Laws and the green movement

When it comes to our environment, laws and policies have accomplished little by way of success. Environmental Law and Policy in India examines why this is so

Environmental Law and Policy in India: Cases and Materials

Authors: Shyam Divan & Armin Rosencranz

Publisher: Oxford University Press

Pages: 964

Price: Rs 610

India was among the countries in the developing world that emerged as a leader in enacting legislation and formulating policies to arrest environmental deterioration and promote ecological revival from around 50 years ago. The Stockholm Conference on the Human Environment found national leadership ready to respond. The Wildlife Act in 1972 and laws on water two years later were followed by the Air Act 1981. The major tragedy of the Bhopal gas disaster a decade ago led to wider and more comprehensive laws, including the Environment Protection Act two years hence.

It is also notable that laws have changed in step with the times. Take the case of laws pertaining to the forest lands. Loss of forest cover was sought to be checked with safeguards by the Forest Conservation Act. Just over a quarter century later, the loss of rights and entitlement of forest-based peoples were sought to be redressed through the Forest Rights Act in 2006.

As the Supreme Court, no less, observed in 1996, “If the mere enactment of laws pertaining to the environment was to ensure a clean and pollution free environment, then India would, perhaps, be the least polluted country in the world”. But as it went on to observe, laws and policies have accomplished little by way of success.

Why this is so is the core issue that stands out in this book. The work itself is a classic first published in 1991: This third and revised edition has a darker, grimmer message than the earlier versions.

Between them, public-spirited citizens and their voluntary associations (with varying, even widely differing, ideas of what needs to be done) brought discrepancies between facts on the ground and the law to attention via petitions.

In a slew of cases — and the authors have meticulously classified and analysed these — there was remedial action flowing from judicial pronouncement and intervention. The end of diesel in public vehicles in Delhi in 2002 and the introduction of Compressed Natural Gas is a well-known landmark case. More recently, it was only after approval from the Supreme Court that the Union government moved to bring in cheetahs to Kuno in central India.

The actions of the judiciary in more than one case have sparked controversy, as they should. After all, protecting the environment is easier said than done in a country of a billion-plus people whose economy has been growing at 4-5 per cent since 1980. The tripartite conflict of ecological integrity, economic expansion and popular aspirations is complex enough. Add to this the enormous disparity between income groups, gender and on social and economic lines.

Humans are indeed part of the ecosystem, as the authors astutely observe.  In the medium, let alone long, run humans stand to gain from a safe, habitable and productive environment. But the nub lies in which humans decide what is worth protecting and from whom and at what cost. It is here that on a range of issues, from large infrastructure projects or mines to waste dumping, there is no one right way.

There may be no golden mean but a law-governed process should enable and smoothen the journey. Increasingly this is not the case. The high noon of judicial activism was over by 2010. The authors mince no words, comparing the final state of judicial intervention to, “a hedge trimming exercise, snipping off a few stray vines here and there, while keeping the project clearance intact.”

None of this takes away from the significance, not so much of battles won (or lost depending on what cause takes primacy since in more than one case it is right against right). It is also the case that, as climate change and ecosystem collapse across nation-state frontiers assume centrality, ad hoc  interventions by judges will have far less role in the days ahead.

In any case, the expansive middle classes and business groups are not alone in wanting faster growth. Underclass aspirations have also been ignited by a host of factors, whereas the reality is of the decline of air and water quality, and vanishing wetlands and grasslands.  Underclass groups seeking peaceful conflict resolution via the law and courts have done much to bring their own perspective to wider notice.

This is a truly riveting work, rich not only in terms of insight but written in a remarkably lucid style with the gift of legal insight matched by the light touch of a veteran teacher-scholar.

There is much to think about and even more to learn from. More than anything it is a wake-up call for citizens at large.

The reviewer teaches history and environmental studies at Ashoka University