Unplanned Development, and What Makes It Unplanned

In one line

The University's own word is unplanned, and what makes development unplanned is a decision taken before the information that should have informed it.

In exam wording: unplanned development, in the sense the syllabus and the question papers use, means development undertaken without prior assessment of its effects on biological diversity, without the sequential clearances the law requires, without settlement of the rights of the people affected, and without consideration of alternatives; the Indian legal answer is the sequence of prior clearances, the Environmental Impact Assessment Notification 2006, section 2 of the Van Adhiniyam 1980, sections 29 and 35 of the Wild Life (Protection) Act 1972 and the Forest Rights Act 2006, together with the precautionary principle and the polluter pays principle which Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647 held to be part of the law of the land.

What planning would have looked like

Four things distinguish a planned project from an unplanned one, and each has a legal counterpart.

One, the assessment precedes the decision. Article 14(1)(a) of the Convention on Biological Diversity 1992 requires procedures for environmental impact assessment of proposed projects likely to have significant adverse effects, with a view to avoiding or minimising them. Section 36(4)(i) of the Biological Diversity Act 2002 requires the Central Government to undertake such measures. The Notification of 2006 is the instrument.

Two, the clearance is prior. Section 2 of the Van Adhiniyam 1980 speaks of prior approval of the Central Government; the Notification speaks of prior environmental clearance. A clearance obtained after work has begun is not what the law requires, and the Supreme Court's guidelines in T.N. Godavarman Thirumulpad v. Union of India, the judgment of 6 July 2011 in the Lafarge matter, were given precisely so that fait accompli situations do not recur.

Three, the alternatives are considered. Whether the project could be sited elsewhere, at a smaller scale, or with a different alignment. Scoping under stage 2 of the Notification is where that should happen.

Four, the rights are settled first. Sections 3, 4 and 6 of the Forest Rights Act 2006, and Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests (2013) 6 SCC 476, in which the Supreme Court directed that the religious, cultural, individual and community claims be placed before the Gram Sabhas, which were to decide within three months, with a judicial officer of the rank of District Judge attending as an observer to certify that the proceedings took place independently and uninfluenced by the project proponent or either Government, the Ministry then taking its final decision on Stage II clearance in the light of those decisions.