Opinion: Why the Pen Memorial consultation wasn't really a public hearing

A public hearing is not a forum where a subject is put to vote. Neither is it a 'public hearing' in the legal sense unless it is conducted strictly as laid out in the law.
The public meeting on the Pen Monument on January 31
The public meeting on the Pen Monument on January 31

On February 20, newspapers in Chennai reported that 22 participants at an environmental public hearing were in favour of and 12 were opposed to the erection of a 'Pen Monument' in former Tamil Nadu Chief Minister M Karunanidhi’s memory inside the Bay of Bengal. The headlines, including in national newspapers like The Hindu and Times of India expose a shallow understanding of the environmental laws under which the public hearing was conducted, and conveys a false sense that a major hurdle – that of public acceptability – has been crossed by project proponents.

A public hearing is not a forum where a subject is put to vote. Neither is it a 'public hearing' in the legal sense unless it is conducted strictly as laid out in the law.

Some context first: The public consultation whose minutes were uploaded to the Tamil Nadu Pollution Control Board’s website over the weekend was conducted to fulfill the pre-licensing mandate for construction of statues and memorials inside the sea as per the Coastal Regulation Zone (CRZ) Notification. Statues and monuments inside the sea were prohibited under the CRZ Notification until a special exemption was granted in March 2015 to facilitate the construction of a statue for Chatrapati Shivaji off the coast of Mumbai. The same exemption also mandated the preparation of an Environmental Impact Assessment (EIA) report and a public consultation to be carried out as per the procedure laid out in the EIA Notification 2006. The lapses in the Pen Monument’s EIA report and the reasons why the exemption clause created to allow Shivaji’s statue would not apply to Kalaignar’s marine memorial are dealt with in a separate article.

This article deals with the significant legal challenges the project will encounter because of the legally fraught manner in which the public hearing was conducted, and the failure of TNPCB’s Public Hearing minutes to truthfully reflect what happened at the hearing.

What is a public consultation?

According to the EIA Notification, “Public Consultation” refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.” The 'material concerns' raised would need to be addressed item wise by the project proponent before submitting the final EIA report to the Expert Appraisal Committee of the Ministry of Environment, Forests and Climate Change.

Reading the minutes of the meeting reveals a curious fact that the material concerns relating to the project design were raised only by those who were critical of the project. All those supporting the project said the project would not have an impact, because of the benevolence and stature of the person in whose memory the monument was being built.

Who can speak? How should the consultation be conducted and concluded?

Appendix IV of the EIA Notification contains the 'Procedure for Conduct of Public Hearing'. Para 6.4 of the Note states: “Persons present at the venue shall be granted the opportunity to seek information or clarifications on the project from the Applicant. The summary of the public hearing proceedings accurately reflecting all the views and concerns expressed shall be recorded by the representative of the SPCB or UTPCC and read over to the audience at the end of the proceedings explaining the contents in the local/vernacular language and the agreed minutes shall be signed by the District Magistrate/District collector/Deputy Commissioner or his or her representative on the same day and forwarded to the SPCB/UTPCC concerned.”

Writing about the sanctity of public hearings in a judgement (WP No. 9317 of 2009 in the Delhi High Court), Justice Madan Lokur said: “The advantage of a public hearing is that it brings about transparency in a proposed project and thereby gives information to the community about the project; there is consultation with the affected parties and they are not only taken into confidence about the nature of the project but are given an opportunity to express their informed opinion for or against the project. This form of a social audit, as it were, provides wherever necessary, social acceptability to a project and also gives an opportunity to the EAC to get information about a project that may not be disclosed to it or may be concealed by the project proponent.”

Revealing information that is concealed or misrepresented by the project proponent is an important function of public hearings. Such revelations can be suppressed by denying room for them to be aired in the video-documented public hearing. Many participants prefer deposing in Public Hearings as their depositions are minuted and video documented, and likely to be taken more seriously than paper representations that will be forwarded to an indifferent Experts Committee burdened with the task of considering more projects per hour than it is intellectually capable of.

Why this public consultation is invalid

A legally valid public hearing is expected to have provided an opportunity for any and all persons present at the venue to seek information or clarifications. A natural corollary of this is that the chairperson of the hearing must ensure an atmosphere conducive for participants to raise issues without fear or favour. The hearing on 31 January, though, was held amidst chaos and ruckus created by ruling-party supporters of the project who harassed speakers critical of proposal and prevented them from seeking clarifications. 

Video recordings of the hearing, including by the BBC, document an evidently nervous looking TNPCB official prematurely concluding the meeting. He can be heard saying, “Those who were unable to depose are welcome to submit their comments in writing” even as a participant registered to speak is restrained from taking the podium.

K Saravanan, a prominent fisher rights activist and one of the founder members of the Save Chennai Beaches campaign, had registered to raise several issues requiring clarification. “I was not given an opportunity to present my views and seek clarifications. The EIA claimed that there was no inshore fishing in the vicinity of the monument. That is a claim with material implications for the lives of local people. But the claim is not backed by any study done in the EIA. I wanted the project promoters to clarify what was the basis of their claim,” he says. “It is not just the public hearing; the entire manner in which the government is going about regulating the coast is a sham. Local level Coastal Zone Management Plans (CZMPs) prepared by the state government are supposed to highlight fishing zones across the coast of Tamil Nadu precisely in anticipation of conflicts such as this. But the draft CZMPs fail to do that. District level Coastal Zone Management Committees are supposed to have fisher representatives that verify claims by proponents about the coast and its fish resources. But the government has failed to induct any fisher representatives in the committees," he says.

Contrast this with the Public Hearing conducted by the Goa Pollution Control Board in April 2017. The minutes of the event record, “The Public Hearing was spread over 3 days and got concluded after having reading out the minutes in Konkani and English…The project proponent was directed by the Chairman to submit a clarification to the Public on their grievances.” (sic)

While TNPCB’s minutes reflect correctly that the meeting was concluded without reading of the minutes or asking the proponent to offer clarifications, it fails to mention that the meeting was prematurely concluded, or that several people were denied an opportunity to speak.

TNPCB’s lapses in conducting the public hearing and accurately reflecting the proceedings in its minutes may well prove to be the undoing of this controversial, though high-profile, project.

Nityanand is a writer and social activist. Views expressed are the author's own.

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