Dilemma in Indian Regulatory Framework towards Commitment for Sustainability Governance: Moving towards Sustainable Development through Judicial System

The NAPCC and its eight governmental missions were designed in 2008 in order to enable India address climate change and its effects in a sustainable manner.

The first mission under the NAPCC was the National Solar Mission, the only one to succeed four years ahead of target 2022. However, now India is staring at a massive target of 40 GW of solar rooftop by 2022, with only 1.9 GW of capacity installed. The Union Budget 2019 should have carried provisions for further budgetary capital allocation or announced a dedicated policy/scheme to fuel rapid growth, or initiated broader structural and regulatory reforms, such as carriage and content separation proposed in the Electricity Act amendment to improve the sector’s efficiency.

The second mission was for Enhanced Energy Efficiency. In 2009, it was approved ‘in principle’ by the PM’s Council on Climate Change. The third mission was on Sustainable Habitat approved by the PM in 2011. The Ministry of Housing and Urban Affairs backs the mission, but again, lacks support of effective regulatory framework. Building bye Laws and Motor Vehicle Acts are two key regulations which could strengthen the governance system for missions 2 and 3 of the NAPCC, as well as most of the elements of INDC. 

Although Section 10 and 11 of Building bye Laws, explicitly provide for issuing clearance for new buildings based on rainwater harvesting structure, sustainable building materials, waste management, energy efficient fixtures, solar energy utilization etc., the enforcement lacks right intention. The amendment in Motor Vehicle Acts towards usage of Electronic Vehicles (EVs) also needs to be backed up by public-private partnership (PPP) to make the enforcement effective. The Union Budget 2019 has recommended reducing the GST rate on EVs from the current 12 per cent to 5 per cent, while also offering an additional income tax benefit on loans taken to purchase EVs and commencement of FAME Phase II. The move is expected to expedite the growth of EVs in the Indian auto sector. However, an incentive programme alone will not bring real change. It will need a strong legal mandate for phased electrification of vehicles, fixed timeline for intermediate goals of infrastructure, a deployment strategy and compliance mechanisms.

The fourth mission under NAPCC was on water. The mission was put in place to ensure integrated water resource management to conserve water, minimise wastage and ensure more equitable distribution both across and within states. This mission has been one of the most proactive ones and is backed by the National Water Policy as well as the Ministry of Water Resources, River Development and Ganga Rejuvenation. In a recent “Mann ki Baat”, the PM stressed on water conservation. However, to resolve the water issue, we need an integrated water management regulation focusing on surface water, groundwater and wastewater simultaneously. 

Although, the Central Ground Water Authority constituted under Section 3 (3) of the Environment (Protection) Act, 1986 has regulated the abstraction of groundwater to a great extent, surface water consumption is still vaguely regulated. No regulatory framework exists to monitor and measure domestic water consumption. The Water (Prevention and Control of Pollution) Cess Act was enacted in 1977 to provide for the levy and collection of a cess on water consumed by persons operating and carrying on certain types of industrial activities, but that has also been abolished. Sections 31 and 32 of the Water (Prevention and Control of Pollution) Act, 1974 direct industries to declare any discharge of pollutants into any water bodies and empowers regulators to take necessary actions, but involvement of two different regulatory bodies, the Central Ground Water Authority and Pollution Control Boards, doesn’t provide adequate integrity in meeting the purpose of these regulations. An autonomous body such as a Bureau of Water Efficiency may be the need of the hour to regulate water monitoring and measurement across sectors.

The fifth mission was on sustaining the Himalayan Ecosystem which got a nod from the Union Cabinet in 2014. Aimed at protecting the Himalayas, it has mapped institutes and civil society organisations working on the Himalayan ecology for ease of coordination between governmental and non-governmental agencies. We cannot really expect such a mission to succeed without being backed up by regulatory framework. Also, in 2014, in order to “ease out” the environmental clearance process, the government recommended a shorter timespan for Environmental Impact Assessment (EIA) studies, public hearing and eventual environmental clearance, and also categorization of industries based on environmental risks depending upon self-assessment. This further diluted the impetus of this mission.

The sixth mission was for Green India, also termed as the Green India Mission/Scheme. It aims at protecting restoring and enhancing India’s diminishing forest cover and responding to climate change by a combination of adaptation and mitigation measures. Driven by the Ministry of Environment and Forests, it received approval from the Cabinet in 2014. Yet again, the “ease of business” concept and pressure of corporate lobbyists are hindering the MoEFCC from acting on this.

The Seventh mission of the NAPCC was for Sustainable Agriculture, focusing on integrated farming, water use efficiency, soil health management etc. Again, there is no regulatory framework to strengthen this effort.

The eighth mission is on strategic knowledge for climate change, to be driven by the Department of Science and Technology. 

Although the NAPCC is still under implementation, India’s biggest commitment right now to the global community is INDC and SDG, through the NITI Aayog. Therefore, its NITI Aayog’s responsibility to integrate the knowledge pool available in public and private sectors as well as in other institutions. NITI also has no mechanism to integrate the SDGs commitments taken up by corporates in India and report back a cumulative achievement of SDGs to UN.

Can the Government of India alone own the commitment for INDC and SDGs?

The regulatory framework has a significant lacuna as it does not include a big chunk of corporates and MSMEs in the purview of mandatory sustainability initiatives. The provisions of the Companies Act, 2013 are such that a significant number of corporates and MSMEs are missed out from performing mandatory CSR activities. The suggested activities in Schedule VII of section 135 of the Act are more in alignment with the 8-point agenda of Millennium Development Goals. Now, a realignment of the Act is needed with respect to INDC and SDGs.

Based on my two decades’ experience as a sustainability advisor for industries across the globe, I think none of the suggested activities would find any place in the list of CSR activities of MSME players. Therefore, the Ministry of Corporate Affairs and NITI Aayog should work together to bridge this gap and make the regulatory framework more specific and inclusive to achieve INDC and SDGs. The net worth mentioned in the Companies Act should be expanded, and the activities prescribed in the Act should be modified to fit in with all corporates and MSMEs interests and ability.

The Indian Judicial System thus has a pivotal role to play in ensuring that the development activities stay within the ambit of sustainable development and do not disaffect the environment of the country  but strive towards the formulation of effective sustainability governance.

Arnab Basu

Arnab Basu is a Sustainability Consultant, with 15 years of experience in advising industries and institutions on sustainability governance, environment and safety performance and complaisance.

The views and opinions expressed in the article are those of the authors and do not necessarily reflect the official policy or position of The Tilak Chronicle and TTC Media Pvt Ltd.

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