understand the need for environmental protection by understanding the
assessment process and the forms of impact assessment. This paper tries to understand the
historical development of the Environmental Impact Assessment and the situations that led to
adopting this legislation in India. Further, an analysis is made on the new draft notification of
2020 and tries to enumerate and highlight the rights of Adivasi’s which are at stake through
the draft notification published by the Government in early 2020.

The paper concludes by providing suggestions on how Environmental Impact Assessment

whilst being necessary must be mindful of sustainable practices especially, in times of
ecological distress as well as protect the rights of communities from industrial takeover.

1
Definition from the Centre for science and environment, https://www.cseindia.org/understanding-eia-383
4. Introduction:
The Environmental Impact Assessment (EIA) proposes measures to mitigate the adverse
effects and predicts whether there will be significant adverse environmental damage even
after the criteria for mitigation are implemented.
It is understood that by considering the environmental assessment and their mitigation in the
early project planning, environment assessment could help in the protection of the
environment by creating optimum utilization of resources and conserving the rights of the
marginalized sections of the society which live on the use of natural resources by promoting
community participation.

4.1 The EIA Process

The environment impact assessment consists of eight steps, with each step equally crucial in
determining the overall performance of the project. Typically, the EIA process begins with
screening to ensure time and resources are directed at the proposals that matter
environmentally and ends with some form of follow up on the implementation of the
decisions and actions taken as a result of an EIA report. The eight steps of the EIA process
are presented in brief below:

 Screening: First stage of EIA, which determines whether the proposed project,
requires an EIA and if it does, then the level of assessment is required.
 Scoping: This stage identifies the key issues and impacts that should be further
investigated. This stage also defines the boundary and time limit of the study.
 Impact analysis: This stage of EIA identifies and predicts the likely environmental
and social impact of the proposed project and evaluates the significance.
 Mitigation: This step in EIA recommends the actions to reduce and avoid the
potential adverse environmental consequences of development activities.
 Reporting: This stage presents the result of EIA in the form of a report to the
decision-making body and other interested parties.
 Review of EIA: It examines the adequacy and effectiveness of the EIA report and
provides the information necessary for decision-making.
 Decision-making: It decides whether the project is rejected, approved or needs
further change.
  Post monitoring: This stage comes into play once the project is commissioned. It
checks to ensure that the impacts of the project do not exceed the legal standards and
implementation of the mitigation measures are in the manner as described in the EIA
report. 2

4.2 Forms of Impact Assessment

There are various forms of impact assessment such as Health Impact Assessment (HIA) and
Social Impact Assessment (SIA) that are used to assess the health and social consequences of
development so that they are taken into consideration along with the environmental
assessment. One of the forms of impact assessment is a strategic environmental assessment,
which is briefly discussed below:
i. Strategic Environment Assessment
Strategic Environment Assessment (SEA) refers to the systematic analysis of the
environmental effects of development policies, plans, programmes and other proposed
strategic actions. This process extends the aims and principles of EIA upstream in the
decision-making process, beyond the project level and when effective alternatives are still
open. SEA represents a proactive approach to integrating environmental considerations into
the higher levels of decision-making.3
ii. Health Impact Assessment
Health Impact Assessment (HIA) provides a framework and procedure for estimating the
impact of a proposed programme or policy action on a selected environmental health issue for
a defined population. HIA seeks to improve the quality of policy decisions by evaluating the
likely positive and negative health impacts from proposed programmes or policies and
making recommendations to enhance positive health impacts and mitigate negative ones. HIA
stresses the participation of public stakeholders and provides for a social model of health and
well-being in which there is an explicit focus on equity, sustainability and social justice, and
a commitment to openness and public scrutiny4

The legal, methodological and procedural foundations of EIA have their roots at the National
Environmental Policy Act, 1970 (NEPA) in the United States. At an international platform
lending banks such as the world bank, OECD, Asian Development Bank and other major

2
https://www.env.go.jp/earth/coop/coop/materials/10-eiae/10-eiae-3.pdf
3
http://www.unece.org/fileadmin//DAM/env/eia/sea_manual/chapterA1.html
4
https://www.who.int/heli/impacts/hiabrief/en/
financial and non-financial institutions, bilateral aid agencies apply EIA procedures to
borrow. Most developing countries have also embraced EIA by formalizing it through their
domestic legislations.

5. Historical Development of EIA

Before the advent of the National Environmental Policy Act (NEPA) by the United States in
1970, project planning was limited to reviewing based on technical engineering, and
economic analysis and no specific importance was given to environmental consequences.

With the introduction of NEPA, there was standard guidelines, procedure and methodologies
used for impact analysis by including public participation. Following the United States,
Canada, Australia and New Zealand have also adopted EIA into their municipal legislation.
By the mid-1980s, the EIA process spread to Asia and other developing countries and the
world bank and other leading international aid agencies started to establish environmental
assessment requirements. EIA has gained international legal importance through various
international conventions as well.

Convention on Environmental Impact Assessment in Transboundary Context (Espoo

1991)
The Espoo (EIA) Convention sets out the obligations of Parties to assess the environmental
impact of certain activities at an early stage of planning. It also lays down the general
obligation of States to notify and consult each other on all major projects under consideration
that are likely to have a significant adverse environmental impact across boundaries. 5

United Nations Conference on Environment and Development (UNCED), 1992

The conference enunciated a catalogue of environmental principles including sustainable
development, precautionary principle, and environmental impact assessment.6

Moreover, international treaties such as the Rio Declaration, the Paris Agreement have also
incorporated the EIA procedures in their treaties and agreements. Sustainability and principle

5
https://www.unece.org/fileadmin/DAM//env/eia/eia.htm
6
https://sustainabledevelopment.un.org/milestones/unced
global issues received attention under the Espoo convention in the 1990s and India has also
formally adopted EIA, and there was a rapid growth in environmental assessment.

6. Cases that formed EIA in India

India started assessing its natural resources and started expanding its industrialization from
the 1960s. By 1970s it had begun to examine its river-valley and other excavation projects
with an environmental conservation point of view. During the 1980s, Public advocacy
relating to safeguarding environment, equal use of resources and the rights of marginalized
sections especially the Adivasi’s in rapid industrialization gained importance through the case
of Narmada Bachao Andolan vs State of Madhya Pradesh 7 where the Adivasi’s fought
against the proposed river-valley project which replaces the livelihood of the Adivasi’s and
merges a massive amount of flora and fauna. This decision was supported with cases such as
the Union Carbide Case8 which is also famously known as the Bhopal Gas Tragedy where
through the negligence of the authorities a gas leak was caused which has caused massive
destruction to the human environment for generations. These incidents accounted for a legal
regime on environmental impact assessment.

Till 1994, environmental clearance from the Central Government was an administrative
decision and lacked legislative support. On 27 January 1994, the then Union Ministry of
Environment and Forests9, under the Environmental (Protection) Act 1986 10, promulgated an
EIA notification making Environmental Clearance (EC) mandatory for expansion or
modernization of any activity or for setting up new projects listed in Schedule 1 of the
notification11. The Ministry of Environment, Forests and Climate Change (MoEFCC) 12
notified new EIA legislation in September 2006 13. The notification makes it mandatory for
various projects such as mining, thermal power plants, river valley, infrastructure (road,
highway, ports, harbours and airports) and industries including very small electroplating or
foundry units to get environment clearance. However, unlike the EIA Notification of 1994 14,

7
[2000] 10 S.C.C. 664
8
1990 AIR 273, 1989 SCC (2) 540
9
http://moef.gov.in/rules-and-regulations/environment-protection/
10
http://legislative.gov.in/actsofparliamentfromtheyear/environment-protection-act-1986
11
http://environmentclearance.nic.in/writereaddata/EIA%20Notifications.pdf
12
http://moef.gov.in/wp-content/uploads/2019/04/Compendium-of-OMs_reduce.pdf
13
http://www.environmentwb.gov.in/pdf/EIA%20Notification,%202006.pdf
14
https://parivesh.nic.in/writereaddata/ENV/EnvironmentalClearance-General/20.pdf
the new legislation has put the onus of clearing projects on the state government depending
on the size and capacity of the project.15

After the incorporation of the EIA into the environmental legislations, Indian courts had
recognized and prioritized the importance of environmental assessment in the case of
Utkarsh Mandal vs Union of India16 where the question before the court was the executive
summary of the EIA which is available at least 30 days before the public hearing would that
vitiate the environmental clearance. It was held that for project-affected persons to
meaningfully participate in a public hearing, they must have the full information of the pros
and cons of the proposed project and the impact it is likely to have on the environment of the
area. The EIA report is not in the public domain until the public hearing. Unless it is made
available mandatorily, the project affected persons would not know the environmental impact
of the project.

The legislation not only evolved as a purely technical assessment scheme but also as a sphere
for the attainment of natural justice and democracy by including public participation.
However, in earlier times, the public hearing was not given importance and was conducted
merely as an administrative procedure. It was well laid that the conduct of public hearings in
an improper manner has also emerged as a common ground for challenging environmental
approvals. In Adivasi Majdoor Kisan Ekta Sangathan and Another v. Ministry of
Environment and Forest and Others,17 the evidence of persons who voiced their opposition to
the project was not recorded, and no summary of the public hearing was prepared in the local
language nor was it made public and therefore the Court declared the approval invalid.

The courts have tried to form meaning, preserved and protected the objectives of the
legislation through various cases and have also tried to reduce the loopholes and have
managed to pronounce judgments based on the environmental concern. The EIA notifications
were timely amended to adapt to the growing needs of the industrialization and
environmental conservation.

15
https://www.drishtiias.com/to-the-points/paper3/environmental-impact-assessment-1
16
(9340) of 2009 DH
17
Appeal No. 3/2011 (T) (NEAA No. 26 of 2009). Judgment of Principal Bench of the National Green Tribunal
on April 20, 2012.
7. Why is there a need for Environmental Impact Assessment?

With climate change looming over the planet, environmentally friendly legislations help in
preventing further damage to the biodiversity. The fundamental logic behind EIA is to
address climate change and the harmful effects of it while taking active steps to prevent
further damage from taking place and thereby by protecting the ecology. In India, based on
the Annual report18 published by the Ministry of Environment, Forest & Climate change,
11,467.83 hectares of forest land were diverted for development projects. Being a developing
country, India relies on a developmental 19 model that focuses on increasing its economic
growth to match that of developed nations, but this comes at the cost of losing its biodiversity
to industries.
EIA20 comes into the picture to act as a mechanism to ensure that industrial development does
not come at the cost of compromising on the biodiversity. With measures like scoping, public
consultation aims to increase the transparency to the citizens as well about projects taking
place and places the onus of responsibility of sustainable development on the industries. EIA
helps to identify potential problems and help find alternatives with fewer risks for the project.
This is especially important21 in a time where there is an urgency to protect the world from
irreversible climate damage.

8. Current scenario of EIA in India –

The Environmental Impact Assessment Draft Notification 22 of 2020 by the Ministry of
Environment, Forest and Climate Change caused outrage leading to mass protests. This Draft
falls under the Environment Protection Act of 198623 (EPA) which sought to replace the EIA
notification of 200624. The First Draft of environmental Impact Assessment came into

18
Annual 2019-2020, Government of India, Ministry of Environment, Forest & Climate Change, Page 37, Table
2.3 and 2.4, Statement Showing State Wise Total Forest Area approved for use of Non Forestry Purpose Under
FC ACT, 1980, http://moef.gov.in/wp-content/uploads/2017/06/ENVIRONMENT-AR-ENGLISH-2020.pdf
19
“Development at the cost of environment!” by Mowdud Rahman, dated, Jun 05,2018,
https://www.newagebd.net/article/42860/development-at-the-cost-of-environment
20
Importance of Environmental Impact Assessment in India by Narendra Kumar, dated July 11, 2019,
https://enterslice.com/learning/importance-of-environmental-impact-assessment/
21
Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General
Assembly High-Level Meeting, 28 March 2019, GA/12131,
https://www.un.org/press/en/2019/ga12131.doc.htm
22
http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
23
The Environment (Protection) Act, 1986. http://legislative.gov.in/sites/default/files/A1986-29.pdf
24
http://www.environmentwb.gov.in/pdf/EIA Notification, 2006.pdf
existence in India, in the year 1994, followed by the 2006 amendment, which now seeks to be
replaced by the 2020 notification.
The EIA notification was brought in by the Government a little post LPG which shaped India
in the 1990s to ensure that industrial development 25 did not compromise on environmental
safeguards and called for a more active approach for sustainable development practices by
industries and laid down rules and regulations for the setting up and expansion of projects.

The 2006 EIA failed to address the larger picture of sustainable development, while
decentralizing the process. The 2006 EIA leans towards favouring development over
sustainability. While specific functions26 like that of scoping and Public hearing helped to
bring some transparency and accountability, processes like decentralization allowed a more
systematic way of division of labour and increased bureaucracy.

The 2020 EIA increases the arbitrariness of the Bureaucratic institutions. For example,
Clause 22 of the notification allows for an ex post facto clearance. This is where projects that
have not been given any clearance can still go ahead with their operation. This devalues the
need for an EIA itself and could lead to severe accidents.

The concept of “ex post facto” was held as ‘unsustainable to the concept of environmental
law’ by a division bench of the Supreme Court. This was where the Common Cause v. Union
of India27 judgment was relied upon stating that, such a clearance would lead to irreparable
damage to the biodiversity. In the case of Alembic Pharmaceutical v. Rohit Prajapati &
Ors28, in 2020, the Draft notification has not amended the clause by stating that the clause
does not violate any legal principle and would not be amended unless proven so29.

While projects are now divided into three categories of projects (A, B1 and B2) the
notification also seems to remove the public consultation clause for an entire category of

25
https://www.cseindia.org/eia-legislation-402
26
https://eco-intelligent.com/2016/12/11/eia-legislation-in-india/
27
MANU/SC/0821/1994
28
(2020)4MLJ277
29
“Draft EIA 2020: No rethink on ‘post facto’ nod unless good legal rationale, says
Secy”https://economictimes.indiatimes.com/news/politics-and-nation/no-rethink-on-post-facto-nod-unless-
good-legal-rationale-secy/articleshow/77491907.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
projects (B2 category) and excludes B2 category from the purview of scoping 30. An entire
category is exempt from an EIA report 31 and the public consultation32. Both of which are
crucial for the EIA process. B2 Category of projects includes construction and building
development, dump mining and biomedical waste management33 which are activities that
cause a massive strain on the natural resources such as pollution of air, water and soil,
destruction of flora and fauna, loss of forest land, and erosion of soil to name a few.

The Draft now has two kinds of environmental clearances, one being a Prior Environmental
Clearance34 and the other a Prior Environmental Permission 35 where the latter does not
require the recommendation of the appraisal committee, the public consultation period is now
reduced to 20 days from the earlier limit of 30 days. Instead, it gives more time for
submitting a compliance report by the Project head by a full year instead of the previous
deadline of 6 months. This Draft not only removes transparency of public consultation in a
category that includes projects that need a system of checks and balances but exempting these
categories will, as seen historically, put people under the mercy of industrial land grabbing in
the garb of development. The NGT observed in the case of Adivasi Majdoor Kisan Ekta
Sangathan & anr. v. Ministry of Environment and Forest 36 that the process of public hearing
for environmental clearance was a gross violation of the law as not only was the process a
pretence but the EC submitted with the consent of the Gram Sabha was found to a false EC
furnished, and directed that the Public hearing process be reconducted, emphasizing on its
importance to the process of EIA.

The Styrene Gas leak37 in an LG polymers Plant in 2020 was a result of the lack of any
environmental clearances since 1999, and the OIL blowout in Assam are just a few examples
of how disastrous allowing post facto clearance could be. The 2020 Draft seems to place
industries in a position of power to forego specific important clearances; this doesn’t promote

30
Clause 12 (1), The Environmental Impact Assessment Draft Notification 2020.
31
Clause 13(11) The Environmental Impact Assessment Draft Notification 2020
32
Clause 14 (2)(d), The Environmental Impact Assessment Draft Notification 2020.
33
List of projects requiring prior environment clearance or prior environment permission, as the case may be,
Schedule , The Environmental Impact Assessment Draft Notification 2020
34
Clause 1(40), The Environmental Impact Assessment Draft Notification 2020.
35
Clause 1(41), The Environmental Impact Assessment Draft Notification 2020.

36
Appeal no. 3/2011(T) NEAA no. 26 of 2009)
37
Article titled “Vizag gas leak: Don’t have green nod, company told state last May” – May 8 th 2020.
https://indianexpress.com/article/india/vizag-gas-leak-lg-polymers-india-green-nod-6399440/lite/
sustainability but instead supports the notion of anti-biodiversity. Because of this, this piece
of notification goes against International Environmental Agreements and Conventions to
which India is a signatory, most notably the Paris Agreement 38, and with this notification,
India will not be able to meet its 2030 goal to reduce global warming and reduce its carbon
emission which it seemingly is compromising for the façade of development. This also goes
against the NGT judgements of two historical cases where directions were given to ensure
transparency of the public consultation process of the EIA, wherein the case of T.
Murugandam v. Ministry of Environment and Forests,39 the NGT laid down guidelines for the
transparency in the EIA process and subsequently, in the case of Ossie Fernandes v Ministry
of Environment and Forests40, stated further instructions to the Ministry to follow a strict
mechanism while writing the EIA report following the terms of Reference.

The Draft, after being published in the Official Gazette, during the said notice period, which
was extended to a total of 90 days received, close to 17 lakhs 41 objections by various activists,
NGO’s, students, working professionals and politicians in a movement of environmental
activism, and this speaks volumes about how criticized this Draft is, and how damaging it
could be to the ecology.

9. Adivasi Rights and the Environmental Impact Assessment

The Adivasi community in the country will bear the biggest brunt left by this notification due
to its nature of being heavily discretionary and non-transparent.
Already marginalized and misunderstood the community is continuously harassed and
bullied by the central Government 42 and the forest officials, especially when it comes to land
acquisition. This piece of legislation is another Brahmanical piece of legislation favouring the

38
Most countries aren't hitting 2030 climate goals, and everyone will pay the price,
https://www.nationalgeographic.com/science/2019/11/nations-miss-paris-targets-climate-driven-weather-events-
cost-billions/
39
MANU/GT/0033/2012
40
MANU/GT/0035/2012
41
Article Titled “Environment ministry says 17 lakh comments on draft EIA notification”
https://www.hindustantimes.com/india-news/environment-ministry-says-17-lakh-comments-on-draft-eia-
notification/story-hIZhPzTM185fplOCeAAjGI.html
42
Status of policing in India Reports 2018, A study of performance and perceptions by Common Cause,
https://www.commoncause.in/pdf/SPIR-2018-c-v.pdf
ones of the so-called “upper castes” while further marginalizing the Adivasis, and is a
notification of systemic oppression.

While the Forest Rights Act of 200643 provides them with means to hold the title for the land,
in reality, coercion, harassment, land grabbing and displacement has become the norm,
making them extremely vulnerable.
One of the many ways the EIA draft published seems to disempower the Adivasis is by
releasing the Gazette only in two languages, i.e. Hindi and English, which, according to the
last census44, in 2011, only a meagre number of 43.63% of Indians speak Hindi or know
Hindi. A writ petition was filed in The Delhi High Court, Vikrant Tongad v. Union of India 45
where the court directed the Ministry to release the Draft Notification in languages specified
under the Eighth Schedule of the constitution to ensure that there was broader dissemination
of the Draft to the Non-English and Hindi Speaking public and invite more public
consultation by extending the previous notice period deadline to 11 August 2020. While a
PIL46 in the Karnataka High Court, saw the court directing the Ministry of Environment to
withhold publishing the final Draft until 2020 and showed concerned over the lack of the
centre’s responsibility to publish the Draft in the languages mentioned in the Eighth
Schedule, but, this still leaves many people from even knowing about this notification. The
Eighth Schedule has 22 languages included, and these languages are seen as the major
languages in India by the Minorities Commission Report as well as the Official Language
Resolution, but these as the name suggests are only the major languages, and not by any
means, “all” languages, The Adivasi Community in India has over 200 tribes speaking over
100 languages, and the 2011 census report stated that there are about 121 languages spoken in
India47. Because of this, even if the Draft is published in vernacular languages of the state, the
Adivasi community is still at a considerable disadvantage.

The Draft also seems to undermine the Forest Rights Act of 2006, and the Panchayat
(Extension to the Scheduled Areas) Act 1996, two legislations that were brought to empower
the Adivasi and the Forest Dwelling community in India. The Draft Notification’s shorter
43
The Forest Rights Act,2006, Act, Rules and Guidelines https://tribal.nic.in/FRA/data/FRARulesBook.pdf
44
Page 16, Language, Indian Union, States & Territories, Census of India 2011.
https://censusindia.gov.in/2011Census/C-16_25062018_NEW.pdf
45
MANU/DE/1326/2020
46
United Conservation Movement Charitable and Welfare Trust (UCM) v Union of India WP. 8632/2020 (PIL) Kar HC
(Karnataka High Court).
47
https://www.thehindubusinessline.com/news/variety/india-is-home-to-more-than-19500-mother-tongues/
article24305725.ece “India is home to more than 19,500 mother tongues”
period of public consultation seems to override Section 5 of the FRA, which empowers the
Gram Sabha to consent for a project to take place or not if the said project adversely affects
the forest land, wildlife and the biodiversity 48. The Panchayat (Extension to the Scheduled
Areas) Act 1996 that came into existence based on the recommendation of the Bhuria
Committee report of 1995 as an extension of the provision of Part IX of the constitution of
India with regards to Local self-governments to Scheduled Areas, and section 4 49 (i) states
that Gram Sabha’s or the panchayat’s in these areas must be consulted before the acquisition
of these lands for any developmental projects and before the rehabilitation and resettlements
of the affected persons. With no public consultation for exempted projects for development
(B2 category) the EIA draft goes against the provisions established in the PESA Act, and the
Forest Rights Act, two critical legislations protecting Adivasi Rights, which is, concerning at
the very least.
For Forest Dwellers and Adivasis, the land they live in holds intrinsic value for them, land
that they are at the risk of losing to industrial development leading to a constant tug of war
between the establishment and the people, as seen with the Adani Construction predicament,
where the heavy-handed conglomerate Adani won a contract for coal mining in the Hasdeo
Arand Forests in Chhattisgarh, despite mass outcry from the Adivasis who live there for
saving one of the forests.50 According to a report in The Hindu 51 by Mr Satyasundar Barik,
despite the Landmark Niyamgiri Judgement, the Dongria Kondhs in Orissa still face
problems including that of being suspected as Maoists and Naxalites by the Forest Police.
Most of the Adivasis barely know the rights available to them under the FRA and due to the
constant harassment and the SC’s order on eviction of Adivasis from their land, feel betrayed
and tricked of the land that they have inhabited for centuries. Forced displacements often put
them under enormous financial burden as well as takes a toll on their health, livelihood, and
sustenance forcing them to move to cities and work as daily wage labourers for a paltry sum.
Displacement after Govt Acquisition for development projects also causes people to change
their occupation and wait for compensation that was promised. Often, due to this, they are
taken advantage of and struggle to make a steady living due to the constant exploitation, and
vulnerability they face, aside from being treated as “outsiders” not just by city dwellers and
48
MANU/SC/0396/2013
49
Section 4, PESA,1996, THE PROVISIONS OF THE PANCHAYATS (EXTENSION TO THE SCHEDULED AREAS)
ACT, 1996, No.40 OF 1996
50
https://india.mongabay.com/2019/03/the-hasdeo-arand-story-is-coal-mining-a-fait-accompli-for-the-pristine-
forests/ “ The Hasdeo Arand story: Is coal mining a fait accompli for the pristine forests?”
51
Dongria Kondhs continue to fight bauxite mining in Odisha’s Niyamgiri forests -
https://www.thehindu.com/society/dongria-kondhs-continue-to-fight-bauxite-mining-in-odishas-niyamgiri-
forests/article26544621.ece
employers, but Govt. Officials as well. According to the Internal Displacement Monitoring
Centre52, more than 70 million people in India have been subjected to displacement due to
development post-Independence.
More often than not due to the heavy bureaucracy, displaced persons still have not been
rehabilitated nor have they been compensated for the land taken from them by the
Government for projects, The Sardar Sarovar Dam or the Narmada dam whose construction
led to the infamous Narmada Bachao Andolan53, and led to the displacement of close to
200,00054 people, out of which close to 56% were Adivasis, many of who were never
adequately compensated or rehabilitated as the Government promised. 55 Clearly shows the
struggle of Adivasis and how they are treated as “disposables” when it comes to development
and economic growth.

10. Recommendations and Conclusion -

While there is a need for an Environmental Impact Assessment to protect and preserve the
ecology, it must be understood that protecting Adivasis from exploitation goes hand in hand
with preserving nature. The Draft Notification of the Environmental Impact Assessment is
incongruent with environmental protection and takes away the voice of agency from the
Adivasi Community. The EIA must seek not to protect the Industries and the conglomerates
under the veil of development but rather seek to preserve the natural diversity and fulfil its
obligations under the Paris Agreement for which India is a signatory.
By exempting categories of projects that are not sustainable from scoping, public scrutiny and
including post facto clearances can endanger the tenets of environmental law and the concept
of sustainability impacting the lives of people and generations that have been treated unjustly
for centuries at the hand of the Government and legislations that use them as vote banks but
sees no mercy in evicting them from their land for projects that will deplete our resources.
52
The People behind Dams, Mines, Riverfront “development” Projects, Dated April 2016, Internal
Displacement Monitoring Centre. https://www.internal-displacement.org/expert-opinion/the-people-behind-the-
dams-mines-riverfront-development-projects
53
Medha Patkar and Baba Amte / Narmada Bachao Andolan ( 1991 , India)
https://www.rightlivelihoodaward.org/laureates/medha-patkar-and-baba-amte-narmada-bachao-andolan/
54
Displacement And Development: Construction Of The Sardar Dam, Dated September 1999, by Thakkar
Himanshu, https://www.culturalsurvival.org/publications/cultural-survival-quarterly/displacement-and-
development-construction-sardar dam#:~:text=The%20case%20of%20adivasis%20affected,%2C
%20Maharashtra%2C%20and%20Madhya%20Pradesh.

55
Three decades on, many Sardar Sarovar Dam affected persons still await rehabilitation dated 13 th July 2020,
by Priyanka Kavish, https://sabrangindia.in/article/three-decades-many-sardar-sarovar-dam-affected-persons-
still-await-rehabilitation
What must be done is that the existing weak EIA clauses such as the Redressal mechanism
under the 2006 notification must be strengthened, Compliance mechanism’s must be made
more stringent rather than bureaucratic especially holding officers accountable for their
actions. Instead of exempting development projects from the purview of EIA, the process
must be made mandatory for all kinds of projects to fulfil the principles of environmental
laws.
To ensure transparency, Gram Sabha’s of each scheduled area can be sent a translated copy
of the notification and well as information of any projects, which could be effectively
disseminated to the locals of that area as more often than not, they are unaware of the
developments around them due to the negligent attitude of the EC officers where they often
overlook taking the public opinion from these villages and barely hold these steps, which
even if they do, is for the namesake.
The Directions given for Public hearing and consent must be followed not just as a mere
formality but rather as a step to protect the interest of the biodiversity.
An independent authority can be set up at state level to oversee the EIA process to increase
transparency and reduce the bureaucratic influence, having experts such as environmentalists,
NGO’s, representatives from the Adivasi community will ensure that the interest of these
communities are not compromised

As Dr Ram Dayal Munda, a tribal rights activist, and scholar said “To separate the Adivasi
from his land is to stop his breathing”, Adivasi’s all over the country have for centuries
protected the forests and the animals without harming them. Climate Emergencies due to
negligent industrial practices are primarily due to industries forgoing steps of sustainable
development practices and not because of Adivasi’s, who don’t cause harm to the
environment but rather are an integral part of these forests. The necessity of Environmental
Impact Assessment cannot be denied, and steps should be taken to make right the
irregularities56 in the 2006 Notification, what it lacked upon, instead of introducing clauses
and having exceptions in such a way that further pushes away from the principle of

56
Paper Titled “Environmental Impact assessment: A critique on Indian law and practices By Dr. Vikrant Sopan
Yadav, Assistant Professor, Modern Law College, Pune, Maharashtra, India”, ISSN: 2349-4182, Volume 5;
Issue 1; January 2018; Page No. 01-05, International Journal of Multidisciplinary Research and Development
Environmental Protection, by excluding Adivasis from an umbrella of protection under EIA,
and instead of granting that protection to Industries that seek to exploit the land.
References:
1. https://www.thehindu.com/sci-tech/energy-and-environment/what-is-eia-and-why-is-
indias-new-eia-draft-problematic/article32110013.ece
2. https://www.theweek.in/news/biz-tech/2020/08/10/explained-what-is-eia-2020-how-
does-it-water-down-the-existing-policy.html
3. https://www.iisd.org/learning/eia/eia-essentials/what-why-when/
4. https://india.mongabay.com/2020/07/governments-crackdown-renews-interest-in-
draft-eia-2020/
5. https://www.livemint.com/news/india/eia-draft-notification-2020-environment-takes-
a-backseat-11597063073340.html
6. https://www.downtoearth.org.in/blog/environment/draft-eia-2020-how-it-may-impact-
north-east-72742
7. https://www.thequint.com/explainers/explained-the-curious-case-of-india-draft-
environment-impact-assessment-notification-2020
8. https://theprint.in/theprint-essential/what-modi-govts-eia-draft-says-why-
environment-experts-think-itll-encourage-violations/470248/
9. http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
10. https://www.researchgate.net/publication/311351409_ENVIRONMENTAL_IMPAC
T_ASSESSMENT_IN_INDIA_EIA_AN_APPRAISAL
11. https://orkustofnun.is/gogn/unu-gtp-sc/UNU-GTP-SC-05-28.pdf
12. https://unep.ch/etu/publications/EIA_2ed/EIA_E_top1_body.PDF
13. http://www.fao.org/3/i2802e/i2802e.pdf
14. https://en.unesco.org/sites/default/files/sustainabilityscience_s1_p6_casestudy_moha
medsaber.pdf
15. https://www.elaw.org/files/mining-eia-guidebook/Chapter2.pdf
16. https://www.academia.edu/29283773/Environmental_Impact_Assessment_Notes_7_
Environmental_Management_24_ENVIRONMENTAL_IMPACT_ASSESSMENT
17. https://www.newagebd.net/article/42860/development-at-the-cost-of-environment
18. https://enterslice.com/learning/importance-of-environmental-impact-assessment/
19. https://www.un.org/press/en/2019/ga12131.doc.htm
20. https://economictimes.indiatimes.com/news/politics-and-nation/no-rethink-on-post-
facto-nod-unless-good-legal-rationale-
secy/articleshow/77491907.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
21. https://indianexpress.com/article/india/vizag-gas-leak-lg-polymers-india-green-nod-
6399440/lite/
22. https://www.nationalgeographic.com/science/2019/11/nations-miss-paris-targets-
climate-driven-weather-events-cost-billions/
23. https://www.hindustantimes.com/india-news/environment-ministry-says-17-lakh-
comments-on-draft-eia-notification/story-hIZhPzTM185fplOCeAAjGI.html
24. https://www.thehindubusinessline.com/news/variety/india-is-home-to-more-than-
19500-mother-tongues/article24305725.ece
25. https://india.mongabay.com/2019/03/the-hasdeo-arand-story-is-coal-mining-a-fait-
accompli-for-the-pristine-forests/
26. https://www.thehindu.com/society/dongria-kondhs-continue-to-fight-bauxite-mining-
in-odishas-niyamgiri-forests/article26544621.ece
27. https://www.internal-displacement.org/expert-opinion/the-people-behind-the-dams-
mines-riverfront-development-projects
28. https://www.rightlivelihoodaward.org/laureates/medha-patkar-and-baba-amte-
narmada-bachao-andolan/
29. https://www.culturalsurvival.org/publications/cultural-survival-
quarterly/displacement-and-development-construction
sardardam#:~:text=The%20case%20of%20adivasis%20affected,%2C%20Maharashtr
a%2C%20and%20Madhya%20Pradesh.
30. https://sabrangindia.in/article/three-decades-many-sardar-sarovar-dam-affected-
persons-still-await-rehabilitation

Legislations/ Acts/ Drafts -

1. The Environment (Protection) Act, 1986
http://legislative.gov.in/sites/default/files/A1986-29.pdf
2. The Environmental Impact Assessment Notification 2006
http://www.environmentwb.gov.in/pdf/EIA Notification, 2006.pdf
3. The Environmental Impact Assessment Notification 2006
http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
4. The Panchayats (Extension To The Scheduled Areas) Act, 1996, No.40 OF 1996
5. The Forest Rights Act,2006, Act, Rules and Guidelines
Records
1. Annual 2019-2020, Government of India, Ministry of Environment, Forest & Climate
Change, Page 37, Table 2.3 and 2.4, Statement Showing State Wise Total Forest Area
approved for use of Non-Forestry Purpose Under FC ACT, 1980,
http://moef.gov.in/wp-content/uploads/2017/06/ENVIRONMENT-AR-ENGLISH-
2020.pdf
2. Census of India 2011.https://censusindia.gov.in/2011Census/C-16_25062018_NEW.pdf
3. Status of policing in India Reports 2018, A study of performance and perceptions by
Common Cause, https://www.commoncause.in/pdf/SPIR-2018-c-v.pdf

Research Papers –
1. “Environmental Impact assessment: A critique on Indian law and practices By Dr.
Vikrant Sopan Yadav, Assistant Professor, Modern Law College, Pune, Maharashtra,
India”, ISSN: 2349-4182, Volume 5; Issue 1; January 2018; Page No. 01-05,
International Journal of Multidisciplinary Research and Development
2. Public hearings and Environmental Clearance Process: Review of Judicial
Intervention by M P Ram Mohan & Himanshu Pabreja, 10 December, 2016, Volume
LI No 50, Economic and Political Weekly