Law

The New Coastal Law Sets an Unethical Precedent in Policy Making

Like the need for legal review, public review of a draft policy could soon be deemed redundant and done away with.

Much like the country, the four-and-a-half years under the National Democratic Alliance Regime have been turbulent for coastal legislation of India.

The country’s coastal law has been under review and revision all through this government’s current term. Since June 2014, the government ordered a review of, issued over ten amendments to and considered five drafts to replace the Coastal Regulation Zone (CRZ) notification of 2011, only to culminate it all with the draft CRZ notification in April 2018.

The draft proposed dilutions such as reduction in the regulated and no-development area, allowing eco-tourism, mining of rare minerals, salt harvesting, waste treatment in eco-sensitive areas, relaxed building stipulations in urban areas and temporary tourism facilities in no-development zones. These dilutions were cheered by the real estate, tourism and construction sectors and saw strong opposition from fisher groups, environmentalists, scientists, urban planners, NGOs and citizen groups.

Besides the ecological and livelihood concerns that the draft posed, it set an unethical precedent in the arena of policy making. The draft, which was turned into a final notification on January 18, sends several worrisome messages for those concerned with genuine participatory policy making.

Draft policies can be near-final and ‘invested’

The Centre maintains that it had received requests from state governments for revising the CRZ Notification 2011 and hence it constituted the Shailesh Nayak Committee to review the law.

Since January 2015, when the Shailesh Nayak Committee submitted its report based on the consultations with the state governments, the Centre has had several officers from the ministry of environment, forests & climate change (MoEFCC) study and comment on the committee suggestions and multiple versions of the policy.

It organised an inter-ministerial meeting on one of the versions and the Prime Minister’s Office was appraised about the planned changes. Clearly, a lot of time and effort was already put into the draft before it was made available for public scrutiny. After such investment in it, taking public opinion seemed a mere formality or a box that needed to be checked.

Besides the ecological and livelihood concerns that the draft posed, it set an unethical precedent in the arena of policy making. Credit: Balasubramaniam N.

Draft policies can be prepared without an oversight of the law ministry

In May 2017, the Centre changed the procedure of framing subordinate legislation. It did away with the need for an approval of the Ministry of Law & Justice on the draft version of a subordinate legislation. It deemed that a one-time review by the law ministry at the time of finalisation of a policy was enough. Accordingly, the draft CRZ law was not viewed by the law ministry. While consultations with ‘stakeholder ministries’ and state governments were considered important, inputs from the ministry of law were found unnecessary.

Draft policies can be finalised without following the good practices of policy making

Making public the summary/compilation of comments and objections/suggestions received on a policy is considered a good practice in policy making. What is also considered good for participatory policy making is that the government holds public consultations on contentious matters and makes its opinions on the comments available for public view.

Also Read: Circumventing the CRZ: Unlocking Mumbai’s Coastal Real Estate

However, these are rarely followed. In the case of draft CRZ notification as well, these practices were ignored. A summary of comments although prepared by the MoEFCC (and shared in response to an RTI application) was not made available on its website.

Draft policies can be used as a basis for preparing other policy and planning tools

At the time when draft was put out, the coastal zone management plans (CZMP) were under preparation. With different regulatory zones (ecologically sensitive, urban, rural and water) marked on it, the CZMP acts as a ready reference for regulators to take decisions regarding development and conservation projects and identify CRZ violations in coastal areas.

The nine coastal states and four union territories (UTs) were expected to prepare coastal plans in line with the provisions of the 2011 law by 2013. Although for most part of the seven years the coastal plans were in making, it didn’t affect the business as usual.

All this while, the project proposals were appraised using the tidal demarcation and coastal zoning done on a case-to-case basis, often provided by project proponents. Taking note of such lopsided way of appraising projects, the National Green Tribunal (NGT), in November 2017, stayed clearance of projects in coastal areas till the plans according to the 2011 law were ready.

Realising that with the new law overriding the 2011 law, the CZMPs would need to be revised again and it may cause further delays for ‘crucial’ projects, the ministry deployed an ingenious way forward. It added a clause in the draft CRZ notification 2018 that said that the provisions of this draft “shall not come in force” until the CZMPs are updated according to the provisions of the draft notification.

This meant that the state governments would be granted relaxations for tourism and commercial development in their coastal territories only after they have brought their plans in line with the new law. It also implied that provisions of a draft policy, a policy that is open for public opinions and likely to change would be used as a basis to prepare land use plans for the coasts.

These plans, as per the same policy, should not be revised before a period of minimum five years of their making. Thus, if in the last eight months, a draft law has been used to update the management plans for country’s coastal areas, it could raise questions about the legal standing of these plans.

The Centre did away with the need for an approval of the Ministry of Law & Justice on the draft version of a subordinate legislation. Law minister Ravi Shankar Prasad. Credit: PTI

Multiple draft policies can be issued in parallel

At the time when the draft CRZ notification was issued, alongside the draft island coastal regulation notification was also published and public hearings on draft CZMPs across the nine states and four UTs too were either ongoing or slated to initiate. Such simultaneous issuance of multiple draft legislations and plans appears to be an attempt on ministry’s part to deflect public attention away from coastal alterations.

Compromised process of policy making

The coastal plans, however, are still in making. As per the NGT hearings of the matter, the latest deadline for the submission of the CZMP of Goa with the MoEFCC is January 31, 2019. The final notification was supposed to be issued only after the coastal plans based on draft CRZ 2018 have been prepared.

Also Read: Speed up Clearances for Ports: Parliament Panel to Environment Ministry

But realizing that the CZMPs are getting delayed, the ministry went back on what it stated in the draft and issued the final notification on January 18. The provision that earlier said that the draft “shall not come in force until and unless” the CZMPs are revised as per the draft, now reads that the provisions of the notification “shall not apply” till the CZMPs are updated according to the provisions of this notification. This is one of the few changes that have been made in the draft. Besides this and a few other dilutions, the objections raised by the fisher groups, environmentalists and thousands of citizens have been overlooked altogether.

The entire review, revision and the current replacement of the coastal law was shrouded in secrecy. The government drafted the coastal law behind closed doors and circumvented the principles of participatory policy making.

It may soon happen that like the need for legal review, public review of a draft policy would also be deemed redundant and be done away with. The fear of having a compromised process of policy making in place is not at all unfounded in current times.

Meenakshi Kapoor is a researcher at Centre for Policy Research, New Delhi.