Handbook on Legal and Administrative Remedies for Community Level Environment Justice Practitioners

By CPR-Namati team
8 September 2016

A problem can occur, no matter where we live, pass by everyday or cross occasionally. One could be living next to an industrial site, which is polluting the nearby river, a power plant, which lands up dumping fly ash on an agricultural field or a beach, where the municipality is dumping the town’s solid waste. A friend or a fellow resident of one’s village might point us to an instance of river bed sand mining causing flooding or a tourist resort blocking access to a drinking water source or even a grazing ground.

Each such activity is more often than not, governed by a legal clause, if approval is required or a condition where an approval is already granted. There could also be a court judgment or order which is so generic in nature that it has a bearing on all activities of a particular kind e.g permissions for sand mining or tree felling, change of land use of common lands, no matter where you are located in the country. It is possible that the problems you notice or are affected by are only occurring because someone, somewhere is not adhering to the provisions of law, conditions or approval, or court directions are not complied with. If this is the case, there is likely to be a clear institutional framework and defined administrative agencies that would be mandated to restrict this activity, monitor non-compliance, and also take penal or remedial action as required by a particular situation.

More often than not, people affected by a problem are not even aware that the problem they are facing has any connection with adherence to or non-compliance of law. If the mandatory requirements had been adhered to, the problem might not have occurred in the first place. This is not a surety but a distinct possibility. Understanding whether a difficulty one is facing is legal or illegal, is one way of attempting to find a resolution. It does not require one to qualify as a lawyer, know how to draft court petitions or speak legal language. Basic knowledge of applicable legal clauses and which institution would be best suited for remedy can be important allies in trying to solve real time problems with people dealing with a range of environmental and social impacts discussed further in this handbook.

One of the most critical components of such problem-solving with law (both in court and outside) is the requirement of evidence or proof. Once the problem is identified and defined and the affected party clarifies what remedy is being sought, community level legal practitioners would need to prepare robust evidence to back the claims. For instance, if it were ascertained that a construction activity is being carried out in contravention to the provisions of any of the laws, it would be important to gather specific evidence before filing a complaint or approaching a relevant institution. A range of documents can be included as proof of illegality, which includes government documents, responses to Right to Information (RTI) applications, photographs, maps and complaint letters. One could also check if the information disclosed by the project proponent at the time of project appraisal is complete and true. Records of public hearing could also be checked to find out if they reflect the mentioned concerns.

This handbook is an attempt to present scenarios where community level environment justice practitioners can use/employ tools of legal empowerment and work with affected communities to seek legal remedies through an administrative route. Each scenario presents a problem type, what the complaints could be and then goes on to suggest some legal clauses through which a remedy can be pursued. It draws from several cases currently being pursued by enviro-legal coordinators (paralegals) associated with the Centre for Policy Research-Namati Environmental Justice Program.
There are two clear caveats while using this handbook. First, the legal clauses listed with the problem are indicative in nature and do not claim to be exhaustive in nature. This does not imply that a practitioner using this handbook does not look out for additional legal remedies for the problem in hand, which would not be listed here. Second, we encourage practitioners to as far as possible, share the legal knowledge and try to interpret the same. This will encourage collective learning and help achieve legal empowerment through practice.

The handbook does not specifically list judicial and court related remedies to any of these problems. In case the problem does not get resolved through the administrative route, clients and community practitioners have the option of accessing avenues such as the National Green Tribunal (NGT) and Courts which are accessed through lawyers. In such instances, the evidence collected, complaints filed and other documentation could form an important basis and support for any legal intervention.