We witness the growing acknowledgement of the need to protect environment and the questions of climate justice and sustainability addressed for the first time at the global forum in the form of the Stockholm Conference held by the UN in 1972. Afterward, a series of other things followed up, including the Earth Summit at Rio (1992), the Kyoto Protocol (1997), and recently COP21 Paris conference, to name a few. Recently, have courts declared natural entities as having the protection of legal person (In 2017 Uttarakhand High Court declared the Ganga and Yamuna as legal persons, although the decision was later overturned by the supreme court). The question was no longer about the existence of the crisis, but of its management, because ‘development’ cannot be avoided.
We are concerned here with the legal dimension of the problem and will move accordingly in that direction. Justice Madan Lokur, while delivering a lecture titled “Environmental Law: Its Development and Jurisprudence”, said that the definition of ‘environment’ in the Indian environmental law is broad rather than a narrow one, suggesting that SC has tried to look at the problem holistically, not limiting it to the ecological or cultural aspect but also considering socio-economic factors and its effects. Protecting forests, wildlife, and the environment is also part of the non-justiciable DPSP (Article 48A) and Fundamental Duties (Article 51A(g)), in addition to the legal and justifiable protection provided by various acts such as the Water Act (1974), Air Act (1981), and Environment (Protection) Act, 1986. Not providing a healthy environment can also be construed to violate article 21 of the constitution. Some may argue about it in the language of human rights as well, but the problem with human rights is that it cannot be made effective unless the state has formulated its own laws for the same, or the courts have recognised it as such. Over the years in India, various courts, but primarily the Supreme Court, came to evolve various principles in dealing with protecting the environment and which shaped the terrain of environmental jurisprudence in India. In a case dealing with Indian Council for Enviro-legal Action & Ors v. Union of India, (1996) 3 SCC 212, the SC held that as per the Polluter Pays principle, “… once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised on the very nature of the activity carried on.” (Lokur, p. 9) Under the same principle it was said that the monetary burden for the damages done would not lie with the government, since it is the taxpayers’ money that would be used. In the case relating to Vellore Citizens Welfare Forum v. Union of India & Ors, (1996) 5 SCC 647, the court recognised the Precautionary Principle. Under this principle, three things were important: “(1) Environmental measures – to anticipate, prevent and attack the causes of environmental degradation. (2) Lack of scientific enquiry should not be used to postpone measures for prevention of environmental degradation. (3) The onus of proof is on the actor, developer or industrialist to show that his action is environmentally benign.” (ibid) Apart from these, courts have also accepted principles that have emerged from international forums or treaties, recognising them in the course of various cases. In the case of MC Mehta vs. Kamal Nath, Supreme Court recognised the doctrine of public trust whereby certain properties/places would only remain with the public by the very nature of such places, like rivers, forests, air, etc. Subsequently, in one case, the state was held to violate this doctrine by leasing an ecologically fragile piece of land to motel management (Bakshi, P. M., p. 58). For Justice Lokur, the main problem is non-implementation of court orders and statutory laws, like issues regarding establishing green benches in high courts or the lack of proper use of CAMPA, or still with the non-functionality of other institutions. He also talks about weak laws or soft laws, which might be toothless, by giving too many powers to the executive to decide the case. But this is not the whole story, even though it has elements of truth. What follows next will try to reject to an extent the vindication (not to reject the whole piece itself) proffered by Justice Lokur regarding the role of courts and laws.
The Colonial regime used various laws to get control of forests and throw out tribals from their lands, and Indian Forest Act, 1927, is one such law, which continued to be in place even after independence. After independence, the primary purpose of forests was to be used as a resource for making a strong nation, while the need to protect them only came to be realised later, with the alarming rate of destruction of forests and to accommodate indigenous people.
The case begins regarding the politics of conservation of the forest and the livelihoods of those dependent on it. Legally speaking, one-fifth of the country is under forest cover or declared as ‘forest’, and an equally large number of people are living in the forest and its periphery (Bijoy 2019). So, it is obvious that when any new project or resources are to be extracted, tribals or forest-dependent people are its first target. In fact, looking at the history of displacement in India, one will clearly see that indigenous people have been displaced most often. The Colonial regime used various laws to get control of forests and throw out tribals from their lands, and Indian Forest Act, 1927, is one such law, which continued to be in place even after independence. After independence, the primary purpose of forests was to be used as a resource for making a strong nation, while the need to protect them only came to be realised later, with the alarming rate of destruction of forests and to accommodate indigenous people. The Wildlife (Protection) Act 1972 was created to protect forests, and this, in turn, led to the creation of Protected Areas like wildlife sanctuaries and national parks, which further alienated and restricted the rights of forest dwellers to use forest resources (Bijoy 2019). With the creation of Forest Conservation Act 1980 all the forest lands were brought under the control of the central government, apparently, to prevent forests from being diverted for non-forest activities, the act also disallowed the rights on forest land after 25th October 1980, turning many forest dwellers into ‘encroachers’, and criminals (Bijoy 2019). Hundreds of thousands of these ‘encroachers’ were forcefully removed from their place, and with the creation of more tiger reserves, more people were displaced. The Forest Rights Act (2006) is an important, even if flawed legislation to protect the rights of forest dwellers, which recognises them as original inhabitants of forests, and which allows them to collect minor forest produce. But the fact remains that many claims for FRA rights are rejected across states in India for various reasons, and only those who pass the muster can have a claim over the lands and resources (Sharma 2020).
Gram Sabha’s informed consent and consultation are required before any big project gets the go-ahead, noting their objections, if any. But many a time, Gram Sabha is coerced into consent or given misinformation regarding projects to get their consent; still worse are the cases where they are completely bypassed (even legally, there are many categories of projects which are excluded or protected from getting their consent).
Under FRA, Gram Sabha is a statutory body dealing with the claims of rights or their rejection in consultation with higher authorities. This body is composed of local people and is meant to be a transparent and democratic space. Gram Sabha’s informed consent and consultation are required before any big project gets the go-ahead, noting their objections, if any. But many a time, Gram Sabha is coerced into consent or given misinformation regarding projects to get their consent; still worse are the cases where they are completely bypassed (even legally, there are many categories of projects which are excluded or protected from getting their consent). This seriously undermines the protection provided under the Panchayat Extension to Scheduled Areas (PESA) Act, whereby Gram Sabha’s authority and consent no longer matters (a clear instance of weakening a fundamental law via various executive orders, notifications, or ordinary legislations). The case of legality and illegality is hardly distinguishable here. Conservation here, instead of solving the issue, seems to contribute to one, the questions of livelihood and forest dwellers’ right to live there are hardly a matter of concern. The management of forests seems to have been made the exclusive right of the state, and community engagement is not even a charade.
To deal with the issue of forest loss, the court came up with the idea of net present value (NPV), the amount calculated for the forest loss was to be deposited in a centralised compensatory afforestation fund. Although incrementally, the list of things to be included while calculating NPV went up, the questions about its inhabitants and democratic process were largely ignored. The polluter pay principle was all about who should pay and how much.
One of the defining cases to shape the politics of forest conservation is the Godavarman case, it is one of the most protracted ongoing cases. The case is also to be understood in our context and age, where almost everything is commodified by the power of finance. The Supreme Court apparently tries to balance protecting the environment by using FCA (1980) as an important act on the one hand and development on the other. Sustainable Development, which also finds mention in the Stockholm conference, is a rather fancy word, but what it does is clearly revealed by the Godavarman case. Originally, the case was filed by T. N. Godavarman Thirumulpad regarding timber felling in forest estates belonging to his princely family, and it was initially in this case that the SC extended India’s forest laws to all areas that covered the dictionary meaning of forests (Menon and Kohli, 2021, p. 415). Through this one case, the SC tried to go into the generic problem of centralised forest management and the failure of the state to protect the environment. It set up a central empowered committee (CEC) to investigate the questions of implementation, non-compliance, and other directives issued during the case. To deal with the issue of forest loss, the court came up with the idea of net present value (NPV), the amount calculated for the forest loss was to be deposited in a centralised compensatory afforestation fund. Although incrementally, the list of things to be included while calculating NPV went up, the questions about its inhabitants and democratic process were largely ignored. The polluter pay principle was all about who should pay and how much.
Despite this scheme, the CAG report in 2013 found that only 27% of non-forest land had been received in place of diverted forest land, and afforestation covered only seven percent of this (Menon and Kohli, 2021, p. 425). It was under this case that CAMPA was created under the directions of SC, but the reports on plantations under CAMPA reveal its nature. There are instances where the forest department chopped the already-grown native trees to do plantations under CAMPA, which benefits neither forests nor communities (Nandi, 2016). Especially with CAMPA, follows the practice of monoculture plantations which fail to replenish the loss of native trees, which consists of diverse varieties (Dubey 2016). Sometimes CAMPA is carried out on lands under FRA rights, thereby affecting the community rights, or in still other cases, an audit has found out that CAMPA funds have been used for non-forest purposes (Ramnath 2019).
Finally, we end with considering Environment Impact Assessment (EIA). EIA is a mechanism set up by the government to protect the environment from various developmental projects vis-à-vis also pursuing sustainable development. The purpose is to calculate the impact a project would have on the environment, and various stakeholders and what benefit the project would bring in. This helps make an informed choice whether to go ahead with the project or not, considering the sum total of all factors, including monetary and long-term benefits. The process also involves consultation with those likely to be affected, mitigation plans, revealing the project plan to the locals, and collecting their feedback and criticism (Menon and Kohli 2019). It is important to note that there have been various amendments to weaken EIA during its course of existence, and the present one is a much weaker form. In relation to the 2006 EIA notification, it was revealed via an RTI inquiry that only industry representatives were consulted for the draft and with the 2006 amendment, it also let go of industrialists who had submitted false reports or misinformed the public about the project details (ibid.). An article from Down To Earth put things succinctly, “Forest clearance is an even bigger paper tiger—94 percent of projects are cleared without an impact assessment of the project in terms of forest, biodiversity, or livelihoods of the many who live in these habitats. Then, it is stipulated that compensatory afforestation will be done for each hectare diverted. But nobody really knows if the trees are even planted, let alone if they survive.” (Narain & Bhushan, 2014). Lately, we are also observing a trend of post-facto clearance, post-facto means that activity has already begun without obtaining necessary clearance or licence, in such cases violators can now get away with paying the monetary penalty. The recent case of the proposed ‘development’ of Andaman and Nicobar region, which involves the creation of a container terminal, airport, township, and power plant, is a revealing example. In this case, it seems that EIA, instead of determining whether the project is feasible or not, has instead gone into the realm of mitigating the effects that the project would have on the ecology. To put it rather bluntly, politically the decision is already made by the NITI Aayog to go ahead with the project and EIA is only a façade to wade through the legal requirement. Serious issues with the EIA were found; The Hindu reports, “While the ToR for preparing the EIA was finalised only in May 2021, the report itself lists many instances of Vimta (Vimta Labs Ltd begin the agency hired for conducting the EIA) staff being in the field and conducting studies as early as December 2020. How is it possible that Vimta knew the details of the projects and the needs of the EIA months before the contract was awarded and even the project details were finalised?” (Sekhsaria, 2022). To conclude, EIA has primarily benefited business interests at large, even though locals might sometimes use it as a safeguard to fight for their rights and move courts for the appeal.
The Bhopal Disaster case is the epitome of how poor environmental jurisprudence can become. The company [Union Carbide India Ltd (UCIL)] and its parent company in the US, faced nothing except paying a certain amount of money, and the supreme court eventually settled the matter there; for them, justice was done. This meant that the court abandoned the rule of absolute liability, which it insisted on initially (in the same case, the bench held that “we would hold that enterprise strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylandsv Fletcher.”) (Narain & Bhushan, 2014) and adopted a rather lax view, even in a serious matter as this.
If one sees the trajectory of Indian law and jurisprudence vis-à-vis the case of protecting environmental harms or crimes, it is noteworthy that despite elaborate framework and structure, it has only selectively been able to dispense justice, the reasons for it are many. Three main reasons for non-compliance of court orders or selective compliance or the failure of courts to protect the environment seems these three (following Iyengar et al), “First, the court does not compel the Executive to correct enforcement failure, either because it feels that efforts will fail, or it does not want confrontation with the Executive. Second, the court takes the Executive to task and demands that the laws and decisions be enforced. However, there is a third hybrid route of tactical balancing where the Judiciary demands enforcement but only selectively so.”
If one sees the trajectory of Indian law and jurisprudence vis-à-vis the case of protecting environmental harms or crimes, it is noteworthy that despite elaborate framework and structure, it has only selectively been able to dispense justice, the reasons for it are many. Three main reasons for non-compliance of court orders or selective compliance or the failure of courts to protect the environment seems these three (following Iyengar et al), “First, the court does not compel the Executive to correct enforcement failure, either because it feels that efforts will fail, or it does not want confrontation with the Executive. Second, the court takes the Executive to task and demands that the laws and decisions be enforced. However, there is a third hybrid route of tactical balancing where the Judiciary demands enforcement but only selectively so.” (Iyengar et al., 2019, p. 2) The reasons for soft approach by the courts, apart from executive incapacity or lack of resources, are also the interests of the courts themselves, “—we expect judges to be carefully attuned to the political, economic, and social implications of their rulings. This is because judges are socially embedded political actors that seek to preserve the legitimacy and, therefore, the survivability of their institutions (Iyengar et al., 2019, p. 1). In the case of non-compliance, the institutional credibility of the courts diminishes, and therefore they are also careful to see whether they would prevail or not. But even when courts/quasi-judicial bodies want to serve their purpose, the lack of resources or non-functionality affects severely, especially, that is the case with the National Green Tribunal, a body meant specifically to protect the environment or to bring complaints about non-compliance of environmental norms. Many benches of NGT have been non-functioning or completely shut because of a lack of appointment of judges and other expert members, which the government seems unwilling to do. The executive edge over tribunals also raises questions of autonomy and functioning, whereby the government is tinkering with appointment rules and service conditions. India became the third country in the world to have a specialised environmental tribunal, only after Australia and New Zealand (Sahu 2018); despite so many laws and institutions, where have we landed? This shows us the politics of environmental jurisprudence in India, but it also reveals how some laws meant to protect ecology have been weaponised to harm both people and nature.
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About the Author: Jay Bhadresh Patel is pursuing his Masters in Law, Politics & Society at the School of Law, Governance & Citizenship, Dr B.R. Ambedkar University, New Delhi.