Gopikrishna Warrier: You’re listening to Everything Environment by Mongabay-India.

Sometime during the year 2000, there was a press meeting in Chennai in which two union ministers spoke. If getting two ministers to a press meeting was not very common, what they were talking about was also not a usually discussed topic. The two ministers were the Environment Minister, T R Baalu of the Dravida Munnetra Kazhagam, or the DMK party, and the Urban Development Minister Jagmohan of the Bharatiya Janata Party or the BJP.

Those days, the BJP-led National Democratic Alliance was in power at the Centre, and the DMK, a regional party from Tamil Nadu, was part of the coalition. Together, ministers Baalu and Jagmohan announced, that day in the year 2000, funds totaling more than Rs 800 crores for cleaning the waterways of Chennai, including the Koovam and Adayar rivers. Of this, the Ministry of Environment and Forests had allocated Rs 491 crores from the National River Conservation Programme. This was a large allocation by the standards of the time.

During the question-answer session, I asked Minister Baalu, “How was it that the central ministry was earmarking so much funds for one state and one city?” He was not amused by my question and said, “I’m also doing for other states and not just for Tamil Nadu.” Despite the minister’s defense, as a reporter covering the environment, I knew such a large allocation was unusual.

Welcome to our show Environomy. I am S. Gopikrishna Warrier, Managing Editor, Mongabay-India. Through this series of podcasts, I will take you through the journey of how environment and economics got interlocked after the economic reforms of 1991. This is a journey for which I had a ringside ticket as a journalist reporting and writing on the environment for the past three decades.

In the first two episodes of the series, we looked at how the Indian middle class bought a distinct economic and political voice after the economic reforms of 1991. Further, we examined how this middle class voice changed the way in which India dealt with its environmental issues.

In this third episode, we will see how the three pillars of Indian democracy, i.e., the legislature, the executive, and the judiciary, recalibrated their positions during the past three decades and how it impacted the environmental costs.

The legislature consisting of the parliamentarians, and legislators are the policy makers who draw up acts and policies. The executive is the government, consisting of the Prime Minister, Council of Ministers, Chief Ministers and their officials. The judiciary are the lawyers and the judges in the courts, from the lower ones to the Supreme Court and also the National Green Tribunal.

Minister Baalu’s ability to leverage disproportionately higher allocation from the central ministry to his home state in 2000 was an indication of the power that regional political parties were wielding during the 1990s. Between 1989 (when the Rajiv Gandhi government was voted out) and 2014 (when the Narendra Modi government was voted in), it was a period of political coalitions, which partners could make or break. This meant greater leverage not just with ministry funds but also with development projects.

This was the period when the executive was weak, and that meant greater strength to the legislature and the judiciary.

The three pillars of Indian democracy–the executive, the legislature, and the judiciary–have always maintained a calibrated balance since Independence. Ironically, the period between 1989 and 2014, when the executive was weak, was also the period when the executive took bold decisions. The launch of the economic reforms in 1991 that structurally changed the Indian economy was one such example.

The period of the weak executive, where regional political parties had strength, was also the period for infrastructure development. New power plants, roads, ports, airports, special economic zones (SEZs), satellite townships, etc. came up in this period. With their political might, the regional parties pushed for these projects in their regions and also brushed aside environmental concerns with equal ferocity.

From 2014, political power was centralised again, this time with the BJP. The push through against environmental concerns have been equally forceful. When the executive was weak, the legislature and the judiciary compensated with their weft. The legislature pulled towards new legislations that brought equity into the discussions.

During the decade between 2004 and 2014, when the Congress-led United Progressive Alliance government was in power for two tenures, many rights-based legislations were enacted. This included the Forest Rights Act of 2006, the Right to Education of 2009, the Right to Information Act of 2005, the National Food Security Act of 2013, and the Land Acquisition, Rehabilitation, and Resettlement Act of 2013. These legislations enabled common citizens to demand, as a matter of right, their access to natural and social resources.

Two other legislations were developed, with much public discussion to protect the rights of ordinary communities and the environment. These were the Biological Diversity Act of 2002, and the Protection of Plant Varieties and Farmers Rights Act of 2001. Through the Biodiversity Act, India became the first country to have a legislation to conserve the country’s biological diversity, promote its sustainable use, and share the benefits with those who conserve this national resource. The Protection of Plant Varieties and Farmers Rights Act, on the other hand, protected the rights of the farmers to save and use the seeds they had conserved over generations.

In addition to all these legislations, there was also the National Environment Policy of 2006. This policy had, as its principal objectives, the conservation of critical environmental resources, protecting the livelihood security of the poor, ensuring the needs of future generations, ensuring the efficient use of environmental resources and increasing finance and technological support for conservation. The principles that this policy used included the right to development, environmental protection as an integral part of development process, the precautionary approach, polluter pays, equity, legal liability, and the doctrine of public trust.

It is the judiciary that bloomed with its power in the 1990s. With lawyers and judges drawn from the urban middle class, their confidence and power grew along with that of the middle class in the country. In their book, Environmental law and Policy in India, Shyam Diwan and Armin Rosencrantz succinctly defined the role that the citizens and judiciary played in the past decades to give teeth to these legislations.

I quote Diwan and Rosencrantz, “For all the legislations and intricate rules, India’s environmental laws are largely ineffective. The agencies responsible for implementing these laws have a feeble capacity to administer, a faint grasp of societal requirements, and no resolve to match the performance of regulators elsewhere in the world. For over three decades, citizens have been compelled to petition the courts, and more recently, the National Green Tribunal, to secure enforcement of black letter laws and push the state to adopt global best practices.”

The alacrity with which the citizens and the judiciary acted on environmental issues has waxed and waned, according to the relative strength and forcefulness of the executive or the national and state governments.

Thus, in the 1990s, when the national governments were weak, it was the golden period of judicial activism. Well-meaning judges took upon themselves the role of the executive and whipped action through their strict orders. In 1996, before he retired from the Supreme Court, Justice Kuldeep Singh cleared multiple environmental cases, including those related to the Vellore tannery pollution in Tamil Nadu, pollution caused by shrimp aquaculture and development along the Coastal Regulation Zone in Kochi in Kerala. In most of the cases adjudicated by Justice Singh, the lawyer for the environmental cause was an energetic MC Mehta. Diwan and Rosencrantz list 89 cases in which Mehta is the lawyer in their book. These date between 1986 and 2020.

There was also the case related to India’s forest laws that ran from the mid-1990s for at least 15 years, starting from the Supreme Court and into the files of the National Green Tribunal. This was the T.N. Godavarman Thirumulpad versus the Union of India case.

Thirumulpad, an erstwhile feudatory from the Nilambur region of Kerala, was shocked that even though the state of Kerala and Tamil Nadu had taken over his private forests, they were not maintaining them in an ecologically sustainable manner. He brought this to the Supreme Court’s attention through writ petition 202 of 1995. Chief Justice J S Verma used this petition and ordered a review of forest policies across the country. The process started with defining the word ‘forest’, which was then articulated as its dictionary meaning independent of its ownership status, whether with the government or private.

A series of forest management related policies and actions resulted from this case. While this made those arguing for stricter conservation action happy; it raised the hackles of those demanding improved rights for the forest dwelling communities. Sharadchandra Lele, an eminent expert on forest governance and forest rights, called the ‘Thirumulpad case’ as a vehicle for unbridled and unjustifiable judicial overreach.

These debates, notwithstanding the process of developing formal judicial institutions to deal with environmental cases, started in the 1990s. Initially, the idea was to keep aside time and space within the regular working system of the high courts.

In the year 2001, I reported for the Hindu BusinessLine newspaper about the Madras High Court starting a Green Bench. This Bench consisting of the Chief Justice and one judge, met with regular frequency and adjudicated on matters related to the environment. It is the experience with the Green Benches that led to the enactment of the National Green Tribunal Act in 2010. Consisting of retired judges to deliberate the legal angles and technical members to highlight the scientific and technological issues, the NGT was established to deal with environmental cases expeditiously. The NGT has jurisdiction over original environmental cases and those coming on appeal from lower judiciary. The NGT’s orders can be appealed only in the Supreme Court.

Armed with these legislations and institutions, the judges had been pushing the boundaries and even policies, but their energy and enthusiasm is failing in the recent years, state Diwan and Rosencrantz. I quote Diwan and Rosenkrantz, “Judicial fatigue may have replaced the reformist zeal that once characterised the higher judiciaries approached in many sprawling public interest litigations that dominated the environmental docket. The courts continued to expound lofty principles, but seldom applied them with a rigour that would tangibly benefit the affected community. The final shape of judicial directions is frequently akin to a head-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.”

What Diwan and Rosencrantz missed mentioning is that the fatigue in the recent years is not limited only to judges but also to citizen action groups and even legislators. A numerically strong national government led by the BJP in 2014 and 2019 has made the executive stronger in relation to the legislature and the judiciary. This, in turn, has reduced the enthusiasm and effectiveness of environmental activism. Over the recent decades, the strong national government has diluted the conservation effectiveness of multiple laws related to forests, wildlife and Environmental Impact Assessment, etc. The focus has been on improving the ease of doing business rather than on protecting the environment.

If the Baalu-Jagmohan press meeting of 24 years ago was an example of federalism and decentralisation, today we are in a period of unitary governance and centralisation. Within the predominant framework of economic growth in the past 30 years, both time periods had their environmental issues, but the first period had a greater space for dissent and disagreement.

In the next episode, we will examine how these macro-economic, political and social changes affected the environment of the mountains and riverine ecosystems.

This episode was written and produced by me, S. Gopikrishna Warrier. Production editor: Kartik Chandramouli. Audio editor: Tejas Dayanand Sagar.