Journal on Environmental Law Policy and Development Vol-6 (2019)
About the Journal
The Journal of Environment Law Policy and Development, an annual peer reviewed journal of the Centre for Environmental Law Education, Research and Advocacy has released six volumes and is in the process of releasing the seventh volume. Over the years the Journal hasfeatured articles on different themes of environmental law ranging from the governing principles of environmental law, the adjudicatory authorities and their roles in dispensing environmental justice, waste management, and climate change to other contemporary issues in the domain of environmental law and policy.
JELPD is listed under the University Grants Commission – Consortium for Academics and Research Ethics (UGC-CARE) and is a double blind peer reviewed journal with and ISSN No. 2348-7046.
Abstract for JELPD 2019 (Volume 6)
1. Public Hearing and Democratic Participation in Environmental Impact Assessment.
Prof.Armin Rosencranz and Didon Misri
The opening article for the current edition is on Environmental Impact Assessment, with specific focus on the Public hearing process and democratic participation. The authors in this article state that the aim of regulatory framework of Environmental Impact Assessment is to improve decision-making and when the process of EIA is accompanied by efficacious public participation, it could provide a means to deepen democracy and ensure community participation. They claim in this paper that the law in operation is not in strict compliance with the provisions under the EIA Notification, which regulates new projects and expansion of existing projects that have potential environmental impacts. Such participation, according to the authors, seldom occurs in practice. The paper explains the existing legal framework for Environmental Impact Assessment in India and examines its efficacy through an analysis of the 2009 judgment of the Delhi High Court in Utkarsh Mandal v. Union of India. It begins with a brief summary of the judgment, where the court addresses issues relating to fair hearing, public participation, principles of administrative law and then proceeds to evaluate issues relating to public hearing and democratic participation, which is a cornerstone of the EIA Notification.
2. Recognition of Community Forest Rights and its Livelihood Implication: A Study of Jamguda Village in Odisha.
Dr.Geetanjoy Sahu and Bikash Kumar Sahoo
The next article discusses issues pertaining to the recognition of Community Forest Rights and its implications on livelihoods with a specific case study of the Jamguda Village in Odisha. Jamguda, a village located in Kalahandi District of Odisha became the first village in Odisha and second in the country to get harvesting rights over minor forest produce under the Forest Rights Act in the year 2012.While there are more than a thousand villages in Odisha whose Community Forest Rights have been recognized over the last decade, the case of Jamguda is unique in many ways. In this paper, the authors discuss how and through which processes, the recognition of forest rights took place in this particular village. They also look into the impact of recognition of community forest rights on livelihood and governance of forest resources over a period of five years. The authors begin the article by discussing the legal and institutional arrangement for community rights over forest resources in Odisha, followed by a review of the literature on community forest resource rights and its potential for livelihood and empowerment of people. The third section of the paper gives an overview of the study area-Jamguda; its demographic characteristics, and major sources of livelihood. The process of community rights recognition under the Forest Rights Act and the key issues and challenges in the recognition process are discussed in the fourth section of the paper. The next section analyses the implication of community forest rights recognition on the socio-economic aspects of the community members in Jamguda. The authors then present the findings of their study and draw attention to the governance and livelihood challenges faced by Jamguda community members. They state that these issues require the urgent attention of civil society groups/facilitators and the government machinery so that the rights guaranteed under the FRA materialize.
3. Safeguarding Our Water Towers: Having A Specific Legislation for The Himalayan Glaciers.
Mukut Biswas
The next article in this edition is of Mukut Biswas on the domestic legal framework for the protection of the Himalayan glaciers. The author in the first part of the paper explores the reason as to why the Himalayan glaciers are required to have a specific legislation and a sui generis system of protection. He then examines whether the existing Indian legal framework and policies are sufficient for glacier protection. The author then looks into the recent observations on glaciers by Indian courts and case studies relating to legislations on glaciers in countries like Chile, Argentina, Kyrgyzstan and Switzerland. This article suggests that India should also draft a specific legislation on glaciers which will guarantee water and food security of our people. This kind of security would help in preventing future regional conflicts over natural resources in the conflict-straddled region. The focus of this article is exclusively on Glaciers in the Indian part of the Himalayan range.
4. The Right to Sustainable Development as Jus Cogens Norm in Modern International Law: Voices from International Court of Justice.
Atul Alexander and Yashpreet Singh
Atul Alexander and Yashpreet Singh in their article, analyse the role played by ICJ in the progressive development of the principle of sustainable development in light of the Jus Cogens norm. The paper focuses on the principle of Jus Cogens through the interpretation of Article 53 of the Vienna Convention on the Law of Treaties (hereinafter referred to as ‘VCLT’) in suture with Articles 31 and 32 of VCLT. The authors also analyse the principle of sustainable development from the context of the international environmental scholarship. The principle of sustainable development is examined and the authors assert in their article that the principle is crystalized into a Jus Cogens norm. Reliance is placed on the opinions of the Judges of the International Court of Justice, which includes the opinions of Late Judge C.G. Weeramantryin the Gabčikovo-Nagymaros case and the opinions of Judge Cançado Trinidade. In order to prove the existence of the Jus Cogens norm the authors have focused on the opinion of Judge John Dugard, which was the first instance in the docket of the World Court where the principle of Jus Cogens in international law was comprehensively explored. The first part of this paper briefly touches upon the general or non-legal perspective of the recognition of sustainable development as a Jus Cogens norm. The next part extensively covers the legal perspective of the recognition of sustainable development as a Jus Cogens norm.
5. Green Federalism and Climate Change: Challenges & Options – An Indian Perspective.
Apurva Verma
Apurva Verma in the following article looks into the concept of green federalism and the effects of climate change. The author states that the issue of climate change should be of prime importance to a developing country like India, as it tops the list of nations to be adversely effected by it. Climate change impacts agriculture productivity, as irregular and extreme weather conditions have a bearing on this sector. With the persisting incidence of poverty and the agricultural sector being effected by climate change, achieving food and nutritional security becomes a daunting task. The paper seeks to analyse how policies and laws can be evolved in a federal nation like India, wherein both central and state government can work cooperatively towards the issue of climate change and its impact on food security. It often happens in a federal context, that the impact of environmental degradation is borne by one entity, but the decision-making rests with another. Thus, a synergistic approach is a must to combat the issue. The concept of green federalism talks about striking a balance between both central and state government and working in a co-operative manner towards dealing with issues pertaining to environmental degradation. Consequently, a sound environmental policy and law is the need of the hour.
Case Comments
6. Cultural and Historical Wealth v. Economic Development – Supreme Court Adopts a Symmetrical Approach: K. Guruprasad Rao v. State of Karnataka and Ors
Atyotma Gupta
Atyotma Gupta in her article examines the issue of preservation of cultural and historical wealth and the impact of Economic Development on the same. She does so by focusing on the case of K. Guruprasad Rao V/S State of Karnataka and Ors. In recent times, competing claims with regard to the interpretation of the term “sustainable development” has resulted in continued intervention from the judiciary. The Apex Court’s role in the preservation of historical and cultural heritage of India is unparalleled in last one and a half decade. This article seeks to analyse and comment on the same. In K. Guruprasad’s case, the Supreme Court has critically examined the adverse impact of mining operations on the Jambunatheswara temple and directed the government, by reposing its ‘invaluable trust and confidence’ in it, to comply with the recommendations of the court appointed committee while continuing the mining operations. The author in this article identifies and enlists various statutory protections advanced by the central and the state governments (as applicable in the present situation) to ensure the conservation of Indian culture and history for the future generations. The article also focuses on outlining the pertinent facts in the K. Guruprasad case. The judgment of the court has been examined in this paper and critical comments on the aptness of the opinion of the Apex Court have been expressed. The focal point of the paper is to study the interrelationship between environmental and cultural justice as well as the indispensable importance of achieving development in a sustainable manner, as highlighted by the Apex Court in this judgment.
7. Ridhima Pandey v. Union of India: The Onset of Climate Change Litigation in India.
Nikita Pattajoshi
Nikita Pattajoshi looks into the case of Ridhima Pandey v. Union of India in the next paper, tracing the history of climate change litigation in India. While much of public awareness on climate change has grown due to newspaper headlines, magazine cover stories or movies, one cannot help but accept that a part of it can be attributed to climate change advocates who are rigorously pursuing climate change matters before courts worldwide. Deliberations at the international level on climate change policy in the initial years focused on the global impacts of climate change such as rise in average global temperature, rise in average sea level etc. However, with growing instances of climate litigation, the focus has now shifted to more localized issues such as damage caused to a particular species or ecosystems and potential impacts of climate change on an industry. The most common form of climate change litigation that has been seen in the past is when a civil society or group of individuals has challenged the State’s inaction or failure to meet its obligations under international instruments regulating climate change. The last two decades have seen a steep rise in the number of climate change lawsuits worldwide. Though we are still in the early days of global warming litigation, these lawsuits have made significant impact on the global legal and political climate. A study conducted by the United Nations Environment Program (UNEP) and Columbia University’s Sabin Centre for Climate Change Law shows that the number of climate change cases has increased threefold since the 2014 and the maximum number of such lawsuits have been filed in the United States. However, these changes in the global policy scenario seem to have had little impact on the domestic policy. In the very first case of its kind in India, Ridhima Pandey, a 9-year-old girl had moved the National Green Tribunal alleging inaction on the part of the Government to take measures for climate change adoption and mitigation. This paper is an attempt to assess the contribution of the case in laying down the foundation of climate change litigation in India.
8. Water Law in India (An Introduction to Legal Instruments) (Second Edition 2017) by Prof. (Dr.) Phillippe Cullet and Sujith Koonan
Kavin Castro
Kavin Castro, in the last piece of the Journal, reviews the book Water Law in India (An Introduction to Legal Instruments) (Second Edition 2017). The book is authored by Prof. (Dr.) Philippe Cullet, Professor of International and Environmental Law and Director of the Law, Environment and Development Centre at the University of London, School of Oriental & African Studies, UK and Sujith Koonan. In this publication, the authors seek to provide a fundamental understanding of the substance and enforcement of water law in India. The book contains eleven chapters covering practically all aspects related to water laws such as the international law and policy governing water, the basic concepts and principles related to water at the national level, the regulation of water: general instruments and issues, interstate river basins, water transfers, and dams, drinking water supply, environmental dimensions: protection, conservation, and sustainable use of water, irrigation, embankments, floods, protection and regulation of groundwater etc. The reviewer briefly charts out the scope and the principal concepts covered in the chapters of the book. He then concludes the review by asserting the import and utility of the particular publication to researchers, academicians and practitioners involved or interested in the field of water law.