Exempting mine expansion projects from public hearing for environment clearance is illegal



Shri Bhupender Yadav


Ministry of Environment, Forests & Climate Change (MEFCC)

Govt of India

Dear Shri Yadav,

I refer to your Ministry’s recent decision (https://moef.gov.in/wp-content/uploads/2021/10/scan_1_20211021165307682.pdf) to exempt mine expansion projects from the mandatory requirement of public hearing as a condition precedent to granting statutory environment clearance.

In my view, your Ministry’s decision is highly imprudent, as it violates the letter and the spirit of the Environment (Protection) Act of 1986 (EPA) and the notifications issued under that Act, which provide for participatory decision making as a necessary component of the environment impact appraisal procedure. It violates the spirit of democracy that is central to our Constitution. The decision seems to have been motivated more by the government’s undue eagerness to promote the interests of the mining companies, than for either safeguarding the environment or for protecting the interests of the local communities.

Sections 21 and 48A of the Constitution place emphasis on protection of the environment in a manner consistent with the citizen’s right to life. The Stockholm Declaration on Human Environment (1972), specifically mentioned in the Preamble to the EPA, emphasised the human dimension of protection of the environment. Principle 10 of the Rio Declaration (1992), which followed the Stockholm conference, stated that “environmental issues are best handled with the participation of all concerned citizens, at the relevant level…. the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available“. This is reflected in the EIA Notification of 2006 [Clause 7 III(ii)] which provided two modes of public consultation, the primary mode being an elaborate public hearing process and the secondary mode being a consultation process based on inviting written objections/ suggestions from the public. The latest notification dated 20-10-2021 on mining issued by your Ministry has conveniently done away with the primary requirement of a public hearing, a step that clearly violates the Constitutional mandate and the spirit underlying the EPA.

On the desirable and the mandatory nature of public hearing as envisaged in the EPA, the Hon’ble Supreme Court, in their Order dated 29-3-2019 in Civil appeals No. 12251/2018 & 1053/2019 has made the following observation.

The importance of public consultation is underscored by the 2006 notification. Public consultation, as it states, is ‘the process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to take into account all the material concerns in the project or activity design as appropriate’. This postulates two elements. They have both an intrinsic and an instrumental character. The intrinsic character of public consultation is that there is a value in seeking the views of those in the local area as well as beyond, who have a plausible stake in the project or activity. Public consultation is a process which is designed to hear the voices of those communities which would be affected by the activity. They may be affected in terms of the air which they breathe, the water which they drink or use to irrigate their lands, the disruption of local habitats, and the denudation of environmental eco-systems which define their existence and sustain their livelihoods. 

Public consultation involves a process of confidence building by giving an important role to those who have a plausible stake. It also recognizes that apart from the knowledge which is provided by science and technology, local communities have an innate knowledge of the environment. The knowledge of local communities is transmitted by aural and visual traditions through generations. By recognizing that they are significant stakeholders, the consultation process seeks to preserve participation as an important facet of governance based on the rule of law. Participation protects the intrinsic value of inclusion

Clearly, your Ministry has ignored these insightful observations of the apex court!

Mining activity disrupts the lives of the people in many ways. Whether it is the main mining project or its expansion, it causes environmental havoc, poisoning the air, the water bodies and all other resources on which the communities sustain themselves. Mining wastes are an additional scourge on the environment. To treat a mine expansion project as though it is not as damaging as the main mine project is to wantonly ignore the adverse impacts of any kind of mining. The affected communities are important stakeholders who have as much a right as any other stakeholder to have a say in deciding on the project. Moreover, as opined by the apex court on 29-3-2019, the inputs elicited from a public hearing are as valuable, if not more, than any simplistic technical evaluation of the project. By doing away with the public hearing procedure, your Ministry will be depriving itself of the most valuable set of inputs that the EPA has provided. Such a step is therefore imprudent.

The above cited decision of the Ministry applies to expansion of Iron, Manganese, Bauxite and Limestone mining projects, many of which are located in areas inhabited by the adivasis and notified under the Fifth Schedule to the Constitution, where the PESA and the Forest Rights Act are applicable. Both these Central laws accord utmost primacy to the local adivasi Gram Sabhas in decision making. Apparently, your Ministry has not cared to consult in this matter either the National Commission for the Scheduled Tribes (NCST), which is the Constitutional authority concerned with the wellbeing of the adivasis, nor has your Ministry thought it fit to take the Union Ministry of Tribal Affairs into confidence, before depriving the adivasi communities of their right to be heard in a transparent manner. Your Ministry also seems to be blissfully oblivious of the two landmark judgements of the Hon’ble Supreme Court, one in the Samatha case on mining in the Scheduled Area in AP, and the other on bauxite mining by the Vedanta Group in the Scheduled Area in Odisha, which specifically referred to the rights of the local adivasis to decide on such projects.

It was during the erstwhile UPA government’s tenure that the then Rural Development Ministry had processed the far reaching Land Acquisition Act of 2013 which, for the first time, introduced participative decision making as a mandatory condition precedent to land acquisition, a process that used to be a coercive one under the erstwhile land acquisition law. Instead of moving forward by taking such progressive steps, your Ministry seems to be moving in a diametrically opposite direction with the sole intention of appeasing the mining companies.

In July this year, as soon as you took over as the Minister in charge of Environment, I made several important suggestions to you for enhancing the credibility of environment governance, including the need to strengthen the public consultation process (https://countercurrents.org/2021/07/some-suggestions-to-enhance-the-credibility-of-environment-impact-assessment/).  You are yet to acknowledge receiving my letter. Your Ministry has also not cared to consider my suggestions and act on them. Instead, I find that your Ministry continues to tinker with the environment and forest clearance procedures, largely with the intention of helping the promoters of companies involved in mining and other industrial activity, not for safeguarding the environment or for promoting the welfare of the people.

I feel distressed that your Ministry should continue to proceed in a business-as-usual manner, rather than changing its ways in line with what is required from the public interest point of view. It is all the more disappointing that such a state of affairs should be allowed to continue under the stewardship of a person of your background.

I earnestly hope that you will revisit the latest notification on mining and restore the requirement of public hearing, keeping in view the views expressed by the apex court on 29-3-2019 (cited above).


Yours sincerely,

E A S Sarma

(Former Secretary to Government of India)


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