A division bench of Chief Justice Abhay Oka and Justice Sachin Shankar Magadum recorded the statement made by Advocate Gururaj Joshi appearing for the Pollution Control Board and accordingly disposed of a petition filed by three Law Students challenging the proposed virtual hearing which was to be held on September 23, 2020.
Advocate Joshi informed the court that a fresh public hearing in physical form will be conducted by the PCB on development of eight lane peripheral ring road. He also stated that adequate publicity will be given to the date fixed for public hearing. The Public hearing will be conducted after following all the protocols which are required to be followed for dealing with covid-19.
After noting the same in its order the bench observed "Perusal of prayers made in the petition show that objection of petitioners was to the conduct of physical hearing by virtual mode. In view of the statement made by the counsel for respondent 1, now it is not necessary to hear the grievance. By accepting the assurance given by respondent 1, regarding conduct of public hearing in physical form, we dispose of the petition."
The law students--P B Shashaankh and Pratik Kumar from Jindal Law School and Anushka Gupta from National Law University, Delhi, in their plea had stated that "As the project causes major environmental impacts to multiple rural and urban communities and the biodiversity of the region, holding the public consultation process virtually restricts multiple vulnerable communities, which do not have the technical means to attend the virtual hearing, from effectively raising their concerns about the project, leading to an abject fail of the 'public consultation' process."
Further, it was contended that "The Impugned Notification by way of mandating a virtual public consultation hearing ignores the social matrix of the people this notification affects and violates the constitutional rights of the multiple minority communities affected by the project and the people of the State of Karnataka."
The project was proposed in the year 2005, to build a 65-km eight-lane peripheral ring road in Bengaluru to decongest the city. To cater intercity connectivity and intercity traffic; to reduce pollution in the city; to reduce heavy vehicles traffic i.e., Lorry and Trucks; and to decongest the traffic on outer ring road.
Previously, the authority had scheduled a public hearing on August 18, 2020. However, this move to hold the public hearing during the Covid crisis received massive public outcry and various environmental groups sought postponement of this hearing arguing that it was a violation of central and state government orders. Subsequently this hearing was cancelled.
Following which a notification is issued on 31.08.2020 by the State pollution control board proposing to continue the environmental public hearing by conducting a webinar.
The petitioners had said that access to justice is a fundamental principle of rule of law. The impugned notification, which mandates the use of 'Zoom mobile application' for conducting the public consultation process is bad in law and should be struck down.
In this regard it is said that "Public Consultation, which is a facet of the larger overarching principle of access to justice is a legal right intrinsic to Article 14,19 and 21 of the Constitution of India, and is a right that is vested upon all citizens of India."
Moreover, Article 14 of the Constitution of India allows for discrimination between classes of people only if there is a rational nexus between the classification and its objective. The impugned notification discriminates between persons with and without access to the Internet.
Highlighting the purpose of a public consultation process the plea says "The purpose is to take into consideration the opinions and suggestions of diverse stakeholders, and not allowing the class of persons without access to the Internet in the public consultation process defeats the very purpose this provision seeks to achieve, and hence this classification is violative of Article 14."
It was also stated in the petition that Clause 3(1) of EIA Notification, 2006 states that "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". Keeping the public consultation process online goes against this clause of the parent EIA Notification, and hence the impugned notification is bad in law.