The wealth of nations revisited
INDIAN law has always been more concerned with property rights than the environment, the exploitation of natural resources than their conservation, and the ruthless appropriation of natural spoils than with evolving a common understanding of the totality of the inheritance of nature. Perhaps this indictment is over-written and does disservice to the many slokas of ancient wisdom which revere nature, or the sastric and other invocations which placed many common resources within the custody of community and state.
In the year 1900 India had a human population of 238 odd million, distributed over some of the greenest valleys, the most enchanting forests, the most exotic mountains and glaciers, the most impressive cycle of seasons and climates, and the most diverse and exciting biodiversity and flora and fauna to be found in the world. Over the millennia, agriculture had made its dent but without the rapacious onslaught of technology – leaving nature’s capacity for renewal intact for a people who lived with, and not against, nature. The task of preservation amongst plenitude was relatively simpler, even amidst complex land systems and the ravages of time, war and circumstance.
If British laws in India initiated protective – albeit malleable – legal regimes for forests, they did so for their own mixed purposes, with a shrewd sense of the needs of Empire. The 19th century was the ‘century of progress’, just as the 20th century became ‘the century of change and development’. Nineteenth century laws were geared to facilitate ‘progress’; the laws of the 20th century surrendered the earth and all its resources to development, and mercilessly ignored the multiple impact of such exploitation on nature.
The instrumental vision of law and development designated to transform India into a modern society can be traced to Nehru’s schemes for planned development to change India. The schemes of agrarian reform were concerned with redistributing land (inequitably amongst the well-off) and not with preserving it as a natural resource. Industrialization was given priority. Dams became the temples of a new India. Forests were a resource for timber. Minerals were to be exploited under a new dispensation. From 1970 or so, the Union government began to take control over various natural resource regimes, amending the Constitution in 1976 to strengthen its command over forests and the environment, and provide a justification for regulatory control to maldistribute nature’s resources to exploiters whilst reserving a portion of the spoils for greedy officials and ministers.
Even a cursory examination of a few of the cases that I have been involved in, canvas the admixture of ineptitude and corruption which has infiltrated environmental law and policy. In Rajasthan, the government permitted marble and other mining in the protected forests and tiger sanctuary in Sariska. In Gujarat, the powerful, and in my view environmentally unscrupulous, Sanghi conglomerate was allowed to build a cement plant and pipeline through the coastal zone, two reserved forests, several other forest areas and a sanctuary. The Narayan Sarovar sanctuary was especially and arbitrarily reduced to accommodate their claims. In Uttar Pradesh, the Tehri dam is being constructed on a seismically sensitive area with questionable hydrological tests.
Narmada tells its own story of doom. Historically and environmentally sensitive parts of India are to be drowned so that other parts can get the benefit of less than cost-effective power generation. In Sikkim, a 30 megawatt project was to be built in the holiest spot of Sikkimese Buddhism over the Rathong Chu river where the sacred century old Bhumchu ceremony is performed so that those involved in, or party to, the construction could make a lot of money. In the Pench sanctuary case, poor tribals were deprived of fishing rights as rival environmental groups fought over policy. In the Nagarhole forest and sanctuary, Tatas were permitted to start a hotel disguised as a hunting lodge. In Arunachal Pradesh and other states, timber merchants from Calcutta and elsewhere wreaked concessions from state governments to reduce the forest cover.
In Karnataka, factories belonging to Birla and others were permitted to pollute waters of once ecologically sound life support streams and rivers. The coastal zones of Kerala and Orissa were permitted development by the sea, with the state of Andhra permitting an ammonia based fertilizer plant close to the shining blue waters of the Bay of Bengal.
I remain baffled – and have expressed my dismay and surprise – that my friend, the distinguished and courageous Anil Agarwal of the Centre for Science and Environment, approved Sanghi’s jetty in the creeks leading to the Arabian sea without examining the totality of the circumstances – even if the limited decision concerning the head of the jetty may have been technically correct. What persuaded the ambitious M.C. Mehta – an environmental lawyer who has won many awards – to side with the property owners next to the chemical industry in Bombay to pose a Bhopal kind of threat that did not exist? Why was the Okhla industrial area of Delhi permitted ‘H’ category polluting industries which should not have been there in the first place? In the Yamuna case, it is clear that the river at Delhi has become a sewer which is contaminating the aquifers leading to the ground water supply.
After agriculture, building is the second largest economic activity in India. Every project yields money for the contractor, the builder, the designer, the obliging bureaucrat and politician. An abandoned project is even more lucrative – the ill-gotten gains of money are reaped by all and sun- dry without any obligation to show results. In one case, polluted and expensive zinc wastes were allowed to be imported when they should not have been. Environmental planning is no longer possible in any city in India as property predators destroy each scheme with impunity with the connivance of ‘willing-to-be-bribed officials.’ Few industries follow pollution norms. The irreplaceable losses of biodiversity are irretrievable. The towns breed disease and rural areas suffer pollution and despoliation. All this is only the dramatic tip of the iceberg, a small sample of some of the struggles I have been privileged to be associated with as a lawyer.
How does one devise a framework to take preventive, precautionary and remedial action? A vicious circle is created. Without a regulatory framework, there is no control. An apparatus of regulatory control invites not just compromises but also corruption. If the economic activity generated by environmentally illegal activity is stopped, the mal-effects of such cessation do not just directly affect commercial interests but the economic regeneration of the area, the jobs of workers and the sustenance of many linked activities. Workers and industry unite to support environmental despoliation. The irreversible rapacious exploitation of natural resources is defended in the name of poverty alleviation, progress and development. One public interest is placed in a false polarity and pitted against another.
How is this cycle of short sighted development to be broken so as to preserve unrenewable natural resources and ensure that the renewable resources of the world are part of sustainable development; and, that too, amidst a host of biotic pressures from a demographic increase which has quadrupled over the 20th century?
The social forces operating against the environment are strong enough to ignore, manipulate or corrupt virtually any system of control or regulation. Post-Independence, Indian law has proceeded on a magic wand theory of naive instrumentalism. The theory is premised on four assumptions. First, the ‘law’ is a ‘magic wand’ which simply has to be enacted to instrument social change. Second, if the instrumenting magic wand of the law does not work, a Magic Wand II will be inbuilt into the law so that regulatory bureaucracies and frameworks will ensure oversight and compliance. Third, Magic Wand III seeks to criminalize impermissible activities to impose penalties, fines or imprisonment which, in the cases of corporate polluters, hardly ever affects or troubles the real person incharge. In the evocative phrase of an American jurist who has studied corporate criminality, the large corporation has ‘no soul to damn, no body to kick.’
In the fourth place follows Magic Wand IV in the form of the ‘gap’ theory which sports the dangerous and subversive defence that the laws are all right. What is missing is the right kind of effort to cross the ‘gap’ between the ‘law’ and social reality. These four Magic Wands, which have become part of standard Indian thinking about inducing change, were part of an Anglo-American ‘law and development’ package. Though treated as outmoded elsewhere in the world, commitment to this ‘package’ has survived in India as it suits a political discourse which thrives on a diet of false promises.
Diagram to Show the Staccato Approach of the Law to Environment
Regimes of Control
Control Protected Areas
The ‘magic wands’ of the law relating to the environment have been far from insightful and doomed to entropic decay. Ambivalent laws (Magic Wand I), weak regulatory frameworks and processes (Magic Wand II), ineffective criminalization of deviation (Magic Wand III), and half-hearted attempts to cross the ‘gap’ between ‘law’ and said reality (Magic Wand IV) are not an aberration, but built into the law itself. A study of environmental legislation reveals much of what we already know about the law.
Five important features of modern law are to be noted: (i) ‘Modern’ law is overtly political. Law is an institutionalized expression of political forces. (ii) Although the ‘form’ of law portrays it as objective and universal, all ‘laws’ disguise compromises, loopholes, empowerments and subterfuge which, more often than not, make unconscionable concessions to the socially, economically and politically powerful without losing their facade of objectivity. (iii) Laws designed to facilitate and bring about change are not a self-fulfilling prophecy, but often status quoist or even obstructive and inimical to social change. (iv) The laws ostensibly designed to instrument change create administrative nabobs, rajahs and maharajas interested in pursuing their own ends and interests. Such colonial models of regulation do not yield to democratic sensitivity. (v) However, in order to preserve its objectivity, the law in general, and various laws in particular, are often indeterminate and double-edged, making at least some laws the possible site of struggle by the socially concerned and disadvantaged.
Environmental laws and policies are riddled with loopholes. Broadly divided to cover both ‘conservatory’ and ‘pollutionary’ effects, the strategy of environment laws is to demarcate (a) areas and activities which require regulation and (b) regimes of permissions and prohibitions in respect to these areas and activities.
The Forest Act of 1927 (on which most ‘state’ forest acts are modelled) targets the creation of ‘reserve’, ‘protected’, and ‘village’ forests. The Forest Conservation Act of 1980 places the Union government in a commanding position to refuse ‘permission’ for non-forest activity in all forest areas. The Wild Life Protection Act 1971 enables creating ‘sanctuaries’ and ‘national parks’ and the protection of various species of flora and fauna. The Water Pollution (1974)and Air Pollution (1981) Act deal with permissible and prohibited activities. None of these really take a holistic look at the environment. In a sense, this was attempted by the Environment Protection Act 1986 which entrusted an overall coordination function to the Union government. But, apart from occasions when it has been prodded to do so by the courts, the Union government has tended to look at environmental questions in a piecemeal way, often conceding to powerful social and economic interests patronized by the officers and regime in power.
These relatively ‘new’ legislative provisions, which are already outmoded in their design and mired in bureaucratic ineptitude, run along-side ‘common law’ remedies which, amongst others, consist of the torts of trespass, negligence, nuisance, the strict liability law of the escape of dangerous things (known as the rule in Rylands v. Fletcher), various statutory ‘solutions’ as well as criminal law remedies in relation to nuisance and preventive action by the magistracy. It is well-known that tort litigation in India has all but failed. Even after a special enactment and the payment of money under a Supreme Court settlement in the Bhopal case, the victims have still not received the compensation due to them. The criminal procedures relating to the environment are hardly mobilized despite Justice Krishna Iyer’s stirring judgment in the Ratlam case (1980). The huge apparatus created by the new legislation has produced some good officers and well meaning statements of policy, but few results other than an overall failure of perspective and a disquieting lack of tenacity to deal firmly environmental despoliation and degradation.
Around the 1980s, once the Supreme Court had developed a new public interest litigation to tackle matters of public importance which were otherwise neglected, it was ineluctably drawn into issues concerning the environment. The Supreme Court had reached its nadir during the Emergency (1975-77) when it declined to interfere even with arbitrary, high-handed or malafide detentions without trial. Using the vehicle of public interest litigation to espouse virtually all or any public cause, it restored its reputation by helping the disadvantaged and taking on unchampioned causes.
A preparatory juristic platform to enable this judicial activism was created by expanding the ‘life and liberty’ provisions of the Fundamental Rights chapter of the Constitution to include a wide conspectus of rights including education, health, welfare and the environment. Public interest law enabled (i) any genuine public spirited citizen or body to file a petition; (ii) the appointment of special commissions to determine facts and propose solutions; and (iii) schematic remedies – other than the usual remedies of damages, simple orders and positive or negative injunctions – to ensure wider solutions, with continuing oversight by the courts.
The very first major environment case concerning mining in the Mussorie Hills (1982) established the case for court intervention, but simultaneously presented the confrontation of interests between industry, workers, development, greed, virtue and the environment. This litigation, which stretched over many years, eventually resulted in compromise solutions in which some mining was permitted whilst at the same time giving a notion-ally decisive edge to the environmental interest. In the many cases that followed, the Supreme Court was persuaded to follow the regimes of per-missions and prohibitions presented by statute, without using too much of its imagination. Justice Jeevan Reddy’s judgments in the Sariska mining case (1995) are a characteristic response. The court spoke strongly about the environment but stayed within the official statutory regimes without expanding judicial horizons in an overtly creative direction.
It was not till the advent of Justice Kuldip Singh that the court went out of its way to evolve recognized principles of environmental jurisprudence and ensure that schemes ordered under the aegis of court orders were effectively implemented. Justice Kuldip Singh clearly went over the top. He tackled a huge number of issues – the coastal zone, Taj Mahal, forestry, pollution in Delhi, the cleansing of the Yamuna and Ganges, garbage disposal, the relocation of industries and many others, with a brusque no-nonsense approach to produce results – often with inadequate due process against the patently wrong persons. Many matters decided by him are being reconsidered by special benches of the Supreme Court years after his retirement. Yet his enthusiasm infected his colleagues who too dealt with environmental issues such as those concerning forests and vehicular pollution with a dramatic but qualified ardour. The results have been positive but clumsy – setting examples but not necessarily securing the basis for an ongoing intervention in such matters.
Yet it must not be thought that the courts have acted wholly in an ad hoc manner. It is possible to discern several principles from the courts judgments. Principle I: The precautionary principle to prevent threats to the environment and take positive and timely steps to further its conservation. Principle II: The polluter pays principle which serves as warning and threat, but which must not be taken to be lexically prior to the precautionary principle so as to give a polluter an option to pollute, pay for the malconsequences of his actions and still retain the benefits and consequential unjust enrichment of his ill-gotten gains. Principle III: The trusteeship principle which creates a constitutionally ordained public trust in the courts, government and people to conserve the environment. Principle IV: Principle of the protection of biodiversity as a precious and irreplaceable resource and gift of nature.
Principle V: Principle of fulfilment of international obligations as reflected in international agreements and general principles of international law, policy and concern and as part of the obligations owed to all peoples throughout the world. Principle VI: The inter-generational equity principle which requires taking a longitudinal view so that the trusteeships acquire a temporal quality to ensure that public trust to conserve the environment is handed over from generation to generation in good faith. Principle VII: The principle of sustain-able development and ecological priority to monitor the use of resources in ways that guarantee renewal and conservation in which lexical priority is given to ecology and not its abuse. These seven principles have to be read together and individuated for application to facts and circumstances as they arise.
But, it is precisely the reading together of the principles which has provided room for predatory manoeuvre and judicial reticence. For, although the courts have blazed a constitutional trail of concern, the ‘follow through’ does not elude uncertainty. Since all the principles have to be balanced, too much is left to chance. Confronted with claims of progress and development, the judges either refrain from too much activism or surrender to the views of government or experts who, in turn, look for and propose compromises. Judges have become self conscious of the criticism that they are taking over governance, and have devised the defensive formula that their game plan is not to run the administration but to ensure that the administration runs according to rule of law as manifested by the prescribed rules and statutory regimes enacted by the legislature.
Nobody quite believes the judges when they take the defensive stand that they are doing no more than ensuring compliance of the rule of law. Judges have entered into certain environment issues, such as those related to forests and vehicular pollution, with a self-declared and evangelical self-motivation, but stepped back on other issues concerning dams and industrial pollution. If the future of India’s environmental jurisprudence consists of doing no more than remanding matters to the authorities or experts to decide according to law, then little has been achieved in the last two fertile decades of the 20th century in which the Indian Supreme Court tried to elevate the protection and preservation of the environment to the status of a primary constitutional goal.
The more recent judicial trends are a retreat, a step back, a return to an environmentally subversive status quo, and an abdication in favour of the authorities to virtually do what they please under conditions of light judicial supervision. As the century gives way to the millennium, this abdicatory retreat must be arrested; clearly more exacting principles of environmental jurisprudence need to be developed.
But, although this goes beyond the scope of this skeletal overview, there are major issues that loom on the inter-national horizon. With the advent of the World Trade Organisation (WTO), the unipolar appropriation of the United Nations, the Post-Rio 1992 follow-through to the Conventions on Biodiversity and Climate Change, the Kyoto Protocol of 1997 and the inclusion of environmental issues as part of the global trade and other regimes, many issues concerning the environment are going to be decided globally. World governance by treaty is upon us. But issues of world governance cannot be left to our rulers. Democratic participation has to be built into global governance and treaty-making so that global environmental decisions do not elude democracy to become a conspiracy between powerful nations and conglomerates.
Till not too long ago, the wealth of nations was counted in terms of money, the gross national product and some intimations of distributive justice amongst the nation’s human beings. But, the real wealth of nations remains the natural resources of the world. Corporate forces will seek to exploit these natural resources and commoditize them for ‘productive’ use and human development. But, human development cannot be independent of nature of which we are a part. It is not government legislation or bureaucratic interventions that will save the resources of the world.
The real custodians of the earth are those who have a continuing interest in living in tune with nature and in replenishing its resources. Even though such persons are pitted against powerful forces in society, it is to these real custodians of the earth to whom we must turn to struggle for the environment against its continuing predation.
‘Law’, legal and administrative processes and the courts cannot tilt the balance in favour of the environment without deriving strength and direction from the social struggle over the environment. Such struggles cannot alter the balance of power in society but they can confront those in power with the need for examining alternatives. The law cannot obliterate greed or prevent the despoliation of the environment, but it can mitigate that greed and discipline, the uses and abuses of natural resources. The law will not necessarily fulfill even its own stated prescriptions about what needs to be done, but it can move some way towards to achieving their fulfilment. It is a possible site for activists, the media and the people to locate their struggles. It is on the results of these struggles that the natural future of the world depends.