Environmental Protection- Outside the Realm of Existing Legislative Framework?
M.G. KODANDARAM, IRS (Retd.) & Assistant Director – NACEN
The idea of the ‘Future of Environmental Litigation in India’ and the title above prima facie appear to be inapt and out of place, but they are not so, for the reasons stated in the following part. At present, both the international and national legislative frameworks and the administrative mechanisms have not added any meaningful results towards environmental protection, and to think of improving the ways and means of litigation based on these faulty legal philosophies are of no consequence. The laws in place, the implementation by the enforcing machinery and the judicial systems on the ground have turned out to be terrible experiments, as these tools have failed to protect both the environment and life on the planet. Hence the priority should be towards changing the appalling tools presently employed, so that we can prepare ourselves for desirable results, and thereafter improvements are pursued in a positive atmosphere.
The Failures in the International Legal Framework
The international framework in the realm of environmental protection has witnessed a surge of laws in the form of declarations, agreements, treaties and such other legal and regulatory instruments. With the global consensus on the United Nations Declaration on Human Rights (UDHR) in 1948, the environment also found a place in the realm of human rights due to the rising scale of ecological deterioration and the fall out in environmental quality. Since the Stockholm Conference of 1972, international legal instruments sought to address various environmental issues, but their positive impact in terms of environmental protection remained miniscule. The United Nations in its wisdom had warned nations about the environmental urgency and urged every nation to take action to address grave environmental issues to achieve the sustainable development goals. In response to this clarion call, nations came up with various measures including legislative, judicial and even administrative mechanisms to implement the right to quality environment.However, as the UN or its members did not think beyond the human centric approach, they failed in their mission and could not succeed in containing the destruction of natural habitats on our planet.
Even the idea of environmental justice coined at the global level is devoid of any consideration for non-human resources. Take for example, the definition of ‘environmental justice’ as coined by the Environmental Protection Agency (EPA).The definition envisions environmental justice as ‘the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies’. Critical to note from this definition is that it has no place marked for animals, plants and non-living physical elements. This reflects a rather human-centric approach of the laws and regulatory mechanisms.
Furthermore, the nature of public international law is such that principles developed within its ambit smack of legal sanctity, as the recognition and consequent enforcement of these principles purely depend on the consent of nations to adhere to principles, rules and regulations made thereof.For instance, the United States, which is the world’s second largest emitter of greenhouse gases, behind only to China, has recently announced pulling out from the Paris Agreement on climate change mitigation. The US president declared that they would cease all participation and begin negotiations to re-enter the agreement “on terms that are fair to the US, its businesses, its workers, its people, and its taxpayers.” The promises made to limit the carbon emissions to meet the climate change goals set collectively have been brought down. The approach of biggest emitter, China is in no way better as it continues to influence the decisions of UN as regards to pandemic related matters which are of utmost concern to people around the globe. This goes to show that international policies on all matters including environment are driven and governed by the economic engagements of such countries, with little concern for environment protection.
Additionally, the conflict between multilateral environmental agreements and multilateral trade agreements such as the GATT dilutes the effectiveness of efforts towards environmental protection. As such, principles of environmental justice are becoming apparatus to attain their selfish materialistic gains, not caring to the interests of common man or the environment.
Deficiencies in National Laws
The national environmental legislations constitute a major source of the regulatory frame work, which cannot be extended beyond the political borders of a country. In India, despite the proliferation of environmental laws since independence the impact has been lacklustre. This is primarily due to the shortfall in implementation and also due to the grim reality laws are rendered ineffective by the wealthy and the influential, with the politicians and the administration dancing to their tune, with limited scope for involvement by a common public in the entire exercise and these have become a tool for exploiting non-human natural resources in a legally sanitized way.Added to thisis the fact that the present laws are mere instruments showcasing punishments for the violations, such punishments rarely fulfilling the objective of criminal sanctions. Even if some environmental protection measures are forced through the verdicts from judiciary, such orders are only curative in nature as they have no in-built mechanisms for restoring the natural environment. At the same time, these have casted huge trouble to the humans especially the tribal, who employ some natural resources for their livelihood, as they are put on trial. Furthermore, the disjoint features of many laws also add to this quandary. Let us take a simple example of the abuse of plastic, which has played havoc in lives of fauna and flora and the deterioration of ground water level on the earth.Manufacturers are permitted continue their commercial activities on a sustainable basis and at the same time, laws clamp down on users of such plastic materials by penalising them. This goes on to prove the disengagement between the laws, the poor implementation mechanism on ground as against the purpose stated in the objectives of such instruments.
From the judicial standpoint, Public Interest Litigations have to an extent steered the judiciary towards measures of environmental sustainability. But despite this catalytic effect, the implementations of orders have remained a bane and are droplets false hopes with little impact in protection.There are no mechanisms in place to monitor the implementation of the orders, which is the most important facet of a fair judicial system. For instance, in the case of M.C. Mehta vs. Kamal Nath, the Courtobserved that the encroaching upon the natural architecture of the environment for the contentment of our desires are not justifiable. The Court held that the Government committed patent breach of public trust by leasing this ecologically fragile land when it was purely for commercial use,and ordered for restoration of natural environment. But the implementation of the decisions on ground to restore the glory of Beas River to the original Natural conditions has remained on paper for the obvious reasons. There are no concerns on the part of the judiciary or executive towards implementation of the orders.
In another case initiated in 1995 through a PIL seeking directions on re-inducting of the endangered Kuno Asiatic lions, the honorable Supreme Court held that, “it is a priority that cannot be delayed if we want to protect this species from extinction”. The court declared, “this endangered species has a right to live on this earth, just like human beings,” and directed to carry out its order for re-habitation in letter and spiritand within a period of 6 months. The Apex court’s order passed in 2013 has not been implemented and one can visualize the plight of lions and dependent fauna and flora caught in these purposeless legislative cross firings.
Furthermore, in a majority of cases, the court has relied on ‘expert’ bodies and committees to arrive at a final decision, which become a mechanism to protect the business interests of groups, who are powerful, rich who resort to influence the administration and legal system and at the same time the common publics are afraid to pressurize the authorities as they do not get any support from the governing bodies.
Many doctrines followed in environmental litigations such as polluter pays principle, have remained only on paper for the reason that the country perpetrating the crime always tries to defend and protect such companies or / and persons, so as to avoid the damages that may arise on the state. When we examine this principle with reference to disasters at Bhopal or to recent Vizag gas tragedy, it is evident that the victims have not received any relief let alone the payment for injury caused to the environment. Another example could be the recent Baghjan oil well disaster in the state of Assam that has caused long term wound to flora, fauna and biodiversity, connected to ecology and economy. The experts say that the compensation estimated runs to several thousand crores, but the company is not in a position to bear even a part of it. More importantly the political system displays no seriousness in bringing justice to the victims or the environment.
Environmental ethics and laws
Any law to be welcomed by common man and to remain effective should be built on sound moral and ethical fundamentals, so that it is adhered to voluntarily by all sections of the people. Environmental ethics could be broadly defined as the moral relationship between humans and the non-human resources and make every human care for their surroundings with reverence. The present laws are human centred wherein it is presumed that humans are the dominant species with powers to manipulate and use nature for their own benefits; that the welfare of the people alone has to be promoted at the behest of other natural beings. This unethical approach, in the name of development, exhausts all resources and destroys the ecological equilibrium of the earth. Hence, the primary effort to preserve the earth cannot be achieved through this flawed ideology. The deteriorations of health made the law makers to adopt a much softer name such as eco-centric and deep ecology approach etc. In these schools of thought also the intent is to protect the interest of humans, as they remain the stewards to make decisions for non-human resources. Further, some recent incidents reflecting the current state of human behaviour call for steering the principle of ethics and morality into the minds and conduct of such elements. The recent reported death of a pregnant elephantraises concerns regarding ideals of justice and effectiveness of the law.
The modern man is under the wrong notion that he can overcome any kind of situation with their aggressive technological persuasions. But the truth is if the mankind has to survive, the environment in all its natural form needs to be preserved and guarded by actions from humans in a reverential approach and not in an arrogant autocratic manner.
An alternate approach
Without the humans, the physical elements of the natural world could exist independently, but the converse is not true for humans. Thus, it is high time we realize our wrongs, reform and follow the path of our ancestors.From the wisdom captured in our ancient texts like Vedas, Vedanta,Puranasit is evident that humans from the days of yore lived in harmony with the Nature as they had realised the importance of co-existence with the natural world. They reverentially accepted the truth and followed it up with a mission to protect the NH in the natural surroundings as their primary duty. The High Court of Uttarakhandin the case of Narayan Dutt Bhatt Versus Union of India & others, reiterated the extracts from ancient scriptures and religious movements in various parts of the world, as the proven ethical approach to be practiced by all.
Even at the international level, an ethical and moral based approach to environmental protection has been reflected in the “World Charter for Nature”which has remained dormant as the developed nations did not relish the idea for the obvious reasons. The said charter for nature unequivocally declares that every form of life is unique, warranting respect regardless of its worth to man and lays down the reasons why human beings must remain neutral in the ‘intersectional environmentalism’.
The above UN charter for nature based on environmental ethics is a clear indication of the views of the entire world should serve as a starting point for new approach with changed attitudes. A conscience holistic approach needs to be employed internationally to unconditionally commit to saving our environment from any further degradation as reaffirmed in the said charter. It is time to move away from the myth of materialistic commercial development to a higher path of happier living as the fundamental principle.
The present laws are a matter of compulsion whereas the ethical and moral based voluntary actions are a matter of choice of inner conscience of the individual. Therefore, environment protection is possible by preparing the people for a collective and conscious movement. For this, an internationally acclaimed code of conduct in the form of environmental ethical regulations needs to be prepared. Such an approach should be based on self-realisationof humans about the essentiality of all non-humans for the survival of mankind andtotally focussed towards restoration and protection of environment in natural form to redeem this objective. Such an agreement should be in the interest of all residents and by obtaining conscious concurrence of every one to follow the code. As it is a code to be created by the conscious union of people for their benefit, it could be appropriately termed as ‘Acclaimed Combined Conscious Commitment Code’ [A4C]. Every individual should realize and respect that humans are serving the mankind without expecting anything in return and adhere the code in a reverential manner and vouch for the non-humans, the rights to co-exist in their natural surroundings. Thus, the new approach that goes beyond the legislative framework is that of a ‘reverential approach’ that resounds the message of the World Charter, “to protect nature and promote international co-operation in this field, at the national andinternational, individual and collective, and private and public levels.”Such a holistic and ethical thought processneeds to be sown in everyone’s heart so that a new beginning could be made in re-writing the existing laws with focus on happier living. .The present condition is the right time to dawn the reverential approach for meaningful living with every creation.
United Nations Conference on Human Environment, 1972.
 United Nations Environment Programme, Dramatic Growth in Laws to Protect Environment, but Widespread Failure to Enforce, Finds Report, available at https://www.unenvironment.org/news-and-stories/press-release/dramatic-growth-laws-protect-environment-widespread-failure-enforce, last accessed on 19/10/2020.
M.C. Mehta v. Kamal Nath, (1997)1 SCC 388.
Centre For Environment Law v. UOI, (2013) 11 SCC 629
Down to Earth, 30 years of Bhopal Gas Tragedy: A Continuing Disaster, available athttps://www.downtoearth.org.in/coverage/environment/30-years-of-bhopal-gas-tragedy-a-continuing-disaster-47634, last accessed on 19/10/2020.
National Herald, Gas Leak in Vizag – A Fact Sheet, available athttps://www.nationalheraldindia.com/india/gas-leak-in-vizag-a-factsheet-by-centre-for-science-and-environment, last accessed on 19/10/2020.
The Wire, available at
Baghjan: Social Workers Say OIL Overlooked Mental Health of Blowout Victims, Violated CSR Rules
https://thewire.in/rights/baghjan-oil-blowout-assam-compensation-csr-tinsukia, last accessed on 19/10/2020.
 Writ Petition (PIL) No. 43 of 2014 High Court of Uttarakhand; Date of Judgment – 04.07.2018.
Inclusive version that advocates for both the protection of people and the planet