Indian minister’s fishy plan to outsmart environment policies

One day in April 2017, a few hundred people from all walks of life, including fishermen and MLAs (members of the legislative assembly), gathered at a soccer stadium in Goa to shout their heads off. The occasion was not a soccer match, but an environmental public hearing. The Mormugao Port Trust (MPT) had just proposed to increase the amount of coal it usually handles by more than double.

Sick of breathing air thick with coal dust for more than a decade, people turned up in such large numbers to voice their objections that the hearings lasted a record eight days instead of the scheduled three. Instead of the usual 5pm, the hearing ended at 1am on the first day and 10pm on others, with just a lunch break in between.

Conducted under the environmental clearance process, the hearings not only allowed affected persons to speak out, but also galvanized a public movement against coal handling in Goa. Even the state government, until then in favor of expansion, made a quick U-turn in face of the public anger. The proposals have since been stalled by the Environment Ministry.

It is no surprise, then, that the federal shipping and water resources minister, Nitin Gadkari, has decided to take his government’s campaign theme – minimum government – to its mathematical limit. There shall be no more environmental clearances, he has declared.

On August 3, Gadkari claimed that the Constitution of India said ports authorities like MPT do not need environmental clearances at all, Press Trust of India reported. “When I got to know about it through a representation, I read the constitution … we met Union Minister of State for Law and Justice P P Chaudhary…. He read it and said you are absolutely correct,” he said.

Gadkari was referring to Article 364 of the constitution, which (true to his words) empowers the President (that is, the federal cabinet) to declare by notification that any central or state law shall not apply to a “major port” or aerodrome, or will apply with exceptions.

Twelve ports in India, including Mormugao, are termed “major” ports, meaning they are administered not by state governments but by Gadkari’s ministry. These 12 behemoths handle two out of every three tons of cargo entering or leaving India by sea. Like MPT, they are constantly expanding, filling the sea with soil to build new berths or digging giant trenches in the seabed to allow bigger ships to dock.

These activities can pollute seawater and cause harm to both the fish and fishermen. In the worst case, they can alter coastal geography itself. That is why the Environment Impact Assessment Notification of 2006, issued under the Environment (Protection) Act of 1986, mandates that such activities seek a clearance from the central Environment Ministry after a due Environment Impact Assessment study justifies that the benefits exceed costs. The study has to be vetted by the public and an expert body in the ministry.

Presumably, what the honorable minister wants is for the president to give notice that the Environment (Protection) Act will no longer apply to major ports. With the president’s one signature, no such port would ever require an environment clearance – there would be no impact assessment, no public hearings, and no soccer stadiums with ordinary citizens demanding clean air. That would be truly something no Indian government has done in 60 years.

Environmentalist Leo Saldanha, in a comment to Mint, did the right thing by immediately calling for Gadkari’s resignation for misinterpreting the constitution. Unfortunately, though, his defense was weak and incorrect.

Article 364 is brief and reads exactly as Gadkari wants it to. Saldanha said Gadkari had forgotten other articles such as 48A, 51 A (g), 39, etc, but these are directive principles of state policy, and unenforceable by courts. To top it, Gadkari’s article begins with the epic exception clause, “Notwithstanding anything in this Constitution, the President may.…”

It is surprising that none of our previous environment-bashing ministers saw this first. Gadkari has, so far, not revealed who sent the representation pointing this out. We will leave that revelation to the Right to Information Act (before it is also amended). But this person/entity apparently said, “Nowhere in the constitution did Baba Saheb Ambedkar say that.…”

What Baba Saheb (principal architect of India’s constitution) really said has to be found in the Constituent Assembly debates. But it should suffice to say that even after the constitution came into force, tigers could be lawfully shot and the Forest Department strove to be better at cutting trees, until law and policy changed that. Did Baba Saheb want future environmental safeguards to be put to death by his words? Only a Constitution Bench can tell.

As for Gadkari, his views on environmental clearances are well known, at least in Goa. Two months after he took the oath of office, Mormugao Port Trust applied for environmental clearance to dig up 15 million cubic meters of seabed so that the world’s largest coal-bearing ships could reach Goa.

In New Delhi that winter, Gadkari transcended both his portfolio and the Environment Impact Assessment Notification and made a decision to exempt this project from public hearings. Then, before the environment clearance was even issued, he flew down to Goa on New Year’s Day 2016 and personally inaugurated the digging work.

A Goan fisherman went to work with no information that such an operation was in progress, and learned the hard way what underwater digging equipment can do to fishing nets. Angry, he took the overnight bus to Pune and lodged a case before the National Green Tribunal.

In September 2016, the Pune bench struck down Gadkari’s decisions, questioning how a minister could make decisions not prescribed under any law or rule. It ordered that the public hearings must take place, and when they did in April 2017, the sly project sparked a state-wide movement.

One hopes that Gadkari’s latest fad falls on its face similarly, this time without damaging fishing nets.