INDIA: IMPLEMENTING COURT DIRECTIVES THROUGH ACCESS LAWS
May 30, 2010
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Members of Uttakarsh Mandal at their village Rivona, Goa

The Freedom of Information laws in a country are not just a tool for seeking information, but can also be an effective governance tool has been proved correct yet again. The Delhi High Court in a landmark order in November 2009 had directed the Ministry of Environment and Forests to immediately issue directions to the State Pollution Control Boards (SPCB) across to the country not to hold Public Hearings of different projects on the same date, time and venue. Till then, in many instances, the SPCBs were holding Public Hearings of several projects together on the same date, time and venue thereby creating a huge confusion in the minds of the people participating in the Hearing. The High Court further directed the Ministry to ensure that there is adequate publicity of a Public Hearing spread over at least ten days before it is held to encourage greater participation. This decision had come in response to a writ petition in High Court filed by Utkarsh Mandal, a farmers group based in Goa challenging the Environmental Clearance granted by the Government to the renewal of a lease for an iron ore mine. A RTI Application was filed on 11 March 2010, by Promod Kumar of Legal Initiative for Forest and Environment asking the Ministry steps it has taken to implement the directions of the High Court. The final reply to the RTI Application received on 23 April 2010 shows that the Ministry had done nothing since November till it received the RTI Application. The RTI Application served as a wakeup call for the Ministry officials. On 29 March 2010, a file ‘moved’ with a background note and suggestion to issue appropriate instructions. The following file noting is most instructive- ‘we may request Director (SKA) to take necessary action regarding issue of OM to all the SPCB before responding to RTI before 12.[4].2010’ (OM- Office Memorandum) On 19-4-2010, the Ministry of Environment and Forest issued a Office Memorandum titled ‘Procedure for conducting public Hearing…..” [http://envfor.nic.in/divisions/iass/Cir/pubhearEIA.pdf] which to some extent dealt with the issues highlighted by the Delhi High Court.. It directed that: • Public hearing for different projects should not be held at the same venue and at the same date and sufficient gap should be provided. • Adequate publicity should be given to the project and it should be mentioned in the public Hearing proceedings as to how adequate publicity was given to the Public hearing with respect to the time, date and venue Clearly, the MoEF officials chose not be act on the High Court order till the RTI Application was filed. Clearly, the Ministry officials were keen to show that something had been done about the High Court order before the RTI Application was replied to. The fear of contempt of the High Court order could clearly be one of the prime reasons. Therefore, unlike most other files in the Ministry, this file moved pretty quickly. A Notification implementing the order of the High Court was issued on 19 April 2010 and a final reply was sent to the RTI Applicant on 23 April enclosing the Notification. The note sheets obtained under RTI shows that the filed moved through various hierarchies: deputy director, Director, Adviser, Joint Secretary, Additional Secretary, Secretary and Minister. All in a few days. If one were to take a super-technical stance- what the Ministry did was not entirely legal. Public Authorities cannot create information and provide it to a RTI Applicant. Information as-is on date of the RTI Application should have been provided. But RTI Act is a legislation to bring about accountability and better governance in the country. If asking questions gets the Government to acknowledge its (in)action and do something about it – it is an overall victory of the RTI Act !

By Ritwick Dutta (ritwickdutta@gmail.com) and Shibani Ghosh (shibani.life@gmail.com)

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