Environmental Protection in India: Of Human Inefficiency and Judicial Efficiency By Ajikrishnan S from CSI College of Legal Studies
Recent international development on the Paris Climate Agreement (announcement of the U.S. withdrawal) serves as a testimony to the human inefficiency in the protection of the environment. In India also, the administration is in a paralytic mood in conservation of environment. This has indeed blocked horns frequently with stalwart Judiciary’s attempt to protect the environment; an agenda it has been pursuing since about 1980s. The attitude of the judiciary in India in matters of the clean Ganga project, the hazardous level of air pollution etc. was to be active while it discerned the administration’s temerity to be passive and inefficient. From developing the fundamental principles of environmental justice case by case basis, like, precautionary principle,[i] public trust doctrine[ii] etc. it consistently followed the firm stance by the environment. The remedy of ‘continuing mandamus’ was used by the judiciary to vindicate its undeclared policy of environmental protection.[iii] This, it needs to be remembered, despite its want of resources and institutional mechanisms to enforce.
Two instances which remain as glaring examples as to the weakness of the judiciary in this regard are described hereunder. The first of these is the landmark Godavarman Thirumalpad case[iv]; testimonies of the judicial activism to keep the authorities awaken to the duties they owe towards protection of environment. The second one is the Finance Act, 2017 which contains a few provisions dealing, inter alia, with Green Tribunal, so much to the detriment of its functional efficiency and autonomy.
Coming to the first instance, in this case, ‘the Supreme Court took the felling and cutting of the trees as serious threat to the vegetation cover of India and came heavily on the violators of the law. Later on, this case became the basis of judicial pronouncements relating to preservation and protection of the forests in India. Under this heading, more than 120 pronouncements have been made by the Supreme Court.’[v] Although Sri Godavarman Thirumulpad passed away last year, the case initiated by him is still a live volcano. But, the points which are intended to be made herein concern the effectiveness of this judgment. Notwithstanding the endless battle and aggressive stance of the judiciary, it not only failed to have desired results but it also has devastating impacts on the timber industry leading to black marketing.[vi] This is again proving the weakness of this weakest organ of state.
The second instance is the act of trimming the independence of the Green Tribunal by taking over its certain powers which are essential for its independence, especially, when the state itself is a party in many litigations. This is, apparently, in direct conflict with and ultra vires of the judgments of the apex court laying down the principles in this regard.[vii]
At the end of it, the question which needs to be posed is the effectiveness of the judicial administration of environmental justice in contrast to the needed human engagement with nature. Protection of environment in any part of the world is a necessity for survival and there is obvious lack of effectiveness in the judicial administration, though there is efficiency. Engagement with environment is the need of the present, for that the mankind needs to be acquainted with the fact that the problems setting the environment will set their life tomorrow. It is a disservice and an act of futility to depend solely in the judicial wing to protect nature in the hope that what we are indifferent and inefficient to do, could be best done by the judiciary. Acknowledging without hesitation of the contribution of the judiciary in this regard, it can be said that we cannot be optimistic about this as a permanent character. For environmental protection, we need full-fledged and committed engagement with environment instead of administration of environmental justice which is incomplete and incoherent in the long term view of it. It should be remembered that ‘[a] society which looks up to the court for solution of all its problems is a weak society which misses the adventure and excitement of democracy.’[viii] It is time for all of us to rethink what we need and what we have been getting.
[i] V.C.W. Forum v. Union of India, AIR 1996 SC 2715.
[ii] M.C. Mehta v. Kamal Nath, (1997)1 SCC 388.
[iii]T.N. GodavarmanThirumulpad v. Union of India, (1997) 2 SCC 267.
[iv]T.N. GodavarmanThirumulpad v. Union of India, (1997) 2 SCC 267.
[v]S.C. Shastri, Environmental Law 514 (5th ed. 2015).s
[vi]Armin Rosencranz et al., ‘The GodavarmanCase: The Indian Supreme Court’s Breach of Constitutional Boundaries in Managing India’s Forests’ ELR 2007, available at https://elr.info/sites/default/files /articles/37.10032.pdf
[vii]SeeMadras Bar Assn. v. Union of India, (2014)10 SCC 1;Union of India v. R. Gandhi, (2010)11 SCC 1.
[viii]V. SudhishPai, Legends in Law 32 (2013).