- Beginning in the 1990s, the Indian Judiciary has, case by case, built a solid foundation of laws for the protection of the environment.
- In its third edition, the book “Environmental Law and Policy in India: Cases and Materials” by Shyam Divan and Armin Rosencranz, traces this journey of legislation from the 2000s to 2021, covering the Indian environmental legal system within the Constitution, the legislative process and the legal structure.
- The authors also track the changes in underlying principles that drove environmentally-sound judgements, with economic growth being a constant bugbear to decisions regarding sustainable development.
When I joined The Hindu Business Line newspaper as a young reporter in 1993, I was given environment as my beat of choice. We, the lowest in the food chain, were expected to cover more than one beat. So, at the editorial meeting, I was asked to cover leather and textile industries, along with a few others. The editor’s logic was inarguable – there was severe pollution in leather tanning and textile dyeing, thus there was synergy with the environment beat.
Not very far from Chennai – from where I was reporting – the Vellore Citizen’s Welfare Forum had filed a case in the Supreme Court against the leather tanneries polluting the Palar river basin, the underlying aquifer and lands. In 1996, this case resulted in a landmark judgement by Justice Kuldip Singh. Months before he retired in 1996, Singh went on to author many other important judgements on the environment, thereby earning himself the sobriquet of the “Green Judge.”
Supreme Court lawyer M.C. Mehta argued for the petitioner in the Vellore tanneries case. In fact, Mehta was the petitioner in multiple cases. The mid-1990s was a period of judicial activism, and environmental cases were a significant portion of those that came for adjudication.
Environmental Law and Policy in India: Cases and Materials by Shyam Divan and Armin Rosencranz comprehensively covers the remarkable environmental adjudication process in the period of the 1990s, and frames it within India’s environmental legislation history. In the broader framework, the book contextualises the Indian environmental legal system within the Constitution, the legislative process and the legal structure.
This is the third edition of a book that has, over the decades. become essential reference material for anybody interested in the Indian environment. The first edition was published in 1991 and the second edition in 2001. In addition to what has been covered in the earlier editions, this book covers legal developments from 2000 to the end of 2021.
Judgements help develop policy
Since 2000, the Indian Parliament has enacted three major environmental laws, note the authors. They are the Biodiversity Act of 2002 (BDA 2002), the Forest Rights Act of 2006 (FRA 2006), and the National Green Tribunal Act of 2010 (NGTA 2010).
In addition, the Ministry of Environment, Forests and Climate Change (MoEF&CC) has issued a vast number of rules and regulations under the Environment Protection Act of 1986 (EPA 1986). These include rules related to controlling noise pollution, regulating ozone-depleting substances, and conserving wetlands. Older notifications under the EPA 1986 were also amended from time to time.
Divan and Rosencranz state that the Supreme Court’s record since 2000 is a mixed bag. “The first major environmental judgement rendered by the Supreme Court after 2000 was the split verdict clearing the decks for the completion of the Sardar Sarovar Dam on river Narmada.” On the positive side were the judgements requiring buses in Delhi to be fuelled by compressed natural gas, and controlling illegal mining in Karnataka, Odisha and Goa. More importantly, the judiciary has mostly supported the underdog.
“For all the legislations and intricate rules, India’s environmental laws are largely ineffective,” write Divan and Rosencranz. “For over three decades, citizens have been compelled to petition the courts (and more recently, the NGT) to secure enforcement of black letter laws and push the state to adopt global best practices. As a result, we have in India a regulatory stew of ample legislation, patchy enforcement and ad hoc judicial directions.”
The judicial decision process for environmental disputes happens in the Supreme Court, the high courts, and the NGT. The role of the judges “in spurring the evolution of Indian environmental law has been a journey without parallel in world environmental jurisprudence,” write the authors. “Since the 1980s, these judges have not only resolved individual cases between the citizen and the state but have also shaped the contours of environmental policy. They refine judicial principles and infuse life into sterile statutes that were (and still are) assiduously ignored by an ineffectual bureaucracy.”
An example that comes to my mind that serves as an example for this assertion by the authors is the T.N. Godavarman Thirumulpad versus the Union of India case (also known as the Writ Petition No. 202 of 1995). Thirumulpad, an erstwhile feudal chief from Nilambur in the Kerala side of the Nilgiri Biosphere Reserve, petitioned the Supreme Court saying that the Tamil Nadu government and the Nilgiris district administration were not protecting the forests in the district, thereby leading to environmental distress. The First Bench led by Justice J.S. Verma, who was then the chief justice, took the petition on board and started a detailed legal process that continued for years and took a relook at the national and state-level forest policies.
Environmental protection is enshrined in the Constitution
To contextualise where environmental governance fits in within the Constitution, Divan and Rosencranz quote a judgement by the current Supreme Court Chief Justice D.Y. Chandrachud (Bengaluru Development Authority vs. Sudhakar Hegde – 2020). “Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution, proper structures for environmental decision-making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Art. 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.”
While Art. 21 of the Constitution ensures the protection of life and personal liberty, Art. 14 ensures equality before the law for all citizens, irrespective of religion, race, caste, sex or place of birth.
In the mid-1990s, when I interviewed Supreme Court lawyer M.C. Mehta, he said that most of his cases were premised on the “right to life” under Art. 21. Access to good air, good water and copious vegetation is the basis of the right to life. If in doubt, just ask those living in the vicinity of the smouldering Brahmapuram garbage dump near Kochi.
Thus, if the citizens have the right to life accorded under the Constitution, all power under the book are exercised in trust for the citizenry. Thus all public functionaries in the executive, legislature and judiciary do not have an unadulterated right of use over natural resources but have to conserve and manage them under public trust.
The government articulates its position on managing this public trust through policies, which are then operationalised through legislation and rules. The judiciary on the other hand, through case law, ensures that these policies, laws and rules are in keeping with the spirit of the Constitution, and are operationalised without errors.
The overarching spirit for all national governmental action should be from the National Environment Policy of 2006. As regards legislation, there are Acts to protect wildlife, biodiversity, forest rights and the environment, as well as those to prevent water and air pollution. To further strengthen responsive decision-making, the Environment Protection Act of 1986 empowers the Ministry of Environment, Forest and Climate Change to issue notifications and rules.
Divan and Rosencranz have compiled a series of Supreme Court judgments to list the principles that the judges have used to develop ‘fundamental norms’. In addition to the right to life under Art. 21; these include the polluter pays and the precautionary principles; the doctrine of sustainable development; the principle of inter-generational equity; and the public right to ecosystem services that nature provides.
It’s all about the balance
If so much is listed out in the statutes and if jurisprudence has already covered good ground, then why are environmental issues still coming back to the courts?
The authors quote a lecture by former environment minister Jairam Ramesh from 2010. “Let us all accept the reality that there is undoubtedly a trade-off between growth and environment. In arriving at decisions to untangle the trade-off, three options present themselves – ‘yes’, ‘yes but’ and ‘no’. The real problem is that the growth constituency is used to ‘yes’ and can live with ‘yes but’. It cries foul with ‘no’. The environment constituency exults with a ‘no’, grudgingly accepts the ‘yes but’ and cries foul with a ‘yes’. Therefore, one clear lesson in this – maximize the ‘yes but’, where this is possible.”
So the courts are the arbiter of the “yes”, “no” and “yes but”. This process boils down to the question of whether the courts have the technical capability to adjudicate on the technical side of the argument or not. To get help on this, courts have traditionally depended on expert committees and amicus curiae. As a tribunal, the NGT has expert members on its bench, which can then take a decision.
However, fatigue is setting in with the courts, state Divan and Rosencranz. “Judicial fatigue may have replaced the reformist zeal which once characterised the higher judiciary’s approach in many sprawling public interest litigations that dominated the environmental docket. The courts continue to expound lofty principles but seldom apply them with a rigour that would tangibly benefit the affected communities.
“The final shape of judicial directions is frequently akin to a hedge-trimming exercise, snipping off a few stray vines here and there, whilst preserving intact the project clearance. The unwritten premise of judicial balancing dressed up as ‘sustainable development’ is that economic growth must continue unimpeded.”
The authors are only partially correct when they talk of “fatigue” slowing down the judicial activism of the 1990s. Judges, lawyers and litigants do not act independently of the dominant political and economic scenario of the period. The economic reforms of 1991 resulted in the empowerment of the consuming urban middle classes who then asked for environmental wrongs to be corrected. The judges delivered orders favouring the litigants.
What is important is the balance of power between the executive and judiciary then and now. In the mid-1990s, during the period of judicial activism, it was a relatively weak executive in power – starting with the Narasimha Rao-led government, and then ones led by Deve Gowda, I.K. Gujral and Atal Bihari Vajpayee. It was the post-Rajiv Gandhi era of coalition politics. Now, with a “muscular” government in power, the judiciary is less enthusiastic about activism.
So, judgements like the landmark one on the Vellore tannery case of 1996 – which came from the combination of Justice Kuldip Singh and lawyer M.C. Mehta – may not happen now. For young reporters of today, the choice of combining the environment beat with that of the most polluting industry may not be a natural choice as it was 30 years ago.
The pendulum swings between the executive and the judiciary at any period of time, and for an environment journalist like me, the latest edition of the Environmental Law and Policy in India will continue to serve as a reference book on green cases.
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Banner image: A Landsat 7 image of the Sundarbans. Photo by NASA Observatory/ Wikimedia Commons.