Public Participation in Environmental Decision Making

In one line

Public participation is a legal requirement in Indian environmental law at exactly one point, the public consultation stage of an environmental clearance, and everywhere else it depends on the right to information and on the courts.

MU sets this on five papers, once in a form that supplies the argument: "Public participation is most important in environment protection either at opening of new development programs or before enacting any laws." That sentence identifies two moments, the project and the law, and the honest answer is that India provides for one of them well and the other hardly at all.

Why participation is a legal question and not a courtesy

Because the people affected hold information nobody else has. A committee in Delhi does not know which well the village drinks from, where the water goes in August, or which grazing land the project road will cut. That information exists only locally and only participation extracts it.

Because the burden falls on them. The benefits of a project are diffused across a State and its costs are concentrated on the people nearest it. A decision made without them is a decision in which those who bear the cost had no voice.

Because it is the constitutional position. Article 21 as read in the environmental cases protects the right to a wholesome environment, and no man's right should be affected without an opportunity to ventilate his views.

Facts. In Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, (1990) 1 SCC 613, the validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985 was challenged, the victims having been given no notice before the settlement of their claims was recorded. Held. The Act was upheld on the doctrine of parens patriae, and on the question of notice the Court held that settlement without notice was not quite proper, that principles of natural justice are fundamental in the constitutional set up of this country and that no man's right should be affected without an opportunity to ventilate his views, and that justice had been done to the victims but justice had not appeared to have been done; it nevertheless declined to set the settlement aside. Why it matters here. It is the clearest statement in Indian environmental law of why participation matters and the clearest illustration of what happens when it is omitted and the omission is then forgiven.

And because participation improves the decision. A project altered before it is built is cheaper than one altered afterwards, and the objections that come at a hearing are the cheapest form of scrutiny a regulator can obtain.