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Posted by Rahul Choudhary December 24, 2009 at 3:41 pm in India, Law
In a recent judgement of the Supreme Court, the three Judges bench agreed to the summary procedure for imposition of punishment in the contempt case. In the case, Leila David vs. State of Maharashtra, filed before the Supreme Court, the petitioner among other reliefs, had also asked for direction to initiate criminal proceedings and strongest punishment against some twelve judges of the Bombay High Court. When the matter was being heard in March in the Court of Justice Arijit Pasayat and Justice A.K. Ganguly, one of the petitioners threw chappal at the Judges ((2009)4SCC578 Leila David vs. State of Maharashtra & Ors ). The case of contempt was taken up the same day in the Supreme Court. Justice Pasayat passed the following order:
“Today when these matters were taken up suddenly the contemnors started shouting and used very offensive, intemperate and abusive language and one had even gone to the extent of saying that the Judges should be jailed for having initiated proceedings against them and not interfering with orders by various judges of the Bombay High Court. They said that Judges are to be punished for not taking care of their so –called fundamental rights. One of them even threw chappal at the Judges. This happened in the presence of learned Solicitor General of India, two learned Additional Solicitor General and large number of learned counsel including the President of the Supreme Court Advocates –on – Record Association. This conduct is contemptuous. There is no need for issuing any notice, as the contemnors stated in open court that they stand by what they have said and did in the Court.”
The contemnors were sentenced a three months simple imprisonment by Justice Pasayat. However Justice A.K. Ganguly disagreeing with Justice Pasayat, passed a dissenting judgment. He held that, as per section 14 (1) of Contempt of Courts Act, 1971, in initiating a contempt proceeding and when contempt is allegedly committed in the face of the Court, the Court has to inform the alleged contemnors in writing the charge of contempt and then afford them opportunity to make their defence to the charge. Thereafter on taking such evidence as may be necessary or as may be offered by the persons and after hearing them, the Court may proceed either forthwith or after adjournment to determine the matter of the charge and may make such order for the punishment or discharge of such persons as may be just. Justice Ganguly held that:
“The safeguards statutorily engrafted under Section 14 of the Act are basically reiterating the fundamental guarantee given under Article 21 of the Constitution. This guarantee which possibly protects the most precious fundamental right is against deprivation of one’s personal liberty “except according to procedure established by law”. This Court, being the guardian of this right, cannot do anything by which that right is taken away or even abridged and especially when the court is acting suo moto.”
He further concluded in his order that:
“Therefore, in this view of the matter, I cannot agree with the view expressed in the order of His Lordship Justice Passayat, for sending the alleged contemnors to prison for allegedly committing the contempt in the face of the Court without following the mandate of the statute under section 14. I, therefore, cannot at all agree with His Lordship’s order by which sentence has been imposed. I am of the view that the liberty of a person cannot be affected in this manner without proceeding against them under Section 14 of the Act. In my opinion Section 14 is in consonance with person’s fundamental right under Article 21.”
The matter was then directed to be placed before the Chief Justice, who on the very day of the incident, constituted three judges bench to hear the matter. When the contempt proceedings came up for consideration before the Supreme Court, Attorney General supported the view taken by Justice Pasayat. The Solicitor General and the President of the Supreme Court Bar Association also agreed with the submission of the Attorney General. The three judges bench of the Supreme Court concluded
“As far as the suo motu proceedings for contempt are concerned, we are of the view that Arijit Pasayat, J. was well within his jurisdiction in passing a summary order, having regard to the provisions of Articles 129 and 142 of Constitution of India [see the note below]….While, as pointed out by Ganguly, J., it is a statutory requirement and a salutary principle that a person should not be condemned unheard, particularly in a case relating to contempt of court involving a summary procedure, and should be given an opportunity of showing cause against the action proposed to be taken against him/her, there are exceptional circumstances in which such a procedure may be discarded as being redundant.” (Para 28 and 29, (2009)10 SCC 337)
Further coming to the conclusion that the procedure adopted by Justice Pasayat was right, the Supreme Court said:
“In the instant case, after being given an opportunity to explain their conduct, not only have the contemnors shown no remorse for their unseemly behavior, but they have gone even further by filing fresh writ petition in which apart from repeating the scandalous remarks made earlier…this is one of such cases where no leniency can be shown as the contemnors have taken the liberal attitude shown to them by the Court as a license for indulging in decorous behavior and making scandalous allegations not only against the judiciary, but those holding the highest positions in the country…” (emphasis mine)
Just for a comparison and to show the changing tenor of the judiciary today, we might quote from a recent book penned by one of the most revered Indian judges of all time, Justice O Chinnappa Reddy, who narrated the following story, while suggesting “that the expression ‘contempt of court’ should be replaced by the expression ‘obstructing justice’” and that the definition of criminal contempt should be drastically modified to exclude most kinds of criticism of judiciary and judgements:
“There is a well-known story of a judge of the American Supreme Court who when asked by the Court as to why he did not take action against a litigant who shouted ‘Nine old fools’ when the Court pronounced judgement against him said ‘There is no question that all the nine of us are old men and whether we are fools or not is a matter of opinion’.”
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Note: Article 129 provides “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Article 142 (the part relevant here) provides that Supreme Court shall have every power to make any order for the purpose of punishment of any contempt of itself.
Posted by Rahul Choudhary December 2, 2009 at 9:58 am in Environment, India, Law
Whenever any project is envisaged and approved, the local affected persons’ consent is the least concern for the authorities. The formal process of public participation in the decision making process comes only at the time of public hearing as provided in the Environment Impact Assessment (EIA) Notification 2006. As per the notification, thirty days notice should be given prior to the public hearing, so that the local affected person and others can submit their comments and objections. Thereafter the Expert Appraisal Committee of the Ministry of Environment and Forest has to do the detailed scrutiny of the project including the proceedings of public hearing and the objections raised at the time of public hearing. However the Notification does not empower the affected persons to say no to project. At best they can raise objection. And the Expert Appraisal Committee in most of the cases just see whether public hearing was held or not and not into the objections of the public during the hearing.
M/s Pandurang Timblo Industries, Margao, Goa is the lessee of Borga Dongrachem Fall Mine and Sociedade Timblo Irmaos Ltd. is lessee of Oiteiro Borga Do Bairro Queri Mine. Both mines were in operation till 1994. When there was again an increase in demand of iron ore from countries like China, South Korea and Japan, the owners in 2006 proposed for restarting the mines. There was a total opposition to the project at the time of public hearing. There was not a single participant who was in support of the project. The detail of the project, and the Executive Summary was made available to the gram panchayat and local affected person only nine days prior to the Public hearing. In the proceedings of public hearing it was clearly recorded that “not a single application nor a single member of the public was in favour of restarting of mine due to grave environmental and social damage”. The opposition of the restarting of mine was on the grounds of damages to agricultural fields and depleting ground water level that the mining will result into.
Without considering the objections and opposition of the affected persons in the public hearing, the Expert Appraisal Committee granted Environmental Clearance to the project on July 26, 2007. The local affected person challenged the order of the Ministry of Environment and Forest before the National Environment Appellate Authority (Utkarsh Mandal Vs. Ministry of Environment & Forest, Appeal No. 12 of 2007). As expected, the NEAA dismissed the appeal against the order of the Ministry of Environment and Forest. The NEAA categorically noted that the Executive Summary of the project was made available only 9 days prior to the Public Hearing, but then it argued that the EIA notification does not specify any time period for giving Executive Summary to the affected people. The NEAA also gave the finding that the Expert Appraisal Committee (EAC) has not considered the opposition at the public hearing, but concluded that this will not vitiate the environmental clearance granted to the project.
The order of the NEAA was challenged by the local affected persons before the Delhi High Court. The Delhi High Court headed by Chief Justice and Justice S. Muralidhar allowed the petition (Writ Petition (Civil) No. 9340 of 2009, Delhi High Court) and also questioned the functioning of the Expert Appraisal Committee. During the course of hearing, it was also brought to the notice of the Court that the EAC (Mines) was chaired by a person who happened to be the director of four mining companies and as many as 410 mining approval has been granted in the first six months of 2009. In this context, the court concluded that appointing a person who has a direct interest in the promotion of the mining industry as Chairperson of the EAC (Mines) is an unhealthy practice that will rob the EAC of its credibility since there is an obvious and direct conflict of interest. The High Court by order dated November 26, 2009 gave findings on issues related to public hearing and functioning of EAC. This order of the High Court interpreted the provisions of public hearing provided in the EIA Notification 2006. The High Court gave the finding that the purport of the clause (2.4 and 3 of Appendix IV of EIA Notification 2006) of the notification is to “make the public hearing a meaningful one with participation of all interested persons who may have a point of view to state. The above clauses operationalise the de-centralised decision making in a democratic set up where the views of those who are likely to be affected by decision are given a say and an opportunity to voice their concerns. This procedure is intended to render the decision fair and participative and not thrust from above on a people who may be unaware of the implications of the decision… If their participation has to be meaningful, informed and meaningful, then they must have full information of the pros and cons of the proposed project and the impact it is likely to have on the environment in the area.” The High Court concluded that the Executive Summary should be made available 30 days in advance.
On the requirement of the EAC to give reason, the Court held that “in context of EIA Notification dated 14th September 2006 and the mandatory requirement of holding public hearings to invite objections it is the duty of the EAC, to whom the task of evaluating such objections has been delegated, to indicate in its decision the fact that such objections, and the response thereto of the project proponent, were considered and the reasons why any or all of such objections were accepted or negatived. The failure to give such reasons would render the decision vulnerable to attack on the ground of being vitiated due to non-application of mind to relevant materials and therefore arbitrary.”
This judgment delivered by the Delhi High Court, for the first time, discusses the issues of public hearing, the functioning of EAC and the manner in which the environmental clearances are being granted by the Ministry of Environment and Forest. The Ministry has virtually become a clearing house, accepting almost every project that it receives. Anyone who fulfills the required paper work will get the approval, irrespective of the socio-economic and environment impact.
Posted by Rahul Choudhary November 30, 2009 at 5:00 pm in Displacement, Environment, India, Law
When the National Environment Appellate Authority (NEAA) has dismissed all the cases (except one in the Polavaram dam case in 2007) filed before it in past 13 years, one cannot expect anything when you approach it but another dismissal. The NEAA is the sole statutory body to challenge the environmental clearances granted to the projects like mining, thermal power plant, hydroelectric projects etc. The authority is composed of a retired Chief Justice of a High Court or a retired judge of the Supreme Court as the chairperson, one vice chairperson and three technical members. Interestingly for last eight years, there is no chairperson in the Authority and no vice chairperson for last six years, and the so-called technical members are all retired bureaucrats. Now there is only one member in the Authority who is deciding the Appeals against the grant of environmental clearances.
The Ministry of Environment and Forest (MoEF) granted environmental clearance on August 17 2009 to the 1200MW Thermal Power Plant near village Singhitarai, District Janjgir-Champa, Chhattisgarh by M/s Athena Chhattisgarh Power Pvt. Ltd. The project was approved by the MoEF even after the process of public hearing was incomplete. At the time of public hearing, the presiding officer came to declare that the hearing is cancelled. Interesting part is that the Presiding officer said that the project proponent has not informed the public about the project in proper manner, and hence the public hearing is cancelled. But when minutes was prepared, it was recorded that the public hearing is cancelled due to the law and order problem because 400-500 people entered the public hearing place and started shouting slogan for cancelling the public hearing. As per the Environment Impact Assessment Notification, the expert committee recommending environment clearance has to do detailed scrutiny of outcome of public hearing. But in this case the Athena Power Ltd. manipulated the public hearing proceedings and must have influenced the expert committee as the owner of company is late Y.S. Rajasekhara Reddy’s family.
The granting of environmental clearance was challenged by Villagers of Singhitarai before the NEAA. The main issue of challenge was incomplete process of public hearing. Now the NEAA has only one member and is hearing all the cases. Taking the precedent of the NEAA, when case came up for hearing there was no expectation of relief even after such a blatant violation of the EIA Notification. After watching video recording of the public hearing, the member of the NEAA was convinced that the minutes of the public hearing is different from what has happened during the public hearing and the process of public hearing was incomplete.
In a surprise move, first time in the history of the NEAA, the member stayed the Thermal Power project. This sudden spur of prudence has left many bewildered and guessing, but this stay of the project on the reason of incomplete public participation process will have impact on conducting future public hearings. In the whole process of Environmental Clearances, the Public Hearing is the only stage where the affected person can participate in the decision making process.
Posted by Rahul Choudhary June 16, 2008 at 11:59 am in Displacement, Environment, Politics
Recently held Public Hearing for Rupsiabagar – Khasiabara Hydro Electric Project at Munsiyari District of Uttarakhand is an example of the establishment and corporate playing farce with the provisions of public hearing provided in the Environment Impact Assessment Notification, 2006 (EIA Notification). The EIA Notification provides for conducting Public Hearing in the project-affected areas for the projects which fall under the schedule of the EIA Notification. The Public Hearing is a platform where the persons who have any objection to the project can register the same, and the proceedings of the public hearing with objections of the public are sent to the Ministry of Environment & Forest to decide over granting Environmental Clearance to the project.
The Project proponent of Rupsiabagar – Khasiabara Hydro Electric Project, National Thermal Power Corporation (NTPC) scheduled the public hearing on 11.06.2008 when most of villagers are out to higher altitude of mountains to collect ‘Yarsagumba’ ( or cordyceps sinesis is a rare herb and grows above 3,500 meters of the Himalayas) knowing very well that most of the villagers will not be able to participate in the public hearing. The NTPC scheduled the public hearing at this time to complete the formality of conducting public hearing without any opposition. The way this public hearing was conducted shows that NTPC and the State Machinery did not want Public Hearing to be conducted in fair manner.
The number of families who will be losing land is almost 1362, according to the NTPC, which is generally careful not to reveal the true figures. It is true for other projects and will happen in this project also that the villagers who are dependant on agricultural land for livelihood are paid very less compensation for their land, and the money given is not sufficient to buy similar kind of land. The money given as compensation does not last long and the farmers end up becoming labourers on the construction site or working in small hotels or dabhas in Delhi and living a miserable life. The government has developed a great law for acquisition of land, where under Section 17 of the Land Acquisition Act, 1894, invoking urgency clause it can acquire the land without entertaining any objection, but at the same place there is no proper policy about the rehabilitation of the person affected by the project.
This situation is similar as stated by Karl Marx in Capital Vol-1, referring to legislations against the expropriated of France, Netherland and Holland, that “Thus where the agricultural people, first forcibly expropriated from the soil, driven from their homes, turned into vagabonds, and then whipped, branded by laws grotesquely terrible, into discipline necessary for wage system”.
The Public hearing held on 11.06.2008 was opposed by the local people on the grounds that:
* Almost all the villagers of 8-9 villages of the project area would go to collect ‘Yarsa Gumba’
* The other villagers were not informed about the project properly.
* No sufficient information about the public hearing.
* The executive summary of the project was not made available.
* The Environment Impact Assessment report of the project was available almost at the distance of 150 K.M from the project site, which was not possible for the villagers to access.
* The Procedure of conducting Public Hearing has not been followed as provided in the EIA Notification, 2006.
The Public Hearing was scheduled at 11 AM, and just at the start of public hearing the locals got hold of dais and asked from the panel members of the public hearing to postpone the hearing. There were villagers like one Gram pradhan and Block Head who wanted to continue the public hearing for the reasons that they will get petty contracts from the NTPC during the construction of project. For almost three hours the hearing was stalled and the panel of the Public Hearing decided to postpone it. However the NTPC gave the presentation highlighting the benefits of the project and very obviously missing out the impacts of the projects. No questions or objections were raised to the panel members as the public was told that this public hearing is postponed and it will be held again in October when the villagers are back. Only two-three persons who were expecting favour from the NTPC in terms of getting contracts spoke in support of the project, to which the NTPC personnel were not tired of clapping.
The very next day on June 12, 2008 it was reported in the newspaper like ‘Amar Ujala’ and ‘Rashtriya Sahara’ that the public hearing was postponed due to protest. But the NTPC did not allow the media to ruin their plan to show the public hearing of June 11 as the final hearing to get the Environmental Clearance. The very newspaper ‘Amar Ujala’ which reported that the Public Hearing was postponed published an advertisement in its 13th June edition, that the public hearing was held for the Rupsiabagar – Khasiabara Hydro Electric Project amidst protest. This is clearly an indication that the NTPC will submit this as a final Public Hearing, showing the Ministry of Environment & Forest that the project was supported by the locals.
To paraphrase Marx, capitalism flourishes only by breaking down all resistance. Evidently, this public hearing is also an example of a strong corporate-state-media nexus, which undermines public objections and opposition, looking for every means to breakdown the resistance of the maginalised people.
Posted by Rahul Choudhary September 24, 2007 at 1:22 am in Displacement, Environment, Law
Whether it is the Samata ((1997)8SCC19) case, Kudramukh case or more recently the Vedanta Mining case in Orissa, mining is always in disputes and creates a tremendous conflict of interest. For government and the mining company it is always a lucrative enterprise, but for environmentalist, tribal and other affected by mining, it is a disaster. While the mining company flaunts the benefits, concealing the real impact of its project in order to get the environmental clearance from the Ministry of Environment and Forest (MoEF), the Ministry itself never seeks to assess the real impact through its so-called expert committees. There are numerous examples where a mining company has tried (rather successfully) to evict members of some indigenous community, projecting the dense forest as rocky and barren land. Even when there are hundreds of indigenous people affected, they are projected as few, and most of them are not even included in the list of Project Affected Persons (PAP).
Vedanta Alumina Limited, a subsidiary of M/s Strerlite Industries (India) Ltd proposed a one million tonne per annum capacity alumina refinery project together with a 75 MW coal based captive power plant. The bauxite for the refinery was to be sourced from the Niyamgiri Hills. Interestingly, the Alumina refinery was granted environmental clearance without linking the project with the Mining.
M/s Sterlite (the parent company of M/s Vedanta) applied for environmental clearance on 19.03. 2003 to the MoEF. In the application, Vedanta stated that no forestland is involved and that within the radius of 10 kms there is no reserve forest. M/s Vedanta thereafter on 16.08.2004 applied for use of 58.943 ha forestland consisting of 28.943 ha village forest and 30 ha reserve forest. However, the application for environmental clearance was not modified and the same was processed on the premise that no forestland is involved.
Further, though Mining at Lanjigarh was integral part of the Alumina refinery project, Vedanta could not have started the work on the Alumina refinery without getting the clearance for mining also. As per the guidelines of the MoEF – “for projects requiring clearance from forest as well as environment angles, separate communications of sanction will be issued, and the project would be deemed to be cleared only after clearance from both angles…”
M/s Vedanta requested the MoEF to grant environmental clearance for the Alumina Refinery Plant stating that it would take three years to construct the refinery plant whereas mines can be opened up in one year. In its application for seeking environmental clearance for the project dated 19.3.2003 it is stated that “nil” forestland is required for the alumina refinery and that within a radius of 10 km of the project site there is no reserve forest, which is contrary to the facts on record. Subsequently, on 16.8.2004 a proposal for allowing the use of 58.943 ha forestland, consisting of 28.943 acre of “Gramya Jungle Jogya” land and 30 ha of reserve forest, was moved under the FC Act through the State Government to the MoEF. Out of the above, 26.123 ha forestland was required for the refinery, 25.82 ha for the mine access road and the balance 7.0 ha was required for the construction of the conveyor belt for the transportation of the mineral from the mine site to the plant.
The MoEF gives environmental clearance for Alumina Refinery Project by delinking it with mining project. In the environmental clearance it is stated that no forestland is involved, even though the application under the Forest Conservation Act was still pending.
As per para 4.4 of the guidelines laid down by the MoEF “Some projects involve use of forest land as well as non-forest land. State Governments / Project Authorities some times start work on non-forest lands in anticipation of the approval of the Central Government for release of the forest lands required for the projects. Though the provisions of the Act may not have technically been violated by starting of work on non-forest lands, expenditure incurred on works on non-forest lands may prove to be infructuous if diversion of forest land involved is not approved. It has, therefore, been decided that if a project involves forest as well as non-forest land, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been given”
But Vedanta started the work on Alumina Refinery in blatant violation of this provision.
Three applications were filed before the Central Empowered Committee (CEC), constituted by the Supreme Court of India against establishment of project and the environmental clearance granted by the MoEF without considering the forest area on 22 Sept 2004 to M/S Vedanta Alumina Ltd. The CEC heard the matter and also conducted a site visit of the proposed refinery plant and mining area. The CEC filed their report on 21 Sept 2005 before the Supreme Court with the recommendation that the apex court may consider revoking the environment clearance dated 22/09/2004 granted by the MoEF for setting up of an Alumina refinery plant by M/S Vedanta and directing them to stop all further work on the project.
The Supreme Court in its order dated 03/02/2006 in I.A.NO 1474 with I.A.No.1324 in writ petition (civil) No.202 of 1995 directed the MoEF, GOI, New Delhi that various studies to assess the impact of the project may be carried out within three months. Accordingly the MoEF placed the application for forest diversion of Lanjigarh Bauxite Mine before the Forest Advisory Committee (FAC), constituted under section 3 of the Forest (Conservation) Act, 1980. The FAC after examining the proposal also suggested for carrying out in depth studies to assess the impact of the project. The MoEF, GOI, New Delhi directed the Central Planning and Designing Institute (CMPDI), Ranchi to carry out the above-mentioned studies.
The Wildlife Institute of India (WII) submitted their report dated 14 June 2006 to Forest Advisory Committee and it was examined by them in its meeting held on 30 Aug 2006.The WII was asked to reexamine the report in the light of facts and figures put forward by the State of Orissa. The WII prepared a supplementary report dated 25th Oct 2006. In this report WII put their point of view on wild life, likely adverse impact of mining and identification of alternate source of bauxite among others. The studies related to soil erosion, impact on ground vibration and the studies related to soil erosion, impact on ground vibration on hydrological characteristics, flow of natural water resources/ streams etc were carried out by the Central Planning and Designing Institute (CMPDI), Ranchi as per the request made by the Orissa Mining Corporation (OMC) and after their proposal was accepted by the OMC.
The approach of the Supreme Court is perplexing, as the Central Empowered Committee clearly pointed out the illegality in the clearance granted and once the clearance is granted then post facto impact study is not provided in law.
The Niyamgiri hill is spread over in 250sq.km. of area. This hill is also known as Dongaria Kondha country. Dongaria Kondh is one of the primitive and schedule tribes of the state and fully dependent on the Niyamgiri Hill. If one claims to be Dongaria Kondh then he must reside in the Niyam Giri Hill. Niyamgiri Hill is also a source for Vamsadhra River, along with for various other perennial streams. Mining in the Niyamgiri Hill involves a blatant violation of various laws which are there for the protection of Scheduled tribes, like the Orissa Schedule Areas Transfer of Immovable Property (Regulation) 1956, the Scheduled Caste and Schedule Tribes (prevention of Atrocities) Act 1989. .
The mining company put up the point that by mining there will be a development of the area, the villagers will get employment etc. But the reality is the villagers who are self-dependent, having land of their own will become marginalized workers in the mines. As most of the villagers are unskilled for industrial or mining work, they will only get job of informal and unskilled labourers dependent on the whims of the company and the contractor. They lose everything to pass over to the next generation except the misery of working in the mine. We all know also who benefited from the mining at Dhanbad and various parts of Rajasthan for several decades.
The Supreme Court is hearing the matter in detail but has not stayed the work on this 4000-Crore-Rupees-project on the ground of large investment involved. Tendentially, the company’s argument before the Court is that, as they have spent a large amount of money, so the project should not be scrapped.
While at the same time, the Courts are quick in granting the removal of jhuggi jhopris (urban poor settlements) in Delhi and other metro cities in the country on the ground of being unauthorised. However, if the investment of the jhuggi jhopris is considered, then that is in fact an absolute investment by the poor people living there. Moreover, the same courts have allowed construction of big shopping malls and even 5-star religious temples like the Akshardham Temple in East Delhi on the same land from where the authorities removed the Jhuggi jhopries.
With all regards to Indian judiciary, we must admit that in recent years, unlike in the 1960s-70s, it is unwilling to check the reckless pace of corporate industrialisation, which is taking its toll on the environment, tribals and people in the pursuit of profit. On the other hand, the downtrodden majority has no recourse left within the coordinates of the status quo (as fixed in the constitution, interpreted by the judiciary and amended by the legislature), except queuing up for electoral rituals now and then.
