Centre for Policy Research
October 18, 2017
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 is 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 and a grazing ground. Even if none of these problems are near where you live, your everyday access road could be the main route transporting coal, bauxite, iron ore or any other mineral, which would still make living conditions difficult.
Each such activity is more often than not, governed by a law. This could be both for prior approval and post approval compliance, based on specific safeguards or conditions. Safeguards or conditions are not just limited to environmental approvals, but can exist in lease documents or land transfer agreements. There could also be a court judgment or order which is generic in nature and has a bearing, no matter where you are located in the country, on particular issues like permissions for sand mining, tree felling or change of land use of common lands. It is possible that problems you notice or are directly affected by are occurring because someone, somewhere is not adhering to provisions of legal directions, be it by way of laws or court directions. If this is the case, there is likely to be a clear institutional framework and defined administrative agencies who would be mandated to restrict this activity, monitor non-compliance, as well as take action to remedy the situation and issue penalties. There could also be instances where an impact is not the result of a legal violation, but it may still be causing a hindrance to everyday living and affecting access to clean air or water. In such cases, there is also a possibility of invoking the authority of an administrative official to intervene and resolve the matter.
However, people affected by a problem are often not aware that it is because of noncompliance with the law or that there is an institutional remedy available for the same. Maybe, 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 the difficulty one is facing is due to legal or illegal actions can be 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 be fluent in legalese. Basic knowledge of applicable legal clauses and which institution would be best suited to approach 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 along with them 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 law, 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), photographs, maps and complaint letters. One could also check if the information disclosed by the project proponent at the time of project appraisal was 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 environmental justice practitioners can apply and use law to work with affected communities and seek desired 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 associated with the Centre for Policy Research (CPR)-Namati Environmental Justice Program. It also draws from the resolutions being pursued by implementing partners like Janabhivyakti (Chhattisgarh) and Keonjhar Integrated Rural Development and Training Institute (KIRDTI) (Odisha).
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. This implies that it is advisable that practitioners using this handbook look out for additional legal remedies for the problem in hand, which may not be listed here.
Second, we encourage practitioners to as far as possible share the legal knowledge with affected communities and try to jointly work towards seeking institutional response. This will encourage collective learning and help achieve legal empowerment through practice.
The handbook does not specifically list judicial and court related processes of any of these problems. In case the problem does not get resolved through the administrative route, affected people and community practitioners have the option of accessing avenues such as the National Green Tribunal (NGT) and courts. For this, the assistance of a lawyer is likely to be required. In such instances, the evidence collected, complaints filed and other documentation could form an important basis and support for any legal intervention.