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Greening law: a socio-legal analysis of environmental human rights in India
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Content
GREENING LAW: A SOCIO-LEGAL ANALYSIS OF ENVIRONMENTAL
HUMAN RIGHTS IN INDIA
by
Sanghamitra Padhy
___________________________________________________
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICAL SCIENCE)
May 2008
Copyright 2008 Sanghamitra Padhy
ii
Dedication
To Amogh, Rohan and Natasha…...
Giving legal space to “Inconvenient Truths”
iii
Acknowledgements
This dissertation has made a long journey. Along its paths, I have earned many rīīns
(debts) to individuals and institutions who I owe more than I can say so. My first
thanks goes to my dissertation chair Alison D. Renteln and committee members
Janelle Wong and Tridib Banerjee for their amazing support, encouragement and
insights on my research.
I thank Alison for her intellectual contributions towards my graduate
education and for getting me excited about human rights law. From Alison, I learnt
the true value of culture when attempting to tackle the difficult questions of global-
local interaction. She has not only been my supervisor but also my mentor. It is her
unwavering faith in my abilities as a researcher and student that has kept me going,
even when I was torn across continents with my husband’s postings in China,
Mongolia and Taiwan and the responsibility of rearing our child. I appreciate her
sustained interest in my scholarly progress and for giving me the freedom to explore.
I thank Janelle for her incredible generosity in agreeing to be my committee
member and then helping me through my research, carefully going through my
methodological approaches and making sure that I arose from the complex framing
of the issues to understand the social process. From Janelle, I learnt many
methodological and organizational skills.
I was fortunate to have Tridib as my outside committee member. I am
grateful for his insights on the Indian case studies and his particularly provoking
iv
questions about Dharma. I thank him for critically engaging with my work and for
teaching me the different approaches to environment in the Indian social context.
I am also grateful to my qualifying committee members Stanley Rosen and
Jeffrey Sellers. Stanley Rosen took me beyond the Indian horizon to study examples
elsewhere, particularly in exploring the Chinese case. I thank him for being a
wonderful teacher. I thank Jeffrey Sellers for his guidance and for his thoughtful
comments over the years on my work. From him, I learnt many aspects of state-
society relationship, which greatly enabled my understanding of law and society
frameworks.
I am very grateful to Ann Crigler for being a wonderful chair and assisting
me in all my projects. Howard Gillman has also been integrally involved in my
development as a student over the past 5 years. It was my first few classes with him
as a teaching assistant and later as a student that opened me to the enormous
possibilities of learning in the field of Law, Politics and Society. I will be remiss if I
do not extend my thanks to my department staff at USC, particularly Veronica and
Jody, who made the graduate process so much easier and enjoyable.
C. P Bhambhri and Niraja Gopal Jayal are two other individuals who allowed
me early on, in my studies at the Jawaharlal Nehru University, to explore ideas about
the Supreme Court in India and have been deeply involved in engaging me with the
academic world.
While doing my research on the Indian Supreme Court and social advocacy
groups, I learnt a lot from interactions with Donald Davis, Jay Krishnan, Kelly D
v
Alley, Justice G.K Pattnaik, Justice Arijit Passayat, M. C Mehta, Gobind Das, and
Usha Ramanathan. I also wish to express my thanks to my friends and colleagues in
India who educated me and who are leading their countless struggles to protect the
environment and peoples rights. I extend my gratitude to various public interest
groups and people who were very generous in giving me time, particularly
Vasundhara, RCDC, Mr. Aditya Patnaik, the panchayat of Rasgovindpur, citizens of
Vellore, Mr. Rafiq Ahmed, leather tanners of Vellore, autorickshaw drivers and
workers at CNG gas stations in Delhi and the people of Gopeshwar.
This research was also enabled by the kind assistance of many institutions-
the graduate school for the generous dissertation fellowship which lightened the
loads of being a teaching assistant and enabled me to fully focus on my dissertation.
I am also thankful to the VKC, Doheney, Leavey, and the Law school library staff at
USC. I am particularly thankful to the library staff of the Indian Law Institute and
the Supreme Court Registry for helping me in my research. I also used the Nehru
Memorial and World Wildlife Fund library in Delhi to access newspaper reporting
on environmental issues in the last three decades.
Writing this dissertation has had its own share of emotional ups and downs
and I am most grateful to my family and friends for helping me navigate through its
tolls. Archana, Jinee, Sangay and Nishanth have been wonderful cohort fellows who
were not only intellectually involved in my dissertation but provided me a home in
L.A in the in-between years of graduate work, when I relocated to Cupertino. Their
friendship has been crucial in all my good and bad times. I am grateful to Randa for
vi
her support through my graduate program, from her snippets of being a good TA to a
good scholar. I am fortunate to have such a nice and giving friend. Linda, Cher,
Minna, Charles, Som, Maya, Art, and Cheryl have been fellow travelers with whom I
have shared all the joys and anxieties of graduate school. Others who extended
crucial support and encouragement while writing this dissertation were my extended
family in Taipei, Nidhi, Pradeep, Meenakshi, Lydia, Vijay and Vandana, who made
work from Taiwan an enjoyable one, which I shall cherish. Dada, with her ever
extending help made work life easier. Bharati and Ravi with their constant reminders
kept me going. Discussions with Bharati during various stages of my work were very
useful.
I am thankful to my inlaws Basu and Jayanand for their constant
encouragement and their tremendous confidence in me. Basu’s drive to ensure that
her family gains what she could not has been a constant inspiration in this
intellectual journey. My brother in law, Ashok has added good cheer with his
positive attitude and encouragement.
My academic path begins with my family. I must thank my parents Bina and
Krishna and my wonderful sisters Nivi and Madhumita for getting me excited about
learning. They have always supported my decisions and encouraged me to explore
my passions. It is their utmost faith in my capabilities that has kept me going. My
brother in laws Mano and Atanu, and my sisters Nivi and Madhumita provided me
home and childcare support through the writing of this dissertation. It is difficult to
vii
find words for their selfless love and unflinching support. I could not have been more
fortunate than this.
My son Amogh and my niece and nephew Natasha and Rohan have been
very much a part of this dissertation. Their antics and curiosity provided the lighter
moments in the writing phase. And they have beautifully accomplished their roles of
being the sneaky vigilantes of my progress. Amogh’s excitement on finding a snake
skin in the sacred groves, of Rasgovindpur while accompanying me on one of my
field visit has been a turning point in my perception to life, grounding me in the more
basic truths.
This odyssey, like in all others, would have been impossible without my best
buddy and husband, Alok. I wrote and finished this dissertation because of his belief
in me. I cannot thank him enough for making this intellectual exercise as in all other
aspects of my life, a life time of companionship.
viii
Table of Contents
Dedication ...................................................................................................................ii
Acknowledgements....................................................................................................iii
List of Tables ..............................................................................................................x
Abstract......................................................................................................................xi
Introduction................................................................................................................1
Towards Cosmopolitan Rights:
Competing Frameworks of Greening Law in India
PART I ......................................................................................................................32
Chapter 1 ..................................................................................................................33
Greening Rights: In Ethics and Practice
Chapter 2 ..................................................................................................................60
The Jurisprudence on Environmental Human Rights
PART II.....................................................................................................................82
Chapter 3 ..................................................................................................................83
Legal Traditions and Practice in India
Chapter 4 ................................................................................................................126
Greening Indian Landscape:
Social and Legal Constructions of Environmental Rights
PART III .................................................................................................................171
Chapter 5 ................................................................................................................172
Human Right to Water:
Vellore Citizens’ Battle for CleanWater
Chapter 6 ................................................................................................................223
Conservation of Greenscapes and Human rights:
The Godavarman Case in India
Chapter 7 ................................................................................................................272
Right to Clean and Healthy Air:
The CNG Alternative for Delhi’s Polluted Sky
ix
Conclusion...............................................................................................................309
Bibliography ...........................................................................................................325
x
List of Tables
Table 3.1 : Activities of Social Groups....................................................................114
Table 4.1 Environmental Litigations in the Supreme Court ..................................155
Table 5.1 Legal Rights to Water Sources in India .................................................190
Table 7.1: Average annual emissions compared to national and international
standards (ug/m3).....................................................................................................290
Table 7.2 : Pollution by sector of origin ..................................................................291
xi
Abstract
In this dissertation, I examine how India has addressed the question of environmental
human rights in the context of three green issues on water rights, forest conservation
and air pollution. The dominant disciplinary frameworks on environmental human
rights focus on effective compliance with international norms in domestic legal
order. They see the internalization of human rights through the adaptation of a set of
parallel global standards. Law and Society scholarship argues that acceptance of
uniform application of rights masks the interrelationship between international
human rights law and local normative orders. I study the process through which
environmental human rights claims are incorporated in domestic legal cultures.
Taking a socio-legal approach to the historical development of environmental rights
in India, I offer some insights about the nature of legal pluralism in a postcolonial
context.
In this study I demonstrate that acceptance of cosmopolitan environmental
standards in India is built through a plural framework of law that incorporates
international environmental norms, constitutional principles and local customary
practices. It is based on the interplay between different kinds of laws and also social
and cultural assumptions about the proper relationship between individuals, groups,
and the natural world. This, I argue, has been facilitated by the public interest
litigation movement in the judicial process which introduced two important changes
in the law- 1) it enhanced social and legal interaction by enabling social actors to
approach the court and 2) liberal interpretation of rights. This marks a significant
xii
departure from colonial common law assumptions about the law and peoples’
relationship with nature. I conclude that the adoption of a plural legal approach
facilitated by public interest litigation has led to the internalization of cosmopolitan
environmental jurisprudence in India. My aim is to provide through case studies an
understanding of how human perceptions of relationship with the natural world
influence the socio-legal framing of environment. My study demonstrates concretely
the ways in which local social factors affect the acceptance of global norm.
1
Introduction
Towards Cosmopolitan Rights:
Competing Frameworks of Greening Law in India
In this dissertation, I examine how India has addressed the question of environmental
human rights in the context of three green issues on water rights, conservation and
air pollution.
1
Few studies in human rights have explored the local factors that
mediate the internalization of human rights standards particularly the social and
cultural contexts.
2
The dominant disciplinary frameworks on environmental rights
focus on effective compliance with international standards in the domestic legal
order.
3
It sees the greening of law as parallel adaptations to a set of shared rights,
based on the linkage between environment and human rights.
4
Law and Society scholarship argues that the discussion about universal
adaptation of rights masks the interrelationship between international human rights
law and local normative orders.
5
It ignores the local anchoring of the debate and the
place of human rights law in these various framings of value conflicts over
environmental rights in the domestic legal arena owing to countervailing rights
claims (such as environment versus development, culture, livelihood and economic
interests) or that of rights versus a duty approach or conflict over right holders and
duty bearers- individual or communitarian. Conversely, evolution of human rights
standards in domestic systems is not local centered as well. The increasing
interconnectedness created by communication and transnational networking
challenges relativist assumptions that are local centered.
6
The situation therefore is
2
much more complicated than a simplistic explanation of universal adaptation to
environmental standards or locale centered norms on environment.
While uniformity and harmonization of environmental laws across nations
seem desirable ideals, this is an unrealistic goal given the universality of plurality,
the varied perceptions of relation with the natural world and conflicting visions of
law and justice in societies.
7
In a path breaking work in the 1990’s, legal scholar
Alison D. Renteln disputing the absolutist and strong relativist assumptions in
scholarship argued that universal human rights standards develop through
negotiation with socio cultural plurality.
8
In a similar vein Cotterell, Twining, Cowan
demonstrate that socio legal interconnectedness is integral to the internalization of
cosmopolitan standards in law.
9
Werner Menski carries forward the debate about
plurality to show that law itself is plural in nature. He contends that law is not a neat
category that could be packed into tool boxes for transportation, application and
consumption.
10
Rather according to Menski, the application of international law is
contingent on inter-legal interaction in a pluralistic global context.
11
Following this
theoretical tradition, I show that the legal incorporation of cosmopolitan standards is
not based on positivist determinations of monist-dualist thesis but on how various
forces of laws interact and how the interaction is shaped by the social dynamics.
12
What is needed, in my view, is an understanding of the process of
incorporation of international norms and the interrelatedness of local and
international laws.
13
This is particularly interesting in the case of India, because of its
colonial legacy and a history of practice of legal pluralism, both in colonial and pre-
3
colonial times. More so, the Indian legal model has been transplanted to many other
British colonies and therefore is an example for post-colonial common law societies.
My project scrutinizes analytical frameworks employed by social advocates and the
legal forum (here the Indian Supreme Court) in considering environmental norms on
the three green issues of water rights, conservation and air pollution.
14
The case of
environment is significant to my analysis of incorporation of human rights in local
contexts because of its normative and yet almost customary acceptance in
international law, as seen in national jurisprudence and constitutions. Although the
acceptance of most human rights law can be examined through integration of treaty
laws, environmental laws fall in an unconventional realm of human rights which is
largely normative and hence requires a value based acceptance of green rights. While
women’s rights, cultural and religious freedom have gained attention from pluralist
perspectives, the question of environment is largely seen as a universal norm. This
makes the case of environment crucial to a study of legal pluralism as different
perceptions of relationship with the natural world in society shape the acceptance of
cosmopolitan standards. For the same reasons I chose to study the three areas of air,
water and forest, as each of these environmental components comment on significant
aspect of human relationship with nature. I intend to show how social contexts
influence the greening of law.
This study asks how do social advocates and the Supreme Court in India
define the contours of Indian environmentalism, and how have they used human
rights to defend environmental rights. The argument that I have advanced is that the
4
acceptance of cosmopolitan environmental standards in India is built through a plural
framework of law that incorporates international environmental norms, constitutional
principles, common law and local customary practices. The interplay between the
different kinds of laws is based on social and cultural assumptions about the proper
relationship between individuals, groups, and the natural world.
15
Legal
interpretation has evolved from the opportunities and challenges posed by the
diversity. This model of legal pluralism adapted by law mainly draws from values of
Indian legal culture and is distinct from colonial legal tradition which operated
through the presence of two legal orders, where the official laws were considered
superior to indigenous laws of the gentoo.
16
This post colonial development in legal
practice, I argue, has been facilitated by the public interest litigation movement in the
judicial process in India which introduced two important changes in the law- 1) it
enhanced social and legal interaction by enabling social actors to approach the court
and 2) liberal interpretation of rights that allowed integration of a rights perspective
with duties of the state.
Public Interest Litigation (P.I.L) is a unique creation of the Indian system of
justice that has answered global norms through means that are uniquely Indian,
borrowing from traditional precepts of holistic justice and pluralism. It has enabled
the integration of global norms into Indian law through a dialogue of responsibility
and rights. This marks a significant departure from colonial common law
assumptions about the law and peoples’ relationship with nature. I conclude that the
adoption of a plural legal approach made possible by the public interest litigation
5
movement, has led to the internalization of cosmopolitan environmental
jurisprudence in India. My aim is to provide through case studies an understanding
of how human perceptions of relationship with the natural world influence the socio-
legal framing of environmental human rights law.
Taking a socio-legal approach to the historical development of environmental
rights in India, I offer some insights about the nature of legal pluralism in a
postcolonial context. This adaptation to plural framework of law uniquely integrates
cultural meanings and livelihood needs with environmental protection.
17
The
approach to environmental human rights is based on the acceptance of public interest
framework to adjudicate environmental issues and is emphatic on responsibility of
the state towards protection of the environment.
18
This has allowed the integration of
rights claims with duties of individuals, private actors and the state towards the
environment. The ethical framework borrows from both Indian meanings of nature
and peoples relationship with nature, and human rights law. My thesis develops the
frameworks of law and society scholarship on legal interaction with socio cultural
plurality to show that the nature of law itself is a plural phenomenon. I advance on
political ecology models to show that the support to environmental rights is a
complicated multi-vocal claim that is shaped by social and historical framing of
relationships with the natural world. This makes the Indian case special as it balances
environmental interests with local social needs and reflects a distinctive element of
Indian legal culture that is based on plural traditions of law.
6
A contextual examination of environmental litigations and an exploration of
environmental debates in the socio legal arena, extra-judicially and judicially,
through which environmental claims are made should afford insight into the process
by which environmental human rights standards come to be accepted and
internalized in the socio-legal discourse. This dissertation analyses the environmental
controversies over three different issues in India on human rights to water,
conservation and clean air - Vellore Citizen’s Welfare Forum case, Godavarman case
and Delhi (Vehicular) Pollution case respectively.
19
The study of these three
environmental issues answers these questions particularly well because they are most
representative of the environmental debate in India on issues of pollution, access to
clean resources and nature conservation. They reveal significant aspects of
jurisprudential developments and social discourse on protection of environment
versus development and livelihood. The Vellore Citizen’s Welfare Forum and the
Delhi CNG cases are noteworthy lawsuits on water and air pollution in India. The
Godavarman litigation raises important questions about protection and conservation
of the environment. Each of the cases demonstrates legal evolution towards
incorporating environmental standards through means unique to Indian social
context.
In these cases the Court has addressed the environmental demands by
incorporating internationally established norms such as 1) absolute liability 2)
polluter pays principle, 3) precautionary principle and 4) customary law on
environment particularly on sustainable development, into Indian law. On the social
7
front, the cases point to the social conflict on environmental issues such as those of
protection of environment over rights to livelihood, the right to development and
culture. The jurisprudential developments and the social discourse that the cases
have triggered make them extremely important to the examination of emerging
environmental norms in India.
The project extends the discussion about environmental human rights in the
international arena to the question of how different laws interact to create
environmental rights in domestic systems. It shows the limitation of the conventional
top down models of transmission of international law and engages in the
examination of law as an ongoing process. My study provides an analysis of how
cosmopolitan standards have been internalized in the social and legal construction of
environmental norms in India. As a second objective, it demonstrates how social and
cultural context impacted the interpretation of environmental claims. It shows that
the framing of environmental rights in local context is made in relation to its social
definitions of livelihood and environmental needs. This dissertation expands the
domain of environmental human rights literature to understand local, cultural and
contextual influences on internalization of human rights norms and provides a model
of legal pluralism to see the domestic application of cosmopolitan standards. My
study demonstrates concretely the ways in which local social factors affect the
acceptance of global norms.
8
Conceptual Debates: Acceptance of International Law
Human rights scholar, Nihal Jayawickrama, notes that domestic protection of human
rights is essential for the universal implementation of human rights norms.
20
In
different fields of International Relation and Law, there are many approaches as to
how state systems incorporate human rights standards. The common approach is the
state centered perspective that distinguishes between monist and dualist countries.
This, however, is a narrow and limited approach as internalization of international
standards occurs through many channels and not through treaties or state ratification
alone. The emphasis on treaties limits introspection of compliance with international
norms to only those aspects of global-local interaction that are covered by state
agreements. State practice shows the presence of a corpus of norms and soft law on
environmental rights that derive from various other human rights standards. Further
more, as Masaji Chiba’s legal model- of the official law, unofficial law and legal
postulates- suggests the interaction of international law and national law occurs at
many levels.
21
It is also contingent on many factors- more important are the legal
traditions to acceptance of international law, and social and cultural values.
The conventional wisdom is that the rules of implementation of human rights
depend on municipal law. Where the monist theory is followed, international law and
municipal law on the same subject act concurrently and, in the event of a conflict the
former prevails. Where dualism is favored, international law and municipal law are
mutually exclusive and the former has no effect on the latter until it is incorporated
through domestic legislation. However in practice this distinction is not strictly
9
followed. Former Justice A.S Anand of the Indian Supreme Court has observed that
international norms play an important persuasive law in interpreting treaties in
municipal law in common law traditions, where international treaties require the
adoption of enabling legislation to be recognized as legally binding.
22
Hence, the
acceptance of international norms in society is not contingent on the structure of the
legal system. It is especially so in regards to environmental rights, which is
considered to be a component of human rights than a human right by itself.
In international relations, scholars have given various reasons for states’
acceptance of international norms and treaties. Rational choice theorists argue that
nations may choose rationally to follow rules out of a sense of self-interest and
decide to cooperate around certain issues.
23
This may seem logical with regard to
environmental human rights where the impact of harm crosses national boundaries.
Nevertheless cooperation between states may not always be the case as nations are
not willing to compromise with regards to their development agenda. Others such as
Thomas Franck believe in legitimacy of the rules to be the compelling reason for
national compliance.
24
However, state practice and the plethora of environmental
violations negate the legitimacy thesis. Some others maintain that political identity of
state determines the acceptance of international norms. Anne-Marie Slaughter
contends that democracies are more inclined to support the rule of law and therefore
will be more law abiding.
25
In other words this implies that liberal democratic states
are more inclined towards acceptance of international human rights standards.
Conversely, Harold Hongju Koh contends that this is an essentialist notion that treats
10
state identity as permanently given and cultural relativists argue this notion is
ethnocentric.
26
Some other scholars argue that the changes in nature of international relations in
the twenty first century have introduced new elements of analysis particularly due to
the interface between state actors, domestic groups and transnational actors. This
emerging scholarship highlights various domestic factors that persuade states to
implement human rights. There are three different perspectives on how domestic
contexts define the implementation of human rights by the state-
1) The Transnational Legal Process Model addresses the process by which state
actors internalize norms codified in international treaties. This view holds
that treaty internalization is a three step process of initiation, interpretation of
norms and internalization in the domestic system.
27
This process relies on
acculturation of actors into the process. However, this approach does not
really reflect on social acceptability of the norms and seems to suggest the
presence of a unitary set of actors. Also, as pointed by international relation
theorist Eric Neumayer, it does not address state action in cases where non-
compliance with norms is considered cost effective.
28
2) The Liberal Approach maintains that states are made of a number of actors
with different interests who can pressure the governments to adopt
international norms. This view thus holds that domestic scenario plays an
important role in pressuring states to abide by treaty norms.
29
Oona
11
Hathaway describes one such form of domestic pressure on governments is
through litigations.
30
3) The Transnational Human Rights Advocacy approach holds that transnational
networking can improve actual performance of human rights regimes.
Domestic groups form alliances with transnational groups and exert pressure
on governments, both from above and below to improve compliance with
human rights norms. Noteworthy is the scholarship of Thomas Risse, Stephen
C. Ropp and Kathyryn Sikkink, who maintain that international advocacy
networks, including domestic and international non-governmental
organization’s have the power to transform human rights behavior of states
through moral pressure at the international and domestic level.
31
Transnational advocacy framework is useful in understanding how
international norms influence state practices ideationally. Margaret Keck and
Kathryn Sikkink, in their path-breaking work on transnational activism, have further
elaborated on the dense web of interaction and interrelations between citizens of
different states which, both reflects and helps sustain shared values, beliefs and
projects, crucial to acceptance of human rights values.
32
Balakrishnan Rajagopal has
critiqued this model of transnational networks for not paying sufficient attention to
the impact of domestic law on the dynamics of human rights acceptance in state
systems.
33
Rajagopal says “domestic judiciaries are embedded in their legal culture
and have distinctive traditions for incorporating international norms into domestic
law, which may impede the movement dynamics,” posited by Keck and Sikkink.
34
12
He cites the example of South Africa (where Constitution asks its judiciary to
interpret laws in light of applicable international law), US (which does not accept
many international norms), and India, (which has been unpredictable in its reading of
international law), to show that legal culture influences the capability of social
movements to link with transnational networks to enforce human rights.
35
Furthermore, as comparative law scholars such as Menski, Renteln, and
Twining have argued, the incorporation of global standards is not a neat
transplantation of laws but is based on adaptation to the local context because of
varied historical traditions and cultures.
36
Twining has claimed that
the central point is that relations between municipal law and other forms of
normative ordering and other interactions deserve the sustained attention of
jurists because they are a crucial part of understanding the legal
phenomena.
37
Menski extends this discussion about legal interaction with socio cultural pluralism
to say that law itself is a plural phenomenon.
38
The plural tradition of law,
conventionally defined by either the presence of many legal orders such as in the
European Union countries or colonial legal apparatuses where state and indigenous
system existed side by side or presence of legal sources other than state law, such as
religious laws, customary law of peoples or one where legal systems build through
incorporation of many legal norms, forms the essence of global – local interaction.
39
Legal theorists D.J Galligan and Bentley have elucidated the pattern of this
inter-legal relationship. Galligan argues that although pluralism is widely accepted in
legal scholarship, there is not much analysis about the pattern of relationship
between the laws.
40
For instance while Griffith and others have admitted the
13
presence of plurality, they have failed to provide analysis of how the multiple legal
systems work.
41
Galligan contends that the interaction of the various laws, both
formally and informally, is based on understandings formed around their social
contexts.
42
He describes several possible formations that have evolved in different
constitutional systems- 1) Two or more legal orders run side by side with well
defined areas of jurisdiction, an example is the federal division of powers. 2) one
legal order is dominant and leaves space for other sub-orders such as customary
practices. This is the colonial model of pluralism. 3) Two or more legal orders
compete for control on specific subject matters of sovereignty 4) the presence of
global order that transcends national boundaries.
43
Similarly, Bentley, rejecting the
image of plural legal orders as one of laws stacked one atop the other, explains that
the interaction and intersection of different laws in society is shaped by the social
sphere.
44
However, as she makes it clear, the process of this interaction is not definite
as social spheres vary as to how well they are formed and how distinct they are.
45
The debates about the plural basis of law and interrelationship between law
and society necessitate departure from state centered assumptions to analyze how
domestic legal culture in different social contexts internalizes global norms. Even so
the examination of interaction of different laws is important to see how law
internalizes environmental frameworks; the existing legal scholarship in India has
not studied how cosmopolitan rights are integrated in law and social discourse on the
environment. While some legal scholars such as C.M Abraham have studied Indian
legal tradition and it’s forging of environmentalism by drawing linkages with pre-
14
colonial law, this literature has not addressed how the social and legal contexts
incorporate transnational norms. For instance, Abraham has cogently demonstrated
how the resurgence of Dharma in law has enabled environmental jurisprudence.
46
He
has persuasively argued that the Indian belief in syncretism has allowed the
development of environmental law in India that combines both the modern elements
and autochthonous notions of law and nature.
47
However the excessive focus on
doctrines overlooks the socio-legal interaction and the interplay of various laws-
customary, national and global in the construction and contestation of environmental
standards in India.
48
Also, the literature on social mobilization and environmental
history in India, while making a distinctive case for Indian environmentalism shaped
by social perceptions of people, ignores plural traditions in law and how law
incorporates the diverse social positions.
49
The emphasis on doctrines or social
mobilization alone has limited the scope of examination of acceptance of human
rights norms as it overlooks plural framing of laws, value conflicts over
environmental rights and the socio-legal engagement in constructing environmental
human rights claims.
In my study on environmental human rights, I use the framework of legal
pluralism to demonstrate concretely the ways in which local social factors affect the
acceptance of global norms in India. Legal framings for the protection of
environmental human rights norms are shaped by adaptation of a plural framework
of law that uniquely builds on an integration of cultural differences and livelihood
needs into law.
15
Research Question
This dissertation focuses on the ways in which law and society in India have
accepted cosmopolitan environmental standards to green human rights. My central
question is: how do international environmental norms and socio-cultural contexts
mediate in the interpretation of environmental norms in India. I ask if international
environmental law and human rights norms influenced the domestic interpretation of
environmental law. My study will ascertain how various laws international,
constitutional and customary interplay in forging environmental standards in society
and how the interaction is shaped by social dynamics. I will explain this by analyzing
the debates about various environmental issues, the social context, the factors that
influence the manner in which environmental claims are presented in the Court, the
principles that are used to challenge the law, the Court’s responses to the claims, and
the conditions under which the Court vindicates environmental human rights claims.
More importantly, I will investigate the ways in which socio-cultural
assumptions about relationship with the natural world influence how the Court and
social advocates frame environmental claims. Furthermore I will try to determine the
extent to which this practice is informed by international norms and departs from
common law positions on the environment. I will identify distinctive Indian legal
practices that have enabled social and legal integration of human rights law in the
domestic context.
My primary suggestion is that the acceptance of cosmopolitan standards in
India is built through a plural framework of law that incorporates international
16
environmental norms, constitutional principles and local customary practices. It is
based on the interplay between different kinds of laws and also social and cultural
assumptions about the relationship between individuals, groups, and nature. The
model of legal pluralism adapted by Indian law mainly draws from values of Indian
legal culture and is distinct from colonial legal tradition which operated through the
presence of two legal orders, where the official laws were considered superior to
indigenous laws of the gentoo.
50
Indian legal culture minimally refers to certain distinctive practices of law in
India, one of which is the public interest litigation movement that began in 1977. At
the macro level, it includes ethical postulates of the Indian world view, which
constitute the guiding principles of law such as duty, syncretism and holistic
justice.
51
These postulates, although are not Black letter laws, have considerable
influence on jurisprudence. For instance legal education in India includes a section
on ancient jurisprudence as part of the curriculum. Justices in many instances cite
passages from ancient Indian texts to emphasis principles of holistic justice.
Furthermore, as some scholars have argued the public interest litigation movement in
its integration of rights and duties, and emphasis on holistic justice reflects certain
tenets of Dharmic law.
52
Conversely, some other scholars such as Donald Davis
argue that since the imposition of colonial rule, ancient postulates have lost
importance and not many people are well versed with knowledge of ancient law.
53
I
argue that while the law may reflect the common law tradition, ethically and at a
general level certain distinctive ancient values influence the legal process. The
17
internalization of cosmopolitan human rights values is therefore not through
transplant of standards but through endogenous legal postulates. This, I argue, has
been facilitated by the public interest litigation movement in the judicial process in
India which introduced two important changes in the law- 1) it enhanced social and
legal interaction by enabling social actors to approach the court and 2) liberal
interpretation of rights. This marks a significant shift from colonial common law
assumptions about the law and peoples’ relationship with nature. I conclude that the
adoption of a plural legal approach enabled by public interest litigation has led to the
internalization of cosmopolitan environmental jurisprudence in India. This makes the
Indian case special as it balances environmental interests with local social needs and
reflects a distinctive element of Indian legal culture that is based on plural traditions
of law.
I will demonstrate in my work that international principles guided the
domestic interpretation of the environment, even though the development of law is
an endogenous process. I will show that the incorporation of cosmopolitan values did
not occur through legal transplant as it did during colonial times, but through
endogenous innovations that allowed plural interpretations of law. By endogenous
mechanism, I mainly identify Dharmic postulates, which is a distinctly Indian value
that defines the ethical basis of law. Its characteristics are holistic justice,
responsibilities of ruler and subjects, and legal pluralism. This legal reasoning in
modern days is represented in the public interest litigation movement in India.
18
Published works also propose that international human rights principles
influence the debate about environmental protection in India. However, the existing
literature has not explained how international principles have interacted with local
normative order in the Indian social context. While social advocates rely on
international human rights principles more directly and use transnational
mobilization to gain support, the Supreme Court has selectively used cosmopolitan
standards to interpret domestic laws. The Court has relied on a framework that
supports responsibility towards the environment. Further, it is noted that the
acceptance of environmental human rights norms by different groups reflects the
politics of place, as social perceptions of relationship with the natural world
influences the interplay between various laws. Unlike earlier environmentalism,
which was characterized by subaltern and grassroots movement, the environmental
advocacy of the twenty-first century is motivated by middle class concern to promote
greener cities, and increasing association with human rights vocabulary to demand
environmental rights through litigation. Yet the concept of duties and social
responsibility to the environment, central to Indian legal culture is significant to how
law and social groups forge environmentalism. This gives a distinctly local and
cultural perception to the meaning of the environment.
Methodology
The empirical part of this study is primarily an analysis of three legal cases on
environmental rights in India. I used an interdisciplinary approach to study how law
and society interpreted environmental rights in the three basic areas of the
19
environment- water, forests and air. I used multiple methods of study which included
site visits, archival study, interviews, and content analysis of petitions, judicial
rulings, news and reports by various committees in the three cases on water rights,
conservation and air pollution. I studied archives for environmental legislations in
colonial India and constitutional debates on issues of people’s rights, especially the
debate on right to equality and the fifth and sixth schedule of the Constitution on
adivasi rights. I also examined environmental legislations such as the Air Pollution
Act, Water Pollution Act, Environmental Protection Act and the Forest Conservation
Acts of India. I also reviewed media clippings on environmental issues since the
1990. In addition, I interviewed social advocacy groups, government officials,
Supreme Court lawyers and Justices. I gathered data to substantiate my main claims
through site visits to Vellore, Rasgovindpur forests in Orissa, Gopeshwar in
Uttaranchal and New Delhi.
In the case of T.N Godavarman v. Thirumulkpad, I analyzed the writ petition
of Mr. T. N Godavarman and the Supreme Court rulings, the report of the Centrally
Empowered Committee and the Intermediate Applications filed by various NGO’s. I
conducted site visits to some forest areas in the state of Orissa, in south east India.
Since it was not possible to visit all the sites affected by the ruling, I focused on
Orissa where the displacement of adivasis from forest areas because of the rulings
has been high and land settlement records are known to be abysmal owing to the
hilly terrain. In addition, I attended one of the Supreme Court hearings on the
Godavarman case and had several personal meeting with Justices dealing with the
20
case. The primary focus of our discussion was to study how environmental rights are
constructed and contested in law and society in India.
In the Vellore Welfare Forum case, I concentrated on writ petitions filed by
the local NGO Vellore Welfare Forum, Supreme Court ruling on the case, report of
the Tamil Nadu Agriculture Research Institute, Report of Peace Trust, Community
Action Development and media clippings. I conducted site visit to Vellore and
visited a tannery. In addition I had personal meetings with Justices and the Supreme
Court Lawyers who have dealt with the case and members of the leather tanners
association. The central emphasis was to scrutinize how water rights were interpreted
in local contexts and how social forces responded to the judicial ruling.
In the case of Delhi CNG litigation, I studied the Supreme Court rulings on
the lawsuit, reports of pollution in Delhi prepared by the Center for Science and
Environment and Media clippings. My site visit in Delhi included visiting CNG gas
stations, personal meetings with Mr. M.C Mehta and some private transporters. I also
had many personal discussions with residents of Delhi. The central concern in this
case study was to examine how the city struggled to clean its air and its impact on
the operators of public transport system.
The three key case studies represent the spectrum of debate about
environmental matters, and reflect legal developments in three arenas of the
environment- water, forests and air. In addition I chose the three cases also because
they represent different social groups and locales. The Vellore example is a classic
case of rural- urban contestation for water resources. The Godavarman litigation is
21
typical of rights of indigenous groups to forests all over the country and hence is
representative of diverse levels of economic and social development, from simple
hunting gathering economies to pastoral to farming to urban communities. The New
Delhi case study represents the drive of urban middle class’s contest for healthy
living in a metropolitan city. They are also landmark case laws on clean and healthy
environment, conservation, and right to natural resources and have been used as
model for environmental action in South Asia. They show how the legal approach in
India has made significant advances from common law notions of pollution, property
rights in water and forests towards a human rights perspective that is public oriented,
responsibility oriented. In this it reflects a typical Indian cultural characteristic of
openness to ideas and syncreticism of thoughts and philosophies. As Mahatma
Gandhi wrote
I do not want my house to be walled in on all sides and my windows to be
stuffed. I want the cultures of all land to be blown about my house as freely
as possible. But I refuse to be blown off my feet by any.
54
This spirit defines Indian pluralism, is constitutive of the philosophy of the
Constitution, and is mirrored in jurisprudence.
The reason why I chose to study India is because socio-legal activism has
supposedly created a public debate on environment. The Court has developed a
distinctive jurisprudence on environmental rights in India through the incorporation
of a plural legal approach than a common law framework to environmental rights. As
Justice Bhagwati said in the M.C Mehta case- “we cannot allow our juridical
thinking to be constricted by reference to the law as it prevails in England.”
55
The
22
Indian case is crucial to this legal study of common law systems for various reasons-
more importantly it represents a classic example of adaptation of a common law
system to cosmopolitan rights and therefore remains a model for many other states
where colonizers implanted the Indian model of law such as in South Africa, Sudan
and elsewhere. Furthermore, colonial legacy, socio cultural diversity in India and the
differential relation of social groups with the natural world make the Indian example
an interesting case study of environmentalism and law. In addition, historical and
social complexities in India, because of its links with pre-colonial and colonial times
have made the Indian model very complicated that cannot be explained through
simple dualisms. And more importantly, the Indian example has stood out in
comparative environmental studies as a case where litigation has been an effective
mode through which Courts and society have engaged to green laws.
I use the human rights identification of environmental rights - as the right to
an environment free from toxic pollution and right to natural resources - as the
starting point for analyzing environmental disputes. In the process, however, I have
not limited myself to a single definition of environmental rights but moved beyond
this conceptual issue to show that the framing of environmental rights is based on a
plural approach that balances various other human rights demands. I have
particularly focused on the issue of environmental human rights because of its
normative and yet almost customary acceptance in International Law, as seen in
national jurisprudence and constitutions. While the acceptance of most human rights
law can be examined through integration of treaty laws, environmental laws require a
23
value based acceptance of green rights. In addition, although women’s rights and the
rights to cultural and religious freedom have gained attention from pluralist
perspectives, the question of environment is largely seen as a universal norm. This
makes the case of environment crucial to a study of legal pluralism as different
perceptions of relationship with the natural world shape the acceptance of
cosmopolitan standards. For the same reasons I chose to study the three areas of air,
water and forest, as each of these environmental component comment on significant
aspect of human relationship with nature. I intend to show how social contexts
influence environmental interpretations.
I have particularly studied the Indian Supreme Court only, for two reasons:
first, because the public interest movement on environmental issues has been stirred
by the Supreme Court and second, it is the key judicial forum in which
environmental cases are decided in India. The review of state level courts would
make this study unmanageable, given the plethora of environmental disputes decided
by courts at various levels. Furthermore, the Indian Judiciary is an integrated system,
with the Supreme Court being the highest appellate body, which has original
jurisdiction over all Constitutional matters.
The legal implementation of environmental standards is also not the only
measure of acceptance of environmental values. In practice there are varied ways
through which human rights standards come to be accepted such as media reports,
jurisprudence, transnational activism and its impact on officials and social
movements, education especially legal education etc. Even though I began by
24
looking at cases, I reviewed amicus briefs, the representation of the issues in media
reports, representation of green advocates in committees set by the Court to examine
environmental cases, official documents, newspaper articles, Court decisions,
academic writings and publications by non-governmental organizations.
I also examined secondary literature on environmental movement in India,
particularly the Carnegie study on middle class values, Delhi Social Forum’s report
and other survey reports on environmental values in India. For media reports, I
reviewed four leading English national newspapers- The Hindu, Times of India,
Hindustan Times and Pioneer. While The Hindu is a left of center newspaper, the
other three are more centrist newspapers.
While I anticipated difficulties in accessing case reports, I did manage to
obtain most of the stuff from the Court records, my case studies being relatively
recent examples of the 1990’s. I found that NGO’s also maintained a legal file that
had reports and petitions to cases. In contrast to my expectation on Indian media
clippings, I found that there was no well archived source for media reporting.
Journalists, with whom I spoke to, about locating media archives, mentioned that
there was no consolidated source of media files in India. The World Wildlife Fund
had some clippings of the last ten years and Teen Murti library maintained media
files but these were not issue based.
Also, given the diverse meanings associated with environmental values due
to socio cultural diversity, I restricted myself to somewhat mainstream discussion of
the subject. The focus of my study remained to examine the emerging
25
environmentalism on the three issues of water, air and forests from a law and society
perspective.
Contribution
The project extends the discussion about environmental human rights in the
international arena to the question of how environmental rights are construed in
domestic systems. It is a microanalysis of how international norms are articulated in
domestic legal contexts. It shows the limitation of the conventional top down models
of transmission of international law and engages in the examination of law as an
ongoing process. My study provides an analysis of the extent to which international
human rights standards and local norms influence the social and legal construction of
environmental norms in India. I make the intervention that the adaptation to
cosmopolitan environmentalism in India is facilitated by local legal traditions. It
provides insight into how legal pluralism explains acceptance of environmental
human rights standards in India and hence aims to extend the domain of legal
pluralism to the study of unconventional arenas of law. As a second objective, it
demonstrates how social and cultural context impacted the interpretation of
environmental claims. It shows that the framing of environmental rights in local
context is made in relation to its social definitions of livelihood and environmental
needs. This dissertation expands the domain of environmental human rights literature
to understand local, cultural and contextual influences on interpretation and
acceptance of human rights norms.
26
Drawing on these debates about domestic acceptance of human rights, the
following chapters will discuss the framework of legal tradition and environmental
protection in India, particularly with regard to air pollution, water rights and
conservation. The first two parts will discuss the debates on environmental rights-
the linkage between environment and human rights and how law and society in India
have internalized cosmopolitan norms on environment. The final part will discuss the
three important legal struggles on the protection of the environment in India to
demonstrate how cosmopolitan standards are integrated in law. This study mainly
focuses on three environmental cases in India to show how human rights norms are
internalized in the Indian social context. Further, it shows how social and cultural
assumptions influence the acceptance of environmental values.
27
Introduction Endnotes
1
The three cases are: the Vellore Welfare Forum case on water pollution, the Godavarman case on
conservation and the Delhi CNG case on air pollution.
2
Human right standards refer to customary laws and human rights principles enshrined in the
conventions. I take a broad view of international human rights law to include both treaty based rights
and normative principles. The definition of international law has been varied in literature. Cass says
international law essentially refers to the global system of laws concerned with regulating the
international public order. As early as 1832, Austin called international law as the realm of law
improperly so called because it did not fit in his positivistic definitions of law. In the sixteenth
century, public international law emerged after the Westphalia system as the law of nations in Europe.
During colonialism, its scope expanded to cover all nations. In the post world war II scenario, the
debate is about the incorporation of international law in domestic systems. While certain issue areas
like torture and genocide are universally accepted, other issues of human rights face many challenges.
See, Deborah Z. Cass. “Navigating the New Stream: Recent Critical Scholarship in International
Law.” 65 Nordic Journal of International Law. 1996, pp. 341-383. M.D.A Freeman. Lloyd’s
Introduction to Jurisprudence. 7
th
Edition. London: Sweet and Maxwell. 2001.
3
Environmental rights scholars such as Dinah Shelton, Neil Popovic, Janelle Eurick and Michael
Anderson have claimed universality of the right by demonstrating state acceptance of the standards.
The focus of this literature is to see the frameworks of linkage between environment and human rights
in domestic laws. However, this approach overlooks the complex ways through which international
norms interact with national and local practices. See, Michael Anderson. “Human Rights Approaches
to Environmental Protection: An Overview.” In Michael Anderson and Alan Boyle (Eds.). Human
Rights Approaches to Environmental Protection. Oxford: Oxford University Press, 1998, pp. 1-24. J.
G Merrills. “Environmental Protection and Human Rights.” In Michael Anderson and Alan Boyle
(Eds.). Human Rights Approaches to Environmental Protection. Oxford: Oxford University Press,
1998, pp. 25-42. Caroline Dommen. “How Human Rights Norms can contribute to Environmental
Protection.” In Romina Picolotti and Jorge Daniel Taillant (Ed.). Linking Human Rights and the
Environment. Tuscon: The University of Arizona Press, 2003, pp.105-117. Janelle P. Eurick. “The
Constitutional Right to a Healthy Environment: Enforcing Environmental Protection through State
and Federal Constitutions.” International Legal Perspective 11, 2001, pp. 185-216. James W. Nickel
and Eduardo Viola. "Integrating Environmentalism and Human Rights." Environmental Ethics 16,
1994, pp. 265-271. Neil A Popovic. “In Pursuit of Environmental Human Rights: Commentary on the
Draft Declaration of Principles on Human Rights and the Environment.” in Columbia Human Rights
Law Review 27, 1996, pp. 487-603. Dinah Shelton. “Environmental Rights.” In Philip Alston (Ed.).
People’s Rights. Oxford: Oxford University Press, 2001, pp.185-258.
4
David and Brierley (1978) argued for harmonization of international law to curtail continuing
plurality of rules. This perspective relies on positivist approaches. See, David Rene and John E. C
Brierley. Major Legal Systems in the World Today. 2
nd
Edition. London: Steven & Sons, 1978.
5
I use the term local to contrast with global homogeneity. Loosely, local refers to everything from a
small village in a forest, to an urban metropolitan city, regional units within states, to nation states.
6
See also, the literature on globalization. See David Held, Anthony McGrew, David Goldblatt and
Jonathan Perraton. Global Transformations: Politics, Economics and Culture. Cambridge: Polity
Press, 1999. Robbie T. Robertson. “Glocalization: Time –Space and Homogenity-Heterogenity.” In
M. Featherstone et al. (Eds.) Global Modernities. London: Sage. 1995, pp.25-44. For an Indian
sociological perspective on globalization see, S.L Doshi. Modernity Post Modernity and Neo-
Sociological theories. Jaipur and New Delhi: Rawat, 2003. For globalization and legal theory, see
28
William Twining. Globalization and Legal Theory. London: Butterworths, 2000. Werner Menski.
Comparative Law in a Global Context: The Legal Systems of Asia and Africa. Cambridge:
Cambridge University Press, 2006. Andrew Harding and Esin Orucu. Comparative Law in the
Twenty-First Century. London, The Hague and New York: Kluwer, 2002.
7
National laws in some countries show the plural construction of rights, especially in the areas of
rights of women, property, inheritance, family, minorities, and religious freedom. The South African
and Namibian Constitution offer insights on culture specific plural reconstruction. In India, pluralism
in law is most explicitly seen in regards to women’s and minority rights as seen in the presence of
various civil codes, such as Moslem personal laws. Environment posits a rather unconventional arena
of plural construction of rights as its interpretation, I argue, is best feasible from the social perspective
that gives weight to varied relationship of people with the natural world.
8
Alison D. Renteln. International Human Rights: Universalism Versus Relativism. London: Sage,
1990.
9
Recent writings acknowledge that local contexts are important to human rights jurisprudence.
Cowan states that although the model of rights is imbued with zeal of emancipation, it is oblivious to
how local concerns resist, implement and transform the universal categories of rights. Cotterell argues
that in the area of human rights appreciation of difference alongside search for uniformity is a
continuing necessity. Twining argues that human rights jurisprudence tries to unify through reliance
on natural law, in the process the imposition of globally uniform standards denies the possibility of
reconstructing human rights through indigenous norms at local level. Twining notes that the
dominance of western legal theory ignores legal pluralism. Griffith argues for recognition to pluralism
which is neither universalistic or relativist. Alison D. Renteln challenges the simplistic bipolar
discussions on universalism and relativism and argued that there is room for convergence and overlap
in theory. See, John Griffiths. “What is Legal Pluralism? Journal of Legal Pluralism and Unofficial
Law 24, 1986, pp. 1-56. Alan Watson. Legal Transplants: An Approach to Comparative Law. 2
nd
Edition. Athens, GA: University Of Georgia Press, 1993. Zweigert and Kotz. An Approach to
Comparative Law. Translated by Tony Weir, 3
rd
Edition, Oxford: Clarendon Press, 1998. Jane K.
Cowan, Marie- Benedicte Bembour and Richard A. Wilson. (Eds). Culture and Rights:
Anthropological Perspectives. Cambridge: Cambridge University Press, 2001.Roger Cotterell. The
Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. London and Edinburgh:
Butterworths, 1989. Also see Orruci, Renteln, Menski, Twining, Supra note 6.
10
Supra note 6, Werner Menski.
11
Ibid.
12
Laura Benton comments that the legal order consists of social spheres and it determine how various
laws intersect in legal systems. See, Laura Benton. “Beyond Legal Pluralism: Towards a New
Approach to Law in the Informal Sector.” Social and Legal Studies 3, 1994, p. 223-242.
13
Here the term local is used in a broad sense, to include national, sub-national and customary laws of
people.
14
The analytical framework refers to the different frameworks through which a claim for
environmental protection is made such as a right versus a duty approach or a right versus justice
approach, individual versus community right, a right for the present versus those of the future, or from
the perspective of a hierarchy of rights, in case of conflict between environmental human rights and
other human rights. Also, important is the question of the sources of the right -international,
constitutional, statutory, customary- that is one wonders if at all developments in international human
29
rights law inform how this right is practiced in domestic contexts. Social advocates here do not refer
to a monolithic identity. Rather it refers to contesting groups such as those concerned with the green
agenda or developmental agenda of the middle class and rich versus culturally and socially
marginalized groups concerned with fair distribution of resources and livelihood. My study covers the
Indian Supreme Court only, for two reasons. First, it is the most important judicial forum in which
environmental cases have been decided in India and second, review of state level courts would make
this study unmanageable, given the plethora of environmental disputes decided by courts at various
levels. Further, the Indian Judiciary is an integrated system, with the Supreme Court being the highest
appellate body, which has original jurisdiction over all constitutional matters.
15
Culture here does not refer to a static concept, but rather is evolving and hence is a dynamic
concept. Cultural meanings of relationship with environment is contextual and locale specific as well.
Hence, in my analysis I have explored cultural meanings in context specific ways as it relates to the
litigations.
16
See, Upendra Baxi. “People’s Law in India, The Hindu Society.” In Masaji Chiba. Asian
Indigenous Law in Interaction with Received Law. London and New York: KPI, 1986, pp. 216-256.
See also D. J Gallighan. Law in Modern Society. New York: Oxford University Press, 2007.
17
One example of this is that the claim to protect forests is made not only for the environmental
worthiness but also on the intricate relationship that some indigenous groups have in forests- their
livelihood, culture and land.
18
The public interest litigation movement in India began in the post emergency period that is after
1977. The judiciary relaxed standing rules of the court to allow third party litigations, and in cases
even a letter to Justices or to the Court or a complaint in a newspaper was accepted as a writ petition.
This has been the most crucial institutional change with regards to environmental litigation in India.
See, S.P Sathe. Judicial Activism in India: Transgressing Borders and Enforcing Limits. New Delhi:
Oxford University Press, 2002.
19
Vellore Citizen’s Welfare Forum v. Union of India All India Reporter 1996 SC 2715.
T.N Godavarman Thirumulkpad v. Union of India, 1997 2 SCC 267.
M.C Mehta and another v. Union of India. 1986 2 SCC 176.
20
Nihal Jayawickrama. The Judicial Application of Human Rights Law. Cambridge: Cambridge
University Press, 2002.
21
Masaji Chiba. “Introduction.” In Masaji Chiba (Ed.). Asian Indigenous Law in Interaction with
Received Law. London and New York: KPI, 1986, pp. 1-11.
22
Justice A.S Anand. “The Domestic Application of International Human Rights Norms, Developing
Human Rights Jurisprudence.” Volume 8: Eighth Judicial Colloquium on the Domestic Application of
International Human Rights Norms, Bangalore, 27-30 December 1998. Also published in
Commonwealth Secretariat 2001.
23
Stephen D. Krasner. “Sovereignty, Regimes, and Human Rights.” In Volker Rittberger. (Ed.)
Regime Theory and International Relations. Oxford: Clarendon Press, 1993, pp. 139-167.
24
Thomas M. Franck. Fairness in International Law and Institutions. New York: Clarendon, 1995.
25
Anne Marie Slaughter. “A Liberal Theory of International Law.” Proceedings of the 94
th
Annual
Meeting of the American Society of International Law, 2000, pp. 240-248.
30
26
Harold Hongju Koh. “How is International Human Rights Law Implemented.” Indiana Law Journal
74, 1998, pp.1397-1417.
27
Eric Neumayer. “Do International Human Rights Treaties Improve Respect for Human Rights.”
Journal of Conflict Resolution 49, No.6, 2005, pp. 25-953.
28
Ibid.
29
Ibid. p.930. Also see Laurence R. Helfer and Anne-Marie Slaughter. “Toward a Theory of Effective
Supranational Adjudication.” Yale Law Journal 107, 1997, pp. 273-391.
30
Oona Hathaway. Do Human Rights Treaties Make a Difference? 11 Yale Law Journal 1. 2002, pp.
1935-2042.
31
Thomas Risse, Stephen C. Ropp and Kathryn Sikkink. The Power of Human Rights: International
Norms and Domestic Change. Cambridge: Cambridge University Press. 1999.
32
Margaret E. Keck and Kathryn Sikkink. Activists Beyond Borders: Advocacy Networks in
International Politics. Ithaca: Cornell University Press, 1998.
33
Balakrishna Rajagopal. “Limits of Law in Counter-hegemonic Globalization: The Indian Supreme
Court and the Narmada Valley Struggle.” Working Paper Series. Centre for Study of Law and
Governance, J.N.U., 2004.
34
Ibid.
35
Ibid.
36
Supra note 6.
37
William Twining. General Jurisprudence (World Congress on Philosophy of Law and Social
Philosophy, Granada, May 2005). In M. Escamilla and M. Savedra (Eds). Law and Justice in Global
Society. Seville: 2005.
38
Menski in Supra note 6.
39
For a discussion of nature of legal pluralism see, M. B Hooker. Legal Pluralism: An Introduction to
Colonial and Neo-Colonial Laws. Oxford, 1975. A. Griffith. “Legal Pluralism.” In R. Banakar and M.
Travers (Eds.). An Introduction to Law and Social Theory. Oxford: Hart Publishing, 2002, pp. 289-
310. J. Griffiths. “What is Legal Pluralism?” Journal of Legal Pluralism, 24 1986, pp. 1-55. Sally
Engle Merry. “Legal Pluralism” Law and Society Review 22, 1988, pp. 869-896.
40
Supra note 16, D. J Galligan.
41
John Griffith. “What is Legal Pluralism?” Journal of Legal Pluralism, 24. 1986, pp. 1-55.
42
Supra note 16 D. J Gallighan
43
Ibid.
44
Supra note 12.
31
45
Ibid.
46
C. M Abraham, a leading legal scholar has argued that environmental jurisprudence in India is
based on autochthonous elements of juridical reasoning and understanding of law. He calls this the
neo-Dharmic jurisprudence of the Indian Supreme Court. See, C.M Abraham. Environmental
Jurisprudence in India. The Hague: Kluwer Law International, 1999.
47
I use the term syncretism specifically to highlight the similarity of this process of legal integration
with syncretic traditions in religion. As Donald Davis has argued, the Hindu philosophical concept of
Dharma is the law, in Hindu tradition.
Donald R Davis Jr. “Hinduism as a Legal Tradition.” Journal of the American Academy of Religion
75 (2), pp. 241-263.
48
Some other works on environment and the law are of Shyam Divan and Armin Rosencranz.
Environmental Law and Policy in India: Cases, Materials and Statutes. New Delhi: Oxford University
Press, 2001. Jona Razzaque. Public Interest Litigation in India, Pakistan and Bangladesh. The Hague:
Kluwer Law International, 2004. Ashok H. Desai. Environmental Jurisprudence. Modern Law House,
Allahabad, 2002.
49
Madhav Gadgil and Ramchandra Guha (1995). Ecology and Equity: The Use and Abuse of Nature
in Contemporary India. New Delhi: Penguin Books. Ramachandra Guha and Juan Martinez-Alier.
Varieties of Environmentalism: Essays North and South. New Delhi: Oxford University Press, 1998.
Amita Baviskar. “Red in Tooth and Claw? Looking for Class in Struggles over Nature.” In Raka Ray
and Mary Fainsod Katzenstein. Social Movements in India. Lanham: Rowman and Littlefield
Publishers, Inc, 2005, pp. 161-178 .
Amita Baviskar, Subir Sinha and Kavita Philiph. “Rethinking Indian Environmentalism: Industrial
Pollution in Delhi and fisheries in Kerala.” In Joanne Bauer. Forging Environmentalism: Justice,
Livelihood and Contested Environments. Armonk, New York: M.E Sharpe, 2006, pp.189-256.
50
See, Supra note 16. Upendra Baxi and D.J Gallighan.
51
I particularly use the term syncretism to show the similarities to religious syncretism.
52
Werner F. Menski. Hindu Law: Beyond Tradition and Modernity. New Delhi: Oxford University
Press, 2003.
Supra note 46 C.M Abraham
53
Donald R Davis Jr. “Traditional Hindu Law in the Guise of ‘Post Modernism:’ A Review Article.”
Michigan Journal of International Law 25, 2003-2004, pp. 735-749. Also see, Ludo Rocher. “Lawyers
in Classical Hindu Law” Law and Society Review 3, No.2/3, 1968-1969, pp. 383-402. Richard W.
Lariviere. “Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past.”
Journal of Asian Studies 48, 1989, pp. 757-769.
54
Mahatma Gandhi. Young India. June 1. 1921.
55
M.C Mehta v. Union of India. 1987. 1 SCC 395 at 420.
32
PART I
33
Chapter 1
Greening Rights: In Ethics and Practice
In different fields such as law, human rights and political theory scholars have
approached the issue of protection of environment from varied standpoints to
highlight the limits of law as well as to create new legal obligations.
1
An important
framework that has gained currency in the twentieth century debates about
environmental protection is that of “rights of the environment” and the “rights to the
environment.” The main issue surrounding the framing of environmental rights has
been whether the right should be approached from an eco-centric or anthropocentric
stance. The justification for anthropocentrism and eco-centrism rests on varied set of
values- moral, cultural, religious, self-interest and economics- that define human
nature relationships.
2
The discussions about the relationship between human beings and nature are
largely positioned around the diverse meanings of nature, with particular emphasis
on whether it excludes or includes human beings. For instance, in philosophy at least
three uses of the word nature have been identified.
3
First, the term nature refers to
everything in the Universe as distinct from the supernatural. Second, the concept is
defined to be the opposite of human creations, meaning nature represents the
opposite of cultural and artificial.
4
Third, nature is defined as something good, in the
sense of something better than artificial or commercial products. For scholars of the
deep ecology school, nature is independent from human activity. Its value is based
on its undisturbed and intrinsic properties. Conversely, the supporters of shallow
34
ecology hold that nature needs to be protected for the value it holds to human
welfare. This is contingent on the perceptions of human and social relationship with
nature, and varies in different cultures.
5
In this chapter, I will discuss the important theoretical approaches to
environmental rights, in ethics and human rights law. First, I will explain the
important theoretical positions on environmental rights. Next, I will scrutinize the
human rights approaches to environment and analyze the debates about the
relationship between environment and human rights. The central argument of this
chapter is that environmental protection is contingent on human relations with the
natural world, which can be protected through a human rights framework.
The Discourse on Environment in Human Rights and Legal Theory
Early writings on the environment, such as those of Aarne Naess, have categorized
environmental philosophy into two streams, deep ecology or eco centrism and
shallow ecology or anthropocentrism.
6
The distinction between deep and shallow
ecology has prevailed in mainstream legal and social discussions about
environmental rights in varying degrees, although the caveat remains that it is not a
dichotomous division. In theory there are many overlaps and nuances through which
scholars have made a case for environmental rights. In practice the debates are best
elucidated in the different perspectives adopted by practitioners of environmental
law and human rights.
Deep ecology or eco-centrism presents a holistic view of nature, independent
from human activity. This view values nature on the basis of its intrinsic and
35
undisturbed properties.
7
A natural system, according to deep ecologists, includes all
biotic and abiotic components, because of the intrinsic value of these components
and for the life support they provide to all natural beings including humans. This
approach promotes nature for itself, defines human behavior in light of its
compatibility with the structure of the earth’s system and demands human obligation
to protect nature for its own sake. The eco-centric view is valuable as it assesses
impact of life styles on the ecology and protects the environment as a whole, from
harm caused by human activity. This perspective finds favor in ethical and religious
movements to protect the environment and is foundational to international
environmental law.
Nevertheless, deep ecology has its limits. The most common critique of the
ecosystem approach is that it is too broad based and hence it is not feasible to
implement. More importantly, as anthropological literature points out the assumption
of uniform meaning of nature across cultures and the separation of human cultures
from nature is problematic. The term has different meanings across societies as
people’s relationship with the natural world defines perceptions of nature and this is
contextually contingent. Kay Milton holds that peoples’ religious belief and practice,
addresses their understanding of the natural processes and their response to
environmental hazards.
8
Her contention is that human interaction with the natural
world is both a problem and a key to the solution.
9
The social ecology school of
thought, believed to be a variant of anthropocentrism, also holds that environmental
problems can be understood and solved only when they are traced back to the social
36
origin.
10
Anthropocentric scholars maintain that human beings are part of nature and
the exclusion of human culture from nature makes ecological rights “non
compossible”
11
since it interferes with other human rights and duties. In addition,
Niraja Gopal Jayal, a political theorist, has argued that there is need to work human
specificities into environmental ethic, such that differences in human locations and
human histories, class and gender can be accounted for when ecological and liberal
political values conflict.
12
For instance, nature preservation campaign is not an easily
transportable concept across societies, as people’s relationship with forest resources
has determined conservation ethic, best seen in local protests against colonial forest
policies in the South. Hence the claim to protect environment independent of human
relationships is a weak thesis.
The latter, shallow ecology or anthropocentrism is a theory that is based on
the impact of environment-affecting actions on present and future humans. It views
the environment as a mere good or value to be added to the list of human demands.
13
Simply put, as Naess has characterized it, anthropocentrism is a fight against
pollution and resource depletion, to ensure better human life. Ecocentric scholars
argue that this perspective perpetuates all those characteristics that are at the root of
environmental degradation as environment is protected as a consequence of, and
only to the extent needed for human well being.
14
Conversely, anthropocentrism
maintains that humans are themselves a constitutive part of nature and therefore will
take care of the environment. They contend that a human based approach, such as a
human rights perspective can play a useful role in the protection of the environment
37
as well as human interests, although as some may say it adopts a narrow view of
environment because of its status of being a derived right.
15
In addition, they hold
that since humans are socially conscious individuals they will recognize morality and
importance of environmental rights. For instance, cross culturally religious ethics
includes concern towards protecting nature and has social norms to regulate the use
of resources.
Another approach to environmental protection, supposedly a response to the
narrowness of anthropocentrism and the broad based protection of nature by eco-
centrism, is Christopher Stone’s human ideal approach.
16
Stone argues that moral
accounting for the environment appeals to three foundations- first, homocentric
ethics that appeals to human welfare. Second, is eco-centric ethics that tempers
impact on non-human life and environment on the basis of its intrinsic value. Third,
which he supports, is a view of human ideals regarding ethics- the idea of treating
the environment with sensitivity, which is viewed as transforming us into better
human beings. Borrowing from Kantian reasoning on human capacity to know and
improve the world through reason, Stone defends a thesis of environmental
protection based on moral norms. An illustration of this is Immanuel Kant’s
declaration that “he who is cruel to animals becomes hard also in dealings with
men.” Stone’s contention is that environmental ethics may be less about welfare, or
even the environment, than about the inescapable construction of ideal human
character.
17
This philosophical position ensures not only a right to environment, but
also protects the environment through the notion of justice.
38
Stone’s thesis is useful in its suggestion of building a defense for
environment that goes beyond its usefulness to human kind and yet it is not as broad
as the eco centric approach. Conversely, this approach can be risky especially when
it comes to defining a universal ideal human character and will necessarily be in
conflict with cultural values. The problems with this classification hinges on issues
of practicality and also in dealing with conflicting issues of rights say the case of
indigenous peoples cultural right to land and forests versus the need to protect
biodiversity or be it the case of whaling and the cultural rights of Inuit’s to whaling
or as in the Delhi industrial pollution case of livelihood rights versus environmental
rights.
18
This highlights the limits of having strict frameworks for environmental
protection.
In a somewhat similar vein, Gillespie argues that environmental protection
claims cannot be constructed in a strictly structured framework.
19
Gillespie contends
that the theoretical approaches of environmental rights do not adequately address
environmental problems in the international arena. For example, he rejects the
anthropocentric justifications because they are unable, by their very definition, to
“capture the essence of value of nature." His contention is that the self-interest
justification for environmental protection provides little incentive to protect those
parts of nature that are of no present or potential use. Although he acknowledges the
wide appeal of the non-anthropocentric perspective, he argues that it is not only
limited in its applicability, largely based on idealism, but also fails to provide any
alternative system to change the socio-political order. The land ethic (or deep
39
ecology), for example, tries to find inherent value in complete communities or
ecosystems and appears to be the most appealing justification. However, it suffers
from misanthropic tendencies. As an alternative, Gillespie seems to support a
sustainability approach that seeks to provide protection to the environment based on
future needs.
20
Arguably, this approach draws on engagements with the various
frameworks to provide a more realistic notion of environmental rights.
As one can see from this diverse range of literature, the concern for the
environment is expressed through notions of protection of the environment in itself,
as a moral value, for the betterment of human life and as a basic necessity for human
survival. Given the different values in society and the conflicts between
environmental rights and other human rights, scholarship is equivocal on how best to
protect environmental rights. Arguably, the human rights approach is the most
comprehensive of all the approaches to environmental rights. It defends human
interests and adequate protection of the environment through a cross generational
approach as it ensures the enjoyment of basic human rights by the present and future
generations.
21
Human rights scholars, notably that of Nickel and Weiss, has made a
case for environmental rights based on the convergence of rights and justice for
future generations. Nickel presents the case for a cross-generational right to a safe
environment and Weiss introduces a planetary right as environmental human rights
that work to protect the future’s interests.
22
This arguably broadens the framework of
environmental human rights to protect the interests of environment for the present
and future generations as well.
23
40
Human Rights and Environment: Linkages
In the scholarship on human rights, environment became a major subject of
discussion in the 1960s and 1970’s when new social movements questioned the
inevitability of the right to reproduce and created awareness about scarce resources.
24
In the formal sense, it was only in the 1970’s that the UN specifically began its
focus on environment, after the creation of UNEP and the 1972 Stockholm
conference, which first recognized that both aspects of wo/man’s environment, the
natural and the human-made, are essential to the well-being of human beings. The
Stockholm declaration recognized the link between the exercise of human rights and
basic environmental health.
25
Even though it did not actually proclaim a right to the
environment, it triggered a process of norm building for the protection of
environmental rights for the betterment of human life, both internationally and
nationally. Prior to this, the right to environment was not recognized by human rights
and environmental law. For instance, the United Nations Charter of 1945 and the two
covenants on human rights did not list environmental protection among the purpose
and principles they aimed to promote. Developments after Stockholm, have carried
forward this linkage to make a case for environmental human right- protecting the
environment for the people, both for the present and future generations.
26
While it is unequivocally agreed that environmental protection and human
right are linked, there are different perspectives about the nature of linkage between
environment and human rights.
27
One view holds that environmental protection is a
possible means to human rights protection, both for the present and future
41
generations. J.Symonides has pointed out that environmental protection is
intrinsically related to human rights.
28
It is a precondition and outcome of many
rights. Karie Wolfe maintains that the survival of the human species is inherently
linked to the healthy functioning of natural ecosystems, from which the essential
components of life are directly and indirectly derived.
29
In a similar vein, Alan Boyle
argues that environmental rights refer to environmental quality that recognizes the
vital character of environment as a basic condition of life, indispensable to the
promotion of human dignity and welfare, and to the fulfillment of other human
rights.
30
Dinah Shelton opines that the human right approach to protection of the
natural environment entails that the natural world does not deteriorate to the point
where internationally guarded rights and basic conditions of healthy living as in the
right to life, health, property and family life are seriously impaired.
31
The second view sees environmental protection not as a precondition for
human rights, but as an integral part of their enjoyment.
32
Some scholars like J.A
Contradown and R.S Pathak argue that environmental rights are all encompassing in
nature. For Contradown, environmental rights facilitate the exercise and enjoyment
of other human rights and for Pathak, environmental rights transcends categorization
into political, economic or solidarity rights as they embody elements found in each
of the categories.
33
The claim to a right to environment requires states to refrain from
harmful activities and to promote conservation policies. It is not an individual right
but a collective right as it focuses on rights of future generations as well as
community rights. Broadly constructed, as Pathak points out, environmental
42
protection is not limited to environmental quality alone, but is a vital need to protect
human life, to assure its quality, to ensure the prerequisites indispensable to
safeguarding human dignity and human worth, to develop human personality, and to
create an ethos promoting individual and collective welfare in all dimensions of
human existence.
34
A third view is that legal protection of human rights ensures protection of the
environment, in other words existing human rights principles can be a route to
environmental protection. In this context there is a debate about whether the existing
human rights principles should be used to protect the environment, example, the
right to life, or to recognize an independent right to environment as a legally
enforceable right.
Yet another view holds that human rights law provides the mechanisms for
protection from environmental harm. Romina Picolotti and Sofia Bordenave have
stated that international environmental law has not provided the means necessary for
individuals to legally claim fulfillment of the obligations assumed by States in
environmental treaties.
35
In contrast, as they argue, international human rights law
has advanced significantly with respect to enforcement in regional and national
forums. They claim that international human rights law has penetrated into States’
domestic legislation through legislative reforms that recognize and promote its
application in legal forums. Additionally as noted by Justice Y.K Sabharwal, there
are benefits to including environmental law within the ambit of human rights, as this
will empower individuals and groups wishing to challenge the infringement of
43
environmental rights because of removal of standing barriers.
36
Similarly, Margaret
DeMerieux maintains that despite tensions in having a legal right to environment,
due to occasional conflicts between the protection of environment perse and other
human rights, there is a prima-facie and rhetorical advantage to making the
environment a human rights issue.
37
Christine Chinkin notes that using human rights
standards to protect the environment has many advantages; a rights vocabulary
expands the domain of environmental protection from only interstate claims to stakes
against state by individuals and communities.
38
This facilitates proceedings in
domestic courts and also puts pressure on national courts for compliance. More
importantly, rights vocabulary is empowering as it allows claims including the right
to petition against state parties in U.N and other regional treaty bodies. The
increasing legal recognition of human rights and environmental goods in various
constitutional contexts reaffirms the interdependence of both these concepts.
The Human Right to Environment
There are many viewpoints about how human rights can protect the environment and
the place of environment within human rights law. A central issue in building
environmental human right law is whether to have minimalist recognition of
environment as a derived right or to claim for a substantive right that takes into
account the need to preserve 1) the very existence of life on earth necessary for
human survival and 2) the conditions of life provided to humans conducive to a life
of dignity. While some hold that newer obligations to protect the environment be
connected to the existing rights, in other words greening human rights, others believe
44
in the creation of new standards towards which state’s can work. And some others
are of the opinion that there is an emerging customary right to environmental human
right based on state practice.
39
Michael Anderson has summed up three approaches
through which environmental protection can be incorporated in human rights law
that integrates both the minimalist and the maximalist approach – 1) mobilizing
existing rights to achieve environmental ends 2) reinterpreting existing rights to
include environmental concerns and 3) creating new rights of an explicit
environmental character.
40
Representatives of the first camp are those who share Anderson’s approach.
They contend that the existing human rights norms satisfy the need for
environmental protection and the creation of new environmental rights would be
superfluous and counterproductive.
41
Of the existing human rights, environmental
norms are protected by the civil and political rights that guarantee the right to
political participation, to life, association, information, personal liberty, legal redress
for discriminated groups to voice their objection. These rights foster an environment
friendly political order and are preconditions to mobilization for environmental
protection.
42
For example, in India, the rights to life and due process are invoked to
make claims for environmental protection as in the pollution cases in Delhi, the anti
dam movement and by victims of Bhopal industrial disaster.
43
Other human rights
norms such as the economic and social and cultural rights that guarantee right to
health, decent living and working conditions also bear directly upon environmental
conditions. Furthermore, Common Article 1 of the International Covenants on the
45
Right to Self-Determination protects people’s right to freely dispose of their natural
resources. The Right to Life in the Universal Declaration can be read to include the
environment. Thus, provisions in the two main human rights covenants, the
International Covenant on Civil and Political Rights and the International Covenant
on Economic, Cultural and Social rights can be interpreted to include safeguards to
providing a decent environment and mechanisms to defend environmental rights.
Provisions in regional instruments also support environmental human rights. For
instance, Article 8 of the European Convention on Human Rights incorporates the
right to be free from interference with one’s home and property, as in the case of
Lopez Ostra v Spain in which, the European Court ruled that the applicant’s health
problems were related to the fumes of a tannery waste.
44
Reinterpretation of existing norms in the context of environmental
circumstances further extends the horizon of human rights protection.
45
The Supreme
Court in India has made considerable progress in reinterpreting certain rights so that
they subsume environmental protection norms. The Court recognized several
unarticulated premises implied by the Right to Life in Article 21 of the Indian
Constitution to include a right to live in a healthy environment, a pollution-free
environment, and an environment in which ecological balance is protected by the
state.
46
Maximalists, in contrast, favor the creation of a separate right to environment
and of environmental human rights protection. This arguably provides environmental
protection an effective legal status, independent of other human rights. A separate
46
right to environment, I argue will lead to positive protection of environmental human
rights as its enhancement will not be tied to other rights. Dinah Shelton contends that
among the existing norms, the right to a clean environment is never a direct cause of
action and therefore scholars hold that the existing human rights are inadequate for
urgent environmental tasks that necessitate a comprehensive norm for environmental
protection.
47
The recognition of right to protection of natural resources has many
benefits. It will legalize the protection of resources by allowing complaint
procedures to be invoked against institutions that violate rights.
48
Consequently this
will allow claims to be made not only against the state but also private actors like
multinationals. In India, some environmental organizations have campaigned for
explicit recognition of the citizen’s right to environment in the Constitution.
49
They
have submitted to the Constitutional review committee a demand for the recognition
of a fundamental right to safe drinking water and clean and pollution free
environment.
There are some contrary opinions to the recognition of a right to environment
within human rights framework. For example, Handl contends that it is a
misconception to assume that the cause of environmental action can be protected
through a generic human right to environment.
50
He maintains that creating a new
environmental right entails problems of difficulty in definition, inefficiency of
developing environmental standards in response to individual complaints and the
fundamental anthropocentric character of viewing environmental standards through
human rights norms.
51
The existing scholarship has also not successfully resolved the
47
issue of conflict among human rights or the question of whether there exists a
hierarchy of rights. Critics argue that the claim for universal right to environment
overlooks the contextual nature of environmental rights. Hiskes, for example,
contends that the convergence of rights and justice approach to protect rights is not
sustainable because rights (and the duties they imply), may conflict and so the notion
of rights must be more local and contingent.
52
Further, borrowing from the works of
Maurice Cranston who categorized human rights as real rights and rejected second
and third generation rights, Hiskes maintains that environmental rights have a
second-class status.
53
Conversely, works of Shari Collins-Chobinian, Prudence Taylor and others
show that most human rights presume prior basic environmental rights. Collins-
Chobinian argues that even the most fundamental right to life presumes prior and
therefore, more basic rights to clean air, water and soil, Taylor on the other shows
that ecological limitations are present in all human rights.
54
The various positions on
the nature of environmental human rights suggests that there can be no absolute
position on environmental human rights, rather the nature and scope of the rights
have to be contextually developed. Further, as cultural relativists have shown
universal human rights does not presuppose an absolute right, but rather a culturally
sensitive right that builds on commonality of values.
55
Despite developments in varied fields, the central problem is the lack of an
agreed upon definition of environmental rights.
56
However, this does not preclude
the development of this right. A noted environmental rights scholar, Barbara Rose
48
Johnston defines human environmental rights as those basic human rights that
pertain to minimum biological requirements, notably of food, water, and shelter and
the civil and political rights that facilitate individual and group participation in the
creation of institutions that ensure social and eco-system viability.
57
This might be
seen as the minimal core of environmental human rights, and in this sense
environmental rights influence the whole spectrum of human rights. This approach
recognizes the presence of an environmental component in other human rights
instruments.
58
Human rights scholars have built on the minimal core to incorporate
environmental rights within human rights. Nickel and Viola define the relation
between environment and human rights as constructive.
59
While environmentalism
contributes to a green human rights discourse by articulating a right to a safe
environment that recognizes humans as part of nature and allows nature to possess a
claim of its own, human rights contributes to environmentalism by getting
environmentalists to recognize a right to democratic political institutions, to freedom
of information, and other civil and political rights. Most global and regional
instruments thus emphasize the link between human rights and environment;
arguably these developments suggest that a rights discourse is critical to the
development of environmental rights as only a rights discourse can protect the rights
of individuals and groups. Environmental law only ensures state responsibilities
towards protecting the environment vis-à-vis other states. It does not address the
49
needs of communities and individuals affected by policies that seek to exploit
environmental values.
However, some argue that environmental standards may develop out of the
use of cultural and religious norms and thus rights are can be interpreted from the
perspective of cultural perceptions about environmental norms. These could serve to
balance conflicts over environmental rights. For example, C.M Abraham has argued
that the Hindu notion of Justice, the concept of Dharma, is pivotal to environmental
jurisprudence in India.
60
In a similar vein, M. Lau, notes that the “recognition of a
basic human right in Islamic law has repercussions in the field of Pakistan’s
environmental law. General ethical principles on conservation and environmental
protection can be interpreted both in the light of the secular fundamental right to life
and the Islamic right to justice [which] enables the aggrieved party to approach the
court.”
61
The evolution of environmental norms has thus taken different shapes in
different regions of the world, largely due to differences in social, cultural and legal
practice. Nonetheless, the differences do not really negate the role of human rights in
addressing environmental issues. Judge Weeramantry of the International Court of
Justice pointed out in the Gabcikovo-Nagymaros case: “The protection of the
environment is…a vital part of contemporary human rights doctrine, for it is a sine
qua non for numerous human rights such as the right to health and the right to life
itself.”
62
Given the inherent tensions among different human rights and the absence
of a well-established human right to environment, acceptance of international
50
standards is dependent on local framings of environmental rights, which defines the
contours locally through identification of the goals and nature of the right. Legal
acceptance of environmental standards by national courts in various countries
affirms the diverse ways through which various environmental factors influence the
acceptance of human rights framework for the protection of the environment.
Application of Environmental Rights in Law
There are many positions on how environmental rights will be incorporated in law.
Most importantly, scholars are divided on whether environmental rights are
independent rights or are derivatives of other fundamental rights. While its derivative
status is well accepted in law, an independent human right to environment is yet to
be formalized. Philiph Cullet draws attention to another dimension of environmental
rights which is the universal or relative applicability of environmental standards.
63
He maintains that while environmental right is a universal principle, its
implementation has to be decentralized and made responsive to local concerns. He
argues that since the holders of the right cannot claim a given state of the
environment, nor a perfect environment nor an environment similar to other places,
the right will always be interpreted in a contextual and relative manner.
64
Those
championing environmental rights also demand a balance of rights with other human
rights such as the right to information, accountable governance, and effective
participation of civil society. Another serious objection to universal environmental
rights claim is from countervailing rights issues of culture, land, livelihood etc that in
cases may conflict with environmental human rights. In many cases, environmental
51
standards directly conflicts with other human rights, which demands a balanced
approach to environment taking into account social needs. For instance, in the
controversy over the building of the Narmada Dam in India, the rights to
environment of those displaced by the construction of the dam is counter posed with
those of the right to development of the state and the human right to water of the
beneficiaries of the project.
65
Another example of environmental rights conflicting
with other human rights is the Delhi industrial pollution case, where the Court ruled
for a complete closure of all industrial units in residential areas of Delhi to protect
the environment. Amita Baviskar argues that the decision to close polluting
industries by the Supreme Court in India has been at the cost of livelihood rights of
workers.
66
It is therefore important that environmental human rights frameworks are
based on a plural framework that balances environment with other human rights.
Dinah Shelton contends that a synthesis of environmental justice approach
with a human rights approach will be a useful framework to protect the twin aims of
environment and human rights.
67
This strategy will allow for the recognition of
environmental rights claims and also take into account issues of discrimination, the
facilitation of equal participation, and the representation of peoples’ interests. The
environmental justice approach will encompass preservation of environmental
quality, sustenance of ecological well being of present and future generations, and
reconciliation of competing interests. It will also provide distributive justice.
Shelton’s analysis therefore provides a framework to make a claim for environment
not solely from the perspective of humankind but from the standpoint of a just
52
society. Recognition of a rights claim to the environment from the standpoint of
justice has many benefits such as empowerment of the disadvantaged, awareness
building and mobilization of political action and recognition of the community as the
holder of rights. The framework also has its limits, for it can shift the focus away
from the environment to issues of social justice, as it happened in the Narmada dam
lawsuit in India. In the case of the Narmada dam, the litigation was introduced in the
Courts for the protection of the environment, however the focus of the debate and
judicial remedy has been on rehabilitation of those displaced from their land and
livelihood.
68
Another way to formulate environmental rights is to have “hybrid rights”
according to Betsy Apple.
69
She argues that environmental rights comprises of
“hybrid rights” that cannot be labeled as procedural or substantive, first or second or
third generation right, or anthropocentric or ecocentric. Its novelty that it is a new
development in the debate does not imply its indefiniteness. Rather its recognition is
based on developing common concerns around human rights and the environment to
account for varying cultural contexts and specific enough to be comprehensible.
Given the tensions and conflicts inherent in defining environmental human rights,
Betsy Apple’s hybrid approach seems the most suitable that builds on a consensus of
values and suggests a plural model of environmentalism. This approach enables an
integration of cultural perceptions of relationship with nature in conceptualizing
rights. Further, the particulars of the nature of human rights and environmental
claims necessitate an approach that recognizes interdependency of rights adaptable to
53
the contextual situation, in order to broaden the mandate for environmental rights
protection.
This chapter shows that protection of environment can be best approached
from a human rights perspective since social relationship with the natural world
defines perceptions about the environment. Human rights framework enables the
protection of the rights of individuals and groups by taking various contextual factors
into account and also protects the environment through its emphasis on a cross
generational approach. In the next chapter, I will discuss environmental
jurisprudence in different regional context. I will also analyze certain specific aspects
of the development of human rights law to show how the different human rights
principles are used to protect the environment. The main emphasis remains to see
how human-nature relationship is critical to how societies frame environmental
human rights.
54
Chapter 1 Endnotes
1
For a discussion about how environmental ethics can inform legal reform, see Prudence Taylor.
“From Environmental to Ecological Human Rights: A New Dynamic in International Law?”
Georgetown International Law Review 10, 1998, pp. 309-397.
2
Increasingly, in environmental law and human rights one sees a concern to incorporate ecological
limitations to human rights and usage of human rights mechanisms to protect the environment.
Richard P. Hiskes discussion of environmental rights as emergent rights also moves beyond the
traditional parameters of minimalist rights of the individual to a healthy environment. Here he argues
that environmental rights are emergent for reasons of being group oriented as it protects rights of
future generations. See, Richard P. Hiskes. “The Right to a Green Future: Human Rights,
Environmentalism and Intergenerational Justice.”27 Human Rights Quarterly, 2005, pp. 1346-1364.
Also see, Supra note 1 Prudence Taylor.
3
J.S Mill. Three Essays on Religion. New York: Greenwood Press, 1969. Reprint of the 1874 edition.
Also see Mark Sagoff. “The Value of Nature: A Look at the Literature.” Carnegie Council on Ethics
and International Affairs, 1998, p.1.
http://www.carnegiecouncil.org/media/684_sagoff.pdf (last visited June 22
nd
2007).
4
Bill Mc Kibben. The End of Nature. Harmondsworth: Penguin. 1990. P.50. Also see, Andrew
McLaughlin. Regarding Nature: Industrialism and Deep Ecology. New York: State University of New
York Press, 1993.
5
See, Kay Milton. Environmentalism: The view from Anthropology. London and New York:
Routledge, 1989. For a discussion of how nature is interpreted in different cultural contexts see, Ole
Brunn and Arne Kalland. (Ed.). Asian Perceptions of Nature: A Critical Approach. London, UK:
Curzon Press, 1995. J. Baird Callicott and Roger T. Ames. (Eds.). Nature in Asian Traditions of
Thought: Essays in Environmental Philosophy. Albany, NY: State University of New York
Press.1989. E. Ehlers and C.F Gethmann. (Eds.). Environment Across Cultures. New York, NY:
Spring-Verlag, 2003. Ramachandra Guha. Environmentalism: A Global History. New York, NY:
Longman, 2000. Helaine Selin. (Ed.). Nature Across Cultures: Views of Nature and the Environment
in Non-Western Cultures. Boston, MA: Kluwer Academic Publishers, 2003.
6
Aarne Naess is one of the pioneers of the deep ecology movement. See, Aarne Naes. Ecology,
Community and Lifestyle: Outline of an Ecosophy Translated by D. Rothenberg. Cambridge:
Cambridge University Press, 1989.
7
See, Robyn Eckersley. Environmentalism and Political Theory. New York: SUNY Press.1992. See
also, Niraja Gopal Jayal. “Ethics, Politics, Biodiversity: A View from the South.” In Andrew Light
and Avner de-Shalit. (Eds.). Moral and Political Reasoning in Environmental Practice. Cambridge,
Massachussets: MIT Press, 2003, pp. 295-316. Tim Hayward. Political Theory and Ecological Values.
Cambridge: Polity Press. 1998. The integration of ecology and civilization in practice has been
developed in urban designing. Ian McHarg is the pioneer in this field. Ian McHarg. Design with
Nature. The American Museum of Natural History/Natural History Press, 1969.
8
Supra note 5, Kay Milton. Most religious commentaries describe aspects of creation and human
responsibility to protect nature. For instance, the Evangelical movement and other Church based
activities in the US, in the twenty first century, are organizing campaigns for the protection of the
environment. They believe that biblical faith is essential to the solution of ecological problems and are
organizing to mobilize Care for Creation. Similarly, in Chinese culture, Buddhist temples play an
important role in campaigning for the environment. For instance in Taiwan and also in Thailand, local
55
environmental protests movements are organized by the temples. See, Robert P. Weller and Hsin-
Huang Michael Hsiao. “Culture, Gender and Community in Taiwan’s Environmental Movement.” In
Arne Kalland and Gerard Persoon. Environmental Movements in Asia. Surrey: Curzon, 1998, pp. 83-
109. Also see, Robert P. Weller. Discovering Nature: Globalization and Environmental Culture in
China and Taiwan. Cambridge: Cambridge University Press, 2006.
9
Ibid
10
See, Edward M.. McNamara and Patrick George Derr.”Introduction”. In Edward M. McNamara and
Patrick George Derr (Ed.). Case Studies in Environmental Ethics. Rowman and Littlefield. 2003., pp.
xiii-xviii.
11
See Keith Dowding and Martin van Hees. “The Construction of Rights.” American Political
Science Review 97, 2003, pp.281-293.
12
Niraja Gopal Jayal. “Balancing Political and Ecological Values.” In Mathew Humphrey ( Ed.).
Political Theory and the Environment: A Reassessment. London, Portland, Oregon: Frank Cass. 2001,
pp. 65-87.
13
Supra note 7.
14
For a detailed discussion of ecocentrism’s criticism of anthropocentrism see, Mathew Humphrey.
“Reassessing Ecology and Political Theory.” In Mathew Humphrey ( Ed.). Political Theory and the
Environment: A Reassessment. London, Portland, Oregon: Frank Cass. 2001, pp. 1-6. See also,
Andrew Light. “The Urban Blind Spot in Environmental Ethics.” In Mathew Humphrey ( Ed.).
Political Theory and the Environment: A Reassessment. London, Portland, Oregon: Frank Cass. 2001,
pp. 7-35. Christopher Mill in Environmental Rights: Critical Perspectives, Routledge: London, 1998,
pp. 1-22.
15
See James Nickel. “The Human Right to a Safe Environment: Philosophical Perspectives on its
Scope and Justification.” 18 Yale Journal of International Law . 1993, pp.281-295. For a discussion of
derived status of environmental rights, see Christopher Mill in Environmental Rights: Critical
Perspectives, Routledge: London, 1998, pp. 1-22.
16
Christopher Stone. “Ethics and International Environmental Law.” In Daniel Bodansky, Jutta
Brunnée, and Ellen Hey. Oxford Handbook of International Environmental Law. Oxford, 2007, pp.
291-314.
17
Ibid. p.7.
18
For a discussion of conflicting rights claims see, Alison D. Renteln. “Environmental versus Cultural
Rights.” Human Rights Dialogue 2, No.11, 2004, pp. 17-18. Kelly D. Alley and Daniel Meadows.
“Workers Rights and Pollution Control in Delhi.” Human Rights Dialogue 2, No.11, 2004, pp. 15.-16.
19
Alexander Gillespie. International Environmental Law, Policy and Ethics. Oxford: Clarendron Press.
1997.
20
Ibid .pp.9-18.
21
Dinah Shelton. “Environmental Rights.” In Philip Alston (Ed.), People’s Rights, Oxford: Oxford
University Press, 2001, pp. 185-258.
56
22
James W. Nickel. “The Human Right to a Safe Environment.” Yale Journal of International Law
18, 1993, pp.281-295. Edith Brown Weiss. In Fairness to Future Generations: International Law,
Common Patrimony, and Intergenerational Equity. Tokyo: UN University. 1989. pp 120-123.
23
In some context, this concept has been broadened to make a case for the environment as a borrowed
right from the future generations. For example see minors Oposa et al. v. Fulgencio S. Factoran, Jr. et
al. (G.R. No. 101083). http://www.elaw.org/resources/test.asp?id=278 (last visited May 1
st
2007).
24
Political campaigns on the environment also began in the 1960’s, after the oil spill and Rachel
Carlson’ book Silent Springs. Although legal issues are not entirely new, they have been cast in a new
way to underscore environmental aspects than resource potentials, as in early campaigns to conserve
wildlife for human use. See, Rachel Carlson. Silent Spring. Houghton Mifflin. 1962. Also see, D.L
Meadows etalli. The Limits to Growth: A Report to the Club of Rome. New York: Universe Books,
1972. E.F Schumacher. Small is Beautiful. Harper and Row Publishers. 1973. Clive Ponting. A Green
History of the World: The Environment and the Collapse of Great Civilizations. New York: Penguin
Books, 1991.
25
Dinah Shelton. “Human Rights, Environmental Rights and the Right to Environment.” Stanford
Journal of International Law 28, 1991, pp. 103-121.
26
Scholarship is equivocal on this issue. Some believe that the human right to environment be a
separate right, others argue that it should be seen as a derivative of many other rights like right to
health, life etc. Arguably, while the recognition of the right to environment is critical to enjoyment of
human rights, the linkage of human rights and environmental issues are equally important to
legalizing green rights. See, Tim Hayward. “Constitutional Environmental Rights: A Case for
Political Analysis.” Political Studies, 48, 2000, pp.558-572. Janelle P Eurick. “The Constitutional
Right to a Healthy Environment: Enforcing Environmental Protection through State and Federal
Constitutions.” International Legal Perspective, 11 2001, pp.185-216. She makes a strong case for
recognition of environment as a due process right.
27
For a detailed discussion of the relationship between environment and human rights see, Malgosia
Fitzmaurice. “Linking Environment and Human Rights.” Journal of Environmental Law 16, No.3.
2004, pp. 411-413. See also, Alan Boyle. “Relationship Between International Environmental Law
and Other Branches of International Law.” In Daniel Bodansky, Jutta Brunnée, and Ellen Hey. Oxford
Handbook of International Environmental Law. Oxford, 2007, pp. 125-146.
28
J. Symonides. “The Human Right to a Clean, Balanced and Protected Environment.” 20
International Journal of Legal Information 1, 1992, pp.24-40.
29
Karie Wolfe. “Greening the International Human Rights Sphere? Environmental Rights and the
Draft Declaration of Principles on Human Rights and the Environment.” Appeal: Review of Current
Law and Law Reform 9, 2003, pp.45-58.
30
Alan Boyle. “The Role of International Human Rights Law in the Protection of the Environment.”
In Michael Anderson and Alan Boyle (Eds.). Human Rights Approaches to Environmental Protection.
Oxford: Oxford University Press. 1996, pp.43-70.
31
Dinah Shelton. “The Environmental Jurisprudence of International Human Rights Tribunals.” In
Romina Picolotti and Jorge Daniel Taillant (Ed.). Linking Human Rights and the Environment.
Tuscon: The University of Arizona Press. 2003. pp.1-30.
57
32
Ayesha Dias. “Human Rights, Environment and Development: With Special Emphasis on
Corporate Accountability”. UN Human Development Report 2000 Background Paper.
http://www.hdr.undp.org/docs/publications/background_papers/Dias2000.html
(last visited June 22nd 2006)
33
J.A Contra Downs. “A Healthy and Ecologically Balanced Environment: An Argument for a Third
Generation Right.” Duke Journal of Comparative and International Law 3, 1993, pp.351-385.
Also see Philiph Cullet. Definition of an Environmental Right in a Human Rights Context, page 10,
http://www.ielrc.org/content/a9502.pdf (last visited June 22nd 2006). R.S Pathak. “The Human Rights
System as a Conceptual Framework for Environmental Law.” In E.Brown Weiss (Ed). Environmental
Change and International Law- New Challenges and Dimensions. Tokyo: UN University Press. 1992,
pp 205-243.
34
Ibid.
35
It refers to the ability to claim before a judge the fulfillment of obligations and the realization of
rights that concern the protection of the environment. See, Romina Picolotti and Sofia Bordenave.
(2002). The Enforcement of Environmental Law from a Human Rights Perspective. Cedha. July.
http://www.cedha.org.ar/docs/doc91-eng.doc (last visited May, 1st 2007.)
36
Y.K Sabharwal. “Human Rights and the Environment.”
http://www.supremecourtofindia.nic.in/new_links/humanrghts.htm (last accessed 22nd June 2007).
37
Margaret DeMerieux. “Deriving Environmental Rights from the European Convention for the
Protection of Human Rights and Fundamental Freedoms.” Oxford Journal of Legal Studies 21, 2000,
pp.521-561.
38
Christine Chinkin. “International Environmental Law in Evolution.” In Tim Jewell and Jenny
Steele, Law in Environmental Decision-Making :National, European, and International Perspectives.
Oxford: Clarendon Press. 1998, pp. 229-266.
39
John Lee. “The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy
Environment as a Principle of Customary International Law.” Columbia Journal of Environmental
Law 25, 2000, pp. 283-340.
40
Michael R. Anderson. “Individual Rights to Environmental Protection in India in Alan E. Boyle and
Michael R. Anderson (Ed.), Human Rights Approaches to Environmental Protection, Oxford:
Clarendon Press 1996, pp. 199-255.
41
Ibid.
42
Supra note 31.
43
For a detailed discussion of use of the right to life by the Indian Judiciary, see Janelle P. Eurick.
“The Constitutional Right to a Healthy Environment: Enforcing Environmental Protection through
State and Federal Constitutions.” International Legal Perspective 11, 2001, pp.185-216. See also
Joanna Razzaque. “Human Rights and the Environment: Developments at the National Level, South
Asia and Africa.” Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment,
Background Paper No.4. Geneva, 2002.
44
Lopez Ostra v Spain, 20 EHRR 277 of 9 December 1994.
45
Ibid.
58
46
Rural Litigation and Entitlement Kendra v. State of U.P, All India Reporter, 1985 SC 652. This is
one of the earliest cases on environment dealt by the, post 1980, Indian Supreme Court. It expanded
the notion of right to life it had developed in Francis Coralie Mullin v. Union Territory of Delhi, All
India Reporter, 1981SC 746, where the Court set out a list of positive obligations of the state as part
of its duty correlative to the right to life, to include the environment. See also Charan Lal Sahu v.
Union of India, All India Reporter, 1990 SC 1480. In another case Subash Kumar v. State of Bihar,
All India Reporter, 1991 SC 420, the Court observed that the right to life included the right to
enjoyment of pollution-free water and air for full enjoyment of life.
47
Dinah Shelton. “Human Rights, Environmental Rights and the Right to Environment.” Stanford
Journal of International Law 28, 1991, pp. 103-121. See also Supra note 31.
48
It is contingent on the interpretation of the rights in various contexts. It also falls within the
jurisdiction of existing human rights bodies.
49
“FES and Law E 2001.” Proposed Amendments to the Constitution of India for Ensuring
Environmental Protection and Nature Conservation. Submission to the National Commission to
Review the Working of the Constitution. Foundation for Ecological Security, Anand, with Legal
Action for Wildlife and Environment, Delhi.
50
G. Handl. “Human Rights and the Environment: A mildly Revisionist View.” In Cancado
Trinidade. Human Rights, Sustainable Development and the Environment. San Jose, Costa Rica:
Inter-American Institute of Human Rights. 1992, pp.117-142.
51
Ibid.
52
See, Supra note 2, p.1348.
53
Maurice Cranston, “Human Rights, Real and Supposed” in Patrick Hayden, Philosophy of Human
Rights: Readings in Context. St. Paul, MN: Paragon House. 2001. pp.163-173.
54
See Shari Collins Chobinian, “Beyond sax and Welfare Interests: A Case for Environmental
Rights”, Environmental Ethics 22, 2000. Pp.133-48. See also Prudence E Taylor, Supra note 1.
55
See, Raimundo Pannikar. “Is the Notion of Human Rights a Western Concept?” Diogenes 120,
1982, pp.75-102. Alison D Renteln. International Human Rights : Universalism Versus Relativism.
Newbury Park: Sage, 1990. Alison D. Renteln, “The Unanswered Challenge of Relativism and the
Consequences for Human Rights”, Human Rights Quarterly 7, 1985, pp.514-540.
56
Karie Wolfe. “Greening the International Human Rights Sphere? Environmental Rights and the
Draft Declaration of Principles on Human Rights and the Environment.” Appeal: Review of Current
Law and Law Reform 9, 2003, pp.45-58. Betsy Apple, 2004, “Commentary”, Human Rights
Dialogue, Series 2, Number11, pp. 34-35. Christine Chinkin. “International Environmental Law in
Evolution.” In Tim Jewell and Jenny Steele, Law in Environmental Decision-Making :National,
European, and International Perspectives. Oxford: Clarendon Press, 1998, pp. 229-266.
57
Barbara Rose Johnston ed. Life and Death Matters: Human Rights and the Environment at the End
of the Millennium, Walnut Creek, California: AltaMira Press, 1997.
58
Also see Taylor, Supra note 1.
59
59
James W. Nickel and Eduardo Viola. "Integrating Environmentalism and Human Rights."
Environmental Ethics 16, No.3. 1994, pp. 265-271.
60
Supra note 6
61
M. Lau. “Islam and Judicial Activism.” In A. Boyle and M. Anderson (Eds.). Human Rights
Approaches to Environmental Protection. Oxford: Oxford University Press, 1996, pp.285-299.
62
Case concerning the Gabcikovo-Nagymaros (Hungary v. Slovakia), ICJ, Judgment on 25 September
1997, General List No. 92.
http://www.icj-cij.org. (last accessed June22nd 2006).
63
Philiph Cullet. Definition of an Environmental Right in a Human Rights Context, page 10,
http://www.ielrc.org/content/a9502.pdf (last visited June 22nd 2006)
64
Ibid
65
Balakrishna Rajagopal. “Limits of Law in Counter-hegemonic Globalization: The Indian Supreme
Court and the Narmada Valley Struggle.” Working Paper Series. Centre for Study of Law and
Governance, J.N.U., 2004.
66
Peter G. Veit and Catherine Benson. (2004). “When Parks and People Collide.” Human Rights
Dialogue. Series 2, No.11, p.13-15. Kelly D. Alley and Daniel Meadows. (2004). “Worker’s Rights
and Pollution Control in Delhi.” Human Rights Dialogue. Series 2, No.11, p.15-17. Alison D.
Renteln. (2004). “Environmental Rights versus Cultural Rights.” Human Rights Dialogue Series 2,
No.11, pp. 17-19. Joanne Bauer.(2004). “Commentary”. Human Rights Dialogue. Series 2, No.11,
p.19.
67
Supra note 31. As against the rights approach, there are other scholars who defend the environment
through a vocabulary of justice. They are concerned with justice for the poorer members of society
who most often face environmental harm or justice for the discriminated that includes nature as well.
Claims for environmental justice are derived from the principle of equality - that people deserve equal
treatment regardless of their socioeconomic position. This concept though developed in the United
States, is now widely used in the international arena, especially as the developing countries claim
violations of their rights. However, environmental justice is limited in its capability to address
environmental harms as it is based on shifting the burden away from weaker communities. In the final
analysis, an integrated perspective of rights and justice is highly desirable because discrimination
becomes part of the rights discourse.
68
See, Amita Baviskar. In the Belly of the River. New Delhi: Oxford, 1995. Niraja Gopal Jayal.
Democracy and the State. Secularism and Development in Contemporary India. New Delhi and New
York: Oxford University Press, 1999.See also, Supra Note 65. Rajagopal.
69
Supra note 49.
60
Chapter 2
The Jurisprudence on Environmental Human Rights
As I discussed in the previous chapter, there is an emerging perception since the
1970’s that protection from the impact of environmental harms such as air, water and
noise pollution and the right to natural resources is best promoted by setting it in the
framework of human rights law.
1
This approach recognizes 1) the vital importance of
environment for the spiritual, physical and mental well-being of humans across
generation and 2) the importance of human rights framework to the protection of
green rights.
2
However, in the absence of an explicit right to environment and a
precise definition of the relation between human rights and environment, the legal
recognition of the right to environment is contingent on how human rights and
international environmental law principles are interpreted to incorporate the
environment in domestic contexts.
3
Courts, in different regional and national
contexts, have played an important role in delineating the various aspects of the right
to environment. While there is an acceptance of the right to environment in many
states, jurisprudence shows that the development of the right is based on different
standards, contingent on the legal culture.
In this chapter I will show how the right to environment has developed in
law, and how Courts in different regional contexts have defined the right to
environment. The discussion will be framed around how different aspects of human
rights are used to make legal claims to the environment and its components. The first
section will provide a review of the mechanisms available to develop environment as
61
a human right. The second part of the chapter will analyze environmental
jurisprudence to show how environmental human rights are interpreted in diverse
domestic contexts.
Legal Framework of Environmental Rights:
The legal framework of green rights derives from numerous human rights and
environmental instruments that recognize the link between environment and human
rights. Even though environmental rights are not explicitly protected in international
law, the norms have been expressed in many soft law declarations such as the 1972
Stockholm Declaration on Human Environment, the Report of World Commission
on Environment and Development, known as the Brundtland Commission’s ‘Our
Common Future,” and the 1992 Rio Declaration.
4
In addition, its implied status in
treaties and in state practice bears to the fact that environment is one of the
fundamental rights of individuals and groups.
5
In the UN, the concern for the protection of the environment as a right began
in the late 1980’s when African countries expressed concern over transboundary
movement of hazardous and toxic substances. Subsequently, the United Nations Sub-
commission on Prevention of Discrimination and Protection of Minorities adopted a
resolution to affirm the rights of all peoples to life and the rights of future
generations to enjoy their environmental heritage.
6
The sub commission noted that
dumping activities violated the rights of peoples to life, sound and healthy
environment and the right to health.
7
The United Nation’s commitment to
62
environmental rights was further developed in the Ksentini document of the 1990’s
which many argue is the legal basis of environmental human rights.
8
In the 1990s, the UN created the position of the Special Rapporteur on
Human Rights and Environment. The Rapporteur produced a series of studies on
human rights and the environment - the Ksentini report- that discussed the legal
foundations of a right to satisfactory environment and addressed the linkages
between human rights, environment and development.
9
It contained the Draft
Declaration of Principles of Human Rights and the Environment, the first human
rights instrument to recognize the rights of all persons to a safe and healthy working
environment and to define environmental rights as a component of existing human
rights such as right to life and work.
10
Although not legally binding, the draft
declarations provide the basis for legal recognition of environmental claims in
regional and international forums.
In the human rights forum, the right to environment is derived from the
Universal Declaration of Human Rights and the International Covenant of Civil and
Political Rights and the Economic, Social and Cultural Rights. In these human rights
instruments there are several provisions which contain substantive and procedural
rights relevant to environmental claims such as the right to life, to health, to housing,
to food, to adequate conditions of living. Of the substantive rights that are interpreted
to claim individuals or groups right to environment are the Right to Life, as provided
in Article 6 of the International Covenant of Civil and Political Rights, the Right to
Freedom from Interference with One’s Home and Property, used commonly by the
63
European Court to defend environmental rights and Right of Indigenous Peoples.
11
The Universal Declaration of Human Rights guarantees to all people a standard of
living adequate for their health and well being. Article 12 of the International
Covenant on Economic, Social and Cultural Rights recognizes the right of everyone
to the highest attainable standard of physical and mental health. Procedural rights
such as participatory rights, right to freedom of information and the economic and
social right to equitable allocation of resources define the minimal standards of
environmental quality and legal safeguard to protection from environmental harm.
12
Importantly, the explicit protection of environmental right was
institutionalized in the African charter, the first human rights treaty to recognize the
right of all peoples to a satisfactory environment favorable to their developments,
and the San Salvador Protocol of the Organization of American States that
introduced a right to environment.
13
Other instruments like European Social Charter
that ensures a right to healthy and safe-working conditions, the Convention on the
Rights of Child, which claims a right to the highest attainable standard of health, also
emphasizes the importance of environment to human rights particularly the
importance of providing a suitable environment for human life.
14
Further more, human rights and environmental law also includes protection to
specific components of environmental rights such as human right to water, the right
to natural resources such as land and forests, based on their linkage to other human
rights as in health and rights of indigenous peoples. In the following section, I will
discuss the specific legal measures that are developed to protect basic components of
64
the environment: water and conservation. These two aspects of the environment,
unlike air, have been specifically related to other human rights.
Legal Recognition of Human Right to Water
Water right is a relatively new claim made in human rights law. It received attention
only lately in the twenty-first century owing to the UN declaration that 2005-2015 be
called the International Decade for Action: Water for Life. The right to water,
although does not find explicit reference in the two covenants, it is recognized as a
constituent of health right. For instance, the United Nations Committee on
Economic, Social and Cultural Rights,
15
in their adoption of General Comment on
the Right to Health interpreted the normative aspect of health to include timely
health care and factors that determine good health such as safe drinking water and
adequate sanitation. In 2002 the committee went a step ahead to recognize water as
an independent right, based on treaty and declaration support. It recognized the
fundamental necessity of water for survival and outlined commitments from state
parties for the recognition of this right. The approval of General Comment No.15 by
the U.N Economic and Social Council further validates the legal space accorded to
water rights in human rights law. The resolution explicitly recognizes the human
right to water as indispensable for leading a life in human dignity. It recognizes
water rights to be the prerequisite to realization of other human rights.
The Human Right to Water entitles everyone to sufficient, safe, acceptable,
physically accessible and affordable water for personal and domestic uses.
16
Additionally, many other international documents also recognize water as a
human right- the Geneva Convention, the Mar de Plata Declaration of the UN Water
65
Conference,
17
the U.N Declaration on the Right to Development, the American
Convention on Human Rights in the area of Economic, Social and Cultural Rights
and the Vienna Declaration at the World Conference on Human Rights. The
Convention on the Elimination of All Forms of Discrimination against Women
requires states to ensure that women have the right to “enjoy adequate living
conditions, particularly in relation to ... water supply.”
18
The 1989 Convention on the
Rights of the Child in Article 24 states that children are entitled to the enjoyment of
the highest attainable standard of health. It requires States to combat disease and
malnutrition through the provision of adequate nutritious foods and clean drinking-
water.
19
International Humanitarian law on Armed Conflict, in particular the Geneva
Protocol also explicitly mentions guarantees against starvation of civilians as a
method of war, and includes protection to drinking water installations and supplies as
well as irrigation works. Further, international environmental law instruments
recognize that the right to food and water are the substantive components of
environmental rights. In the 1992 International Conference on Water and
Environment it was adopted that all human beings have a basic right of access to
clean water and sanitation at an affordable price.
At the national level, although most states recognize the importance of water
only a few countries guarantee an explicit right to water, such as South Africa’s
Constitution (1994) and Water Services Act (1997).
20
The Constitution of South
Africa not only recognizes the right to adequate supply of water but also requires
positive obligation on the part of the state to enforce the right. In a key case,
66
Residents of Bon Vista Mansions v Southern Metropolitan Local Council,
21
a case
concerning disconnection of water supply by the municipality, the South African
Court held that it constituted a breach of the State's duty to respect the right of access
to water. In France, even though water is yet to gain constitutional status, French
Water Act adopted in 1992 stipulates that the use of water belongs to everyone.
The Right to Natural Resources
The protection of the natural world finds specific mention in human rights
documents, treaties and provisions concerning indigenous peoples. The ILO
indigenous and tribal peoples’ convention (no. 169, article 4) for example contains
environmental rights for the indigenous, requiring state parties to take special
measures to safeguard the environment for indigenous peoples. In many instances,
Article 27 of the ICCPR has been invoked to protect indigenous land and culture
from environmental degradation. The UN human rights committee interprets this
provision to include a broad understanding of culture- a particular way of life
associated with the use of land resources. The right therefore includes traditional
practices as fishing or hunting and the right to live in reserves protected by law.
The importance attached to each of these social issues differs from society to
society as social needs and values prioritize environmental needs. Environmental
rights claim rely on multiple human rights such as the right to life, property, health,
family and home, rights of association, expression, information, political
participation, personal liberty, equality and legal redress, all contained in
international legal instruments. Economic and social rights include the right to
67
health, the right to decent living conditions and the right to a decent working
environment.
Sources of Human Rights Law
There are diverse paths through which environmental human rights standards are
internalized by law and society in national settings. Human rights law, at the national
level has many sources that include the UN, governmental bodies, and non-
governmental organizations (NGOs). The corpus of norms of the UN includes
treaties, customary international law, UNGA resolutions, ICJ decisions, legislations
and writings by jurists. The influence of the UN principles at the national level
depends on treaties signed and ratified by the state, the monist/dualist stance of the
country and its level of incorporation of customary international law.
22
Environmental human rights law also is derived from soft law- like Stockholm and
Rio declaration on the environment, Brundtland Commission Report etc.
At the national level, the source of human rights derives from Constitutional
ideals of the state and/or codified rights guaranteed by the Constitution such as the
European Convention of Human Rights in the European Union, Fundamental Rights
in India. This is the most commonly used source of rights because the state
guarantees these claims and has incorporated its enforcement in the local law.
Shelton has claimed that more than hundred Constitutions in the world guarantee a
right to a healthy environment and impose duties on the state to protect
environmental resources.
23
Second, jurisprudence of national courts and legal
writings by jurists has also given legal space to green rights. National courts in
68
different countries have accepted the rights to a healthy environment as a
fundamental right and in various cases have defined the content and nature of the
right to a healthy environment through landmark decisions. Apart from this there are
oral traditions of rights in some places and are in the nature of moral requirements of
society. In the case of national level laws, international law may sometimes inform
the interpretation of rights. For instance, the broadened interpretation of right to life
by courts in many constitutional contexts to include the right to health and
environment is influenced by the interpretations of the ICCPR article on right to life.
A third and emerging source of acceptance of international rights is the
emerging influence of transnational activism and activities of intergovernmental and
international Ngo’s in countries. Arjun Appadurai has argued that increased
communication and extensive migration has fostered new kinds of transnational
communities and has enabled the spread of human rights ideas.
24
The internet and
other communication breakthroughs have enabled the spread of ideas. Saskia Sassen
has opined that with the growth of the international human rights movement, the idea
of individuals and communities rights might supersede citizens.
25
On environmental
issues, international environmental NGO’s play a critical role in mobilizing and
building the rights campaign in domestic settings. The Penans’ campaign in
Malaysia and the Anti-Narmada dam movement in India are some examples that
point to the local-global network to protect the environment and the rights of
communities. In addition through funding and other material support to local
movements, transnational NGO’s enable the spread of human rights ideas.
69
These various sources interact with regional and national laws to create a
framework of protection of environmental human rights, depending on the legal
culture. The following section elicits some developments in jurisprudence in
different regions.
Environmental Jurisprudence
Domestic acceptance of environmental human rights standards further reveals how
the laws in different constitutional contexts have delineated aspects of the human
right to environment. The claims to environment are of diverse kinds- of which one
can generalize the demands largely on lines of right to clean and healthy
environment, the right to fundamental resources and the right to conserve resources.
In Europe, the basis of protection of the environment draws from the
European Convention on Human Rights framed to protect civil and political rights.
Although there is no distinct right to environment in the convention, various rulings
of the European Court have established the use of human rights to interpret
environmental interests such as the right to privacy and protection of family life.
26
The European Convention recognizes that environmental pollution breaches one’s
right to privacy and family life, conditional that the harm results from authorized
economic activity of benefit to the community and does not disproportionately affect
any particular individual. The judicial protection of environmental claims in
European courts is limited largely to environmental pollution cases and the courts
have invoked the right to information and the right to privacy to defend the claims
for the environment; a characteristic of European jurisprudence. National courts in
70
the region have interpreted the right to privacy as implying a right not to be bothered
by stench and pollution in one’s residence.
For instance, in a landmark decision Guerra and others V. Italy, the Court
held that Italy failed to respect the applicant’s right to privacy and breached Article 8
of the European Convention, by not providing information which would have
enabled the applicants to assess the environmental risks of living in close proximity
to a chemical factory.
27
The Guerra case not only reaffirms the Court’s commitment
to positive protection of individuals’ private and family life, but also recognizes the
basis of environmental rights in civil and political rights to information. Mariana T.
Acevedo argues that the interpretation of the Court in the Guerra case establishes that
human rights instruments may be interpreted to address environmental issues.
28
This
is in contrast to some early cases on the environment, as handed down in X. and Y. v.
Federal republic of Germany,
29
in which the Commission denied the admissibility of
an application filed by members of an environmental protection group seeking
injunction against the use of marshland property for military purposes. The
applicants had alleged that the proximity of military activities to the villages in
which they lived violated their human rights to life, freedom from torture and right to
liberty. The Commission held that the petition was inadmissible as the Convention
did not provide for a right to nature preservation. In contrast, later petitions that
alleged environmental harm affected the existing private property rights – such as the
right to privacy and the right to enjoy one’s own possessions-were given standing in
the European Courts on grounds of violation of the Convention on Human Rights.
71
Legal issues that have risen in European courts on environmental issues have
also balanced competing interests of individuals and the community as a whole. In
an important case on nature conservation, Kyratos v. Greece,
30
the Court affirmed
that the crucial element of article 8 is the harmful effect on a person’s private and
family sphere, not the deterioration of the environment. Procedurally, numerous
rights provisions in the European Convention such as Article 10 of the European
Convention that guarantees freedom of expression, article 6, the right to a fair trial
and article 1 to the first Protocol on the enjoyment of property, the right to
information, the right to participation are used to make claims to protection from
environmental harm.
31
The rights are of a negative nature.
Nature conservation cases are also approached through human rights law. In
particular there are litigations against French law for imposing obligations on certain
owners of small areas of land to permit hunting on their property. In these cases-
Jeannne Chassagnou, Rene Petit and Simone Lasgrezas v. France, Leon Dumont
and others v. France and Josephine Moniton v. France,
32
the European court argued
that the applicant’s right to association and peaceful enjoyment of property has been
violated. The Court made it clear that environmental obligations should have been
considered within the ambit of Article 9 of the convention.
33
The applicants
complained of violation of their rights to peaceful enjoyment of their possession,
freedom of association and conscience.
The European Court has, however, overlooked rights claims in cases where
the government has acted in the interests of the environment. Further, states also
72
have a margin of appreciation in determining the legitimacy of the aim pursued. It
has argued that environmental considerations are legitimate and so restrictions to the
rights are reasonable. In Pine Valley Developments limited and Others v. Ireland, the
Court upheld government’s interference in property rights.
34
It declared that the
government decision to deny permission to build industrial warehouses and office in
a zoned green belt is legitimate. In another case Buckley v. the United Kingdom, a
gypsy woman was fined for having a caravan on her land under a law that required
gypsy caravans to be located in specifically designated areas to protect the natural
beauty of the environment.
35
A claim that this infringed Article 8 of the European
Convention of Human Rights was rejected because the law was held to pursue a
legitimate state interest and was not disproportionate. The European Court has thus
defended the environment through concerns of health, privacy and family life of
individuals.
Regional jurisprudence on environmental issues also reflects that
conservation is approached differently based on nature of human interaction with
nature and not as a property issue alone.
36
An interesting example of conservation
efforts with people’s participation is the case of Apirana Mahuika et al v. New
Zealand.
37
The claim in this case was to balance individual rights to natural
resources with governmental efforts to conserve natural resources. The legal claim of
the petitioners in this case as filed by the Maori Legal service on behalf of 18
petitioners challenged the state’s efforts to regulate all fishing activities in the region,
both commercial and non commercial. The petition claimed violation of the rights of
73
self determination, right to freedom of association, freedom of conscience, non
discrimination and minority rights. State regulation of fishing was held to violate the
treaty of Waitangi (although legally unenforceable without legislation) that
guarantees to Maoris the right to possession of their lands, forests, fisheries and other
properties which they may collectively or individually possess. Since the 1980’s
government has sought to regulate Maori fishing claims and this has led to
negotiations between the two parties.
38
The right to participate in decision making is
central to most environmental cases. In developing countries, the claim to
conservation is a contested issue as the social framing of conservation is community
centered. This perspective is closely tied in to how humans/communities relate to the
natural resources. They reject the model of preservation of environment oblivious to
humans. Legal frameworks engender communities with the right to natural resources
and to the environment, the argument for right to natural resource is not based on
norms of private property but recognition to community claims.
The Yanomami case of the Inter-American Court is the first petition in the
regional forum, to recognize the right of communities to environment and to life. In
response to a petition brought on behalf of Yanomami Indians of Brazil against the
construction of a highway in their lands, the Court affirmed the San Salvador
developments and linked environment and human rights.
39
A later case, the Awas
Tingini
40
case, reaffirmed the principles of Yanomami. It was against government
sponsored timber-logging in the Nicaraguan forests, in land originally owned by the
Awas Tingini. The Inter-American Court held that government sponsored logging
74
violated the human right to environment of the Awas Tingini. This is a landmark
case in international environmental jurisprudence that opened an environmental
rubric in a human rights tribunal and supported the community’s right to the
environment.
The interpretations of the right to life and healthy are also a basis for claims
to environmental rights. In Columbia, the Court in the case of Antonio Mauricio
Monroy Cespedes, in 1993, observed that along with fundamental rights such as
liberty, equality and life, there is the right to the environment.
41
The ruling of the
Court stated that the right to a healthy environment cannot be separated from the
right to life and health of human beings as environmental harm affects the enjoyment
of rights by individuals. Consequently, the Court stated that the right to the
environment is fundamental to the existence of humanity.
42
Similarly, the Supreme
Court of Costa Rica affirmed the right to a healthy environment in a case concerning
the use of a cliff as a waste dump. In the case of Carlos Roberto García Chacón, the
Supreme Court stated that life is only possible when it exists in solidarity with
nature, which nourishes and sustains humanity not only with regard to food, but also
with physical well-being.
43
It constitutes a right that all citizens possess to live in an
environment free from contamination.
Correspondingly, in Bangladesh and Pakistan the national courts have
established a link between environmental quality and the right to life. In the case of
Dr. M Farooque v. Bangladesh,
44
the High Court division expanded the fundamental
right to life to include anything that affects life, public health and safety. Further the
75
Court accepted the principle of inter-generational responsibility and justice. In the
Pakistan Law Commission case, the Supreme Court of Pakistan held that article 9 of
the Constitution which guarantees life and liberty according to law is not to be
construed in a restricted manner.
45
The most notable jurisprudential development in the Asian context has been
the minors Oposa case that established the principle of intergenerational equity.
Minors Oposa v. Factoran Case arose out of a law suit filed by Tony Oposa in the
name of his children, other children and their parents, unnamed children of the future
and the Philippine Ecological Network versus Secretary Factoran, who represented
the government.
46
The petitioners chose to sue the government since the timber
logging companies had signed contracts with the government.
The case arose out of concern for the declining forests cover in Philippines
that not only affected the green cover of the country but also affected the livelihood
of locals. Drawing from developments in international law, the complaint used the
concept of intergeneration equity to make a case for the protection of forests for the
children of future. Although the case failed on standing issues in the lower courts, on
appeal the Supreme Court of Philippines supported Oposa on every argument.
Justice Hilario David ruled that “such a right belongs to a different category of rights
altogether for it concerns nothing less than self preservation and self perpetuation. As
a matter of fact these basic rights need not even be written in the Constitution for
they are assumed to exist since the inception of mankind.”
47
The Court ruled that the
case for protection of forests for succeeding generations was in sync with the
76
constitution and consequently each generation had a responsibility to preserve
nature. This case is considered a landmark in environmental jurisprudence that not
only linked human rights protection and environmental rights but ensured the right to
all across generations.
This discussion of environmental jurisprudence shows how legal frameworks
have linked environment and human rights. It demonstrates that courts in various
regional and national contexts have used different aspects of human rights to lay a
claim to the right to environment. Given this backdrop, the next two chapters, in Part
II, will explore the frameworks through which law and society in India have
advanced environmental rights.
77
Chapter 2 Endnotes
1
Developments in various constitutional contexts suggest that the use of international law does not
comport with the traditional monist-dualist theory; rather domestic courts have used international
environmental law and human rights for a wide range of purposes in various contexts.
2
The essential linkage between survival and human rights is well explicated in the recent debate on
global warming and the loss of habitat of the Inuits. See, Marguerite E. Middaugh. “Linking Global
Warming to Inuit Human Rights.” San Diego International Law Journal 8, 2006, pp. 179-207. Hari
M. Osofsky. “The Geography of Climate Change Litigation: Implications for Transnational
Regulatory Governance.” Washington University Law Review 83, 2005, pp.-1789-1855.
3
Till date, only the African Charter of Rights and the American Convention of Human Rights contain
a third generation right to a healthy environment. Articles 11 of the San Salvador Protocol to the
American Convention, and Article 24 of the African Charter, guarantee the Right to a Decent
Environment. See, African [Banjul] Charter on Human and Peoples' Rights. adopted June 27, 1981,
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights, "Protocol of San Salvador," O.A.S. Treaty Series No. 69 (1988), entered into force November
16, 1999. OEA/Ser.L.V/II.82 doc.6 rev.1 at 67 (1992).
4
United Nations General Assembly Resolution 1968 first noted the relation between human
environment and the enjoyment of human rights. This relationship was reaffirmed in Principle 1 of the
Stockholm Declaration on Human Environment that declared that man has the fundamental right to
freedom, equality and adequate conditions of life, in an environment of quality that permits a life of
dignity and well being and he bears a solemn responsibility to protect the environment for present and
future generations. See, Stockholm Declaration of the United Nations Conference on the Human
Environment. 16 June 1972. U.N Doc. A/.Conf.48/14/Rev.1 at 3 (1973). The Brundtland Commission
recommended that states take appropriate measures to codify environmental rights in a separate
international convention to protect the environment and for sustainable development. It also stated
that the environmental protection for present and future generations would be facilitated if it were
widely accepted that each individual has a number of specific “environmental rights”, including: the
right to be informed and access to information concerning the state of the environment, the right to be
consulted in decision-making concerning activities that affect the environment and the right to
corrective measures and legal compensation to people whose health or environment has been
threatened by grave degradation. The Rio declaration, Principle 1 affirms that “human beings are at
the center of concerns for sustainable development. They are entitled to a healthy and productive life
in harmony with nature.” Report of the United Nations Conference on Environment and
Development. Rio de Janeiro, A/CONF.151/26 ,Vol. I, 3-14 June 1992. Report of the World
Commission on Environment and Development. A/RES/42/187, 11 December 1987.
5
Ibid.
6
See, Report of the Sub-Commission on Prevention of Discrimination and Protections of Minorities
on its 45th Session, U.N. Doc. E/CN.4/Sub.2/1993/45 (1993). See also, chap. II, sect. A, resolution
1993/32, and chap. V. The report mentions that :
the Commission on Human Rights, noting resolution 1993/32 of 25 August 1993 of
the Sub-Commission on Prevention of Discrimination and Protection of Minorities,
endorses the request of the Sub-Commission to Ms. Fatima Zohra Ksentini, Special
Rapporteur on human rights and the environment, to prepare a final report,
including a set of conclusions and recommendations aimed at developing basic
principles and guidelines with respect to human rights and the environment. The
78
Commission also endorses the request to the persons chairing human rights treaty
monitoring bodies to include the question of the right to environment on the agenda
of their next meeting and, if they so wish, to invite the Special Rapporteur to
participate in that meeting. The Commission further endorses the request to the
Secretary-General to organize an expert meeting prior to the preparation of the final
report in order to formulate recommendations on the way in which the right to
environment could be incorporated in the activities of human rights bodies, as well
as the request to the Secretary-General to provide the Special Rapporteur with all
the assistance she may require for the preparation of her study and the necessary
assistance to hold consultations with appropriate United Nations bodies, specialized
agencies and intergovernmental development organizations, and to compile and
analyze the information and documents collected.
7
See Dinah Shelton. “The Environmental Jurisprudence of International Human Rights Tribunals.” In
Romina Picolotti and Jorge Daniel Taillant (Ed.). Linking Human Rights and the Environment.
Tuscon: The University of Arizona Press, 2003, pp.1-30.
8
Neil A. Popovic. “In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration
of Principles on Human Rights and the Environment.” 27 Columbia Human Rights Law Review ,
1996, pp. 487-603.
9
See, Mrs. F.M Ksentini. Human Rights and the Environment. Final Report. UN Doc.
E.CN.4?Sub.2/1994/9 (6 July 1994). See also, A.F Aguilar and Neil A. Popovic. “Law Making in the
United Nations: The UN Study on Human Rights and the Environment.” R.E.C.I.E.L 3(4), 1994, pp.
197-205.
10
For a discussion of the draft declaration see Neil Popovic who makes a case for the right to
environment by tracing its presence in human rights law, noteworthy is the recognition of the link
between human rights and the environment in the Draft Declaration. Neil A. Popovic. “In Pursuit of
Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights
and the Environment.” Columbia Human Rights Law Review 27, 1996, pp. 487-603.
11
Originally, the right to life did not include bare life necessities but was largely framed around issues
of arbitrary deprivation of life as during war etc. The right to life provision contained in the original
convention articles, Protocol 13 of the European Convention on Human Rights specifically proposes
the abolition of the death penalty. Protocol No. 13 to EHCR, Convention for the Protection of Human
Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in all
Circumstances Abolition of the death penalty in all circumstances, 3.V.2002. See Universal
Declaration of Human Rights, G.A. Res. 217A (III), at 72, U.N. GAOR, 3
rd
Session, 1st plenary
meeting. U.N. Doc. A/810 (Dec. 12, 1948). See, Organization of American States, American
Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, Article 4, Para.
2. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by
Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12, and 13, at Protocol 13 (Feb. 2003) at
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-
B455C9014916D7A/0/EnglishAnglais.pdf.
In recent years the Right to Life is read more broadly to include personal health, hygiene and
environment. Its beginnings can be derived from the broad interpretation expressed in General
Comment No. 6 to the ICCPR which noted that the right to life "cannot properly be understood in a
restrictive manner" and should include "measures to reduce infant mortality and to increase life
expectancy." U.N. International Human Rights Instruments, General Comments Adopted by the
Human Rights Committee, General Comment 6, art. 6, P 5, U.N. Doc. HRI/GEN/1/Rev. 1 (1994).
See, also William Nelson. (1981) “Human Rights and Human Obligations, in Human Rights.” In J.
79
Roland Pennock & John W. Chapman (Eds.). NOMOS XXIII pp. 288-89. Nelson discusses the
possible definitions of the right to life and limitations of an expansive meaning of the right to life.
Henry J. Steiner and Philip Alston. (2000). International Human Rights in Context: Law, Politics and
Morals. Oxford: Oxford University Press.
12
In terms of potential of redress in courts, it is easier to establish causation and state responsibility
with respect to environmental harms using civil and political rights than economic and social rights.
13
See Supra note 3. Article 11 of the Additional Protocol to the Inter-American Convention on
Human Rights (1994) states that 1) everyone shall have the right to live in a healthy environment and
have access to basic public services and 2) the state parties shall promote the protection, preservation
and improvement of the environment. Article 24, African Charter, says that all peoples have a right to
a general and satisfactory environment favorable to their development.
14
Convention on Rights of Child. Article 24 (2) (c) requires state parties to take into consideration
damages and risks of environmental pollution in combating diseases and malnutrition.
15
See “The Right to Adequate Food (Art.11)” General Comment 12. United Nations Economic and
Social Council. Twentieth session Geneva, Agenda Item 7, E/C.12/1999/5.
16
“The Right to Water”. General Comment 15. United Nations Economic and Social Council. Twenty
Ninth session Geneva, Agenda Item 3, E/C.12/2002/11.
17
United Nations (UN) Conference on Water (Mar del Plata) was held in 1977. It established the
concept of basic water requirements to meet fundamental human needs.
18
Convention on the Elimination of All Forms of Discrimination Against Women, Sept. 30, 1981,
1249 U.N.T.S. 13, available at http://www.un.org/womenwatch/daw/cedaw/cedaw.htm
19
The Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3, available at
http://www.unhchr.ch/html/menu3/b/k2crc.htm (last visited June 17, 2006).
20
The South African Constitution, Section 27(1) (b) states that everyone has the right to have access
to sufficient water. Section 27(2) requires the State to take reasonable legislative and other measures,
within its available resources, to achieve the progressive realization of the right. Some other states
also recognize water rights such as Uruguay’s Constitution after the 2004 referendum and the Kenyan
(2005) draft Constitution. In Belgium and Costa Rica there are considerations to include a right to
water in the constitution and in the national water law, respectively. In some other countries such as
India, Argentina and Brazil, judicial interpretation has accorded water the status of a fundamental
right.
21
Residents of Bon Vista Mansions v Southern Metropolitan Local Council, 120. South African Law
Journal 41, 2003, pp.43-44.
22
Provisions and obligations included in international treaties is an important source of international
law. An international treaty can be binding on a country -If a country ratifies a treaty, it is bound by
its contents. Although a signature can construe consent, a more authoritative act of ratification is
usually required. Second, non-signatory countries can be bound by a provision of an international
treaty if the principle rises to the level of customary law- when there is a general acceptance of a rule
such as: 1) state practice consistent with the rule; and 2) states conform to the rule due to a sense of
legal obligation or opinio juris. Both these principles qualify a doctrine as customary international
law.
80
23
Dinah Shelton. “The Link between International Human Rights Guarantees and Environmental
Protection.” Speech. University of Chicago: Center for International Studies. April 16
th,
2004.
24
Arjun Apadurai. Modernity at Large: Cultural Dimensions of Globalization. Minneapolis:
University of Minnesota Press, 1996.
25
Saskia Sassen. Losing Control? Sovereignty in an Age of Globalization. New York: Columbia
University Press, 1996.
26
The harm may be excused under article 8(2) if it results from an authorized activity of economic
benefit to the community, as long as there is no disproportionate burden on any individual or
community.
27
See Protocol 11 to the European Convention for the Protection of Human Rights and Fundamental
Freedoms, 33 I.L.M. 943, E.T.S. No. 155 (entered into force Nov. 1, 1998) [hereinafter Protocol 11].
28
Mariana T. Acevedo. “The Intersection of Human Rights and Environmental Protection in the
European Court of Human Rights”, 8 N.Y.U. Environmental Law Journal 2000, pp. 437-495.
29
X. and Y. v. Federal Republic of Germany. Application No. 7407/76. 15 European Commission
Human Rights Decision and Representation 161 (1976).
30
Kyratos v. Greece EHRC 2003/57
31
See, Universal declaration of Human rights, Article 21, International Covenant of Civil and
Political Rights, Article 25, European Convention on Human Rights Protocol 1, Article 3 American
Declaration on Rights and Duties of Man, article 20, 24, American Convention on Human Rights
Article 23, African Charter of Human and People’s Rights, Article13. Some argue that the right to
democratic governance is an emerging right. See Thomas Franck. “The Emerging Right to
Democratic Governance, American Journal of International Law 86(1), 1992, pp.46-91. Also, Henry
Steiner. Political Participation as a Human Right, 78 Harvard Human Rights Year Book, 1988, pp. 77-
134.
32
Jeannne Chassagnou, Rene Petit and Simone Lasgrezas v. France, Leon Dumont and others v.
France and Josephine Moniton v. France ECHR, Judgment of 29 April 1999.
http://www.dhcommhr.coe.fr/fr/25088R31.F.html.
33
Ibid.
34
Pine Valley Developments limited and Others v. Ireland, ECHR series A, number 222 (1991). The
Court did find a violation of Article 14 taken in conjunction with the right to peaceful enjoyment of
possessions. Buckley v.The United Kingdom, 1996-IV ECHR, Judgment of 25 September 1996.
35
Buckley v. The United Kingdom1996-IV ECHR, Judgment of 25 September 1996
36
Robert K Hitchcock writes that in Africa conservation efforts will be successful only when people
gain direct benefits from it. In the East, the case for environment is not only made through the rights
vocabulary but also through the notion of property or use of natural resource linked to human’s
situations in the cosmological context and responsibility towards protecting nature. They give
centrality to the community over the individual. Initially the environmental rights debate took a
limited form of the Northern Preservationist Agenda such as “save the tiger, rescuing elephants,
81
protecting biodiversity” projects but by the 1980’s and 1990’s this position was contested by Southern
environmentalists who integrated environmental concern with development and people’s needs. This
dualist position is best illustrated in the much publicized debate between Malaysian Prime Minister
Mahathir Mohamed and a young student in England on the cutting of timber forests in Malaysia.
While the young student expressed concern about the depleting forests, Mahathir Mohamed’s
contention was about the right to development of the developing countries. In the Asian Value debate
context, the acceptance of environmental rights is conditional on the degree of association of this
value with western ideas and the perceived hindrance to Asian prioritization of economic growth and
development. See, Robert K. Hitchcock and Alan J. Osborn. Endangered Peoples of Africa and the
Middle East: Struggles to Survive and Thrive. Westport, Conn.: Greenwood Press, 2002.
37
Apirana Mahuika et al v. New Zealand Communication No 547/1993. 27 October 2000.
CCPR/C/70/D/547/1993.
38
Supra note 7. Dinah Shelton p.7
39
Jorge Daniel Taillant. “A Nascent Agenda for the Americas.” Human Rights Dialogue 2, no. 11,
2004, p.28. The principal legal sources of the Inter-American human rights system are: the American
Declaration of the Rights and Duties of Man, adopted by the Organization of American States (OAS)
with its Charter in 1948; and the American Convention on Human Rights, which the OAS adopted in
1969 and came into force in 1978. The Inter-American Commission and the Inter-American Court of
Human Rights are responsible for implementing the American Convention. Pan American Union,
Final Act of the Ninth Conference of American States, Res. XXX, at 38 (1948), reprinted in OAS,
Basic Documents Pertaining to Human Rights in the Inter-American System (1996).
40
Mayagna (Sumo) Awas Tingni Community v. Nicaragua Judgment of August 31, 2001, Inter-
American Court of Human Rights. (Ser. C) No. 79 (2001).
41
Antonio Mauricio Monroy Cespedes. T-92/93. 19.2.1993. See, Adriana Fabra and Eva Arnal.
“Review of Jurisprudence on Human Rights and the Environment in Latin America.” Joint UNEP –
OHCR Expert Seminar on Human Rights and the Environment. Background Paper No.6. Geneva, 14-
16 January 2002.
42
Ibid.
43
Carlos Roberto García Chacón. Decision 3705/93 of 30.6.1993. See, Supra note 41.
44
Dr. M Farooque v. Bangladesh, 49 Dhaka Law Reports (AD), p.1, 1997.
45
Pakistan Law Commission PLD SC 693, 1994.
46
Minors Oposa v. Factoran. 224 SCRA 792, 1993.
47
Ibid. Three of the Justices did not participate and one wrote a separate opinion to concur.
82
PART II
83
Chapter 3
Legal Traditions and Practice in India
The Indian legal system is a product of adaptation to cross currents of legal
philosophies over centuries. More closely, it is an artifact of transplantation of
common law into India during its colonial past. The legal apparatus, as seen in the
adversarial system of trial, reliance on judicial precedent, legal training, language
and even “architectural design” reflect borrowings from the English system.
1
Judges
follow the Black letter tradition of law and the legal vocabulary is similar to England
and the United States. The common law heritage is however, only one aspect of the
Indian legal tradition. While the institution shows strong lineage links, there are
many differences in ideology, structure and processes due to diverse social and
cultural contexts.
2
Scholars have highlighted different aspects of legal tradition in India, in
terms of its philosophical basis and historical growth, to underscore the distinctness
of Indian legal culture. Ananyo Basu argues that the Indian legal system and the
western rational order are disparate categories, which is most visible in the Indian
sense of Justice, based on a holistic natural order and is arguably different from
common law positions.
3
C. M Abraham characterizes the progression in Indian law
to be a product of generation of legal osmosis from all directions, traditional Hindu
law, Islamic and Christian law, and the English law.
4
Legal scholar Upendra Baxi
adds to these traditions in Indian law, the category of “People’s Law” or customary
practices to demonstrate the plural basis of law.
5
The unique characteristics of Indian
84
legal tradition was also evident to the proponents of the common law model as even
the British realized the challenge of neat imposition of the law and compromised to
an extent by adopting a plural model of law- the British and the Indigenous- in India.
Yet, for the most part the English system has remained prevalent and this has
continued, even after independence.
In the first few decades after independence, the law steadfastly followed the
Black letter tradition. But, precisely, since 1977, after the suspension of national
emergency and under the leadership of Chief Justice Krishna Iyer, the Supreme
Court of India made important departures from the common law practices through its
institutionalization of public interest law. What has been striking about the growth of
law in the post emergency period is the shift towards pluralistic notions of the law
through resuscitation of indigenous conceptions of justice and integration of
cosmopolitan standards into the common law system. Although oriented towards
addressing issues of social justice, the legal developments since the institution of
Public Interest Litigation demonstrate the gradual adaptation of Indian law to global
standards, through means that are uniquely Indian both in its ethical and institutional
framework. It reflects traditions of Indian justice that are built on state responsibility
towards protection of public interest, integration of legal standards and are oriented
towards the community. Procedurally, it introduced changes in the adversarial
system of justice as the Court even permitted third party litigations and letters to the
Court as petitions. In addition, the Court has also stepped beyond the positivist
boundaries to interpret laws in a liberal manner, incorporate global developments
85
and on occasions, even administer justice. One could say that the post 1980’s Court
shed many of the attachments to common law systems and became a people oriented
Court. This has placed the Indian legal system and its sense of justice, built on legal
pluralism, very uniquely among common law countries, although the exact nature of
pluralism is contextually contingent.
In this chapter, I will explore these characteristics further to provide an
overview of the Indian legal culture. I will demonstrate that the legal culture in India
has made important shifts from common law practices and has revived indigenous
legal traditions.
6
This has kept the law alive to various synergies at the transnational
and local levels and explains the plural nature of Indian law. In this context, I will
first provide a brief outline of the genesis of common law in India, and then discuss
the main characteristics of the legal tradition. The next section of this chapter will
discuss modern developments in law, particularly the public interest litigation
movement. My primary emphasis will be to see how the legal culture has enabled the
incorporation of cosmopolitan standards, through a plural legal model. This I believe
will enhance our understanding of the process of greening of laws in India.
The Genesis of Common Law in India
The origin of law in India is traced to Hindu cosmic order or Dharma, which
signifies the eternal laws that maintain the world. It explains the philosophical basis
of Hindu order, which in reality was represented by diverse regional and local
practices.
7
Formally, the Vedic scriptures defined the authoritative rules but the
material source of law was defined by customary practices, which in most cases
86
prevailed over scriptures. For instance, Kautilya, political writer of ancient times,
held that usages and customs were of equal authority as evidence of law, and in case
of conflict between them, the former was superior due to its bearings in practice.
8
In
the medieval period, political conquests and invasions introduced new elements of
Islam, Christian and Zoroastrian cultures to the existing Hindu order, which added to
the heterogeneity of law. Alison Renteln and Alan Dundes, commenting on folk laws
in India, have noted that there not only existed critical differences between Hindu
and Muslim legal customs, but all the linguistic and ethnic groups in India had their
own folk laws as well.
9
The British Governor, Mount Stuart Elphinston, in his book
in 1841, maintained that even during the period of Muslim domination which
provided the first unitary political order in India in the medieval period, the law of
Islam never prevailed and the country was ruled by customs and discretion of
kings.
10
Hence, prior to the entry of the British in India, law represented a
conglomerate of religious orders and did not have a centralized apparatus.
The establishment of secular and centralized legal order in India is an artifact
of transplantation of common law by the English. It began with the first set of
judicial reforms and codification of law introduced by Warren Hastings, the first
British governor-general representing the East India Company, in 1772.
11
He
imported the British notion of “justice, equity, and good conscience” to rule over the
Indians. The legal reforms had two purposes 1) to facilitate the East India Company
in trading with Indians through familiar legal mechanisms and 2) to gain support of
the people through vocabularies of liberal justice and fairness.
12
Initially, the legal
87
measures did not extend to the masses who were still ruled by regional rulers, and
had diverse customary laws.
13
They introduced dual system of courts with
jurisdiction over civil, criminal and commercial matters: the Presidency Town courts
that included the royal Supreme Courts with English judges and lawyers and the
Moffusil (country-side) courts that included sudder (chief) courts manned by judges
from the English civil service and with Indian pleaders. The latter used less English
law and were informal.
Gradually, the extent of English law in India increased and the division
between local laws and the English law also got entrenched. For instance, in the
Hastings Judicial plan, the applicable law also varied. Section 23 of the Hastings
Plan states that-
In suits regarding inheritance, marriage, caste and other religious usages and
institutions, the laws those of shashtra with regard to Gentoos, will be
invariably adhered to: and on all such occasions, Maulvis or Bramhins shall
respectively attend the Courts to expound the law and they shall sign the
report and assist in passing the decree.
This was concretized in law by Regulation IV of 1793 by specifically allocating the
governance by Hindu and Moslem law matters to the respective religious authorities.
The colonizers took help of religious cognoscente: the pandits and maulvis and also
produced digests of Indian shastric law such as The Code of Gentoos Law in 1776.
The incorporation of custom into the official law of the British extended to all parts
of the country. Interestingly this framework of integration of customs into the
official decrees, provided the plural model of law for all future transplants of
common law into other colonies especially South Africa, Sudan etc.
88
Conversely, Baxi argues that the pluralism introduced by the British was
much narrower than what existed in pre-colonial times. He says that the legal
incorporation of indigenous customs and practices by the British was only limited to
Shastric law.
14
It was assumed that indigenous Hindu law was found in Shastras and
custom was forced to struggle against the Anglo Shastric law, for recognition as
customary laws were subject to common law burden of proof.
15
It had to be proved
to be immemorial or ancient, uniform, invariable, continuous, certain, notorious. The
judicial organization of custom transformed it
from a body of orally transmitted precepts and precedents, subject to variable
interpretation and quasi legislative innovation at the discretion of village
notables or elders, it becomes a body of fixed law to be construed by a
professional court. Judicial enforcement of custom rigidifies it and strips it of
quasi-legislative character: official courts are reluctant to permit the creation
of a new binding custom.
16
This was in stark contrast to pre-colonial legal traditions which were based on
interplay between customary law, the eternal law of Dharma and the secular law of
the Prince. Even though the Dharmas were exclusive of lower caste practices, local
customs of all peoples were incorporated in law through proof of good custom and
by the royal duty of Kings to preserve customs, conventions and usages of his people
and those of conquered territories.
17
The neglect of custom in the colonial period led
to stagnation of Hindu law in this period and Anglicization of Hindu law as well due
to exposure to western style interpretation. Primarily what developed due to the
transplant of English law in India, was a plural model based on two laws-one,
common law which was considered superior and second, indigenous laws,
recognized within the common law framework, on certain matters relating to the
89
personal realm derived from prevalent interpretations of Hindu or Muslim scriptures.
The plural model of law developed by the colonizers has been described variedly in
literature, Marc Galanter has called it the expropriation of law, J.D.M Derret calls it
the Anglo Hindu law and the Rudolphs (Susan and Lloyd) call it the cosmopolitan
high culture law.
18
After the transfer of power from the East India Company to the Crown in
1858, the British gradually imposed in India a general system of law aimed to
maintain law and order and secure property rights. It was the first attempt to bring
the entire country under one administration. It introduced in India the rule of law and
the judicial apparatus.
19
In 1937, the Privy Council of India established the Federal
Court of India, which is the precursor of the Indian Supreme Court. By the time of
Indian independence, many elements of English Common law had been completely
amalgamated into India such as criminal and tort laws, property rights, forest laws
etc. This continued even upon independence and various branches of Indian law,
apart from personal laws, were defined on the basis of British law for reasons of
convenience and familiarity. The judicial apparatus retained many elements of the
Federal Court of 1937, with few additions from American system, notably the Bill of
Rights and Judicial Review.
20
Nature of Indian Law: Indigenous V. Foreign Debate
At independence what India inherited was a complex body of laws that drew from its
colonial past as well as indigenous legal tradition. There are two important scholarly
positions about how the legal culture in India has maintained its continuity with the
90
common law tradition and with autochthonous values. While it is unequivocally held
that law in India is a product of colonial heritage, there are differences on how this
has influenced indigenous conceptions of law. One view holds that Indian law is a
British creation and the second view holds that substantively, law is based on
indigenous traditions. M.C Setalvad, the first Attorney General of India has
commented that Indian legal system in its structure and powers of the court, role of
judges and lawyers, the adversarial system of trial and reliance on judicial precedent
is in the mainstream of the English Common Law systems.
21
Similarly, Galanter,
commenting on law and social change, holds that “Indian law was palpably foreign
in origin or inspiration and is notoriously incongruous with attitudes of people who
live under it.”
22
He has maintained that the English tradition was firmly entrenched
and was unlikely to be replaced by indigenous system.
23
Some of the ways in which
the judiciary functions such as the use of English as the language of the Court
confirms Galanter’s position. Noted Indian legal scholar, Baxi, in a different context
acknowledges the common law tradition of the Court, arguing that the colonial
heritage has created a legitimacy crisis of law in India.
24
He has argued that the
inheritance of colonial legacy has kept people outside the law and made the
institution elitist. Complaining about the elitism of Common Law, he has pointed out
that:
The British Indian model of law making was a top down model; it was a
paradigm of Austinian type….Thereby law making remains more or less the
prerogative of a small cross-section of elites. This necessarily affects both the
quality of law enacted and its social communication, acceptance and
effectivity.
25
91
The second view is of legal scholars Derrett, Dhavan, Abraham, Menski, and
Deshpande who are of the view that even though common law displaced the
indigenous systems, the substantive and philosophical basis of law derives from
indigenous traditions.
26
According to Derret, the bulk of legislation, judicial
apparatus and processes
support belief that Indian law is a kind of annexe to the Anglo American
common law consortium of legal systems…. the substantive law, or the way
in which it is administered or in the public’s and judges attitudes towards it,
(the reader) traces much that is recognizably traditional.
27
Another legal scholar C.J Fuller argues that Indian law has traversed from modern
law to post modern law, which has reinstated many of the indigenous concepts. This,
he notes, is particularly evident in judicial reasoning on new issues, which
demonstrate continuity with indigenous pre-colonial traditions.
28
His is a claim to a
post modern trend in law. Menski’s contention is that indigenous law has thrived in
India albeit it has not been visible in official discourse.
29
Both Fuller and Menski
trace the traditional link to the foundational axioms of justice of its people. They
maintain that in spirit and in law, many of the pre-colonial doctrines of law have
been reinstated, notably the notion of Dharma and public responsibility.
30
Various
elements of indigenous law even coexisted with the English law. This was to
accommodate local sense of justice and order and is clearly reflected in the
orientation of law on various issues such as personal laws and property rights.
However the extent of borrowing from indigenous law remains a point of dispute as
some religious scholars such as Donald Davis, Richard Laviere etc have argued that
because of colonial influence and lack of proper knowledge of scriptures and
92
Sanskrit, pre-colonial law is not prevailing in legal discourse.
31
But they do agree
that a more general perception of Dharma influences Hindu life. I argue that the
Dharmic influence is visible in legal orientation towards justice, particularly since
the institutionalization of public interest law. Hence, legal culture in India
demonstrates both the Black letter tradition drawing from the common law heritage
and an organic perspective of law that draws from the Dharmic traditions.
The legal culture is based on an understanding of law that draws from
religion, philosophy and law and this makes the law in India different from positivist
assumption of separation of law and morality. Scholars define the nature of Indian
legal culture through many tenets such as the concept of Dharma, adaptability and
accommodativeness of law, and the role of protector.
1) Dharma or a holistic sense of justice constitutes the substantive element of Indian
Law. This is a definition of law rooted in the cosmic order and hence is very
different from common law. It is not akin to natural law as it goes beyond the state
and religious order. Robert Lingat, in his seminal work on classical laws of India,
points that a) Dharma signifies the eternal laws that maintain the universe b) actions
in conformity with the moral order and is based on an internal inculcation of
individual conduct c) the sum of duties incumbent on a person based on his or her
status or varna (caste and gender most crucially) and ashram (stage of life).
32
Abraham says the core of the law is the sense of Justice based on the natural order
and covers all aspects of individual life. In the next chapter, I will discuss some
aspects of Dharma concerning the environment.
93
2) Derret identifies the accommodativeness of Hinduism to be the most important
tenet of Indian legal culture. He has argued that:
flexibility, diversity and adaptability and the genius of adjustment without
changing one’s identity are the hallmarks of Hinduism… and this common
denominator of Hinduism is valid in legal contexts.
33
Galanter has also commented that “Hindu law. . . openly embraced normative
diversity; legal learning was attuned to a multiplicity of legitimate group norms.”
34
The traditional indigenous understanding of law has a conspicuously rich content of
different philosophic and religious traditions and hence was able to accommodate
many different systems within its folds. Masaji Chiba says that legal culture grows
out of historical experiences, upbringing, religion, prevailing ideologies, and it leads
to plural legal structure in countries.
35
The plural tradition of Indian culture can also be traced in the Constitutional
law. Granville Austin, in his discussion of the Indian Constitution has said that
India’s original contribution to constitution making, that is
accommodation…the ability to reconcile, to harmonize, and to make work
without changing their content, apparently incompatible concepts- at least
concepts that appear conflicting to the non – Indian, and especially to the
European or American observer. Indians can accommodate such apparently
conflicting principles by seeing them at different levels of value, or if you
will, in compartments not watertight, but sufficiently separate so that a
concept can operate freely within its own sphere and not conflict with another
operating in a separate sphere.
36
3) The primary purpose of law under the Indian indigenous tradition is aimed at
sustaining a universal order in every way. The principal duty of the kings and rulers
94
in ancient times was maintenance of this order. This is also reflected in perceptions
of Justices as law giver and protector of people’s interest.
The presence of both English and indigenous tradition is what gives the Law
in India its distinctive characteristic. Borrowing from Menski, the result of this is a
hybrid legal entity which has enabled the construction of a plural legal order.
37
This
position has particularly got enhanced in the nineteen eighties and nineties, when law
went beyond common law boundaries to adjudicate on social issues on grounds of
public responsibility of the state, which scholars define as a post modern moment of
Indian law.
38
In the next section, I will elaborate the main characteristics of legal apparatus
in India to see how perceptions of common law and Dharmic law are integrated in
legal practice.
Modern Manifestations: The Post Independent Judicial System
Historical analysis of the functioning of the Indian Court shows that in the first three
decades, since inception in 1950, the Court developed in the aegis of common law
and black letter rule of law - both in legal reasoning and in legal education system.
The Supreme Court of the United States and the House of Lords served as models for
the Supreme Court.
39
However, important differences remain due to varied political
and social settings. Unlike the American Courts, the Indian courts are independent of
political leanings and are driven by opinions of individual judges than ideological
leanings of the court. The most interesting facet of the Indian legal system of the last
fifty odd years is however its slow evolution towards defining its own role in the
95
democracy, from an institution of British antecedent to one that has adapted to legal
innovations to develop a unique institution oriented to social justice. Some of the
noteworthy features of the judicial system in India are:
1) The Indian judicial system is a unitary system of courts, with the
Supreme Court as the highest adjudicatory institution. The
judiciary is the third wing of the government and inter-branch
relations with the executive and legislature is sustained through a
system of checks and balances. In practice, however the Indian
Court has exerted much more power than prescribed in the
constitution.
40
An important power of the Indian judiciary is of
judicial review, which it has borrowed from the American
Constitution.
41
After the first few decades of initial acquiescence
with the executive (Sankar Prasad v. Union of India, Sajjan Singh
v. State of Rajasthan)
42
, the Supreme Court asserted its judicial
power in the 1967 Golaknath v State of Punjab case curbing the
amending power of the parliament in relation to fundamental
rights and entrenched the principle of Judicial review.
43
Later,
giving in to legislative demands in a landmark Constitutional
case, Kesavananda Bharati v. Union of India case, the Court
while allowing Parliament the power to amend the Constitution,
defined Judicial Review to be the basic structure of the
Constitution.
44
The ruling curtailed all attempt by the executive to
96
curtail judicial power. This power of the Court has been in use
since the 1980’s to enhance constitutionalism and rule of law.
Rajeev Dhavan has observed that “The judiciary ceased to be an
institution of State, and became an institution of governance in its
own rights.”
45
2) Functionally, in India, unlike the US there are various benches of
the court- civil, criminal, constitutional, environmental etc. To
deal with the workload the Court sits in separate benches with 2
to 7 justices on each bench in order to hear simultaneous civil
appeals, criminal appeals and Constitutional cases. The minimum
number of judges in a bench is 2, but there is an exception of 5 in
cases involving substantial question of law such as the
interpretation of the Constitution and the rendering of advisory
opinions. The Chief Justice makes the functional assignment and
benches do not remain stable for longer than 6 weeks. This has
allowed some Justices to participate far more frequently than
others. Judges have also usually voted collectively and dissent is
not very common. Analysis of voting behavior of individual
judges in the Indian case is limited because some judges have
participated more than others.
3) Judicial appointments are independent of politics as all
appointments are made in consultation with the Chief Justice of
97
the Supreme Court. Legal scholar Gadbois reported that until the
1970’s Chief Justices had preponderance in judicial appointments,
but in the early 1970’s this power got eroded by intrusion of
political branches, especially during the emergency period.
46
But
again in 1993, in an effort to end the use of judicial appointments
as political patronage by the executive, the Indian Supreme Court
ruled in the Supreme Court Advocates on Record Association v.
Union of India (SCAORA 1993) that the Chief Justice had
primacy over President in matters pertaining to the appointment
and transfer of High Court and Supreme Court Justices.
47
This has
restricted the overt role of politics in appointments and therefore
any conclusion of political motivations of judges.
Further more, the factors that have mattered in judicial
appointment are legal experience, regional background and
religious affiliation. Gadbois (1985) points out that judicial
appointment in practice is influenced by religious and regional
considerations than merit alone. Religious distribution of justices
in the Supreme Court especially, corresponds closely with the
religious composition of the country. It has been customary to
have at least one Muslim in the Court at all times, a practice that
has continued since colonial times. Regional representation has
also been given weight; vacancies are filled by men from either
98
the same court as the predecessor or same province as the justice
whose slot is being filled.
4) Some analysis of the agency of the judges shows that personal
values and ideology of judges have molded Court behavior. It has
been stated by scholarship, media, and legal practitioners that
court decisions, especially in the post emergency phase, were
steered by personal philosophy of Justice Krishna Iyer. With
regards to environmentalism of the judiciary it has been often
cited that it has been steered by the effort of a few justices- Justice
Kuldip Singh, Venkatachaliah J and Ojha J are known for their
stand on environmental issues. However it is also to be noted that
justices have differed in their opinions on a case-to-case basis.
For example in the case of Justice B N Kirpal, while he was
against advertising by painting on rocks in pollution related cases,
he wrote the Narmada judgment that favored the construction of
the dam.
The history of judicial development can therefore be summed up as one that
began with common law traditions to one where the Court has evolved new
mechanisms to deliver social justice. Given this backdrop of how the post
colonial court evolved, in the next section I will elaborate the changes in
legal system, in the post 1977 phase.
99
Public Interest Law
The story of Indian judiciary after the emergency is remarkable and instructive. After
the national emergency in 1977, the Court adopted activist positions to protect public
interest. The Court responded to the democratic moment of the time and gradually
evolved a jurisprudence centered on social action. This is called the Public Interest
Litigation (P.I.L), and it marks significant departure from traditional adversarial
mode of judicial proceedings. Harsh Salve, argues that in this new phase the
perception of a conventional role of a final court of appeal- meant for adjudication of
disputes in adversarial format- changed to that of an institution as a vehicle for the
delivery of justice, particularly to those who needed it most and get it at least.
48
This
arguably was shaped by the ideological orientation of the justices to values of a
holistic justice. This has facilitated the use of law by the poor and has resulted in the
reorientation of legal ideology to establish a public law regime.
Upendra Baxi notes that the institution of Social Action Litigation introduced
significant changes in Indian law from the earlier black letter tradition as law
incorporated socially relevant inputs.
49
The change in legal orientation was also
visible in the new trends of legal education in India, which included optional courses
such as law and poverty that have expanded awareness of human rights
jurisprudence. Rajeev Dhavan argues that the judiciary altered the basis of
constitutional governance in India.
50
It became an institution of governance in its
own right.
100
Factors that led to P.I.L
Ashok H Desai and S. Muralidhar have identified several factors that led to the
growth of PIL in India.
51
They are:
1) Judicial Review as basic structure of the Indian Constitution. As discussed
in the previous section, the gradual movement in law towards acceptance of Judicial
Review as basic feature of Indian Law in the 1973 Kesavananda Bharati’s Case
enhanced the position of the judiciary in the seventies.
52
The legislature could not
even amend this feature.
2) The notion of “Due Process” received broadened mandate after the
emergency in Maneka Gandhi v. Union of India
53
. The Supreme Court asserted that
the doctrine of due process was integral to the fundamental rights.
54
For instance in
Maneka Gandhi v Union of India, the Court declared that all fundamental rights were
interrelated. Any law that took away the right to life and personal liberty of an
individual under Article 21, procedure established by law, also had to satisfy due
process clause. Through this the Court imported American doctrine of due process
into Indian law.
3) The national emergency, of 1975-1977, and the supportive role of the
Courts had created a legitimacy crisis for the institution. The Court was seen in
progressive circles to have facilitated the emergency and hence the effort after the
emergency was to rebuild its image and gain legitimacy. In my conversations with
Justices and lawyers this impression was clear, despite reservations about certain
structural constraints of the law it was widely held that the judiciary was the
101
protector of public’s interests and so had to step in to act against executive
inefficiency. Former Chief Justice G.K Pattnaik, in a personal meeting, mentioned
that public interest litigation developed in India because of executive and legislative
failures to deliver the Constitutional goods.
55
This view was also affirmed in my
discussions with environmental activist lawyer Mr. M.C Mehta, who told me that
administrative lapses have made it necessary to approach the courts for redress.
56
4) Executive interference in judicial appointments in the years preceding the
imposition of emergency was dissented by the Courts.
57
5) During the 1970’s many reports of legal aid were conducted which
brought out the discrepancy of justice. Two pioneering Justices, Justice Krishna Iyer
and Justice Bhagwati, in 1977 emphasized the need for a new policy to address the
socio economic inequalities in the system. Their report in 1977 included a pioneering
legislation for Social Action Litigation (or the P.I.L).
58
In fact, Justice Iyer is widely
recognized to have pioneered the social justice movement in law.
6) The political and social climate also saw the rise of oppositional and social
mobilization politics. This increased political awareness and facilitated the growth of
public interest litigation.
The Development of Public Interest Litigation
The evolution of Public Interest Law has been a gradual process established through
case law. Beginning with the 1978 Maneka Gandhi case the Court in a number of
rulings laid out the basic framework of Public Interest Litigation. The Court
emphatically provided primacy to social, economic and legal reform to enable the
102
poor to approach the Court.
59
It even transgressed traditional legal boundaries to
settle disputes through a social approach, characterized by non adversarial
approach,
60
participation of amicus curiae,
61
public hearings, appointment of expert
and monitoring committees by the courts
62
and issue of detailed interim orders- like
mandamus orders. More significantly, the Court established the Public Interest
Litigation mechanism to allow concerned public to approach the Courts, the system
relaxed rules of standing and allowed third party litigations on issues of social
importance.
63
In a path breaking case, Municipal Council, Ratlam v Shri Vardichan
64
the
Court observed that-
The truth is that a few profound issues of processual jurisprudence of great
strategic significance to our legal system face us and we must zero in on them
as they involve problems of access to justice for the people beyond the
blinkered rules of standing of British-Indian vintage. If the centre of gravity
of justice is to shift, as the preamble of our Constitution mandates, from the
traditional individualism of locus standi to the community orientation of
public interest litigation, these issues must be considered.
65
Subsequently, in another case, S. P Gupta v. Union of India
66
the Court ruled that
any member of public could maintain an application for an appropriate direction,
order or writ in the High Courts under Article 226 and Supreme Court under Article
32, seeking judicial redress for legal wrongs caused to such person or determinate
class of persons. This has been a vital development for environmental case law,
which I will show in my case studies, as it marked a departure from the Anglo-Saxon
system of jurisprudence to a public orientation of law and allowed “public spirited
persons”
67
to approach the Court on environmental matters. Environment, considered
103
a regulatory tort issue, was taken up by the activist court as a public matter. Since
then, the Courts have been approached by lawyers, medical practitioners, voluntary
organizations and individuals to contest state failure in many areas of social
concerns. This has resulted in a law and society engagement on environmental issues
in particular, where a number of PIL’s have been filed to get the attention of the
Court on green matters. While most of these litigations are writ petitions by third
parties, in some case such as the Godavarman, which I will discuss later, a letter to
the Court was accepted as a petition. In addition, the legal processes in
environmental law suits have been in the nature of continuous mandamus, where the
Court has been administering the enforcement of its rulings as well.
Additionally, the Court also made changes in procedural rules regarding the
form and manner of filing a writ petition, appointment of commissions, and the
appointment of amicus lawyers to assist the Court. Ashok Desai and S. Muralidhar
have pointed out that the epistolary jurisdiction of the Indian Court developed in line
with the Gideon v. Wainwright case, where the post card from a prisoner was treated
as a petition.
68
Gideons’ access to Courts appealed to the “sense of justice” of the
Court and it has provided a legal basis to the Court’s acceptance of third party writ
petitions in public interest cases. The Court accepted letters from public spirited
persons on environmental matters, letters in newspapers on issues of bonded labor,
neglected children and atrocities against women, scheduled castes and scheduled
tribes, petitions from prisoners, petitions against police, adulteration of food and
104
drugs, maintenance of heritage and culture and other matters of public importance as
petitions.
69
What is most striking of the P.I.L activism of the court has been the emphasis
on responsibility and greater sense of justice. This marks a shift from the adversarial
system promoted by the common law systems. Further, it also demonstrates the
accommodative capacity of the Court as it has balanced various competing interests
on social issues and sought a balanced approach. The character of the Public Interest
Movement can be best defined in the words of Justice Bhagwati, in PUDR v. India.
70
He ruled:
We wish to point with all the emphasis at our command that public interest
litigation which is a strategic arm of the legal aid movement and which is
intended to bring justice within the reach of the poor masses, who constitute
the low visibility area of humanity is a totally different kind of litigation from
the ordinary traditional litigation which is essentially of an adversary
character where there is a dispute between two litigating parties, one making
claim or seeking relief against the other and that other opposing such claim or
resisting such relief. Public interest litigation is brought before the Court not
for the purpose of enforcing the rights of one individual against another as
happens in case of ordinary litigation, but is intended to promote and
vindicate public interest which demands that violations of constitutional or
legal rights of a large number of people who are poor, ignorant or in a
socially or economically disadvantaged position should not go unnoticed an
unredressed.”
71
The pro rights and social justice orientation of the Public Interest Litigation has
resulted in many changes in the legal arena particularly the integration of human
rights principles in jurisprudence and recognition of social needs. This has resulted in
a plural legal model, based on the interplay of various laws to interpret constitutional
rights. The following section will explain two main developments that have been
steered by the post 1980 Court.
105
Developments Initiated by Public Interest Litigation:
1) Liberal Interpretation of Rights:
Liberal interpretation of constitutional rights by the Court has been the hallmark of
progressive justice in India since the 1980’s. Many Constitutional provisions such as
Equality before Law, the Right to Life etc have been given broadened to include the
demands and needs of social justice and to give effect to human rights. In Francis
Coralie Mullin v UT of Delhi, Justice Bhagwati said
The fundamental right to life which is the most precious human right and
which forms the arc of all rights must therefore be interpreted in a broad and
expansive spirit so as to invest it with significance and vitality which may
endure for years to come and enhance the dignity of the individual and the
worth of the human person…...The right to life does not mean physical or
animal existence. It also includes the right to live with basic human dignity
which lies at the basis of all human rights, as does also the right to basic
necessity of life.
72
The Court in its interpretation of the right to life has stated that the law has to
be treated as an organic body. In a case, asking the government to ensure food to all,
the Court said:
It is also well settled that interpretation of the Constitution of India or statutes
would change from time to time. Being a living organ it is ongoing and with
the passage of time law must change. New rights have to be found out within
the constitutional scheme. Horizons of Constitutional law are expanding.
73
The emphasis on how the court has been interpreting laws based on the changing
times can be seen in Justice Shah’s statement on how the interpretation of
fundamental rights has changed with time.
From time to time this Court has filled in the skeleton with soul and blood
and made it vibrant. Since the last more than 50 years, this Court has
106
interpreted Articles 14, 19 and 21 and given meaning and color so that the
nation can have a truly republic democratic society.
74
The broadened interpretation of rights in the Indian context, incorporating the
changing needs has been critical to the emerging jurisprudence by the Courts which
have resulted in important social and legal reforms. This development has occurred
for reasons of recognizing people’s rights and to give effect to developments in
international law. Justice P.N Bhagwati has maintained that the right to life
embodied in Article 21 of the Constitution has been expanded in India to comport
with Article 6 of the ICCPR as explained by the Human Rights Committee in its
general Comment on that article.
75
Justice Pattnaik of the Supreme Court, in a
personal meeting also mentioned that the interpretation of Article 21 to include
various fundamental rights has been influenced by developments in international
human rights law.
76
International Environmental Rights and Law in India
Owing to its colonial heritage the incorporation of international principles is
informed by common law precedent and India accepts the dualist position on treaty
obligations.
77
The Indian courts have followed English legal opinion and established
that making of treaty is an executive act and its implementation a legislative act.
Hence treaties have no effect unless incorporated into municipal law through
legislation. This is found in a 1937 Privy ruling of the judicial committee of the
council.
78
Courts used the incorporating legislation framework than text of the treaty.
In the absence of the incorporating legislation it was argued that the courts will not
enforce a treaty provision which conflicts with an existing or conflicting statute.
107
In a leading case, Jolly George Verghese
79
the court followed the 1908 civil
procedure code in the absence of incorporating legislation on the ICCPR. This has
changed since the 1980’s as the Court has integrated many normative principles of
international law including customary international law, except in cases where the
law conflicts with Constitutional law.
80
In the Gramophone Company of India ltd v
Birendra Bahadur Pandey,
81
the Supreme Court endorsed the doctrine of
incorporation such that international norms are accepted as part of national law
unless they conflict with parliamentary statutes. This implies that a customary
international law is a justifiable norm provided it does not conflict with a statute.
Therefore it is conceivable that customary international norms can be enforced in
courts by way of a writ petition or a PIL, if a petitioner could show a legal right
derived from customary principles. In practice, however, the courts have advanced
with great caution in implementing customary norms.
The Supreme Court and high courts in provinces, in various cases have made
references to unincorporated international environmental law instruments. Although
it is difficult to define the extent of international influence on domestic jurisprudence
with precision, many indicators suggest that it did have an impact. Judicial reasoning
has invoked to interpret Constitutional law such as in case of the right to life under
Article 21, international law has been used to interpret the character of state
obligations under Article 21 that guarantees the right to life. Most significantly, in a
case Vishaka v. Rajasthan,
82
on sexual harassment in work place, the court broke
108
new ground in constitutional interpretation when it interpreted rights to include
state’s obligations under CEDAW. Chief Justice Verma in this case ruled that:
The international conventions and norms are to be read into (fundamental
rights) in the absence of enacted domestic law occupying the field when there
is no inconsistency between them. It is now an accepted rule of judicial
construction that regard must be had to international conventions and norms
for construing domestic law when there is no inconsistency between them
and there is a void in domestic law.
83
In another case, the Municipal Corporation of Delhi v. Female workers
84
the Court
asked the Municipal Corporation to grant maternity leave to all its female workers
citing both constitutional law and international law, specifically the UDHR and
CEDAW. The Court cited in full Article 11 of CEDAW which requires state parties
to eliminate discrimination against women in the field of employment and maternity
leave.
More so, the Supreme Court rulings in various environmental law cases
incorporate international environmental law principles without any direct reference
to the provisions of the treaty. In one case, the Vellore Welfare Forum case,
85
which
I will discuss in chapter 5, the Supreme Court applied the polluter pays principle
with no legal authority other than a reference to Article 130 R (2) of the Treaty of
Rome. The Court endorsed this principle as a general legal principle, and thereby
included in Indian law a provision of a treaty to which India is not a party.
86
The
Court has in many other instances borrowed from soft law provisions like the
Stockholm declaration and the Rio declaration on the ground that they represent
customary international law.
109
The Court has accepted some of the growing norms of international law-
environmental human rights, precautionary principles, polluter pays, liability and
sustainable development. In some cases such as the Consumer Education and
Research Center v. Union of India, the Judges made reference to provisions of the
ILO convention 1986 and the ICCPR 1966.
87
Another landmark case Rural
Litigation and Entitlement Kendra v. Uttar Pradesh established a Constitutional right
to environment and polluter pays principle on the basis of Stockholm declaration.
88
Although the traditional practice of not enforcing unincorporated treaties remains,
the recent position of the judiciary has shifted towards acknowledging international
developments. International norms have been used frequently by Courts especially
those norms that facilitate interpretation of national legislation. Hence in practice the
Court’s usage of international norms does not comport with monist - dualist theory
but reflects a subtle manner through which cosmopolitan standards are integrated in
law.
In addition, the reports of the National Human Rights Commission, speeches
by Justices and legal scholarship suggest that the Indian situation is shaped by and
also shapes the International context.
89
Justice Sabharwal, former Chief Justice of the
Indian Supreme Court in various addresses has mentioned of the environmental tasks
of law in India in relation to transnational developments, for example in his
convocation address to law graduates, he emphasized that lawyers needed to focus
on regulation of transnational environmental hazards and legal research in
international relations to keep developing countries at par with developed
110
countries.
90
In another address, made to the Chamber of Indian Industry on
sustainable use of energy, he compared Indian position on sustainable development
with that of Article 1 of ICCPR on rights of people to self determination in their
economic pursuits. He also drew links with soft law environmental law positions like
Stockholm, Rio, Brundtland Report, Nairobi declaration to make claims to
Sustainable Development.
91
Arguably this reflects that even if there has been no
direct incorporation of international law, the Justices of the Court have assessed the
status of environmental rights in India in lieu of International developments. Justice
Sabharwal’s speech in 2005 on the linkage between human rights and the
environment in India is an evidence of this trend.
92
Although speeches of Justices do
not have the merit of a legal argument, they still are important indicators of
directions of Indian law as they reflect personal ideology of Justices. Indian judges
participation in judicial colloquia meant to sensitize judges to environmental law- as
the access to Justice Colloquium in Bangkok, South Asian Judicial interaction on
environmental Justice and equity,
93
Asia Pacific Jurist Association Conference on
Environmental awareness- enforcement
94
also reflects the growing transnational
influence on legal perceptions.
This position on international influences on law has also been refurbished in
my discussions with some Justices and lawyers of the Courts. Former Chief Justice
of the Supreme Court, Justice Pattnaik commented that the even so the Court may
not explicitly use international instruments, developments globally do influence how
law perceives and interprets rights.
95
M.C Mehta, in the context of discussions on
111
pollution litigation in India, mentioned that he had incorporated international
environmental law principles in claiming environmental protection- but was not as
positive about the efficacy of incorporating international human rights norms.
96
Both
Justice Pattnaik and Mr. M. C Mehta expressed skepticism about the potential of
human rights, because of the broad scope of human rights.
India has had a significant presence in the international environmental rights
scenario, both by its active participation in various forums and also in introducing
changes in the domestic set up.
97
Even so its active non governmental community
has interacted with various transnational networks to garner support for protection of
environmental right.
98
They have allied with international organizations and
campaigned for the protection of environment in transnational forums and local
forums claiming protection of their rights. The focus of the campaign in India has,
however, remained on local issues of pollution and conservation than on issues of
global nature.
99
The acceptance of international norms is also seen in constitutional
amendments, judicial activism and growth of civil society impacted the evolution of
environmental rights in India. Courts while giving effect to provisions in the
constitutional law and human rights law also endorse international norms. For
instance, the Indian constitution which was framed in 1950 reflects the principles
adopted in the Universal Declaration of Human Rights.
100
Some scholars argue that
even though Fundamental Rights enlisted in the Indian Constitution has been
borrowed from the American, Irish and Japanese constitution, they may also have
been influenced by the UDHR. Further some statutory laws such as the Human
112
Rights Act of 1993 states that human rights in Indian law means the rights relating to
life, liberty, equality and dignity guaranteed by the Constitution or embodied in
International Covenants and enforceable by the Courts in India.
101
Limits of Law:
The development of public interest litigation and the consequent increase in social
engagement with the legal process has introduced many changes in the law and
integrated cosmopolitan values to constitutional norms. While this significantly
heralds new directions of justice in India there are important limitations as well. The
process can at best be described as one in the making.
Legal scholars point that contrary to popular perception of an activist court,
structural impediments such as backlog, elite bias of the institution have hindered
delivery of justice. Upendra Baxi argues that judicial activism is reminiscent of a
creeping court that gave some pro-poor judgments to guard itself against possible
threats to its legitimacy.
102
He argues that this new form of social conversation does
not always give narrative voice to those violated by state and society. For instance
the Bhopal case was settled without consultation with all those whose rights were
violated, decisions arresting environmental violation continue to be made without
much care for those whose livelihood stands jeopardized.
103
Hence the Court has
retained its elitist biases and has not been very successful in giving space to social
grievances. Even the acceptance of human rights framework has been a selective
process, and the Courts have primarily relied on soft law declarations. Rajagopal
terms the evolving cosmopolitan jurisprudence of the Court to be a selective one.
104
113
Some other scholars have argued that the courts are not of much use as a
political resource, because of institutional constraints, defined by structural
impediments that deny access to the court.
105
While jurisprudentially the Courts are
in tandem with cosmopolitan standards, resource structures are poor because of
which people’s use of the Court has inhibited. Charles Epp, Jay Krishnan and Marc
Galanter have shown that only few groups litigate in Courts.
106
Galanter and
Krishnan note that rights based litigation efforts are usually conducted by solo
practicing lawyers who work for little or no money.
107
The lack of resources at their
disposal prevents these lawyers from being able to participate in prolonged battles in
the courts. Charles Epp’s argues that despite constitutional guarantees of individual
rights and judicial independence and receptive judges in India, this has not ushered a
rights revolution in India. He shows that non-governmental organizations prefer
other modes of lobbying for social change such as protests, media, public awareness
activities, monitoring government activity than litigation.
108
He attributes the reason
to be the absence of support structures marked by a fragmented interest group
system, legal profession consisting of lawyers working individually and limited
availability of resources for non economic appellate litigation.
109
Another study by Jayanth Krishnan’s also confirms the low participation by
social groups in the litigation process.
110
His study of NGO’s in India shows that
litigation is a rarely used strategy by Court. Based on 73 advocacy groups working
on civil rights, environment, and gender, he concluded that activities of social groups
were divided on the following basis: (see Table 3.1)
111
114
Table 3.1 : Activities of Social Groups
Among, environmental groups he found that only 20% of them use litigation,
compared to women’s group and civil liberties group. For those who use litigation he
found that they use it because they feel that a range of tactics must be involved, to
show its financial contributors that a range of tactics were used, also because of the
role they envisage and publicity. He argues that the low participation is not due to
the social climate, which he infact argues has been favorable to litigation because of
relaxed procedures and low fee structure. He says that the reasons for law
participation are more subtle and nuanced. M.C Mehta, in my discussions with him,
commented that legal engagement with the law is not a practical solution as it
Public awareness activities including
publishing materials and holding seminars
74%
media 33%
protests 62%
Informal contacts with bureaucrats 59%
Monitoring government. activity 71%
Policy formation 33%
litigation 25%
Political parties 37%
Formal Contact with bureaucrats and
legislators
40%
N 73
115
requires great devotion of time and money.
112
Balakrishnan Rajagopal in his study of
the Narmada Movement in India,
113
has shown that the decision to litigate in the
Narmada case was a last resort, when the movement had exhausted all other forums.
Some other criticisms are that acceptance of public interest litigation by the
Court is undermined by the practice of hearing cases associated with prominent
names. Given that judges have the discretion over deciding which cases to take up,
some cases are dealt with much sooner than others such as the dispute over screening
of a TV serial “Tamas”. This case was decided in 6 weeks, while the decision on the
leakage of gas from Union Carbide in Bhopal took over twenty years to resolve and
the victims are yet to be compensated. Particularly, in regard to environmental
litigations in Courts, I found that very few human rights organizations in India
included environment in their list of human rights issues. For instance, PUCL and
PUDR, two civil liberties organizations have litigated on only those environmental
matters which affected other human rights of groups. Usha Ramanathan a leading
social activist and legal scholar mentioned that environment is not an agenda of the
human rights campaign in India.
114
Their involvement with environment is only
because of the linkage of environmental rights issues with other rights.
Despite these limits, it would be wrong to dismiss the claim that the Supreme
Court is moving towards cosmopolitan jurisprudence through integration of human
rights and international norms. This has been particularly facilitated by resurgence of
holistic notions of justice and realization of state responsibility towards deliverance
116
of constitutional ideals, through public interest law. The legal trend suggests that the
participation of groups as third party litigators began in the late 1970’s and 1980’s
and this process is continuing and the Courts have advanced various rights claims.
Environmental litigations of recent years suggest that social groups have engaged
with the law both judicially and extra-judicially in environmental matters and have
debated on the varied facets of the case in question.
Conclusion
This examination of the legal system, its capacity, its ideology, its limitations
suggests that the Court is emerging from its common law past to an institution
oriented to social justice in the global context. Research shows that there is
correlation between the public interest movement and a shift towards incorporation
of cosmopolitan issues through law and society engagement in India. This role of the
Court has been enabled by the innovative changes introduced by the public interest
movement and active participation of social groups. While the law is in comport with
international law, the public orientation in law is also based on social and cultural
values of India. This provides the legal system in India its distinctive characteristic
that builds on pluralism. Unlike colonial notions of pluralism that emphasized social
cultural diversity through recognition to two legal orders, the present model of
pluralism is based on plural law that defines itself in relation to the social milieu.
This I argue has particularly facilitated the Courts acceptance of cosmopolitan
117
environmental standards, as interpretation of what constitutes environment is socially
contingent.
This chapter, through a discussion about legal tradition and practice in India,
has attempted to show directions towards which law is gravitating in building
recognition for rights. The analysis shows how the legal culture in India, has enabled
a public interest orientation in law and has increased receptiveness of Indian law. It
has also created a debate in society on how to make law an effective social resource.
In the next chapter I will discuss how environmental rights are constructed in the
social and legal realm in India.
118
Chapter 3 Endnotes
1
M. C Setalvad points that the term common law in India includes not only the common law but also
the principles that define statutory law and attitudes pervading the English system of administration of
Justice. M.C Setalvad. Common Law in India. London: Stevens and Sons Limited, 1960.
2
C.M Abraham argues that colonial transplant did not result in a complete replacement of the
machinery. See, C. M Abraham. Environmental Jurisprudence in India. The Hague: Kluwer Law
International. 1999.
3
Ananya Basu. “Torts in India: Dharmic Resignation, Colonial Subjugation, or
"Underdevelopment?”. 100 The South Atlantic Quarterly 4. 2001. pp.-1053-1070.
4
Supra note 2.
5
Upendra Baxi.”People’s Law in India, The Hindu Society.” In Masaji Chiba. Asian Indigenous Law
in Interaction with Received Law. London and New York: KPI, 1986, pp. 216-256.
6
Although the caveat remains that indigenous notions of law has changed much since British
occupancy. The practice of Hindu law has lost the sincerity of ancient times. Yet, this is not to deny
that ethical dimensions of Hindu law, such as Dharma shape juridical thinking. For instance legal
curriculum, although trains lawyers in western legal norms, it also trains legal thinking in terms of
ancient jurisprudence. Furthermore, Judges in their rulings rely on many Dharmic concepts and
notions of Indian justice, to demarcate the distinctiveness of Justice in India. The pioneer of Public
Interest Litigation, Justice V R Krishna Iyer has stated that
Indian Dharma, has asserted long before the sociological school in the west, that law is the
social engineering service of society. True to the genius of our indigenous culture and in tune
with modern dynamics of the rule of law, we have to weave new developmental norms and
social values which bind us together in free India and tear up the bygone legal order of the
Imperial era which held us prisoner. It is an initiator, engineer and indicator of social change.
See, Justice V R Krishna Iyer. Inaugural Address at the Second State Lawyer’s Conference, Andhra
Pradesh at Rajahmundry, SCC Journal 2 (1), pp. 1-12, 1976.
7
See, Robert Lingat. The Classical Law of India. Delhi: Oxford, 1998.
8
There are some differences about the validity of custom. However, customs prevailed in law through
interpretation as well. M.P Jain says that the process of integrating custom with law has always been
going on and this is why Indian law has many different texts. Furthermore, while customs were
adapted, customs also to an extent were modified and supplemented by the opinion of the Indian
jurists.
See, M.P Jain. “Custom as a Source of Law in India.” In Alison Dundes Renteln and Alan Dundes.
Folk Law: Essays in the Theory and Practice of Lex Non Scripta. New York and London: Garland
Publishing, Inc, 1994, pp. 49-82. See also, Upendra Baxi. Supra note 5.
9
Ibid. M.P Jain.
10
See, C. Van Vollenhoven. “Aspects of the Controversy on Customary Law in India.” In Alison
Dundes Renteln and Alan Dundes. Folk Law: Essays in the Theory and Practice of Lex Non Scripta.
New York and London: Garland Publishing, Inc, 1994, pp. 251-262.
11
The foundations were laid by Warren Hastings Judicial Plan of 1772. See, M.P Jain. Outlines of
Indian Legal History. 4
th
Edition. Bombay, Tripathi 1981.
119
12
Indologist J.D.M Derrett, argues that in popular perception, in the eighteenth century, the colonizers
were looked down upon by the natives, who considered the British to be polluted. They were referred
to as hunas, who did not purify themselves or observe the lavatory or other taboos. He says that on the
former issue British did not change much, but in case of the latter they adapted to the Indian context.
See, J.D.M Derrett. Religion, Law and the State in India. London: Faber and Faber. 1968.
13
For discussion of customary law in India, see also R.S Khare. “Indigenous Culture and Lawyer’s
Law in India.” 14 Comparative Studies in Society and History, 1972, pp. 71-96. B. S Sinha. “Custom
and Customary Law in Indian Jurisprudence.” Indian Socio-Legal Journal, 1976, pp. 83-97.
14
Supra note 5.
15
Ibid.
16
Marc Galanter. Hindu Law and the Development of the Modern Indian Legal System, Mimeo,1964.
17
Supra note 5.
18
Supra note 16. Also, J.D.M Derrett. Essays in Classical and Modern Hindu Law. Leiden: Brill,
1976. Susanne H. Rudolph and Lloyd I. Rudolph. The Modernity of Tradition: Political Development
in India, Chicago: The University of Chicago Press, 1967.
19
Menski argues that the Law introduced by Maculay and others in the 19
th
century was a tailor made
law which had many civil law characteristics. It applied to all subjects. While in personal matters, the
British laws retained the religious codes. See, Werner Menski. “From Dharma to Law and Back?
Postmodern Hindu Law in a Global World.” Heidelberg Papers in South Asian and Comparative
Politics. Working Paper No.20. South Asia Institute: University of Heidelberg. January 2004.
20
See, S. P Sathe. “India: From Positivism to Structuralism.” In Jeffrey Goldsworthy. Interpreting
Constitutions: A Comparative Study. Oxford University Press, 2006, Pp. 215-265.
21
Supra Note 2.
22
Marc Galanter. Law and Society in India. New Delhi: Oxford University Press, 1989.
23
Ibid
24
Upendra Baxi. The Crisis of the Indian Legal System. Delhi: Vikas, 1982.
25
Ibid at 51.
26
V. S Deshpande. “Nature of Indian Legal System.” In J. Minattur. The Indian Legal System. Delhi:
The Indian Law Institute. 1978, Pp. 1-85.
27
J.D.M Derrett. “Tradition in Modern India: The evidence of Indian Law.” In Richard L Park (Ed.)
Change and the Persistence of Tradition in India. Ann Arbor: University of Michigan, 1971, pp. 17-
34.
28
C.J Fuller. “Hinduism and Scriptural Authority in Modern India.”30 Comparative Studies in
Society and History, 1988, pp. 225-248.
120
29
See, Werner F Menski. “Review of Galanter, Law and Society in Modern India.” Law Quarterly
Review. 1995.
30
The clash of common law and indigenous cultures is also seen in the context of some other
colonies. For instance see, J.N Matson. “The Common Law Abroad. English and Indigenous Laws in
the British Commonwealth.” 42 International and Comparative Law Quarterly. 1993, Pp.-753-779.
31
Donald R Davis Jr. “Traditional Hindu Law in the Guise of ‘Post Modernism:’ A Review Article.”
Michigan Journal of International Law 25, 2003-2004, pp. 735-749. Also see, Ludo Rocher. “Lawyers
in Classical Hindu Law” Law and Society Review 3, No.2/3, 1968-1969, pp. 383-402. Richard W.
Lariviere. “Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past.”
Journal of Asian Studies 48, 1989, pp. 757-769.
32
Supra Note 7.
33
J.D.M Derrett. A Critique of Modern Hindu Law. Bombay: N.M Tripathi, 1970.
34
Supra Note 22. Marc Galanter 1989.
35
Masaji Chiba. “Introduction.” In Masaji Chiba (Ed.). Asian Indigenous Law in Interaction with
Received Law. London and New York: KPI, 1986, pp. 1-11.
36
Granville Austin. The Indian Constitution: Cornerstone of a Nation. Oxford: Clarendron Press.
1966.
37
Supra note 19.
38
Supra note 2
39
Gobind Das. “The Supreme Court: An Overview.” In B.N Kirpal, Ashok H Desai, Gopal
Subraanium, Rajeev Dhavan and Raju Ramachandran. Supreme But Not Infallible: Essays in Honor
of the Supreme Court of India. New Delhi: Oxford University Press, 2000, pp.16-47.
40
While in the first three decades inter-branch relationship was harmonious, since 1967 for a brief
period and again after 1977, the Judiciary has been strikingly independent. See, Bhagwan D. Dua. “A
Study in Executive-Judicial Conflict: The Indian Case.” Asian Survey, Vol. 23, No.4, 1983, pp. 463-
483.
41
For a detailed analysis of Judicial Review in India, see Upendra Baxi. The Indian Supreme Court
and Politics. Lucknow: Eastern Book Company, 1980. Baxi provides a detailed analysis of Judicial
review during the emergency years. It is an important book about executive judicial relationship
during the emergency of 1975-1977. For a comparative analysis of Judicial Review see, Vijay
Lakshmi Dudeja. Judicial Review in India. New Delhi: Radiant Publishers, 1988. Lloyd I. Rudolph
and Susanne Hoeber Rudolph. “Judicial Review versus Parliamentary Sovereignty: The Struggle over
Stateness in India.” 19 (3) Journal of Commonwealth and Comparative Politics. 1981, pp. 231-255.
Douglas M. Verney. “The Struggle over Judicial Review: Supreme Court and Limited Government.”
In B.D Dua, M.P Singh and Rekha Saxena. Indian Judiciary and Politics: The Changing Landscape.
New Delhi: Manohar, 2007, pp.41-72. Rajeev Dhavan. “Governance by the Judiciary: Into the Next
Millenium.” In B.D Dua, M.P Singh and Rekha Saxena. Indian Judiciary and Politics: The Changing
Landscape. New Delhi: Manohar, 2007, pp. 73-106.
42
Sankar Prasad v. Union of India, Sajjan Singh v. State of Rajasthan 1 SCR 1965 at 933.
121
43
The only issue in which the Court acted in defiance of the executive was in declaring land reforms
unconstitutional. Golaknath v State of Punjab AIR 1967 SC 1643
44
Kesavananda Bharati v. Union of India, 4 SCC 1973 at 225. It is an extremely important case
defining the basic principles of the Constitution. Upendra Baxi says in some sense it is the Indian
constitution of the future. Upendra Baxi. “The Constitutional Quicksand of Kesavananda Bharati and
the Twenty-fifth Amendment.” Supreme Court Cases Volume 1, 1974, pp. 45-67. See Granville
Austin. Working a Democratic Constitution: The Indian Experiment. New Delhi: Oxford, 2000.
45
Rajeev Dhavan. “Governance by the Judiciary: Into the Next Millennium.” In B.D Dua, M.P Singh
and Rekha Saxena. Indian Judiciary and Politics: The Changing Landscape. New Delhi: Manohar,
2007. Pp. 73-106.
46
Politically, early 1970’s marked the rise of Indira Gandhi. She centralized power under the
executive and in 1975, imposed national emergency to curtail oppositional politics.
47
Supreme Court Advocates on Record Association v. Union of India 1994 SC 268.
48
S. P Gupta v. Union of India 1981 Supp. SCC 87.
49
Upendra Baxi. "Taking Human Suffering Seriously: Social Action Litigation Before the Supreme
Court of India.” In Neelan Tiruchelvan and Radhika Coomaraswamy.(Ed.). The Role of the Judiciary
in Plural Societies. New York: St.Martin’s Press, 1987.
50
Supra note 45.
51
See Ashok H. Desai and S. Muralidhar. “Public Interest Litigation: Potential and Problems.” In B.N
Kirpal, Ashok H. Desai, Gopal Subramanium, Rajeev Dhavan and Raju Ramachandran. Supreme But
Not Infallible: Essays in Honour of the Supreme Court of India. New Delhi: Oxford University Press.
2000, pp.-159-192.
52
Judicial Review was recognized as a basic feature of law only in 1973, when a 13 member
Constitutional bench recognized it as an unammendable feature of the Constitution. The earlier
position was that India was somewhere in the middle of parliamentary supremacy as in Britain and
Judicial review as in the US. See, A. K Gopalan v.State of Madras. 1950 SCR 88 at 286-7.
Keshavanand Bharati v. State of Kerela. 1973 4 SCC 225.
53
Maneka Gandhi v. Union of India. 1978 2 SCC 248.
54
For a discussion of public interest law in India, also see Prashant Bhusan. “Public Interest
Litigation: Supreme Court in the Era of Liberalization. In B.D Dua, M.P Singh and Rekha Saxena.
Indian Judiciary and Politics: The Changing Landscape. New Delhi: Manohar, 2007, pp. 163-176.
55
Personal Meeting with Former Chief Justice G.K Pattnaik, March 26
th
, 2007, 11:30 am
56
Personal Meeting with Mr. M.C Mehta, January 22
nd
, 2007, 10:30 a.m.
57
Supra note 51, p160.
58
Ibid.
122
59
See, Report on National Judicature: Equal Justice-Social Justice. August 1977. See also, People’s
Union for Democratic Rights v. Union of India (1982). 3 SCC 235.
60
Unlike traditional adversarial system, in case of PIL there are no contending parties and the focus
remains on resolution of the problem balancing various interests.
61
Courts have sought the assistance of lawyers as amicus curiae to guide them through the various
aspects of the case.
62
The Court has appointed specialists from various fields- judges, lawyers, journalists, bureaucrats
and social practitioners, scientists –to propose on controversial issues and also to monitor
implementation.
63
In the common law system, traditionally the procedures allow only those directly affected to
approach the Court. Also see, Susan D Susman (1994), “Distant Voices in the Courts of India:
Transformation of Standing in Public Interest Litigation”, 13 Wisconsin International Law Journal 57,
1994, pp. 57-103. Jamie Cassells. Public Interest Litigation in India, American Journal of Comparitive
Law, Volume 37, 1989, pp. 495-519.
64
Municipal Council, Ratlam v Shri Vardichan 1980 4 SCC 162 at 163. The Ratlam case has been a
trendsetter in environmental jurisprudence in the country. This case was invoked by public spirited
persons to seek redress against an apathetic municipality that failed to provide basic amenities.
65
Ibid.
66
Supra note 48.
67
See, Govind Das. Supreme Court in Quest of Identity. Lucknow: Eastern Book Company, 2000.
68
I presume the use of Gideon was to gain larger acceptance for the activism. Gideon v. Wainwright.
372 U.S. 335, 1963 See also, Anthony Lewis. Gideon’s Trumpet. New York: Random House, 1964.
69
Many court cases such as Dr. Upendra Baxi v. State of U.P, People’s Union for Democratic Rights
v. Union of India, T. N Godavarman v. Union of India began as letters by the petitioners to the Court.
See also, for a detailed list of issues Sangeeta Ahuja. People, Law and Justice: Cases and Materials on
PIL, Volume II, New Delhi: Orient Longman, 1997.
70
PUDR v. India, AIR 1982 SC 1473.
71
Ibid.
72
Francis Coralie Mullin v UT of Delhi, 1981 1 SCC 608, 618.
73
Kapila Hingorani v Bihar 2003 6 SCC 1.
74
PUCL v. Union of India. 2003, 4 SCC 399.
75
Justice P.N Bhagwati. “Liberty and Security of the Person in India with Particular Emphasis on
Access to Court.” In Developing Human Rights Jurisprudence. Inter-Rights Organization: Common
Wealth Secretariat, London. Volume 7, 1998.
76
Supra note 55.
123
77
Ibid. Michael Andersson.“International Environmental Law in Indian Courts.” 7 RECIEL 1, 1998,
pp. 21-30. Conventionally, the source of international human rights and environmental law consists of
environmental law treaties, soft law, human rights treaties and customary law. Incorporation of
international law is seen through state acceptance of these standards. Social movement literature, adds
to this list some relatively new forms of incorporating cosmopolitan rights such as transnational
activism and multilateral aid agencies. Santos and others have termed it counter-hegemonic
globalization. It involves both ideational and real linkages with international movements. This
movement has brought together activists and campaigners on human rights, ecologists, women’s
rights, children’s rights, pacifists, and many others. It has spawned a series of massive protests in
many parts of the world, and increasing networking in the search for ecologically and socially
responsible development alternatives such as the World Social Forum. A number of Indian groups and
movements are part of this international networking, draw sustenance from it and in turn influence its
course.
78
1937 Privy ruling
79
Jolly George Verghese AIR 1980 SC 470.
80
Supra note 55. As told by former Chief Justice Pattnaik, in a personal discussion.
81
Gramophone Company of India ltd v Birendra Bahadur Pandey, AIR 1984 SC 667
82
Vishaka v. Rajasthan1997 6 SCC 241.
83
Ibid.
84
Municipal Corporation of Delhi v. Female workers 2000 3 SCC 224.
85
Vellore Welfare Forum v. Union of India 1996 5 SCC 647.
86
See, Indian council for Enviro-Legal Action v Union of India (1996) 3 SCC 212 at 247. For a
discussion of this case with reference to Indian tort law, see Michael R Andersson and Anees Ahmed.
“Asessing Environmental Damage under Indian Law”. 5 R.E.C.I.E.L, 1996 , pp.335-341.
87
Education and Research Center v. Union of India. 1995 3 SCC 42.
88
Rural Litigation and Entitlement Kendra v. Union of India. 1985 2 SCC 431.
89
Ashish Kothari and Anuprita Patel. Environment and Human Rights: An Introductory Essay an
Essential Readings. National Human Rights Commission.2006.
90
ILI Former Chief Justice Y.K Sabharwal Talk, Convocation address. Convocation Address on the
occasion of XL Annual Convocation of Indian Law Institute, date. 29.3.2006, New Delhi
91
CII International Conference - STRIKING THE RIGHT BALANCE Law and Sustainable
Development in India's Energy Economy - Role of Judiciary in Striking the Right balance: Evolving
Paradigms of Jurisprudence, date 07.07.2006, New Delhi.
92
Human Rights & The Environment - 10.12.2005
http://www.supremecourtofindia.nic.in/new_links/speach.htm (last visited May 15th, 2007).
124
93
Held in Nepal, June 24-25
th
2004, trained 25 judges in South Asia, by the Forum of Justice of
Nepal.
94
Held in New Delhi, 20-22
nd
January 2006.
95
Supra note, 55.
96
Supra note, 56.
97
Mahesh Rangarajan. “The Politics of Ecology: The Debate on Wildlife and People in India, 1970-
1995.” In Mahesh Rangarajan and Vasant Saberwaal. (Ed.). Battles over Nature: Science and Politics
of Conservation. New Delhi: Permanent Black. 2005. pp. 189-239.
98
Some examples of transnational networking and campaign for human rights protection in India are
tha anti- Narmada movement, the Bhopal campaign against Union Carbide.
99
Michael R. Anderson. 1998. “International Environmental Law in Indian Courts.” 7 RECIEL 1, pp.
21-30.
100
B.S Murty. “International Human Rights Before Indian National Courts.” Andhra Law Times.
Volume CVII, 6, 2000, pp. 1-9.
101
This means that only those provisions of the covenants are accepted which are enforceable in law.
It can be divided into two categories-a) those which overlap with fundamental rights and those in
regard to which implementable legislation has been enacted and b) rights in respect of which there is
no implementing legislation . These can at best be used for interpretational purposes such as the right
to self determination.
102
Upendra Baxi. “The Avatars of Indian Judicial Activism: Explorations in the Geographies of
(In)Justice” in S.K Verma and Kusum eds, Fifty Years of the Supreme Court of India: Its Grasp and
Reach, Oxford University Press.,2000, pg 207.
103
Ibid.
104
Balakrishna Rajagopal. “Limits of Law in Counter-Hegemonic Globalization: The Indian Supreme
Court and the Narmada Valley Struggle.” In Boaventura De Sousa Santos and Cesar A. Rodriguez-
Garavito. Law and Globalization From Below: Towards a Cosmopolitan Legality. Cambridge:
Cambridge University Press.2005, pp. 183-217.
105
See, Carl Baar. “Social Action Litigation in India: The Operations and Limitations of the World’s
Most Active Judiciary. 19 Policy Studies Journal. 1990, pp. 145-150.
106
See, Charles Epp. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative
Perspective. Chicago: University of Chicago Press.1998. Jayanth Krishnan. New Politics, Public
Interest Groups and Legal Strategies in the United States and Beyond. PHD Dissertation. University
of Wisconsin-Madison, 2001.
107
Marc Galanter and Jayanth Krishnan. with Jayanth Krishnan) “‘Bread for the Poor:’ Access to
Justice for the Needy in India,” Hastings Law Journal 55, 2004, pp. 789-834.
108
Ibid.
125
109
Ibid.
110
Supra note 106, Jayanth Krishnan.
111
Ibid.
112
Supra note 56.
113
Supra note 104.
114
Personal Meeting with Usha Ramanathan, January 23
rd
, 2007, 5:30 p.m.
126
Chapter 4
Greening Indian Landscape:
Social and Legal Constructions of Environmental Rights
Environmentalism is not new to the Indian social and legal landscape, colonial and
pre-colonial historiography is replete with accounts of contestations over resources,
conservation practices and pollution- purity norms.
1
Environmental history maps the
diverse relationships shared between people and the natural world in different social
and spatial contexts. The legal construction of environment as rights and duties of
citizens and the framing of the constitutional duty of the state to protect these
entitlements is however, a novel legal approach that began in the 1970’s. In India as
elsewhere, there has been a significant shift towards incorporating green values in
the political space, partly as a response to the global call to protect the environment
2
and partly, as a renewed thinking based on domestic circumstances.
3
Not only were
numerous pieces of environmental legislations enacted, but there was an entire new
corpus of rights issues that developed from judicial and social activism, which gave
legal space to human right to healthy environment.
4
The pro active stance of the
courts and social groups aroused environmental imagination in society, and has
created a process of engaged dialogue with stakeholders on environmental issues
although arguably in the urban landscape.
In this context, this chapter will discuss social perspectives about
environment to outline certain distinctive features of Indian environmentalism and
see how law defends environmental rights. In this chapter, I show that the
interpretations of environmental rights and social prioritization of environmental
127
claims comes from two distinct sources- one modern (scientific and global
perception of environmental standards) and the other traditional (based on local
norms of relationship with nature). The central argument in this chapter is that
environmental rights are based on different layers of law international, national and
customary norms, although more closely it is derived from the Indian Constitution,
on a macro level it reflects a syncretic interaction between the local
5
and global
discourses on human rights and justice.
6
Secondly, social and legal claims to
environmental rights are framed in the syntax of rights and duties and are intricately
linked to livelihood and development rights. This chapter reviews a range of
literature including environmental, historical and legal developments to elucidate the
nature of social and legal claims to environmental rights. It identifies a number of
critical themes that emerge in theorizing about environmental rights in India and the
acceptance of international human rights norms in local setting.
Legal scholars explain the internalization of the environmental dialogue in
terms of a top down straightforward acceptance of international legal norms.
7
On the
contrary, the legal framing of environmental rights is a complex terrain of rights
because the different relations individuals and groups have with the natural world
necessitates a contextual understanding of the environment and rights of people. For
instance biodiversity laws have to be consistent with local dependence on natural
resources for cultural and livelihood needs. Environmental rights are therefore based
on plural framework of norms and laws that draw from international, national and
local settings.
128
The greening of law in India suggests a multifaceted engagement of law and
society to green rights taking into account international norms and the emerging
local contexts. While the scripts of the legal debates are in sync with the larger
cosmopolitan audience as environmental and human right consciousness is created
by the interaction of the local with transnational organizations and international
developments, the nuances of the rights are defined by the historical, social and
cultural context of the local.
8
This, on the one hand, has enabled adaptation of
sophisticated scientific knowledge and rights vocabulary. On the other hand it is
distinctly local and draws on social and cultural mores to determine the specifics of
the claim.
9
Here I will discuss the distinctive characteristic of environmentalism in India,
from a historical and social perspective. Next, I will shift to the judicial arena, to see
how the Supreme Court has interpreted environmental rights. The following section
provides an overview of the perceptions about the environment in Pre-Independent
India.
Conspectus of Green Perceptions in Law and Society:
Even as formal expressions to protect nature and regulate use of resources to ensure
a right to environment are relatively novel, it has a long lineage that can be traced to
pre-colonial and colonial laws and practices.
10
Moral and religious claims to
protection of nature aside,
11
historical scripts suggest the presence of conservation
practices and discussion of human-nature relation and pollution-purity concepts in
laws, be it oral or written. Social commentaries also abound with reference to human
129
and social responsibility to protect the environment, the integral relation of humans
with nature and regulation of human use of products of nature.
Legal accounts define pre-colonial conceptualizations of ecology on the basis
of the Hindu concepts of Dharma and Karma-norms of individual’s responsibility
and action respectively. The precepts of Dharma and Karma, foundational to Hindu,
Buddhist and Jain religions and philosophies, regulate human action, social
responsibility and state practice towards nature.
12
While Dharma demands
responsibility towards humanity and God’s creation, Karma makes humans sensitive
humans to the negative effects of their action. Commonly, the two postulates of
Dharma and Karma constitute a set of duties and actions that hold together the social
and moral fabric of society; they maintain order, build harmony and promote the
general welfare of all living beings.
13
Even if they are religiously ordained concepts,
the duties and actions ascribed by these theories have been foundational to State
policies and constitute the ideological basis of all laws in Hindu society. For
instance, historical commentaries of ancient India suggest that the notion of eco-
stewardship was derived from the Dharmic duties of the king. The king was the
trustee of all resources and hence responsible for the protection of nature.
Commenting on the Mauryan King Ashoka’s edicts on nature protection,
14
the
historian Romilla Thapar has elucidated the centrality of Dhamma (Dharma) to the
Emperor’s policies on the environment and public facilities.
15
Thapar states that
Ashoka’s Dharma aimed to generate an attitude in mind in which social
130
responsibility was considered of great importance. It was a plea to recognize the
dignity of man, and humanistic spirit in the activities of the society.
16
Besides the putative link between Dharma and the environment, historical
literature also suggests the presence of administrative concerns to regulate and
manage environment. Environmental historians Ramachandra Guha and Madhav
Gadgil have identified the presence of environmental management and regulation
principles in the Arthashastra- an ancient political treatise on statecraft.
17
The
Arthashastra describes extensive measures to manage and regulate natural resources
and identifies ecological protection to be an important responsibility of the king.
18
The king is entrusted with the responsibility to acquire and take care of Earth or
Prithvi- which is the source of material wealth of human beings.
19
The text is
detailed in its description of steps to regulate and manage resources such as say a
quantum of punishment for felling of trees in proportion to its utility, to manage
resources.
20
Mary Mc Gee contends that although ecological imperatives were not
eminent, some kind of ecological prudence was exercised, and the state recognized
the religious value of flora and fauna.
21
Additionally, since religion and politics were
not disparate categories, the King’s religious commitments obliged him to take care
of the environment.
Equally, the literature on ecological traditions in India also makes a
distinction between the political and religious approach to environment. Leela
Krishnan has argued that at different stages in history, the religious and political
perspectives on environment have differed.
22
While on one hand, the religious
131
approach ritualized and venerated nature’s ecological importance, on the other hand,
the political class approached nature from a materialist perspective, as a source of
revenue to the state and the people.
23
She argues that even as concern for
environment was present in political practices, it was secondary to the material
pursuits of the King. For instance, the Arthashastra’s focus on regulation of
environment was targeted to enhance the material well being of the empire.
24
Materialist pursuits are prominent through ancient and medieval history.
Further, the putative link between Hindu religious philosophy and
environment is weakened by arguments that point to the presence of diverse
traditions, beliefs and viewpoints- sustained through reference to various Hindu texts
and their interpretations. While certain Hindu traditions and precepts are mobilized
to support environmentally progressive movements such as Chapple’s call for a
Dharmic administrative model, on the other the vast complexities of the texts and
social diversity belie such attempts to evolve a common perception of the
environment.
25
Scholars have critiqued the civilizational ecological consciousness
that has been built on a reified notion of Hinduism.
26
Rather they have drawn
attention to the complexities of India’s geographical and social diversity, variations
within different strands of Hinduism, (such as Advaitya and little traditions,
Vaishnava and Tantric traditions), differential spatial relation of people with their
locales and the disjuncture between Brahmanic and vernacular interpretations.
Sociologists Saberwal et al have pointed to the presence of strong local variations in
practices and attitudes towards environment amongst and between different groups
27
132
and a marked syncretism of belief and practice.
28
This underlines the central position
of this project that the construction of environment in India has multiple
interpretations that builds on local, social and cultural contexts. The social
construction of environment cannot be founded on pure ecological concerns. Rather,
it develops through a plural interplay of various norms based on mainstream
religious values and local customary practices.
Social commentaries also illustrate the complex ways through which people
negotiated with the environment. Religious and cultural injunctions of Hinduism,
Buddhism and local cultural practices (little traditions)
29
provide a system of moral
guidelines and responsibilities towards preservation and conservation of the
environment.
30
Despite these codes, people’s varied linkages with nature for their
support systems and the social sanctions of caste system critically regulated the
usage of resources of nature.
31
Among the adivasis of India the traditions of nature conservation practices
are based on their own cultural tradition and their dependency on the environment
for their livelihood. Anthropological accounts of adivasis in India narrate the integral
relation of human beings and nature, the worship of nature, and the practices of
conservation.
32
Certain aspects of caste also spoke for environment, for example the
concept of pollution and purity associated with structural hierarchy introduced the
semantics of un-cleanliness, impurity. Even so, pollution and purity referred to
impurity at a personal level, the social sanctions that accompanied this dichotomy
privileged certain social practices over others- like vegetarianism- and regulated
133
access to resources through functional divisions in society etc. In caste analysis the
ritual and physical impurity of the lower castes has implications for urban sanitation
regimes even in the twenty-first century.
33
Colonial legal order refashioned many of the local adages. In the field of law
and environment, the transplant of common law system significantly transformed the
Dharmic ecological orientation of law to protect environment and adapted Indian law
to western notions of property and nuisance. This resulted in reform of traditional
community systems- importantly it introduced notions of individual property rights,
the eminent domain of the state, terra nullius and res nullius, tax exaction on use of
resources, appropriation of rivers, wildlife and forests etc. In ways, colonial rule
altered the moral fabric and values towards the environment as indigenous
knowledge of the ecology- codified in vernacular taxonomies, folklore, myths, rituals
that celebrated nature and enjoined the worship of nature were diluted by the
demands of modernity. In the social realm the protection of environmental values
remained an important arena of contest between the elites (British and Indian,
scientific, administrative and social) and locals (typically women, forest dwellers,
adivasis, pastoralist, small farmers etc). Subaltern history offers accounts of contests
over colonization of nature by the British.
34
Local environmental struggles for access
to resources and rights to forests and water were common in this period.
35
These
movements were primarily spurts of activism and did not involve any concerted
strategy towards promoting green values.
134
While the colonial law did not pay much attention to incorporating
environmental protection measures, apart from nuisance laws or conservation for
nature recreation and revenue, the nationalist discourse especially with Mahatma
Gandhi and Jawahar Lal Nehru developed a repertoire of debates on industrialization
and sustainable development. Nehru built an ideology of development supported by
modern science and technology. He believed that scientific temperament was the key
to rational development of nation’s resources.
36
Gandhi propagated a sustainable
model of village republic to revive India’s community based management practices.
The Gandhian ethos enabled linkage with native cultural eco-management practices
and rendered support to local campaigns on environment.
37
This ideological debate
has been instructive in shaping post independent India’s development strategy and
Constitutional goals- Gandhian principles provide directives and idealist positions,
38
Nehruvian thoughts are pursued rigorously by the state. Consequently, constructive
inclusion of the environment was absent in the legal arena of post colonial India until
the recent debates of the late twentieth century that has engaged academics, lawyers
and activists in discourses to green India.
Nature of Indian Environmentalism
There are three main streams of scholarly positions on environmental rights in India-
the first set analyses environmental rights from the perspective of social struggles,
the second builds on Indian cultural values to construct ethical and religious claim to
environmentalism and the third stream of theories focus on activist advocacy of the
Courts to green law in India. The three scholarly traditions highlight different arenas,
135
such as social and religious mobilization and law, and issues through which
environmental rights are forged in India. However, they are not clearly demarcated
ideological spheres and overlap in their interests such as religion and social are never
distinguished in India and religious idioms have been used by social advocates and
even Courts to make a case for environmental protection. One of the best examples,
is the eco-feminist argument in support of the tree hugging (the Chipko) movement
in Northern India which, borrowed from religious values about fertility and power to
venerate mother earth. Legal doctrines rely on religious scriptures such as the
Upanishads and religious icons to underscore the venerated position of environment.
In fact, even though India adopted the common law system from the British,
indigenous legal postulates such as Dharmic law influence juridical thinking. It
constitutes an important segment of legal education on jurisprudence and judges
have relied on Dharmic principles to vindicate their standpoints. The legal
articulation of duties towards the environment, the emphasis on holistic justice,
engagement with society and community orientation demonstrates the Dharmic
influence on law.
Many scholarly works such as of Ramachandra Guha, Madhav Gadgil, and
Vandana Shiva suggest that environmentalism in India is distinctively different from
western assumptions about the ecology. These scholars have classified Indian
environmentalism through binary frameworks of Northern and Southern or Eastern
and Western environmentalism. The approaches draw on social and cultural
meanings to protection of the environment and have demarcated eco-politics through
136
dichotomies of tradition and modernity or indigenous and foreign.
39
Conventional
arguments about the uniqueness of Indian case have been constructed in lines of
cultural values of conservation, symbiotic relation of humans with nature and
people’s livelihood linkages with the natural resources. For instance, Nancy Peluso
argues that the right to natural resource in India is not only a guarantee of state
sanctioned property rights as in the west, but is also influenced by individual’s
ability to draw upon kin networks, labor and capital.
40
Similarly, Ramachandra Guha
has pointed out that western style environmental preservation is inappropriate to
Indian conditions owing to the needs and dependency of the local population on the
environment.
41
He argues that in India there is a huge segment of rural population
that depend on forest resources for basic subsistence such as hunter gather
communities who reside in forests, leaf loaders who live in the fringes of forests,
pastoral communities and hence conservation of environment needs to be inclusive
of human relationships with nature.
This distinctiveness of environmental issues has been further carried forward
in the judicial discussions about greening law. The Court not only recognized a right
to environment but also emphasized the need to adapt the laws to Indian conditions.
Furthermore, the legal means to redress environmental challenges are peculiar to the
social contexts which borrow from its pre-colonial and colonial past. Through the
institutionalization of public interest law, as discussed in the previous chapter, law
advanced from the common law tradition to accommodate international human rights
law. More importantly, what I think is particularly interesting about this perspective
137
is its linkage with traditional legal postulates. Hence even in law, there are elements
that are modern, even though customary norms remain important.
While the theoretical positions about the environmental law subscribe to
modern day social realities, this understanding is not independent of historical
positions. For instance, livelihood and subsistence practice of simpler communities
are related to generations of economic practice and their relation to law. This I
believe is distinctive of Indian environmentalism that accommodates various
interests and is plural in nature. Unlike many other places, both in law and society,
historical traditions are important that show continuity and discontinuities.
Green Frameworks: Deliberations on Environmentalism
Commentaries on environmental movements have approached green politics from
the frameworks of political and spiritual ecology models.
42
Subir Sinha etalli
describe it as the new traditionalist framework as they mobilize a version of the past
as a template for alternative development policy.
43
The two approaches represent the
dominant framework for analyzing Indian environmentalism, and enable a social
understanding of the environment.
44
The political ecology framework analyzes environmental activism as
subaltern resistance to the state led development projects and elite interests. They
focus on rural issues specifically access to forest and water resources.
45
The
supporters of this approach believe that the traditional or pre-colonial society was
marked by harmonious social relationships and ecologically sensitive resource use
practices. They affirm the traditional communitarian basis of society, subsistence
138
traditional agriculture and give central role to women, forest-dwellers and peasants
as keepers of conservationist ethic. They blame colonialism, modernity and
development for the degradation of nature and valorize pre-colonial social settings.
The gurus of the political ecology model, Madhav Gadgil and Ramachandra
Guha, have characterized environmental conflict in India as a contest between the
vicious state and the rural peasantry.
46
They have suggested that Indian society is
fissured on ecological lines and have divided the population into three categories
omnivores, ecosystem people and ecological refugees.
47
The omnivores represent the
urban upper caste- mainly middle class Indians who follow the development models
of the west. They are interested in enjoying material comforts and gains of
development. The ecosystem people represent rural people who are not active
participants in the industrial paradigm. Their main concern remains access to arable
land and water. And third are the ecological refugees who represent the internally
displaced people. Patrick Peritore offers a typology of ecological advocates 1)
Greens who emphasize respect for traditional ways of knowing, 2) Ecodevelopers,
who advocate responsible programs for economic growth and 3) Managers, who give
priority to human needs and rational management of environmental processes.
48
This
tradition makes a case for environmentalism through the integration of rights and
justice claims. It redresses injustices in the distribution of resources and gives
priority to the subsistence needs of the poor. These expositions have contributed
significantly to an understanding of how human nature relations have been
articulated in India. However, their thesis of social relation to nature is limited as it
139
relies on homogeneous constructs of social groups. Conversely, as anthropological
studies show, social groups vary in their characteristics throughout India. Mostly,
groups define their identity through relationship with the locale.
49
The spiritual ecology model differs in so far as it valorizes pre-colonial
cultural notion of sacredness of nature to protect the environment.
50
There are a
number of views on resurrection of religious and cultural notions to protect the
environment. Some scholars such as Christopher Key Chapple, Mary Mc Gee, O. P
Dwivedi, P. Sheshadri have argued that the philosophical basis of Hindu religious
traditions be used to create social responsibility for the environment, which Chapple
calls the ‘Dharmic administrative’ model.
51
They believe that historical texts and
religious precepts can contribute to the cultivation of responsible stewardship of the
environment by the state. Another alternative view comes from Vandana Shiva, who
uses culture to examine the nature of environmental struggle in India. Her position is
that environmental struggles are based on Hindu ethics of centrality of nature and are
consequently anchored in a civilizational critique of Judaeo-Christian values of
mastery of nature.
52
She celebrates tradition over the modern and provides a critique
of the developmental policies of the state which she argues to be against Indian
cultural notion of living in harmony with nature.
53
Her contention is that the
knowledge generated through the scientific discourse of development privileges
western modes of knowledge and rationality and consequently overlooks non-
western realities. Like the political ecology frameworks, this approach focuses on the
agency of rural people, women and forest dwellers, often overlooked in official
140
discourse on development.
54
The support for this theory is based on the great
traditions of Hinduism.
55
This image of environmentalism has been made very popular through the
depiction of the Chipko movement, as indigenous mobilization against unsustainable
development. The alternative suggested by the spiritual ecology model resuscitates
the Vedic and Hindu pasts as a desirable model for environmental relations. Shiva
states that in the traditional Hindu order, women and nature were linked
cosmologically at the level of everyday practice. She uses classical Hindu scriptures
and idioms of Shakti and Prakriti
56
to establish the power, fertility and initiative,
which she sees as traditional attributes of women in society and their relation to the
ecology.
While cultural traditions and practices play a critical role in framing
environmental rights, the reification of religion and values remains an important
challenge. Sociological studies have shown that Hinduism is diverse, it is regionally
defined and very few of its characteristics have an all India character. This limits the
capacity of the approach to attend to the sub-national contexts. First, the ecofeminist
and spiritual generalizations focus on the brahmanic traditions and not as much on
forest dwelling communities, little traditions and practices of indigenous groups.
Hence it is exclusive of all other caste and adivasi groups. Anthropological works
have underscored local practices of conservation such as sacred groves and
indigenous cultivation methods that restore soil fertility, which are not necessarily
linked to Hindu practices. Further, the celebration of women-nature relation is
141
oblivious to women’s location within relations of power, the social determinants
within which women produce and the multiple interests in resource use.
Subir Sinha et al argue that the traditionalist model is unacceptable because
of the implications for social relations, the distribution of benefits from resource use
and ecological sustainability.
57
This model although questions the economic model
of the state such as state appropriation of resources and western models of
development, it fails to address the prevailing social inequalities, for example,
gender and caste discrimination. Rather they demand an eco socialist project that will
facilitate equitable resource use, the participation of women and subordinate classes
and castes in local institutions of resource use and the decentralized, democratic and
collective local control over state institutions for resource use. Another scholar
Haipriya Rangan shows that the options of environmental protection in India are
based on local environmental constraints and social conditions which are different
from traditionalist conceptualizations of people against state.
58
According to Rangan,
in practice material concerns, livelihood needs and cultural perception of relationship
with nature are more central to how various groups approach the issue of rights,
duties and responsibilities toward nature.
59
In the north Indian state of Uttaranchal,
home to the famous Chipko movement, Rangan has shown through her fieldwork
that very few people associate with the romantic notions of nature and are more
concerned with their livelihood needs such as collecting wood for fuel and fodder
and economic ventures. This is most visible among the younger generation, who felt
that the environmentalist creation of the Garhwaal hills had led to loss of economic
142
enterprise. This province has very high literacy but low employment and there are
very few industries. Rangan argues that the visions of romance with nature are
irrelevant in the local context where the issue of forestation is a contest between the
state forces and locals over issues of livelihood.
60
In my field visits to community owned forests in the South Eastern state of
Orissa,
61
I found that intense community rivalry between the caste and adivasi
groups
62
over ownership of forests and people’s orientation of forests was linked to
how forests were tied in to their livelihood and cultural interests, i.e., material
interests of caste-based groups versus the livelihood and cultural interests of adivasi
villages. The adivasis defined their interest in protecting forests for its critical
importance to their ways of living and their livelihood needs- sacred groves were
carved out within forest areas
63
and the women force of the community kept
vigilance of the community forests so as to have control over produce from the
forest- mainly minor forest products like tendu leaves which they sell in local
markets.
Some of the locals with whom I spoke mentioned that the movement to
protect community forests in this area began in the 1980’s when they realized they
had experienced a loss of resources due to timber logging. Relentless timber logging
in the region in the seventies and eighties lessened the forest cover. What was left
was only their preserved area of trees, the sacred groves, which they called Jahira, a
small patch of land that had some old trees protected for generations.
64
The depletion
of forest cover and the consequent threat to their livelihoods generated community
143
consciousness to recover their lost resource and to devise mechanisms to guard the
forests. This did have cultural connotations as they distinguished their livelihood
interests in forests from caste villager’s interests. Among the adivasis in the village,
the labor distribution required women to oversee the community’s forests. The
responsibility was tied in to their dependency on forests for their material needs (as
the main source of living was the collection of Tendu leaves) and the set of everyday
duties they needed to perform such as collection of fuel wood. Women were not only
embedded entities of nature but embedded in their social and gender roles. In
Rasgovindpur, the adivasis described women as forest guards whose role was to
prevent accusations from neighboring caste villagers of abuse by adivasi men. The
Indian environmental history scholars provide accounts about the presence of
community differentiated practices of forest use in other parts of India as well;
Hardiman has highlighted some examples in Southern Gujarat in the Dang region
65
and Kelkar and Nathan
66
have shown similar differences in Jharkhand.
In addition, unlike the discussion of traditional framings of green issues
focusing mostly on rural issues such as forest, land and livelihood rights, there is
another debate that centers on urban environmental concerns. This debate in
literature relates environmental consciousness to the rise of middle class. Emma
Mawsdley’s study approaches the issue of green claims primarily from the
perspective of the rise of the Indian Middle Class and its global and urbane
aspirations.
67
She argues that the middle class disproportionately shapes the terms of
the public debate on environment- reflected in place specific debates like urban
144
pollution issues or in institutional culture- because of their strong representation in
the media, courts, bureaucracy, NGO’s, scientific community etc. Mawsdley points
out that the middle class’s participation in ecological issues is embedded in specific
cultural conditions, which adds to the uniqueness of Indian environmentalism. For
instance, the revival of Hindu cultural values is to promote environmentalism by the
middle class.
Contrary to the dualisms of environmental framing some scholars have
argued that environmentalism in India is emerging that builds on multiple struggles
based on both local and cosmopolitan values. The emerging environmental
framework counteracts the common perspectives that portray developing societies in
a north-south binary analysis
68
or in dualisms of Eastern and Western culture,
69
not
to deny that the nature of green issues and politics in India is distinctive to its culture
and social milieu. Unlike conventional analysis of environmental movements that
focus on subaltern struggles to resource use
70
or those that romanticize people’s
harmonic relation with nature,
71
the present form of environmentalism in India is
represented by diverse struggles over green issues or sustainable natural use, of
which only some are identified as environmental. Baviskar in her various writings on
cultural practices relating to the environment such as in the case of forest
management, urban pollution and the Narmada dam has highlighted how cultural
practices over environmental issues are diverse and multifaceted, laced with many
other issues. She has argued that the nature of recent environmental struggles defies
both the political and spiritual ecology frames of interpretation. Taking the example
145
of the Delhi Pollution Case, she has shown that the vicious state agent thesis does not
hold as the State agency does not facilitate capitalists venture but works with an
array of actors like scientists, middle class citizenry and Ngo’s to improve the city’s
environment.
This places the Indian legal culture uniquely in its defense of environmental
rights as acceptance of green values are based on balancing various interest of
people, which draws from historical, cultural and social contexts. The main reason
for the multiple scripts of green rights is because issues of environment are rarely
independent of social and cultural demands of livelihood. Therefore, even the
difference between green and non green rights issues are rarely demarcated in law.
The case of the Narmada dam controversy illustrates this most explicitly. In the
proceedings of the litigation, the case for the protection of the environment in light of
construction of the dam was overlooked by other issues of development, livelihood,
rights of displaced and rehabilitation issues. Environmental loss of the region to be
submerged by the dam was never isolated from questions of livelihood and social
displacement. Additionally the contestations over green issues in India are largely
framed in terms of local issues and international environmental issues are not part of
mainstream activism. Apart from occasional media reporting of environmental
campaigns, there are no discussions about global environmental problems.
The next section explores how the theoretical deliberations about
environmentalism translate in law. Here I will analyze the legal basis of
environmental rights in India and see how in law, these various frameworks of
146
political and spiritual ecology are teased out. The following sections will discuss the
legal status of environmental rights in India. I will particularly reflect on the legal
and social acceptance of environmental rights in India and the factors that influence
the legalization of this right/duty.
Legal Space to Environmental Human Rights
The legal incorporation of the environment as a right and duty in India developed
only in the 1970’s after the Constitutional Amendments and gained popularity after
the 1980’s when the courts used constitutional law to protect people’s environmental
rights. Constitutional and legal reforms since then reckon a legal space to
environmental rights and duties. Social activism and transnational activism in this
period have reinvigorated the debate further; subsequently this has led to an engaged
discourse of law and society to green the landscape. Although the right is new to the
legal domain, legal and social interpretations of environmental rights resonate with
earlier concerns of relation between individuals, groups and nature and seek to
balance various interests that collide or converge on the issue of environment.
The following section provides a background to the emerging right to
environment in India.
Trajectory of Environmental Rights
Background
The legal recognition to green rights in India is widely recognized to have been
influenced by 1) international initiatives such as the Stockholm conference, emerging
human rights norms and transnational activism and 2) changes in the domestic
147
scenario subsequent to the national emergency of 1975-77 and the Bhopal Industrial
disaster of 1984.
72
These important developments have led to the inclusion of
environmental rights in Indian law.
The legal initiative to include the environment ostensibly began in 1971,
when the United Nations requested that India prepare a report on the state of the
country’s ecosystem for the Stockholm conference on Human Environments. In the
words of Justice B.N Kirpal, a former Justice of the Indian Supreme Court, “it is
possible to suggest with conviction that the beginnings of Indian environmental law
were sown at the United Nations Conference on the Human Environment held at
Stockholm in 1972.”
73
His contention is that it was only in the post Stockholm phase
that a number of laws were passed recognizing the need for environmental quality,
prior to which Indian environmental law mainly consisted of claims made against
tortuous actions such as nuisance or negligence.
Following the conference, the debate for environmental protection intensified
among scientists, policy makers, social activists etc and environmental projects were
keenly studied in India. Post Stockholm, a number of initiatives by the government
reoriented Indian laws to consider environmental issues mainly the establishment in
1972 of the National Committee on Environmental Planning to oversee the
formulation of environmental policies, Wild Life Protection Act,
74
policies to control
water
75
and air pollution,
76
and the creation of Department of Environment and
Ministry of Environment and Forest.
77
Further, since the 1980’s judicial doctrines
have incorporated international environmental norms and soft law instruments such
148
as Stockholm and Rio declarations to develop a broad corpus of rights to
environment.
78
The courts have acknowledged the right to environment as a
constituent of the right to life. Case law and social contestations on environmental
issues have underscored many international environmental principles such as
Polluter Pays Principle, Rights of Future Generations, Precautionary Principle and
linked environment and human rights issues. They reflect incorporation of
international concerns on environment into law and policy in India.
The domestic political context in India also served as fertile ground for the
acceptance of new environmental values and social activism in the 1970’s. The
1970’s were a critical period in Indian politics, marked by the appearance of
authoritarian and democratic forces. While the early 1970’s defined the retreat of
democracy leading to the imposition of national emergency (1975-77) by the ruling
regime to check the rise of opposition politics,
79
the late 70’s signaled the rise of
democratic forces, seen in the first ever opposition government coming to power,
increased social mobilization and an activist judiciary. Reacting to the national
emergency of 1975, various agencies enhanced their capacity to curtail executive
excesses. This period is unequivocally claimed as the democratic moment of post
independent India’s politics.
After the emergency and the 1977 elections, there was an ideological shift in
the Supreme Court’s position from deference to the executive to that of
independence from the executive.
80
The public image of the Court had been
tarnished during the emergency for its support to the executive, in its ruling in the
149
A.D.M Jabalpur V. Shivkant Shukla,
81
supporting executive curtailment of life and
liberty of citizen’s. The post emergency Court thereafter worked on rebuilding the
legitimacy of the institution. For instance, in Mumbai Kamgar Sabha v. Abdulbhai,
the Court stated that law should reach the people rather than requiring people to
reach law.
82
Justice Krishna Iyer in his ruling said that:
Test Litigation, representative actions, pro bono publico and like broadened
forms of legal proceedings are in keeping with the current accent on justice to
the common man.
83
Greening of Rights in Law and Society
In the Constitution:
The Constitution of India as adopted in 1950 neither included any provisions
concerning the environment or nature conservation, nor was there any debate on
environmental protection in the Constituent Assembly debates. The only support for
environmental issues could be derived from the ideological basis of the Constitution
(based on welfare and social justice), the emphasis on the equal distribution of
resources and the guarantee of access of all to resources. Presumably, environmental
problems were not perceived as crucial by the framers of the Constitution. The legal
recognition of the need to protect the environment was first introduced by the forty
second amendment of the Constitution.
84
The 42
nd
Amendment of the Constitution was introduced during the National
Emergency declared by the Indira Gandhi government. Even though the
amendment’s primary intent remained to curtail the power of the judiciary, the
Objects and Reasons of the Amendment Bill specified that it aimed to spell out
expressively the high ideals of socialism, secularism, integrity of the nation and to
150
give precedence to Directive Principles of State Policy over Fundamental Rights.
85
The prime intent remained maintenance of law, order and stability as expressed by
Indira Gandhi in her speech to the Parliament- the bill is responsive to the aspirations
of the people and reflects the realities of the present time and the future.
86
In order to
dilute the many controversial aspects, the bill introduced some generally supported
provisions acceptable to all parties in the legislature and this included specific
provisions to protect the environment-forests and wildlife (in Part IV- Directive
Principles of the State Policy
87
– and List III – The Concurrent List – of the Seventh
Schedule of the Constitution
88
). The Constitution amendment also included a list of
fundamental duties, Article 51-A, in the Constitution.
89
The Constitution, as
amended, stipulated that it shall be the duty of every citizen of India – to protect and
improve the natural environment including forests, lakes, rivers and wild life, and to
have compassion for living creatures.
While, the amendment fueled environmental imagination by giving a legal
space to environmental rights, it took away environmental human rights by curtailing
individual’s right to seek redress for violation of rights. It limited the high
courts/judiciary from issuing orders relating to stay any work or project of public
utility. It also restricted the domain of the rights by denying the right to constitutional
remedies available to citizens. However, the restrictions on fundamental rights were
repealed in the forty-fourth amendment in 1978. This has enabled a series of
protections for the environment, as a duty, responsibility and basic right of
151
individuals and groups. The constitution calls on the State to endeavor to protect the
environment and also citizens to bear their responsibility to protect the eco system.
While the law has been proactive in interpreting fundamental rights, as
pointed out by some groups for example, Foundation for Ecological Security, Legal
Action for Wildlife and Environment, Kalpavriksh and others the Constitution is
deficient from a human rights perspective. It does not explicitly provide for the
citizen’s right to a clean and safe environment. In a recent submission to the
Committee set up to review the Constitution (in 2001), these groups have proposed a
number of amendments to the Constitution, for ensuring environment protection and
nature conservation.
90
These include:
1. Recognition and incorporation of Environmental Rights as separate and
independent Fundamental Rights in the Constitution of India. These follow from the
above-mentioned interpretation to the term ‘Right to Life’, as given by the Supreme
Court. This could be further specified to include right to clean drinking water, and to
a clean and pollution-free environment.
2. Replacement, in the Directive Principles of State Policy, of the term ‘forest’ by the
term ‘life supporting natural ecosystems’. The reason for this suggestion is that the
Courts and other authorities, including the forest departments, have been interpreting
the term forest to mean land with trees (land which have extensive green cover,
particularly timber forests). As a result, land without extensive hard wood cover but
ecologically sensitive zones such as grasslands, deserts, marshes, mangrove, etc are
152
not considered as a forest and there is a lack of interest in protecting these types of
land.
3. Incorporation, within the Fundamental Duties, the responsibility of panchayats
91
and municipalities to give due regard to ecological aspects and to protect the
environment, including life supporting natural ecosystems such as forests, rivers and
lakes, and wild life, in the preparation of plans for economic development and social
justice. This would also necessitate incorporation, into the Eleventh Schedule
relating to the Panchayats, an item for “protection of the environment and the
promotion of ecological aspects”.
4. Empowerment, under the Constitution, to the Supreme Court and the High Courts,
to grant compensation for the breach of the Fundamental Right guaranteed under
Article 21 of the Constitution. This is because currently this right can only be
enforced against the ‘State’, as defined in Article 12 of the Constitution, and cannot
be held against private parties. As a result, the Courts are unable to protect the right
to life of a person qua a private party and gross violations of this fundamental right
to life cannot be remedied by the Courts in exercise of its writ jurisdiction under
Article 32 or Article 226 of the Constitution. The aggrieved person is required to file
a suit for damages in a civil court, which is time consuming and even counter
productive in relation to the very right guaranteed by the Constitution.
In the Courts
Another major development in the legalization of the rights to environment has been
the judicial activism of the Indian Court. In the post emergency years, empowered by
153
the 44
th
amendment, the judiciary adopted a broad mandate to interpret rights,
especially the Court’s liberal interpretation of the right to life gave a legal space to
many of the human rights. This has created a legal right to environment in India.
While in Europe and the US, as discussed in chapter 2, environmental rights are
based on property rights or are of regulatory nature, respectively, in India judicial
recognition of the right to environment is derived from the interpretation of the right
to life in the Constitution and from the set of duties of individuals and the State
towards the environment. This has made the Indian law distinct from its common
law past as it integrates rights and duties to redress issues of justice and makes
important advances from tort based laws.
As early as 1981, the Court in Francis Coralie Mullin v. Union Territory,
92
held that
The right to life includes the right to live with human dignity and all that goes
along with it, namely the bare necessaries of life such as adequate nutrition,
clothing and shelter….
93
The Court’s willingness to interpret the right to life in a broad manner and an earlier
judgment in S.P Gupta v. the Union of India that structurally altered the rules of
standing to allow public interest litigations substantially allowed legal space to rights
based claims.
94
Following the Bhopal disaster many social activists advanced claims to
environmental rights, such as an environmental lawyer, Mr. M.C Mehta, filed a
series of writs against industrial pollution and failure of state responsibility to
provide healthy environment to its citizens. Judicial rulings of this period have acted
154
in social concerns and created an entire corpus of laws to protect citizens’ rights in
case of pollution, protection of natural resources and enabled access to resources in
an equitable manner- inclusive of cross generational interests. In M. C. Mehta v.
Union of India
95
, the Supreme Court held that life, public health and ecology have
priority over unemployment and loss of revenue. This is a significant change from
common law positions where public nuisance was balanced with property and
economic interests.
In another case Shanti Star Builders v. Narayan Totame
96
the Supreme Court
held that the right to life is guaranteed in a civilized society and the ambit of the right
includes within its sweep the right to food, the right to clothing, the right to decent
environment and a reasonable accommodation to live in.
97
In Subhash Kumar v.
State. of Bihar
98
, the Supreme Court held that the right to life is a fundamental right
under Art. 21 of the Constitution and it includes the right to enjoyment of pollution
free water and air for full enjoyment of life. If anything endangers or impairs that
quality of life in derogation of laws a citizen has recourse to Art.32 of the
Constitution for removing the pollution of water or air which may be detrimental to
life. In M. C. Mehta v. Union of India & Ors. (the Oleum Gas Leak case), the
Supreme Court established a new concept of managerial liability – ‘absolute and
non-delegable’ – for disasters arising from the storage of or use of hazardous
materials from their factories.
99
The enterprise must ensure that no harm results to
anyone irrespective of the fact that it was negligent or not.
100
In the Indian Council of
Enviro-Legal Action v. Union of India (the Bichhri pollution case), following the
155
decision in the Oleum Gas leak case and based on the polluter pays principle, the
polluting industries were directed to compensate for the harm caused by them to the
villagers in the affected areas, specially to the soil and to the underground water. The
Supreme Court held that even so industries are vital for the country’s development,
they are responsible for the ecological destruction. The Court used the ‘Polluter Pays
Principle’ to hold the industry absolutely liable for harm to the environment. The
polluter is liable to pay the cost to the individual sufferers as well as the cost of
reversing the damage to the environment. Enunciating the doctrine of ‘Public Trust’
in M. C. Mehta v. Kamal Nath the Supreme Court held that resources such as air, sea,
waters and the forests have such a great importance to the people as a whole that by
leasing ecologically fragile land to the Motel management, the State Government
had committed a serious breach of public trust.
101
Such wide interpretations of Article 21 by the Supreme Court have over the
years become the bedrock of environmental jurisprudence, and have served the cause
of protection of India’s environment and of livelihoods based on the natural
environment. See table 4.1 Environmental Litigations in the Supreme Court.
156
Table 4.1 Environmental Litigations in the Supreme Court
Issues Cases Case History Stakeholders Losers
Pollution
Disputes
Ganga Pollution
cases, 1985, 1985
Pollution of
river Ganga-
treated as a
Class action.
Courts checked
industries from
discharging
effluents into
river Ganga.
Urban
people. Also
hindu
pilgrims.
Industries
Industries-
Kanpur
Tanneries and
Calcutta
Tanneries.
Air Pollution Stone Quarrying-
Dehradun Valley
case 1985
Preserving Taj
Mahal, writ
petition filed in
1994
Vehicular Pollution
Ecological
concern was the
devastation of
forests,
landslides and
impact of
quarrying on
hydrological
system.
Damage caused
by refineries.
M. C Mehta
case, Check
vehicular
Pollution.
Public
Transport to
use CNG fuel
Urban
People.
Urban-
middle class
Urban
Middle Class
Industries
Industry
Bus Drivers
Transportation
Industry
Forests Dehradun Valley
Litigation:
T,N Godavaran
Thirumulkpad V
Union of India
Against Timber
logging
Both cases
again
represent a
general
concern to
conserving
Biodiversity
Timber
industries
Adivasis who
logged
Timber.
157
Table 4.1 Continued
Biodiversity Parks Urban
people-
mainly since
it was a
recreation
avenue also
Adivasi rights
curtailed to an
extent
Infrastructural
Projects
Silent valley
Tehri Case
Narmada Case
Konkan Railway
Courts did not
interfere. They
deferred it to
the
government.
The latter two
projects got the
green signal.
The Courts
allowed the
construction of
the dam for
developmental
reasons.
Urban People
Urban and
rural elites
are
beneficiaries
Ecology
Adivasis
Social Context
Social activism in India grew primarily in the post emergency years, following the
emergency in India, newer issues were raised and a new social campaign emerged.
The context for social activism has been due to both domestic and international
developments. Charles Epp notes that by the seventies, intellectuals and middle class
students became increasingly disenchanted with the Indian government’s failure to
improve the lives of the poorest classes as well as the government’s increasing use of
repression.
102
Many segments of people also believed that the conventional political
parties were failing to address the economic and social problems. Indira Gandhi’s
consolidation of power and centralization of policies, resulted in the rise of
158
oppositional political groups to protest against the deterioration of democracy.
Alongside many new groups were also formed that examined social issues-
especially critical was the Jai Prakash movement and left based movements that took
up the social cause and built a critique of the Emergency.
Typical to this phase of social activism was a change in social values as well.
In regards to environmental issues, on the one hand there was a shift towards the
transnational discourse on human rights, fostered by the increasing transnational
networks as seen in the Narmada and Bhopal campaign. On the other, there was a
focus on developmental values, largely spurred by the rise of the urban middle
class.
103
Middle class articulation of welfare, environmental health and concern for
nature shaped the articulation of the public interest in India.
104
Environmental
historiography of India largely projected as that of spiritual ecology and political
ecology, had a third variant added to it, which is middle class- cosmopolitan and
urban- environmentalism defined by middle class concerns for better cities and urban
amenities.
105
The rise of the urban environmentalism had two specific impacts, one it
enabled the acceptance of cosmopolitan debates because of increased
communications and second, typical to India, it resulted in Hindu revivalism. Hindu
fundamentalist organizations, which draw their support base from the middle class,
used Hindu cultural idioms to build support for nature.
The social framing of environmental issues is, however, not consistent. Social
groups divided by class, caste, gender and religion relate to environment and
development differently. These differences have generated contested meanings;
159
created new political structures and alignments through which social groups aim to
recover the imagined promise of development and welfare. There are arrays of social
groups working on environment related issues in India- though some are clearly
green organizations, others are social organizations that deal with environmental
issues. N. Patrick Peritore mentions the presence of about 950 organizations in India
in 1993, this number has been way exceeded in the twenty first century.
106
Most of
the groups are involved in local movement campaigns against the state. The work of
these NGO’s has created a corpus of critique on human interventions in ecology and
water governance. They have varied positions on ecological issues and form a
network of opposition against the government.
The profile of non governmental organization’s working on green issues
shows diverse interests and focus, not only in terms of issues but also strategies.
Profile of leading NGO’s in India can be categorized on the basis of ideological
commitments- pure conservationist such the Bombay Natural History Society,
founded in 1883, the Ashoka Trust for Research in Ecology and the Environment
(Atree founded in 1996). Second, those who have built social and scientific research
to studying environment- like the Center for Science and Environment founded in
1980, Vandana Shiva’s RFSTSE and Kalpavriksh. Third, there are groups of lawyers
who have approached the Court to litigate on environmental matters. M.C Mehta is
one of India’s leading environmental activist- the recipient of the Goldman prize for
his contribution to the environment among others. Mehta is a lawyer and leader of
Indian Council for Environmental Legal Action (ICELA), a group which regularly
160
uses litigation as its primary tactic when pursuing its public policy goals. The
group’s activities revolve around Mehta’s litigations and charismatic skills of
pursuing the court. Some of the prominent environmental victories of the
organization include- Delhi pollution and Ganga pollution cases, and the Taj
trapezium cases. Many social activists that I spoke to during the course of my field
visit confirmed Mehta’s important contribution to environmental law making in
India. PILSARC is another organization that has litigated on environmental issues-
established in 1987 with funding from FORD foundation and is led by Supreme
Court Lawyer Rajeev Dhavan. The idea to create PILSARC came from several
public interest lawyers both within and outside India such as legal scholar Marc
Galanter, who has played an important role in the formation of PILSARC. Fourth,
are justice based social groups for instance the Narmada Bachao Andolan, Anti-
Tehri campaign, Kshatkari Sangathan, PUCL( People’s Union for Civil Liberties)
and PUDR (People’s Union for Democratic Rights) are social organizations that
have litigated on environmental issues.
Broadly the various social interests represented in mainstream social debates
can be classified as follows-
• Wild life enthusiasts, nature lovers (recreation) and conservationists. They
often subscribe to preservationist models of nature conservation. They
maintain that people and wildlife cannot coexist- although in recent times
some have accepted a participatory approach to wildlife conservation. Some
organizations that work on this model are the BNHS (Bombay Natural
History Society that was founded in 1833), Sane, Kalpavriksh.
• Urban Campaigners Their concerns focus on healthy environment in urban
areas. Some examples are Delhi based Tata Energy Research Institute, Center
for Science and Environment, M.C Mehta Foundation, etc.
161
• NGO’s. They signify a range of organizations from diverse ideological bases-
Gandhian, left, scientists, religious etc. Some work with the government and
some depend on foreign funding.
• Media. It again is not a homogeneous entity. Among the four leading national
dailies- the Hindu has adopted a people’s/subaltern perspective and has
reported most environmental cases others like the Times of India, Hindustan
Times and Indian Express have been selective and are more urban and middle
class in their orientation.
• Scientists. In recent times there has been engagement with the scientific
community by law.
• International environmental clubs. These are represented by pro-
conservation clubs such as Green Peace and WWF. They probably have a
middle class constituency.
• Environmental Livelihood Movements- Adivasis and farmers movements.
There are two tiers of activists- one that has an urban base and campaigns for
adivasi and rural issues through networks with local movements and other
represents local movements
• Scheduled Caste. They vary on their position and are locale based.
• Developments Supporters are primarily represented by urbane groups.
This chapter has analyzed how social and legal forces have incorporated
environmental rights. I show that environmental understanding in India has made
some significant departures from traditional frameworks and is moving towards a
cosmopolitan framework. This is particularly notable in how law and society have
accepted international standards. Yet, the understanding of environment is not
independent of the social and cultural contexts as people’s relationship to the natural
world is central to legal and social perceptions about human rights to environment.
Hence the legal construction of the right to environment in India is best protected
through a plural framework that balances the various contesting interests through the
interplay of laws.
162
Chapter 4 Endnotes
1
There are varied approaches to conservation in India that range from cultural practices of protection
of nature, resistance to state appropriation of resources, social norms of regulating resource use etc.
Pollution and purity norms prevailed in the caste analysis in which caste norms sanctioned lower
castes from using resources since they were considered to be polluting. Also the daily life of a Hindu,
as prescribed in religious texts demanded distancing from pollution, which often times involved
cleansing of oneself and one’s house irrespective of the surroundings. In an ethnographic study of the
Hindus of the Himalayas, Berreman notes that the upper castes- though not a coordinated group
themselves control the lower castes in all matters. Important privileges are granted to upper castes and
denied from lower castes. See, Gerald D Berreman. Hindus of the Himalayas: Ethnography and
Change. Delhi: Oxford University Press, 1997. For a discussion of pollution and caste in India, see,
Alan Dundes. Two Tales of Crow and Sparrow: A Freudian Folkloristic Essay on Caste and
Untouchability. Lanham: Rowman & Littlefield Publishers, Inc, 1997. It provides an interesting
analysis of caste practice in India from the perspective of folklores. See also, Nicholas B. Dirk. Castes
of Mind. Colonialism and the Making of Modern India. Princeton and Oxford. Princeton University
Press, 2001. M.N Srinivas. India: Social Structure. South Asia Books, 1986. Louis Dumont. Homo
Hierarchicus: The Caste System and its Implications. Translated by Mark Sainsbury et al. Chicago:
University of Chicago Press, 1980.
2
Transnational action to protect the environment has a number of domestic impacts- it has led to
newer environmental regulations, opened up domestic institutions to different standards, on the social
front, it has resulted in greater consciousness of rights and even led to networking to protect these
rights.
3
The 1970’s has been a crucial period of Indian democratization. One, politically this period is
notable for the declaration of national emergency (1975-1977) and increased democratization in
reaction to the authoritarian politics. A number of new social movements emerged and it led to greater
sensitization of rights. The Judiciary in the later part of the 1970’s became an active player in politics
and introduced many changes to facilitate justice.
4
The judicial apparatus is believed to have charted out new horizons of environmental justice in
India. See V.R Krishna Iyer.“Judicial Remedies.” The Hindu Daily (New Delhi Edition) 17
th
August
at 21, 1999. Ashok Desai. Environmental Jurisprudence. Allahabad: Modern Law House, 2002. C. M
Jariwala. “The Directions of Environmental Justice: An Overview.” In S.K Verma and Kusum. Fifty
Years of The Supreme Court of India: Its Grasp and Reach. Indian Law Institute. Oxford University
Press. 2000, pp. 469-494. Harish Salve. “Justice Between Generations: Environment and Social
Justice.” In B.N Kirpal et al Supreme But not Infallible: Essays in Honor of the Supreme Court of
India. New Delhi: Oxford. 2000, pp. 360-381.
5
The local in this context refers to the site of contest.
6
For a discussion of Indian traditions, see Amartya Sen. The Argumentative Indian: Writings on
Indian Culture, History and Identity. England: Penguin Books, 2005. See also, James G. Speth. (Ed.).
Worlds Apart: Globalization and the Environment. Washington D.C: Island Press, 2003.
7
In literature, the legalization of environmental right in India is widely celebrated. It is commonly
believed that the Courts and society have actively incorporated human rights norms and
environmental law. See, Janelle P. Eurick. "The Constitutional Right to a Health Environment:
Enforcing Environmental Protection through State and Federal Constitutions." International Legal
Perspective 11, 2001, pp. 185-216. Also see, Joanna Razzaque. “Human Rights and the Environment:
Developments at the National Level, South Asia and Africa.” Joint UNEP-OHCHR Expert Seminar
163
on Human Rights and the Environment. Background Paper No.4, 2002, Geneva. (last visited June 22,
2006).
8
Balakrishnan Rajagopal. “Limits of Law in Counter-Hegemonic Globalization: The Indian Supreme
Court and the Narmada Valley Struggle.” In Boaventura De Sousa Santos and Cesar A. Rodriguez-
Garavito. Law and Globalization From Below: Towards a Cosmopolitan Legality. Cambridge:
Cambridge University Press, 2005, pp. 183-217.
9
Unlike notions of global, which in a loose sense is a rather homogeneous terrain, the concept of local
varies from a village, to a city, to a regional unit to nation state. See Robert P Weller. Discovering
Nature. Cambridge, New York: Cambridge University Press.2006, p.8.
10
Chiba Masaji has argued that preexisting legal postulates remain active participant in the current
process of law making. See, Chiba, Masaji “Introduction.” In Chiba Masaji (Ed.) Asian Indigenous
Law: Interaction with Received Law. London: KPI, pp. 1-12.
11
Across societies, construction of nature is based on moral and religious claims. In India, there is a
rich tradition of literature that draws from the cultural practices of Hinduism, Buddhism and local
indigenous practices to defend environment. Conversely, some scholars also cite traditions like animal
sacrifice to elicit the absence of a consideration for other beings of nature in religious traditions.
These norms draw on the basic essence of the cosmic worlds and protection of these forces. Others
have focused on social practice to show how some practices have been beneficial to protection
whereas others have led to increased pollution. See, B.K. Roy Burman. “Homage to Earth”. InGeeti
Sen. Indigenous Vision: Peoples of India Attitudes to the Environment. New Delhi: Sage Publications
and India International Center, 1992, pp. 1-12. Krishna Chaitanya. “The Earth as Sacred Environs”. In
Geeti Sen. Indigenous Vision: Peoples of India Attitudes to the Environment. New Delhi: Sage
Publications and India International Center, 1992, pp. 35-48. Madhav Gadgil and M.D. Subash
Chandran. “Sacred Groves.” In Geeti Sen. (1992) Indigenous Vision: Peoples of India Attitudes to the
Environment. New Delhi: Sage Publications and India International Center, 1992, pp. 183-188. See
also, Robert P. Weller and Hsin-Huang Michael Hsiao. “Culture, Gender, and Community in
Taiwan’s Environmental Movement.” In Arne Kalland and Gerard Persoon. Environmental
Movements in Asia. Surrey: Curzon. 1998, pp. 83-109.
12
O.P Dwivedi. “Dharmic Ecology”. In Christopher Key Chapple and Mary Evelyn Tucker. (Ed.)
Hinduism and Ecology: The Intersection of Earth, Sky, and Water. Harvard University Press for the
Center for the Study of World Religions, Harvard Divinity School. 2000, pp. 3-22. K.L. Seshagiri
Rao. “The Five Great Elements (Pancamahabhuta): An Ecological Perspective”. In Christopher Key
Chapple and Mary Evelyn Tucker. (Ed.) Hinduism and Ecology: The Intersection of Earth, Sky, and
Water. Harvard University Press for the Center for the Study of World Religions, Harvard Divinity
School .2000, Pp. 22-38.
13
Quote from the Mahabharata, Shanti Parva, Chapter 109, Verse 10.
14
King Ashoka is known in Indian history for his kindness towards all living beings. He ruled in the
third century before Christ.
15
Romila Thapar. A History of India. Volume I. Reprint: Harmondsworth: Penguin Books.1972, p.86.
16
One of Ashoka’s edicts say-“ On the roads I have had Banyan trees planted, which will give shade
to beasts and men. I have had mango groves planted and I have wells dug and rest houses built….And
I have many watering places made everywhere….But I have done these things in order that my people
might conform to Dhamma (Dharma). Quoted in Romilla Thapar, Supra note 15, pp.88.
164
17
Madhav Gadgil and Ramachandra Guha. Ecology and Equity: The Use and Abuse of Nature in
Contemporary India. New Delhi: Penguin Books, 1995.
18
The Arthashastra of Kautilya is traditionally attributed to Chanakya, believed to be the minister of
Mauryan ruler Chandragupta Maurya. This is a text on statecraft; it is a portrait of an ideal Hindu
kingdom and how an ideal king should rule.
19
For a discussion of paternal relationship towards Earth, see Vasudha Narayanan. “One Tree is equal
to Ten Sons:” Hindu Responses to the Problem of Ecology, Population and Consumption.” Journal of
the American Academy of Religion 65, No.2. 1997, pp. 291-332.
20
Rama Jois. Seeds of Public Law in Ancient Indian Jurisprudence.Lucknow: Eastern Book
Company, 1992. R. P Kangle. The Kautilyas Arthashastra Part II, New Delhi: Motilal Banarsidas,
1972. See also Max Mueller. The Sacred books of the East: Vedic Hymns - Hymns To The Maruts,
Rudra, Vayu, And Vata, Volume XIV, part II, Richmond, Surrey: Curzon Press, 1965.
21
In fact the Arthshastra holds great relevance to scientific studies on India’s biodiversity.
22
P. Leelakrishnan. “Forest Conservation: Dawn of Awareness.” In P. Leelakrishnan. Law and
Environment. Lucknow: Eastern Book Company.1992, pp. 52-65.
23
Countless instances can be drawn from religion in support of sanctimony of Earth. In fact the day of
a Hindu begins with a forgiveness prayer to God for stepping on Earth. Samudravasane prithvi,
parvatastan mandale, Vishnupatni namastubhyam, padasparsham kshamaswa me! (O Earth, consort of
Vishnu, the Lord of creations, with mountains for thy breasts, and oceans for thy garments, forgive
me for stepping on you.)
24
In mainstream history three Indian rulers stand out for their commitment to ecological values-
Asoka, Akbar and Shivaji. They are said to be nature enthusiasts, who took great interest in planting
shade trees and groves on highways. See, Supra note 22.
25
Christopher Key Chapple. “Introduction.” In Christopher Key Chapple and Mary Evelyn Tucker.
(Ed.) Hinduism and Ecology: The Intersection of Earth, Sky, and Water. Harvard University Press for
the Center for the Study of World Religions, Harvard Divinity School .2000, pp. 1-22.
26
Supra note 12, O. P Dwivedi.
27
V.Saberwal, M. Rangarajan and A. Kothari. People, Parks and Wildlife. Towards Coexistence.
Hyderabad: Orient Longman, 2000.
28
Romilla Thapar. Early India: From the Origins to AD 1300. Berkeley, CA: University of California
Press. 2002.
29
The great and little tradition are anthropological concepts to explain cultural practice in India. Great
Tradition refers to practices that have an all India scope whereas little traditions are locale specific.
See, Milton Singer. When a Great Tradition Modernizes: An Anthropological Approach to Indian
Civilization. Chicago: University of Chicago Press. 1972.
30
Many elements of Hindu philosophy and indigenous practices elicit the veneration of trees, rivers
etc.
165
31
For an analysis of caste in India see Supra note 1. For the ecological significance of caste see, M.
Gadgil and K.C Malhotra. “The Ecological Significance of Caste.” In Ramachandra Guha. Social
Ecology. New Delhi: Oxford University Press, 1998.
32
See, Geeti Sen. (Ed.) Indigenous Vision: Peoples of India Attitudes to the Environment. New Delhi:
Sage Publications and India International Center, 1992.
33
Even now, the bulk of India’s scheduled castes perform sewage cleaning jobs. An interesting
anecdote to the changed dynamics of this is that this group also resists the entry of other castes into
the job. An Indian news channel reported recently that in Lucknow, a north Indian city, some
brahmins had applied for the jobs of sweeper. This was resisted by the Dalits groups who feared that
upper caste application will decrease their economic opportunities. NDTV news.
34
Richard H Grove, Vinita Damodaran and Satpal Sangwan. (Ed.). Nature and the Orient: The
Environmental History of South and Southeast Asia,. New Delhi: Oxford University Press, 1998.
35
For detailed discussion of subaltern struggles for resources see Ranajit Guha. A Subaltern Studies
Reader, 1986-1995. Minneapolis: University of Minnesota Press, 1997. See also, Arun Agrawal and
K. Sivaramakrishnan, Social Nature: Resources, Representations and Rule in India, New Delhi:
Oxford University Press, 2001; Ramachandra Guha. The Unquiet Woods: Ecological Change and
Peasant Resistance in the Himalaya. Second Edition. Delhi: Oxford University Press, 1999; Roger
Jefferey and Nalini Sundar. A New Moral Economy For India’s Forests? Discourses of Community
and Participation. New Delhi: Sage, 1999; Patrick Mc Cully. Silent Rivers: The Ecology and Politics
of Large Dams. London: Zed Books. 1996.
36
Sunil Khilnani points out that Nehru’s intention was to establish rationality of scientists and
economists in policy making. See, Sunil Khilnani. The Idea Of India. London: Hamish Hamilton.
1997.
37
See Ramachandra Guha. “Mahatma Gandhi and the Environmental Movement in India.” In Arne
Kalland and Gerard Persoon. Environmental Movements in Asia. Man and Nature in Asia series no.4.
Surrey: Curzon Press.1998, pp.-65-82.
38
The Directive Principles of the Indian Constitution, Article 40 speaks of village Republics.
39
Subir Sinha, Shubhra Gururani and Brian Greenberg. “The New Traditionalist Discourse of Indian
Environmentalism.” In The Journal of Peasant Studies, 24(3), 1997, pp. 65-99.
40
The rights of access to resource is not only a guarantee of state sanctioned property rights as has
been highlighted in the western discourse, but is also influenced by the individuals ability to draw
upon kin networks, labor, capital. See N.L Peluso. Rich Forests, Poor People. Resource Control and
Resistance in Java. Berkeley, California: University of California Press, 1992. Also, P. Peters.
Dividing the Commons: Politics, Policy and Culture in Botswana. Charlottesville and London:
University Press of Virginia, 1994.
41
Ramachandra Guha. “Radical American Environmentalism: A Third world Critique.” In George A.
James. Ethical Perspectives on Environmental Issues in India. New Delhi: A.P.H Publishing
Corporation.1999, pp. 115-30. For an anthropological discussion of challenges to colonial
preservation models because of people’s intricate linkages with environment also see, Ramachandra
Guha. Savaging the Civilized: Verrier Elwin, His Tribals, and India. New Delhi: Oxford University
Press, 1999.
166
42
Amita Baviskar, Subir Sinha and Kavita Philiph (2006). “Rethinking Indian Environmentalism:
Industrial Pollution in Delhi and fisheries in Kerala.” In Joanne Bauer. Forging Environmentalism:
Justice, Livelihood and Contested Environments. Armonk, New York: M.E Sharpe, 2006, pp.189-
256.
43
Supra note 39.
44
This is based on generalizations that are widely held and hence reflects some sense of shared
foundational ideas.
45
Supra note 35.
46
Madhav Gadgil and Ramachandra Guha. Ecology and Equity: The Use and Abuse of Nature in
Contemporary India. New Delhi: Penguin Books, 1995. Also, Ramachandra Guha and Juan Martinez-
Alier. Varieties of Environmentalism: Essays North and South. New Delhi: Oxford University Press,
1998.
47
Ibid. Madhav Gadgil and Ramachandra Guha. (1995).
48
N. Patrick Peritore. “Environmental Attitudes of Indian Elites: Challenging Western Postmodernist
Models.” 33 Asian Survey , 1993, pp.804-818.
49
See, K.S Singh. People of India. New Delhi: Oxford University Press, 2002.
50
Variations of this approach on building support for the environment can be found in various moral
and religious traditions. Al Gore’s Inconvenient Truth, the green advocacy of the Evangelicals in the
US are some examples of this tradition of exploring cultural and moral foundations. Greens and the
Evangelical Movement in the U.S, CNN , May 13
th
2007, Saturday, 9:30 a.m (China Standard Time).
Al Gore. An Inconvenient Truth: The Crisis of Global Warming. New York: Rodale Inc, 2006.
51
Supra note 25
52
Vandana Shiva. Staying Alive: Women, Ecology and Survival. Zed Ltd. 1989.
53
Ibid.
54
See, Bina Agarwal. A Field of One's Own: Gender and Land Rights in South Asia. Cambridge
University Press, 1994.
55
See, Supra note 29. For Indigenous practices see, Ramachandra Guha. Savaging the Civilized:
Verrier Elwin, His Tribals, And India. Oxford University Press. New Delhi, 1999. Verrier Elwin. A
Philosophy of NEFA. Published on behalf of the Advisor to the Governor of Assam, Shillong, by Shri
J.N. Chowdhury. Calcutta: Nawana Printing Works, 1960. Geeti Sen (Ed.). Indigenous Vision:
Peoples of India Attitudes to the Environment. New Delhi. Sage Publications and India International
Center, 1992.
56
Shakti refers to feminine power and prakriti refers to mother earth. Both of these concepts refer to
forms of worship of feminine power and reflect their integral relation with nature.
57
Supra note 39.
167
58
See, Haripriya Rangan. “Romancing the Environment: Popular Environmental Action in the
Garhwal Himalayas.” In John Friedman and Haripriya Rangan. In Defense of Livelihood:
Comparative Studies on Environmental Action. Connecticut: UNRISD, Kumarian Press.1993, pp.
155-181.
59
Ibid.
60
Ibid.
61
Mayurbhanj district, Fieldvisit to Rasgovindpur, village Poda Poda, to see conservation efforts by
locals. The movement to protect community forests in this area begun in the id 80’s, and since 2004 it
has been steered by women’s groups. This network comprises of 12 adivasis villages in the vicinity
who draw on the community forest resource. Attended village pancahyat meeting. Fieldvisit to
Rasgovindpur of Poda Poda, March 12
th
2007.
62
Caste groups represented those who lived in the fringes of the forests. In this case it was the
Kumbhas, a lower caste group. The adivasi groups in these villages were mostly represented by the
Santals. Adivasi is a local term used by indigenous groups in India. In official discourse, they are the
Scheduled Tribes. It is to be noted that India does not accept the international definition of
indigenous peoples, as national independence in 1947 from the British, provided independence to the
indigenous peoples (all Indians).
63
This was a small patch of land with a few old trees. Village meetings were held in this place.
64
Village meetings were held near the sacred groves.
65
David Hardiman 'Farming in the Forest: the Dangs 1830-1992', in Mark Poffenberger and Betsy
McGean (eds.), Village Voices, Forest Choices: Joint Forest Management in India. New Delhi:
Oxford University Press, 1996.
66
Govind Kelkar and Dev Nathan. Gender and Tribe: Women, Land and Forests in Jharkhand. Kali
for Women: New Delhi, and Zed Press: London, 1991.
67
Emma Mawdsley. “Indian Middle Classes and the Environment.” Development and Change 35,
no.1, 2004, pp. 79-103. Ethnographies of environmental values in India substantiate the claims to the
emerging concern of environment in urban landscapes. Peritore conducted a study of elite
environmental attitudes. Other cross national surveys like those of Inglehart have mapped
environmental values in some urban cities in India. See also, Supra note 48. Patrick N Peritore. Third
World Environmentalism: Case Studies from the Global South. Florida: University Press of Florida,
1999. http://www.worldvaluessurvey.org/ ( Last Visited May, 26
th
2007).
68
North South Binary analysis has largely developed from the political ecology models. Others who
see environmental issues from cultural issues argue that eastern societies are distinct from the west.
See, Roda Mushkat. International Environmental Law and Asian Values: Legal Norms and Cultural
Influences. Vancouver, BC: UBC Press, 2004. Amita Baviskar. Subir Sinha and Kavita Philiph.
“Rethinking Indian Environmentalism: Industrial Pollution in Delhi and fisheries in Kerala.” In
Joanne Bauer. Forging Environmentalism: Justice, Livelihood and Contested Environments. Armonk,
New York: M.E Sharpe, 2006, pp.189-256.
69
See, Arne Kalland and Gerard Persoon. Environmental Movements in Asia. Surrey: Curzon. 1998.
168
70
Madhav Gadgil and Ramachandra Guha. Ecology and Equity: The Use and Abuse of Nature in
Contemporary India. New Delhi: Penguin Books, 1995.
71
Vandana Shiva. Staying Alive: Women, Ecology and Survival in India. New Delhi: Kali for
Women, 1988.
72
The seventies is an important period in India’s democratic history. National emergency was
imposed from 1975-1977. The emergency was the catalyst for the growth of opposition politics, rise
of social movements and also activist Court that sought to defend the political values of the
Constitution against an authoritarian government, in India.
73
B. N Kirpal. “Developments in India Relating to Environmental Justice”.
http://www.unep.org/dpdl/symposium/Documents/Country_papers/INDIA%20.doc (last visited 22
nd
June, 2006). See also, Harish Salve. “Justice between Generations: Environment and Social Justice.”
In B. N Kirpal etal, Supreme But Not Infallible: Essays in Honor of the Supreme Court of India. New
Delhi: Oxford University Press, 2000, pp.360-380.
74
Wildlife Protection Act was passed in 1973.
75
In 1974 the Water Prevention and Control of Pollution Act was passed and a new agency, the
Central Board for the Prevention and Control of Pollution was charged with administering the policy.
The Water (Prevention and Control of Pollution) Act of 1974 gave the statute books its first real
foundation for environmental protection.
76
In 1981, the Air Prevention and Control of Pollution Act was enacted and soon after in 1986, the
Environment Protection Act became law.
77
Forests and environment policies, which were once a subject of state legislation, were included in
the concurrent list.
78
See, Y.K Sabharwal. “Human Rights and the Environment.” In
http://www.supremecourtofindia.nic.in/new_links/humanrghts.htm (last accessed 22nd June 2007).
79
On the advice of the Prime Minister Indira Gandhi the President declared national emergency under
Article 352 of the Indian Constitution. It was in force between 26
th
June 1975 and 21 March 1977. For
a discussion of the Indian Constitution also see, Granville Austin. The Indian Constitution:
Cornerstone of a Nation. New Delhi. Oxford University Press, 1999.
80
Ashok H Desai and S. Muralidhar. (2000). “Public Interest Litigations: Potential and Problems.” In
B.N Kirpal et al. Supreme But Not Infallible: Essays in Honor of the Indian Supreme Court. New
Delhi: Oxford University Press, 2000, pp. 159-192. During the emergency, the Supreme Court’s
ruling in the A.D.M Jabalpur V. Shivkant Shukla, 1976 2 SCC 521, supporting executive curtailment
of life and liberty of citizen’s had questioned the Court’s role as guardian of citizen’s liberties. The
vigorous growth of PIL has been attributed partly to this criticism. Other factors also remain such as
executive interference in judicial appointments, reports on legal aid and a weakened executive
following the coming to power of the Janata government in 1977. Partly, it is also believed to have
reflected the ideological visions of Justices in the late seventies, particularly the visions of Justice V.
R Krishna Iyer and Justice P. N Bhagwati.
81
A.D.M Jabalpur V. Shivkant Shukla, 1976 2 SCC 521.
82
Mumbai Kamgar Sabha v. Abdulbhai. 1976. 3 SCC 832 at 857.
169
83
Ibid.
84
For an extensive discussion of this amendment see, Granville Austin. (2001). Working a
Democratic Constitution: The Indian Experience. New Delhi: Oxford.
85
Fundamental rights include a list of basic rights of the constitution. This chapter of the constitution
was borrowed from the American Bill of rights- and adapted to Indian needs. Directive principles
include a set of non-implementable guiding principles- borrowed from the Irish Constitution. Conflict
between these two sets of rights have prevailed and teased out in terms of executive and judicial
fights. This amendment is also known to have attempted to substitute Presidential for the
parliamentary system. Much of the Forty Second Amendment has been repealed by the Forty Fourth
Amendment.
86
Speech in the Lok Sabha, 27 October 1976. Lok Sabha Debates, Fifth Series, volume 65, no.3, cols.
141-142. Speech reprinted in Indira Gandhi. “Parliament has unfettered Right.” In Selected Speeches
and Writings. Volume 3, pp 283-291.
87
Article 48A of the Directive Principles of State Policy states that the State shall endeavor to protect
and improve the environment and to safeguard the forests and wild life of the country.
88
List III of the Seventh Schedule of the Indian Constitution was also amended to include the
environment- (Article 246)- Item no. 17 Prevention of Cruelty to Animals, Item no. 17A Forests and
Item no. 17B Protection of Wild Animals and Birds.
89
Borrowed from the Russian Constitution.
90
“FES and Law E 2001.” Proposed Amendments to the Constitution of India for Ensuring
Environmental Protection and Nature Conservation. Submission to the National Commission to
Review the Working of the Constitution. Foundation for Ecological Security, Anand, with Legal
Action for Wildlife and Environment, Delhi.
91
Panchayats refer to village level administration whereas, municipalities refer to local administration.
92
Francis Coralie Mullin vs. Union Territory 1981 2 SCR 516
93
Ibid
94
S.P Gupta v. the Union of India 1981 Supp. SCC 87.
95
M. C. Mehta vs. Union of India 1987 Supp. SCC 131
96
Shanti Star Builders vs. Narayan Totame 1990(1)SCC 520
97
Ibid.
98
Subhash Kumar vs. State. of Bihar. (1991) 1 SCC 598
99
M. C. Mehta vs. Union of India & Ors. (the Oleum Gas Leak case) 1987 SCR (I) 819
100
Indian Council of Enviro-Legal Action vs. Union of India 1996 3 SCC 212
170
101
M. C. Mehta vs. Kamal Nath (1997) 1 SCC 388
102
Charles Epp. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative
Perspective. Chicago: University of Chicago Press, 1998.
103
Inglehart’s World Value Survey of environmental values in India shows a rise in urban
environmentalism after the 1980’s in India. http://www.worldvaluessurvey.org/ ( Last Visited May,
26
th
2007).
104
Amita Baviskar’s study of the Delhi pollution case, concerning the closure of all polluting
industries in residential areas of Delhi, shows that divergent interests influence the construction of the
environment - workers rights versus middle class interests. See Amita Baviskar, Subir Sinha and
Kavita Philiph. “Rethinking Indian Environmentalism: Industrial Pollution in Delhi and fisheries in
Kerala.” In Joanne Bauer. Forging Environmentalism: Justice, Livelihood and Contested
Environments. Armonk, New York: M.E Sharpe, 2006,pp.189-256. See also Amita Baviskar.”The
Politics of the City.” Seminar 516, 2002.
105
. See,Vandana Shiva. Staying Alive: Women, Ecology and Survival in India. New Delhi: Kali for
Women, 1998. Madhav Gadgil and Ramchandra Guha. Ecology and Equity: The Use and Abuse of
Nature in Contemporary India. New Delhi: Penguin Books, 1995. Emma Mawdsley. “Indian Middle
Classes and the Environment.” in Development and Change 35, no.1, 2004, pp 79-103.
106
Supra note 48.
171
PART III
172
Chapter 5
Human Right to Water:
Vellore Citizens’ Battle for CleanWater
"By means of water, we give life to everything."
1
In this chapter, I offer an analysis of how law and society in India have constructed
and contested the human right to water in a landmark case on water pollution, called
the Vellore Welfare Forum case.
2
The lawsuit is a public interest litigation that arose
in reaction to failure of provincial administration to curtail water pollution caused by
the disposal of industrial waste into river Pallar, in South India. This case is
momentous in the debates on water law in India because it created a legal space for
water rights by recognizing human relationship with the river resource and balanced
various rights claims with environmental and human needs. In the process, the legal
framing of water rights made significant advances from the Blackstonian positive
law tradition to a plural legal model based on a syncretic interaction between the
global rights debate, environmental law, common law principles, Constitutional law
and local social practices.
The central argument that this chapter advances is that the legal protection of
water rights, as established in the Vellore proceedings, reflects an emerging
cosmopolitan jurisprudence that has internalized international standards and adapted
the law to Indian social context. This position, based on the environmental and
human rights law, contrasts with the common law interpretations of principles of
nuisance which are favorably disposed towards protecting property interests in
natural resources. The procedural form of redress used in this lawsuit, public interest
173
litigation, differs from the adversarial system, by allowing third party litigation to
claim violation of rights of individuals and failure of duties by the state. In addition,
while international standards provided the ideational basis for construction of human
right claim to water, legal reasoning has been in accordance with how cultural and
livelihood interests interplayed with international norms to shape the domestic
definition of water rights. This legal integration of the different laws and usage of
public interest litigation is a characteristic feature of Indian legal culture, through
which legal traditions have interacted with the law of human rights and worked on
promoting the public’s interest. Another distinctive aspect of the Vellore case law is
that it draws on doctrines of public trust and responsibility which are cosmopolitan
standards and also have a basis in the Indian cultural norm of Dharma
3
; this
integrates ethical postulates of Dharma with the cosmopolitan laws. The Dharmic
belief, as mentioned earlier in chapter 4, is that human relationship to nature is based
on a holistic idea where human beings are part of nature and therefore bear a duty
towards protection.
The legal contest in the Vellore lawsuit has drawn on a wide range of laws-
international and local, to demarcate rights of individuals and communities over
water, the uses of water and the duty of public authorities to provide the basic need
of clean water. For instance, legal reasoning relied on human rights and
environmental law to balance environmental protection with human right to water. In
dealing with this case, the law made explicit reference to sustainable development
principles such as ‘Polluter Pays’ principle, ‘Precautionary Principle’ and
174
intergenerational equity to regulate and distribute water on equal terms across
generations. Also, it employed local standards to see how water distribution is
socially demarcated by power relations, the traditional economic activities of the
tanneries and the economic, cultural and symbolic importance of the river. It
stipulated many ways through which the different users of water -state, communities,
individuals and industry- can balance human requirements with industrial,
developmental, cultural and livelihood needs.
Further, the plural basis of water rights also suggests a multi-issue contest.
The legal recognition of the right to water in the Vellore case has developed in a
series of contestations in the judicial arena between state and social groups, both of
which have used the law to claim their rights. In the construction of this right both
law and advocacy groups have highlighted various aspects of this environmental
right such as life, health, livelihood, culture and defined individual, community,
private corporations and state responsibility towards managing and distributing the
resource. The emphasis on diverse rights claims and reasoning based on different
sources of law rests on the perceived notions of how people relate to the natural
resources- such as cultural or economic or health based definitions of peoples’
relation with the natural world. The nature of contestation, legal doctrine, social
networking, all show that international and local norms have bearings in the
interpretation of water rights. It demonstrates the plural basis of law on natural
resources, as entitlements are based on the different relationships that individuals and
groups have with the natural world.
175
This chapter will scrutinize the many dimensions of legal developments in the
Vellore case and the framing of water rights in the Indian social context. Through a
sociological analysis of the historical development of water rights in India, I offer
some insights about the nature of legal pluralism in the post colonial framing of
water law in India. I will illustrate how law departed from conventional common law
approaches and legalized normative principles of human rights law. Through the
study of tanneries and its impact on life and livelihood needs of people, I will explain
the legal approaches that were used to construct rights.
The following section will discuss the theoretical framework of water rights
and employ these to analyze the law in India in the context of the Vellore case.
Conceptualizing the Case for a Human Right to Water
The history of water rights is intricately linked to societies and their usage of water
resources. Natural resources such as rivers, wells, lakes etc are prioritized through
values that range from aesthetic and transcendental concepts to property and social
rights to those of economic and livelihood needs.
4
Since early times, political
commentaries have reflected on the rules for regulating ownership, control, usage
and sharing of the resource based on the notion that it is a natural good. In common
law categorizations, water was considered a natural resource, a property and an
economic commodity. Therefore its distribution and management was based on
social relations of power than norms of justice. Legal regulation derived from natural
and property rights theories. It was based on many principles such as 1) discovery,
the first discoverer has the right to the source, 2) riparian rights, determined by
176
closeness to the river source and first appropriation of water and 3) conquest, state
has the power over resources.
5
However, due to the abundance of the resource most
contestations and claims to share of water were diluted.
Beginning with the 1970’s, the realization of social costs of industrialization
and increasing population density, paralleled with global warming and drying of
water resources such as rivers, wells, ponds etc has fuelled rights consciousness
about water issues.
6
It has unveiled the misnomer of water as a granted natural
resource and identifies two challenges to water rights- 1) critical shortage in
availability of water and 2) the iniquitous access to clean water to all. This has
changed legal conceptualizations of water as a granted natural resource to that of
water as an economic, environmental and agricultural good to that of a human right
to water. The twentieth century demarcations of water problems demand relocation
of water within a rights, justice and environmental framework. It requires national
and international tribunals or committees to look beyond the traditional notions of
law to ensure just uses of water.
Water Wars: Economic Model versus Human Right Approach
In the scholarship on water law, there are two important view points on how to deal
with water scarcity and regulation- one, is to treat water as an economic commodity
so as to minimize unsustainable use of water.
7
Second, is to give legal space to
human right to water that will ensure equitable supply of water to all based on need.
The economic value approach is based on the assumption that water is a
natural good that has economic value and it must be harnessed accordingly to foster
177
economic growth. This views emphasis is on balancing the demand and supply of
water through economic models that will 1) minimize waste, through restriction on
usage to basic needs and 2) ensure infrastructural investments to accentuate supply
as investment cost can be distributed through pricing mechanisms to the users. An
example of economic model, is the "full cost recovery" principle based on recovery
of all investments related to provision of water. This will economize use as higher
prices will encourage only those uses which are most valuable, thereby increasing
the total amount of water resources for use by households and will also conserve
water. The approach rests on a set of private individual right to water that regulates
allocation of water through private transactions, with users trading water through
long or short term contracts.
Treating water as an economic good has been designed to promote
conservation and greater sustainability of water resources by making waste more
expensive.
8
However, the economic centered approach has a number of limitations.
More pertinent, it fails to redress the question of inequities in supply and access to
water due to pricing models, as water may be priced higher than what some poor
communities can afford. Water rights are embedded in local practices that regulate
user rights to a source. For instance water rights are defined through proportional
shares to water, taking turns to use, periods of time, measured volumes etc and the
rights are held either by individuals or communities and are based on social relations
of power. Scholars fear that it will effectively allow access to adequate clean water to
those who can pay and subsequently disregard equity and need.
9
The absence of well
178
defined and secure water rights will increase the vulnerability of the poor and
socially weaker water users.
10
Furthermore, this framework fails to address the
historical legacy of inequality in access to land and water resources, as in most
societies access norms are determined by social institutions.
The human right approach is based on recognition of water as an essential
commodity for human survival. It demands positive obligations on the part of
governments to provide citizen’s with sufficient water.
11
Through a cross
generational approach of equitable distribution, human rights theory integrates
human and environmental component to delineating water rights. This perspective
demands understanding interests of different stakeholders to water rights and
prioritization of uses to give primacy to drinking/domestic use. The right to water is
defined as access to water of sufficient cleanliness and in sufficient quantity to meet
human needs. R. Maria Saleth observes that water rights and entitlements should be
defined to ensure social equity, environmental security and economic efficiency, and
this as she contends can be best framed through a needs based perspective.
12
Minimally, water rights should suffice the basic need requirement of drinking,
washing, bathing, cooking, cleaning and sanitation. The needs correspond to the right
to housing.
13
Qualitatively drinking water must be potable and water for cooking,
washing and sanitation should be safe.
14
The human rights definition sets two important criteria, 1) accessibility and
2) affordability, in determining individuals’ right to water. The right to adequate
water stipulates that water should be readily available and should not require women
179
and children to walk for hours to collect water for their basic needs.
15
It also means
that the price for water should not demand compromise from families in meeting the
basic needs of education. However, the prioritization and quantification of water for
food and livelihood need is a complicated right as the minimal requirement does not
include agricultural and industrial needs. In addition since water rights have been
historically tied to social relations, customary norms play an important role in the
delineation of this right. This differentiates water rights from other environmental
rights. The regulation and types of usage of water are based on customs of a
community as water is even used for religious ceremonies, religious exercise and
aesthetics.
16
Water rights are therefore cast in terms of life, health, livelihood and
social needs.
This framework has unequivocal support within human rights and
environmental law theory.
17
It recognizes water as a legal entitlement and requires
obligation on the part of the state to take legislative, administrative and other action
progressively to ensure that every human being within its jurisdiction has access to
adequate water, to the maximum of its available resources (Article 2 of ICESCR).
States must protect this right from illegal interference of others and also provide for
these rights to ensure fulfillment of human rights. It must ensure that economic
activities do not pollute water and that there is equitable allocation of water
resources.
18
WHO identifies three categories of governmental obligations with
regard to human right to water: to respect, protect and fulfill.
19
The obligation to 1)
respect, requires state parties to refrain from interfering directly or indirectly with the
180
enjoyment of the right to water, 2) protect, requires that state parties prevent third
parties such as corporations from interfering in any way in the enjoyment of the right
to water and 3) fulfill, requires state parties to adopt the necessary measures to
achieve the full realization of the right to water.
Apart from these substantive provisions the right to water also requires
procedural rights like participation, empowerment, non-discrimination,
accountability, transparency and the rule of law. The rights based approach to water
is more useful in comparison to welfare, developmental or economic approach as it
ensures government accountability, transparency, and absence of discrimination and
provides legal remedies for redress.
Even so the human right to water is widely recognized, literature presents
different approaches through which the right to water is asserted. Similar to the
discussions about environmental rights, the water debates also see a division between
those who support an independent right to water and those who perceive this right as
a derivative of other rights such as life and health.
20
Many scholars such as John
Scanlon etalli, Salman and Mcinerney Lankford are of the view that water is a
human right because it is a function of other fundamental rights.
21
They maintain that
water is a component of various other human rights. Peter Gleick points that the right
to water does not need a special status for its implementation.
22
It can be
implemented through the already existing human rights. Conversely, another scholar
Amy Hardberger says that water as a human right is in a changing process.
23
It has
its foundation in dependent human rights past but is evolving to claim an
181
independent future. She maintains that an independent right status will not only
ensure maximum benefits but also efficient enforcement mechanisms for its
citizens.
24
Others such as Bluemel are of the opinion that water should be given an
independent status because of its critical importance to life.
25
The human need for
water and the urgency to protect the resource puts water rights in a critical position,
which I argue will be adequately addressed through an independent right. Although
it’s correct that the right has legal standing because of its linkage to life, health and
culture, an independent right will lead to proactive measures to protect water rights
through negative and positive entitlements. Further as Singh has held, the right to
water rests on a belief that all people, irrespective of their legal and political status,
have a natural right to water since water as a resource is another way of describing
the right to life. Singh makes a case for judicial involvement that will convert
negative rights of water to positive rights. He argues-
Given the ontological status of water, that is, its special legal status, any
claim to property or absolute rights over it can at best remain de jure, that is
an unrealizable legal fiction, de facto, that is in reality, the only kind of rights
that can become operative for anyone are usufructory rights, that is right to
use of water. The real question, therefore, is who has what kind of right to
use water, and what corresponding duties to attach to it. Claims to sovereign
rights in terms of absolute or ownership rights hence, can at best be
exploitative claims to power for monopolizing the use of water.
26
Upendra Baxi maintains that the main challenge to human right to water is to combat
the exploitative control over access and use of water.
27
Second, human rights
approach to water it is believed will capacitate people to act on water rights and
182
move beyond academic conjectures to action oriented rights claims that will not only
empower people but also make them active participants of development.
28
Water rights are also promoted by proponents of sustainable development
and environmental justice. The sustainable development approach holds that water
rights will reduce poverty and therefore enhance development.
29
Environmental
justice theorists support water rights to ensure equal distribution of environmental
benefits and safe drinking water.
30
It will give precedence to fundamental needs such
as drinking, domestic and food security related water needs over economic-
development related activities.
Water Rights in India: Legal Issues
The development of water rights in India has historical and social underpinnings in
the caste structures, colonial interests, and post-colonial ideals of social justice. This
is clearly elucidated in the Constitutional Assembly debates on the right to equality
and the legal guarantees to equal right enshrined in the Constitution.
31
Judicial
interpretation of the Constitutional guarantees to equality, health and life also
highlight the historical and social context of water rights in India.
32
The goal of legal
standards on access to water has been to dissolve social norms and sanctions on
usage of water. Hence, legal debates about water rights in the twenty-first century
reflect the social concern, colonial laws and the international standards of water
rights.
The universe of water rights in India and user definitions of the right sketches a
story of social relations of power, both caste and economic. Since early times,
183
access, control and use of water has been a contested issue and this can be broadly
placed within two frameworks of legal discourse; first, refers to social norms of
water usage and access rights as seen in caste based practices and second, refers to
the legal practices in colonial and post colonial law, which provide the corpus of
water law.
Regulation of Water in Society:
Water has been central to the Hindu discourse and ancient texts such as the
Manusmriti have various codes that emphasize duties of society to protect water
from getting impure. Maintenance of purity of water was sacrosanct and particularly
of river water, which is considered to be a purifying agent as well that could cleanse
itself and almost everything else by contact.
33
Customarily, the caste system played
an important role in regulating norms of usage and people’s access to water in
society. The caste structures institutionalized a hierarchical system of graded
inequality through notion of pollution and purity that determined access to water
sources.
34
The lower castes were considered polluting and their use of common
resources was prohibited to prevent supposed defilement. They accessed water from
alternate sources, which may or may not be potable or sometimes were allowed
limited duration uses of the common source.
35
Although in post independent India, there are Constitutional guarantees against
caste practices on access to water, local norms are not ridden of socially
discriminatory practice.
36
In my visit to rural areas, I found that subtle practices of
caste discriminations prevailed in many ways. What I found most striking was the
184
spatial planning of the villages in ways so that the air from the lower caste
households did not blow towards the upper caste families and the source of water
supply was divided. In one village in the North Indian hilly province of Garhwaal, I
noted that while the upper caste had water coming from pipelines from the upper
slope, the lower castes pipelines were at lower levels adjacent to the drainage pipes
of upper caste families.
37
Dominant denominations at the community level prevent the socially
disadvantaged groups from accessing common water resources and sometimes even
render the water source unusable. The report of the Schedule Caste and Tribes
Commission Report states that social inequality is one of the main reasons for
unequal access to water rights.
38
In State of Karnataka v. Appa Babu Ingal, the
Supreme Court affirmed the conviction of the accused, who had denied backward
castes to draw water from a well, for having violated the Protection of Civil Rights
Act.
39
The Court held that the accused was guilty of denying access rights to water to
backward castes. Social justice therefore is an important concern in judicial
deliberation on water rights.
Legal Issues
Rights over water have existed in both ancient and modern legal systems in India, the
Dharmashastras and Islamic laws are replete with customary norms on water rights.
Since the establishment of British rule in India, water rights were formalized through
a gradual process of incorporation of common law traditions that replaced many
traditional norms of ownership, access and users right to the resource. The laws on
185
resource use favored property rights and reflected colonial dispositions for instance
state control of surface water reflected British interest in control over navigation and
irrigation. For most purposes this favored economic interests, in case of surface
water, state interest was eminent and in the case of ground water, landowner’s rights
were protected by law.
Access and user rights to water were based on two categories - surface water and
ground water rights. The access norms to water were determined through regimes of
ownership of resources such as state control of surface water for irrigational use or
property right of land owner to ground water resource. In common law traditions,
water is treated as property, and the functioning of this property right is dependent
not only on the relation of the bearer to the thing which is water, but is also based on
social relations of people with water. It requires that the rights are associated with the
performance of duties with regard to use of water, disposal of waste in a certain
manner and maintenance of water supply. Furubotn and Pejovich argue that property
rights can be defined as “the claims, entitlements and related obligations among
people regarding the use and disposition of a scarce resource.”
40
D. Bromley points
that the rights to property are correlated with duties that require refraining from
misuse.
41
The criteria of social relations have been crucial to access to water and
regulation of usage.
The formal origins of water rights are traced to contractual right, product of
agreements between people, and natural rights, as a social fact in customary laws that
were introduced by the British. User rights to water in colonial India were
186
categorized into profits a pendre and easements.
42
In profits a pendre the rights were
exercised along with duties and economic benefits were tied into it. Easements only
granted rights with no corresponding duties and therefore were convenience based. It
recognized customary rights based on usage and local customs. A right may exist by
custom in which some people are entitled to take water from another’s land. It
included water from a well spring of flowing water and the entitlement to this right
was not a permanent allotment and was held by a fluctuating group of people.
Colonial interventions into surface water law in India developed in the mid 19
th
century when navigation and property interest peaked.
43
The British tried to formally
define rights to water sources through numerous statutory laws such as the
Limitation Act of 1859, regulated the duration of use of water body by a group, the
North Indian Canals and Drainage Act, retained control of navigational waters, and
the Easement Act in 1882, defined rights of individuals, groups and the state to water
bodies. These laws introduced changes in natural resource law in India- 1) it granted
absolute rights to the government over rivers and lakes and 2) recognized limited
rights of groups and individuals to water and hence, legalized water rights as a
negative natural right. In practice, the law was used by the state to monopolize
control of water for irrigation and navigation purposes.
Chattrapati Singh points out the law created various rights categories to
recognize customary and natural rights of riparian owners. For instance, the law
defined the right of riparian owners as the right to the stream that flowed past their
land equally with other riparian owners, and to have the water come to them
187
undiminished in flow, quantity or quality and to go beyond his land without
obstruction. This principle has been recognized in the Secretary of State v.
Sannidharan
44
and also after independence in the Patna court Ram Sewak Kazi v.
Ramgir Choudhary.
45
The purpose of riparian rights was to prevent obstruction in
flow of water through the construction of dams. It also made clear that upper
riparians had as much right to use water for irrigation without materially diminishing
the amount for the lower riparian. In a case in the Madras High court,
Setharamalingam V. Ananda it was held that the lower riparian had a cause of action
in case of material decrease in supply of water and also the lower riparian did not
have the right to submerge the upper riparian’s land by obstructing or building a dam
on the river.
46
Laws after Easement Act shifted the focus from people’s natural right to water to
proprietary right or usufruct rights. For instance, in irrigation systems, new norms of
water usage were governed by sharing laws such as warbandi and osrabandi, which
determined water rights based on land holding and payment of fees.
47
River water
which was free for all became available only to those who owned land and paid fees.
This left out the landless from formal legal access to water. Ground water laws were
also formulated in favor of the propertied. The law recognized the right of the
landowner and excluded all those people who may have group rights over land but
not private ownership. Socially, it led to the emergence of a class of water-lords and
environmentally, the excessive exploitation of groundwater source, by the water-
lords, for profit threatened availability of ground water, both qualitatively and
188
quantitatively.
48
Customary laws on water sharing prevailed only to the extent it did
not interfere with the colonial or state law.
The laws also defined the limits on nature of usage of water by granting
restricted right to pollute both surface and ground water. This was a usufruct right to
facilitate drainage, washing and rejection of unwanted organic and inorganic
substances. The categorization of pollution also created differences between ways of
usage of water by natives and modern industries. For instance, washing, bathing etc
which were habitual practices of natives was considered polluting. The colonial legal
order replaced the old juridical terminologies of defilement, contamination and
fouling used in caste conflicts with nuisance, poison and contamination. The new
terminology focused on water quality.
49
For instance Section 277 and 278 of the
Indian Penal code read as follows
277. Fouling of water of public spring or reservoir. Whoever voluntarily corrupts
or fouls the water of any public spring or reservoir, so as to render it less fit for
the purpose for which it s ordinarily used, shall be punished with imprisonment.
278. Making atmosphere noxious to health. Whoever voluntarily vitiates the
atmosphere in any place so as to make it noxious to the health of persons in
general dwelling or carrying on business in the neighborhood or passing alone a
public way, shall be punished with fine which may extend to five hundred
rupees.
50
Colonial law hence provided the legal antecedent to secular definition of
pollution in India by introducing new scientific semantics to the debate about water
pollution. For in the case of water, potability ran antithetical to caste notions of
impurity. Colonizers first introduced change with regards to the meanings of
defilement, contamination and fouling in water dispute settlements in well water by
emphasis on physical attributes, to code specific human interactions with water
189
resources that were not based on sacred norms. These terminologies were later
transplanted to other water sources as well and codified in civil and criminal code.
As tort law developed the semantics changed to nuisance, poison and contamination.
However the usage of nuisance in law was very limited and it generally favored
proprietary interests, which I will elaborate in detail in chapter 7 in my discussion
about air pollution. The restrictions were provided through sanctions in the Indian
Penal Code and the Criminal Procedure Code. The British Court in various instances
upheld the rights of the industrialists to pollute water. Penal sanctions were not
strictly enforced and the technicalities required fulfillment of all the conditions of the
offense as stipulated in the penal provisions. C. M Abraham notes that even the
definitions of public nuisance that was used in law did not facilitate judicial
settlement as standing issues prohibited filing of public nuisance cases.
51
These had
to be filed by the advocate general and hence in practice nuisance laws rarely applied
against the propertied class.
52
Constitutional and Statutory Framework of Water Rights in India
Water rights in independent India are based on customary, common and natural law
principles, and on the fundamental legal principles of the right to life and right to
equitable share of natural resources enshrined in the Constitution. Singh contends
that the legal framework of water rights in India draws from various legal regimes
such as the Hindu, Islamic and tribal laws for water use and distribution, British
made statues which continue till date and the post colonial constitutional laws.
53
190
India has an official water policy formulated in 1987, which emphasizes equitable
distribution of water and sustainable yield use
C. Singh has demonstrated that the right to water in both colonial and post
colonial India is based on the source of water and derives from the different sources
of law.
54
Based on his framework, the following table can be developed on the rights
of the state and people in relation to various water sources.
Table 5.1 Legal Rights to Water Sources in India
Source Rights of the People Rights of the State
Rivers and Stream Customary, riparian and
other rights recognized by
the courts and under
Easement Act
Absolute rights under
irrigation and other laws
Canals No rights. Permission to
use on payment of fees
under warbandi,
osrabandi and other
schemes under irrigation
laws.
Absolute rights of
ownership and for sale on
fees.
Tanks, Lakes (artificial) Individual rights of
landowners. Customary
usufruct rights of the
people.
No rights if tank is on
private land. Power of the
government to regulate
use of private tanks in
some states. Rights vested
in the panchayats or
municipality if the tank is
on private land.
Tanks, Lakes (natural) Customary rights of the
people as recognized by
the courts and under
Easement Act
Absolute rights of
ownership and use
191
Table 5.1 Continued
Wells (private) Absolute rights of
landowners.
No rights
Wells (public) Customary rights of
groups, castes or
communities. But rights of
all under the Constitution
and Civil Liberties Act
Rights to regulate
Tube-wells (private) Unlimited right to draw
water from tube wells on
private land.
No rights to own or
regulate except in one
state in Gujarat.
Tube-wells (public) Usufruct rights granted by
the state. (Informally,
local customary norms
may regulate this right.)
Rights to regulate
See, Chattrapati Singh. 1991, p.42.
Having provided an overview of the evolution of water rights in India, I will turn
now to the leading modern case law on the subject.
Vellore Citizen’s Welfare Forum v. Union of India and Ors.
The Vellore Citizen’s Welfare Forum v. Union of India is a contemporary example of
legal engagement with water pollution debates that began in the 1990’s.
55
This case
is noteworthy for its recognition of international norms to guarantee people’s
entitlements to water and protection of the natural resource, across generations. The
legal contestations demonstrates three distinct characteristics of framing of water
rights in India, a) an integrative and plural approach that incorporates international
and common law traditions into Indian law, b) the use of scientific standards of
pollution that focused on human rights and health of people and c) A law and society
engagement in constructing environmental rights. The ruling marks change in water
law in India from sacred debates to colonial precepts on nuisance and public health
to environmental and human rights perspective that recognize water as an important
192
constituent of human right to environment, life and health. This case law reflects an
emerging cosmopolitan debate on water right that has internalized international
environmental rights standards and adapted the law to Indian social context.
Nevertheless, the means through which law engages with the cosmopolitan standards
is uniquely Indian, being based on public interest law.
The legal turn of this social campaign, the framing of the issues, the legal
doctrine in the litigation mark significant departures from common law traditions in
Indian case law towards incorporation of plural legal models. While the emphasis in
the jurisprudence on water rights was on equality rights and tort claims, this lawsuit
took a different approach through incorporation of human rights and environmental
law standards. The usage of P.I.L than tort law to contest pollution, the shift from
social vocabularies of caste defilement/discrimination to scientific language of
pollution, the emphasis on protecting environment for future generations
demonstrates an emerging cosmopolitan standard of rights. Both the petition by the
social advocates and the legal doctrines underscore aspects of human rights
violations especially the denial of the right to water. From the human rights point of
view this is very critical as it suggests incorporation of normative rights in
interpretation of Constitutional law. It demonstrates that the internal legal context
facilitates integration of rights.
Yet considerably the internalization of international norms in delineating
economic and health rights to water is also contingent on local contexts. The rights
were not defined in the nature of entitlements of people but rather the vocabulary
193
highlighted the failure of state duties which is an integral aspect of Dharmic culture.
The usage of PIL, the emphasis on state responsibility and law’s eagerness to
administer justice than adjudicate shows the elements of Dharmic jurisprudence.
Furthermore in redressing the various claims, the law explored various dimensions of
the social context of pollution and balanced the conflicting rights. The synergies of
local and global norms have resulted in a plural approach to the interpretation of
water rights and characterize cosmopolitan jurisprudence on environmental law in
India.
This section of the chapter will discuss the debates about rights against pollution
and the closure of tanneries in Vellore. Through a sociological analysis of tanneries
and its impact on the life and livelihood of people, I will show how the rights were
framed, contested and gained legal space. The discussion will elucidate how social
groups and the law used different sources of law to recognize the human right to
water. The following section provides a brief overview of the spatial and social
location of tanneries in the Vellore region and how they contributed to the water
pollution.
Backdrop
Vellore, the site of the contest, is a populous urban center in the Pallar river basin in
South India known for its leather tanneries. Human settlements in the Pallar valley
are clustered along the river and are divided into towns and rural villages based on
the two main economic activities: agriculture and leather industry. Infact the
historical growth of the area is linked to the establishment of tanneries during the
194
British period and their contribution to the economy.
56
The towns in the valley
cluster around the tanneries and there are five main tannery clusters with
approximately 900 firms, both small scale and medium scale.
57
The towns are
relatively small and as per the 1991 census, population in the towns ranged from
25,000 to around 100,000. The adjoining rural areas are primarily agriculture and
migration rate to towns are high. The tanneries produce about 45% of India’s total
leather exports, contribute heftily to the foreign exchange reserves and generate
employment.
58
Tanneries in the belt are an old tradition in the region that developed during the
colonial times. In the late 18
th
century Pallar was a mere village, but owing to its
selection by the East India company as a favorable site for a trading factory and its
closeness to Madras, now known as Chennai, the area developed into the largest
leather center in India. They specialized in semi finished leather and supplied boots,
harness, and other semi finished leather products to the colonizers and a large part of
the product was exported to Britain as raw or semi processed leather under the name
of E.I Kipps.
59
The geographic location in a semi arid valley, closeness to the forests
of Javadi hills (that supplied the resources for tanning) and the demographic
concentration of lower caste and Muslims facilitated the growth of the leather
making tradition.
Socially, in India the workforce of the tanneries is drawn from two communities,
Moslems and Chamars, a lower caste group traditionally known for dealing with
animal skin.
60
Even if the functional specialization of caste groups has declined, in
195
some industries such as leather, family and community tradition continues. Hence,
the bulk of the lower caste Hindus work in tanneries.
61
Interestingly, the social
distribution of the Chamar caste corresponds with the regional distribution of
tanneries in India.
62
Since these caste groups are mostly landless, tanneries are a
substantial source of employment and livelihood. Social networks of the
communities in the tanneries have been strong and there are no records of major
social protest against the functional distribution of labor or social exploitation
because of the presence of tanneries, until the Vellore Case.
63
The Problem
The pollution of the river valley and social protest against tanneries began in 1970’s,
when the industry adopted chemical processes such as chrome tanning. Prior to this,
the industry used the bark processing method for tanning which used non toxic
substance such as bark, lime and salt. The abundance of raw hydes and skins, natural
tanning material such as barks and cheap labor facilitated the process. Waste disposal
was not a trouble at that time as the industries directly disposed waste into the river.
But by the early 1960’s the tanners faced the problem of deforestation in the
nearby Javadi hills, which provided them bark for tanning. Subsequently, they
started to switch to chemical tanning methods. Further, owing to the change in
economic policy and standards of leather exports after the Stockholm Summit,
64
the
focus of the tanneries got diverted to manufacture of finished leather products than
semi finished leather. This transformed the handicraft leather industry into
manufacturing units and used new procedures to augment profit, increase output and
196
time efficiency. In the production process, the industry completely shifted from
vegetable tanning to chrome/chemical tanning to reduce the period of processing the
skin and hides. They did not invest in effluent treatment plants to treat waste before
its disposal into the neighboring lands and the river. The adaptation to chemical
methods was therefore environmentally destructive as it used huge quantities of
water and chemicals to process leather and disposed the untreated waste into nearby
lands and the river. This affected the ground and surface water of the region and
changed soil characteristics.
The social reaction to the change has been a delayed response, mostly because of
ignorance and lack of information. A report by the Community Action Development
says that initially there was no reaction to the release of effluents because farmers
believed that the effluent contained vegetable extracts and hence, good manure for
the lands.
65
The report mentions that a number of farmers wished to be closer to the
tanneries to increase fertility of their lands. The farming community used effluent
water for irrigation without any hesitancy. The support from villagers boosted the
tanners and increased their entry into village lands.
By the late 1970’s, although farmers realized that soil fertility had declined and
crop production was low, they associated it more with religious reasons than the
presence of tanneries. As I gathered from my personal interactions with a
government official, pollution of a river source was also unimaginable to the people
as rivers in popular imagery of Hindus are purifying agents.
66
However, a series of
continuous agricultural losses made them realize that their land had been polluted by
197
tannery practices. The tanners tried to dissuade the farmers from legalizing the case,
they entered into negotiations with the farmers and compensated them by buying off
their farm lands. Some farmers approached the lower courts. To avoid legal issues,
the leather tanners decided to dispose of the waste directly into the river instead of
dumping in adjoining land, which presumably was not an issue as the river was
considered as common property. Water laws did not strictly define the norms of
usage of water sources and habitually wastes of various kinds have been dumped into
rivers.
67
Still, since the toxic wastes discharged were untreated, it spoiled the
physical and chemical properties of the soil and contaminated ground water by
percolation.
Within a few years, by early 1980’s, the ground and surface water quality
deteriorated and water was no longer potable and safe. Manifestation of the change
was noted in the various kinds of impact it had on life, health and livelihood needs of
the communities. Women and children had to walk long distances to fetch water for
their daily needs. In some media reports, there was mention of the rise in social
insecurity due to water crisis and people maintained vigilance teams to guard their
water sources.
68
People suffered from various kinds of diseases like cholera, skin
infection and asthma. Government hospitals in the area even recorded cases of milk
diarrhea due to chemical contamination of breast milk.
69
The river was polluted even
for secondary uses such as laundry and bathing. Those who bathed in the river
developed sores all over their bodies. In one district Dindigul, it has been reported
that about 350 wells of 367 had become polluted, 850 hectares of land had become
198
infertile and uncultivable and about 900 houses of 1298 were damaged due to air
pollution.
70
Pollution also caused high rates of migration to cities. Newspaper reports
suggest that more than 30, 000 villagers were affected by tannery effluents.
71
Studies by various research institutes and organizations provide evidence about
the pollution caused by the tanneries. Preliminary surveys conducted by Tamil Nadu
Agricultural University Research Center showed that about hundred thousand
hectares of land had become partially or totally unfit for cultivation and the area
under cultivation of food crops was reduced to 40% in the tannery belt.
72
Pollution
denied people their rights to subsistence and livelihood. The report said that ground
and surface water had been highly contaminated and was unfit for drinking, bathing,
washing and irrigational purposes.
Peace Trust, another social organization that works in this area evaluated the
impact of pollution on people. They have reported that pollution of water impacted
households as women and children had to walk miles to get drinking water. The
pollution has also resulted in displacement of a number of families from their
homes.
73
Community Action for Development said that the number of tanneries in
the region increased substantially in the 1970’s. For instance in the Vaniambdi
district it increased from 38 to 140 in 1975 in Vaniambadi while the number of
farmer families reduced from 23 000 to 8400.
74
In a study in Madurai it was seen that ground water samples taken from a
circumference of 6 km from the tanneries contained large excesses of suspended
solids, mainly clay and silt which results in turbidity and the growth of micro-
199
organisms such as bacteria, algae and protozoa.
75
They cause dis-colorization,
produce foul order and are pathogenic. Another research conducted by Gandhi Gram
Rural University reported that the chlorine content ranged from 956 milligram per
liter to 16598 milligram per liter in the water in the area.
76
It exceeded the tolerance
limit of 200 mg per liter and indicates severe pollution of ground water sources.
Chromium levels were also high to about 159 ppb.
77
They also showed that the
working condition of tannery workers was deplorable. Tannery workers were
reported to be suffering from chromiun ulcers, which develops when broken skin
comes in contact with chromium VI compounds, skin disease and respiratory
disorders. Even the hesitant state department that initially snubbed off locals had to
acknowledge the level of pollution. The Tamil Nadu Directorate of Public Health
admitted that the water was unfit for consumption.
78
Social campaigns against pollution by the tanneries began in the mid 1980’s to
bring to the attention of the law the extent of pollution caused by tanneries and
demanded closure of the tanneries. Advocacy groups organized joint actions to
mobilize people and conducted dharnas
79
to get the attention of the administrators.
Women carrying pots of dirty water was used to symbolize the burden on women
and how their lives were tied to the polluted water.
80
The Tamil Nadu Pollution
Control Board, set up in 1982, responded by giving notices to the tanners to stop
pollution. Their effort as commented by some local activists was only on paper and
they took no serious initiative to compensate or make alternative arrangements for
supply of drinking water. The law according to the social advocates such as Peace
200
Corps, Gandhi Gram was least responsive to the demands of the locals.
81
In this
desperate moment of the campaign, a civil society action group was formed called
the Vellore Citizen’s Welfare Forum, who filed a Public Interest Litigation in the
Supreme Court to make claims to clean and potable water.
There are two phases to the campaign, the first represent the 1980’s, when local
groups mobilized protests movement against the state and submitted petitions to the
state administration. The struggle in the 1980’s focused on mass action against the
law and the judiciary played a minor role, only at the provincial level. The second is
identified with the judicialization of the issue in 1991, when the Vellore Citizen’s
Welfare Forum finally filed a writ petition in the Supreme Court claiming failure of
state responsibility to protect citizen’s rights.
82
This chapter will focus on the latter
campaign.
Advocating through the Supreme Court:
Even so the social campaign against industrial pollution caused by tanneries started
in the 1970’s, legal contestation was initiated only in the late 1980’s when a Public
Interest Litigation (P.I.L) was filed against the violation of Constitutional liberties in
the Supreme Court of India. The legal campaign against pollution in the Pallar valley
was taken up by the Vellore Citizen’s Welfare Forum, a registered voluntary
organization that began in reaction to the industrial pollution.
83
The decision to
approach the higher judiciary was deeply influenced by the public image of the Court
that was emerging in the 1980’s as a pro environment and socially active Court.
84
In
fact, the decision to litigate was taken after much hesitancy as within the forum many
201
felt that they did not have the resources to compete and that the Court would favor
the industry over the people’s interest.
85
Nevertheless the forum had to approach the
Court because of their inability to obtain relief either from governmental instruments
or from lower judiciary.
86
More importantly, the citizens’ forum decided to seek
redress from the Supreme Court after the success stories of other tannery cases in
North India, particularly the Ganga Pollution case of 1988, against state failure to
curtail pollution of the sacred river Ganga.
87
Familiarity with the law and ability to
succeed seemed to be the factors taken into consideration by the Vellore Citizen’s
group in their decision to participate in the adjudicatory process. Mr. M. C Mehta, in
my personal discussion with him about the tannery cases and environmental
litigations in India, admitted that although public interest litigations are meant to
facilitate public participation it depends on attorney’s dedication to the cause to carry
the case in the Court, since most cases take a very long time.
88
This probably
explains the initial hesitancy of the movement to seek redress in the Supreme Court.
The petitioners in this case approached the Court as a third party concerned about
the pollution caused by leather tanneries and its impact on the people in this region.
Unlike some other instances of P.I.L’s that used letters and editorials in the
newspaper as a mode of approaching the Court, this law suit used formal procedures
of filing a writ petition on behalf of the citizen’s of Vellore.
89
The use of Public
Interest Litigation enabled them a direct hearing in the Court and they had standing
without proof of injury. The respondents to the case were the Union of India, the
provincial government and the numerous tanneries in the Vellore region.
202
The writ petition filed by the forum connotes many changes. From a legal
standpoint, it represented one more public interest case showing awareness of human
rights challenges. Even the act of filing the case arguably was based on realization of
violations of human rights and the failure of duties of various state agencies to
redress people’s rights.
That the petitioner is a registered voluntary organization constituted to serve and
protect the interests and right of human beings in general and citizens of Vellore
in particular.
90
The filing of the PIL by ordinary citizens also indicates departure from common law
constructs of public nuisance. Common law tradition in India required that in all
cases of public nuisance, civil action for abatement was to be brought by the
advocate general who represented the community.
91
More so, the decision of the
citizen’s group to engage with the Court affirms belief in the emerging perception
that the Court could be responsive to environmental and human rights issues. In the
words of Justice P.N Bhagwati,
There are three basic commitments which the Supreme Court has developed in
the past few years with a view to promoting human rights. One is the
commitment to participative justice, the other is commitment against
arbitrariness and third is just standards of procedure.
92
From the moment of filing the lawsuit, the Vellore case has developed through
an engaged participation with law in constructing a right to environment and water.
From the activist perspective it suggests a law and society engagement to frame
protection of human rights. Unlike political ecology definitions of law being a
contested domain, this case shows that social forces and Courts discerned aspects of
environmental rights through a participatory process.
203
The claims raised in the petition were diverse that pointed to human rights and
environmental violation and questioned certain specific practices of local tanneries
and their methodologies. The lawsuit challenged the polluting practices of tanneries
on many grounds of health, life, livelihood, gender and worker’s rights. They
showed that the practices of tanneries impacted various human rights of common
people and displaced them from their traditional modes of subsistence. The
petitioners even claimed that many of the workers suffered from skin diseases, gastro
enteritis and other water borne diseases. They reported that in 1985, 20 people died
due to epidemic cholera outbreak due to the contaminated water. A 1985 test also
showed that out of 600 tannery workers examined all of them had a 0 sperm count.
The practice of the tanneries had forced farmers to give up agriculture and seek
employment in the tanneries because of the low productivity of the land. The
petitioners claimed that-
The tanneries located all along the Pallar river in North Arcot, have been
discharging untreated toxic effluents into the river thereby utterly polluting river
water and rendering it unfit for any use. The contamination of the river water, the
only source of drinking water and irrigation for the surrounding areas has
resulted in devastating affect on the lives of the people….people have been
forced to flee from their land to cities in search of occupation…women and
children have to walk miles to fetch drinking water…has resulted in high
incidence of diseases….workers are not provided adequate protective instruments
to guard against the effects of these effluents.
93
In their writ petition they called for a comprehensive review of water usage policy
and prayed for a Court order to stop all licenses to tanneries till they developed
effluent treatment plants, compensated the loss to the environment and the people.
94
The petitioners claimed violation of many different laws, predominantly the
204
Constitutional laws such as Article 14 (equality before law), Article 21(right to life)
and Article 51 A (fundamental duties mainly duty towards protection of the
environment), Statutory laws such as the Water Pollution Control Act 1974, Air
Pollution Control Act 1981, Environmental Protection Act 1986, National Health
Policy, common law provisions mentioned in penal and criminal laws on nuisance
and pollution and International laws such as the human right to development.
That the action of the respondents is a violation of Article 21, 47, 48 and 51
(A) (g) of the Constitution of India water Act (1974), The Air Act 1987,
Environmental Protection Act 1986, National Health Policy, Industrial
Policy, Section 268, 270, 279 of IPC and the right to development as
recognized by the UN in the year 1986.
95
The main emphasis of the petitioners was the redress of rights guaranteed by the
Constitution, protection of human rights and conservation of the natural resources.
Although the focus of the petition remained on Constitutional and statutory laws, the
forum made explicit claims to protection of their right to development in human
rights law.
96
They approached the issue of conservation from the perspective of
human needs across generations and the responsibility of individuals and community
towards protection of the environment.
That the petitioner humbly submits that the conservation and improvement of
the environment are vital for the survival and well being of man. Natural
resources of land, air and water have to be used wisely as trust to ensure
healthy environment both for the present and future generations. It is the duty
of the respondents to maintain and restore the wholesomeness of water and
supply the same to the people for drinking purposes.
97
They complained about failure of state responsibility to protect the environment.
98
The claim was in the vocabulary of responsibility/duty of the respondents to
205
maintain and restore the wholesomeness of water and supply the same to the people
for drinking. It was a reminder of the responsibilities of the ruler.
On the legal aspect, the broad framing of the right to water on the basis of the
various laws demonstrates a plural approach adopted by social practitioners. It
underscores the interrelatedness of the right to water with health, life, livelihood,
gender and children’s rights. Further the emphasis on wholesome environment and
duties and responsibility frames the rights claims on the environmental issues as a
community issue than violation of individual rights. While this is in line with human
rights norms that identify entitlements and responsibilities of the state, the
acceptance of this principle in Indian law is facilitated by its presence in Hindu
values of Dharma. Hence even though dualism is practiced in India, and India has
not ratified the Optional protocols to the human rights covenants, legal interpretation
has integrated human rights into Indian law, through means that are locale. The
integration of rights and duties, and the recognition of community’s interests reflect
integral elements of Indian values of justice as described by the Dharmic postulates.
The reaction of the industrialists to the case conversely alludes to the historical
and social role of tanneries in the region. The respondents to the case, the tanners and
the state government, for their part argued that the tanneries were extremely
important to the economy of the region as they brought in foreign exchange and
provided employment to thousands of people. They claimed that tanneries have been
present in the region since colonial times, were the life line of many workers and part
of the cultural tradition of the area.
99
They asserted that leather tanning was a family
206
tradition and closure of tanneries will have serious livelihood costs. Consequently,
the litigation was framed as a case for protection of environment versus
development, loss of agricultural livelihood versus worker’s rights, human rights to
water versus cultural practices etc.
The petition raises many normative legal questions about usage of water and its
implications for the larger environment such as access to water sources and the limits
to individual or community’s use of water. The usage that has been put to water by
the tanners has raised important questions of law. It asks the law to define the limits
of use of common property sources. It inquires if the tanners have the legal right to
pollute the river and the ground water in the region. The litigation also raises
important questions of how can states regulate private actors that cause pollution.
While most human rights cases are invoked against violation of rights by the state,
this case is based on the failure of state responsibility to ensure a healthy
environment. The respondent to the case are not the tanneries but the Union of India.
The legal reasoning as presented is a modern discourse on pollution that alludes
to the historical growth of this industry, its importance to the region, the support it
has provided and its impact on rights of the people. It demonstrates that the historical
trajectory of water pollution debates in India have shifted from sacred notions of
impurity and defilement to colonial laws on nuisance to a human right
conceptualization of environment and rights of natural resource. Furthermore in
laying responsibility on the state to ensure fulfillment of citizen’s rights, the
contestation shifts to cultural concepts of Dharmic law than common law precepts of
207
liability. Even in perception of demand from law, there is a notable change from the
image of Court as an adjudicatory body to that of a law provider, which again is
typical to the Indian notion of Justice.
That this is a writ petition under Article 32 of the Constitution of India for a writ
of mandamus or an appropriate writ, directing the respondents 1 and 2 (Union of
India and State government of Tamil Nadu) to provide wholesome drinking
water to the people living in the villages being affected by pollution in North
Arcot district, Tamil Nadu.
100
The Order
The judicial ruling in the case relied on a framework of state responsibility and
human rights to redress the issue of water rights. The Court order in the case directed
1) the central government to constitute an environmental protection authority to deal
with the situation created by tanneries and other polluting industries. It ordered that
development has to be compatible with the goals of sustainable development. Going
further, the Supreme Court observed that the `Precautionary' Principle and the
`polluter pays' principle are essential features of sustainable development. The court
explained the precautionary principle in the context of the municipal law as:
• “Environmental measures by the State Government and the statutory
authorities must anticipate, prevent and attack the causes of environmental
degradation.
101
”
• Where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation.
208
• The onus of proof is on the actor or the developer/ industrialist to show that
his action is environmentally benign.
2) While the Court acknowledged the economic contribution of the leather industry
to the region, the Judges held that this does not make unethical practices permissible.
It held the industry responsible for pollution. It also required industries to install
effluent treatment plants. It reaffirmed the earlier case law on the subject, the Kanpur
tannery case on the pollution of River Ganga where Justice Kuldip Singh had stated
that-
Like an industry that cannot pay minimum wages to its workers cannot be
allowed to exist, a tannery which cannot set up a primary treatment plant
cannot be permitted to continue to be in existence for the adverse effect on
the public at large which is likely to ensue by the discharging of the trade
effluents from the tannery to the river Ganga.
102
3) It required the industry to compensate both the affected individuals and the
Environment.
4) It stipulated that tanneries that failed or refused to pay would be closed down.
5) It also requires the authorities to ensure that the quality of ambient waters is
maintained.
103
Legal Reasoning in the Vellore Case:
The legal space accorded to the fundamental need of water and protection of the
environment in the Vellore ruling demonstrates the internalization of human rights
principles through a plural legal model of law. Most critically it signals Indian law
and society’s acceptance of the cosmopolitan goals of environment and human
rights. The deliberations in the Vellore case have explored various dimensions of the
209
cosmopolitan environmental norms such as principle of sustainable development,
law of human rights to interpret water rights in India. In line with the ICCPR
interpretation of the right to life, Justice Kuldip Singh said “right of a person to
pollution free environment is part of the basic jurisprudence of the land.”
104
The human right and the social relation with the resource element are further
made clear in the judicial reasoning to balance development with the environment.
The Court made clear that the tannery industry has been an old enterprise and has
been critical to the economy of the region. However, its work practices were
destructive to the environment and also violated human rights of people. It said that
the right against pollution was entrenched in the common law right to clean
environment, which itself grew from common law right against nuisance.
The Constitutional and statutory provisions protect a person’s right to fresh air,
clean water and pollution free environment, but the source of the right is the
inalienable common law right of clean environment.” The Court quoted a
paragraph from Blackstone’s commentaries on the Laws of England-
if a person keeps his hogs or other noise some animals or allows filth to
accumulate on his premises, so near the house of another, that the stench
incommodes him and makes the air unwholesome, this is an injurious nuisance,
as it tends to deprive him of the use and benefit of his house.”…Offensive trade
as tanneries though lawful they should be exercised in remote places. It also said
that it is a nuisance to stop or divert water …or corrupt or poison a water course
by erecting a dye house.
105
Justice Kuldip Singh emphatically made clear that development cannot be at the
cost of environment.
106
He maintained that the traditional concept of development
and ecology being opposed to each other was no longer acceptable and that the
balance between the two had to be found in sustainable development. In Vellore
Citizens Welfare Forum v Union of India (1996), the Supreme Court observed that
210
the `precautionary' principle and the `polluter pays' principle are essential features of
sustainable development. The Court explained the Precautionary Principle in the
context of the municipal law as: One, environmental measures by the State
government and the statutory authorities must anticipate, prevent and attack the
causes of environmental degradation. Two, where there are threats of serious and
irreversible damage, lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation. And three, the onus of
proof is on the actor or the developer/ industrialist to show that his action is
environmentally benign.
The legal reasoning adopted in this case corresponds to developments in
ecological modernization theory that portray environmental protection as a positive
sum game where economic growth could be reconciled with ecological problems.
107
The Court’s insistence on the adoption of effluent treatment plants by the leather
industry suggests a technological institutional solution, pursued by the
administration, for the problems.
It is no doubt that the leather industry in the country is a major foreign exchanger
and at present Tamil Nadu is the leading exporter of finished leather accounting
for approximately 80% of the country’s export. Though the leather industry is of
vital importance to the country as it generates foreign exchange and provides
employment avenues, it has no right to destroy the ecology, degrade the
environment and pose as a health hazard. It cannot be permitted to expand or
continue production unless it tackles the problem of pollution.
108
In this ruling, Justice Kuldip Singh extensively discussed various soft law
declarations on the environment such as Stockholm declaration, Brundtland report,
Caring for Earth report by the UNEP, WWF, Convention on Biological Diversity
211
and Climate Change, to affirm that sustainable development was a part of customary
international law. The Court therefore not only affirmed sustainable development but
also went ahead to define the content of sustainable development. The Court outlined
various features of the concept as called out in international declarations such as
Inter-generational Equity, Use and Conservation of Natural Resource, Environmental
Protection, Precautionary Principle and Polluter Pays principle. Justice Singh
identified Precautionary Principle
109
and Polluter Pays principles to be the most
important elements of sustainable development. He identified this to be the
constituent of environmental and constitutional law in India, as endorsed in Article
21 on the Right to Life and Article 48 on state responsibility towards protection and
promotion of the environment in the Indian Constitution. They could also be derived
from statutory laws on the Water Prevention and Control of Pollution Act, Air
Prevention and Control of Pollution Act and the Environment Protection Act. These
principles it stated were part of customary international law and hence could be
accepted as part of domestic law.
While early Court judgments on water rights focused on customary rights of
people and law of nuisance as in common law traditions, since the 1980’s the
emphasis of the Court is on the rights of people and state responsibility to ensure
water rights. In the process, the Court has not only relied on legal postulates on water
rights in India but has gone beyond to adapt international standards of human rights.
The ground for legal acceptance of international principles was made clear in the
212
earlier case on water pollution- the Ganga pollution case. In this case Justice
Bhagwati, stated that
We have to evolve new principles and lay down new norms which would
adequately deal with the new problems which arise in a highly industrial
economy. We cannot allow our juridical thinking to be constricted by
reference to law as it prevails in England. We no longer need the crutches of
a foreign legal order. We are certainly prepared to receive light from
whatever source it comes but we have to build our own jurisprudence.
110
The ruling in the Vellore case further exemplifies the direction of Indian law
in incorporating international and domestic standards. In this judgment, Justice
Kuldip Singh, highlights the acceptance of a plural framework by the law.
Even otherwise once these principles are accepted as customary International
Law there would be no difficulty in accepting the as part of the domestic law.
It is almost accepted proposition of the law that the rule of Customary
International law which are not contrary to the municipal laws shall be
deemed to have been incorporated in the domestic law and shall be followed
by courts of law.
This position has been supported in many cases such as Justice HR Khanna’s
opinion in Additional District Magistrate Jabalpur v. Shivkant Shukla AIR
1976 SC 1207, Jolly George Varghese’s case AIR 1980 SC 470 and
Gramophone Company’s Case, AIR 1984 SC 667.
111
In a personal meeting, former Chief Justice Pattnaik said to the effect that
international legal standards may not be explicitly used by the Court, but they do
influence the legal reasoning of the Courts.
112
He said that the development of
environmental activism by the Court in India is not an insulated experience but
draws richly from the experience of other countries and the social context in India.
These statements demonstrate the openness and willingness of Indian law to foreign
ideas and also the acceptance of indigenous legal values.
213
In this case the Court made a clear departure from common law jurisprudence on
nuisance that favored property interests. The Courts endorsed two fundamental tenets
of water rights the ecological concern and human need. This is vital as it is the first
time that ecological importance was attached to water. Although not clearly
articulated in the ruling, the human and ecological interpretation to the pollution case
denotes change in the categorization of water as a natural or economic commodity to
water as a human right. This reasoning, I argue, is a concrete instance of
incorporation of human rights and cultural ideals of human nature relationship.
Unlike common law precepts discussed earlier, the law focuses on the ecological
worth of the resource to human beings and the corresponding responsibility towards
its protection.
Briefly the main aspects of this case law are-
• Public interest litigation by a citizens groups against pollution caused by
tanneries. The different categories of stakeholders in the case are the
urban middle class citizens, tannery laborers representing the lower caste
segment, tannery workers interest, owners of tanneries.
• The central concern in the judgment was to protect human right to water
and the environment. It sought to resolve the debate between
development and environment by defining sustainable development to be
the basis of law. The intent of the law seemed to be a move from minimal
protections of clean environment through the right to life to a holistic
protection of the ecology for the present and future generations.
• The law sought to protect people’s right to pollution free environment
through acceptance of the international environmental law standards. It
adopted a plural legal approach to the environment. Its rulings were also
developed in broad consultations with scientists.
• A technocratic vision of sustainable development. Constitutional context
of environmental duties played an important role. Also important was a
public perception and the duties towards protection.
• Social groups’ articulation of claims was in acceptance of cosmopolitan
goals of human rights to environment. Explicit reference was made to
human right to development. Industrialists although defined their social
214
position in the global economic market, also claimed their right to
traditional customary practices.
Conclusion
The case law endorses many fundamental Indian cultural values of duties and
responsibilities towards the environment, protection of public interest, and the Law
Giver role of the Courts than adjudicator. The ruling also adopted the global debate
on water rights. Finally, and more importantly the debates in law and outside law
suggest that framing of rights and even the resolution is community oriented than
based on individuals claim against nuisance or pollution.
Thus in this case, the Court is in the process of laying down the framework of
water rights in India by contextualizing the law within a human rights and
environmental perspective. Through a public law realm, based on the interplay of
customary, constitutional and international laws, the court has created a space for
recognition of cosmopolitan values of the environment and clean water. Typical to
the legal culture in India, the reasoning and social activism on the case has built on
accommodation of Indian interest with global discourse, and framed environmental
rights through a balancing of various interests through legal means that are typical to
Indian legal culture. This marks departures from social norms and colonial precepts
on pollution and places the law on water rights within a framework of cosmopolitan
jurisprudence.
215
Chapter 5 Endnotes
1
Koran 21:30. Quoted in “The Right to Water”. World Health Organization. 2003.
2
Vellore Welfare Forum vs. Union of India, AIR 1996 SC 2715.
3
See, Joseph L Sax. “The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention.” Michigan Law Review. 68(3), 1970, pp. 471-566. The public trust doctrine in common
law borrows from Joseph Sax’s theory. In Indian law, public trust doctrine is said to have a basis in
both international and domestic law. Chief Justice Y.K Sabharwal has argued that when the Courts
apply the doctrine, it is considered not only as an international law concept but also one established in
the domestic legal system. In M.C Mehta v. Kamal Nath, the Court held that the State, as a trustee of
all natural resources was under a legal duty to protect them and that the resources were meant for
public use and could not be transferred to private ownership. In another case, M.I Builders Pvt.
Limited v. Radhey Shyam Sahu it was observed by the Supreme Court that public trust doctrine have
developed from the Article 21 of the Constitution and is very much a part of Indian legal
jurisprudence. See, Justice Y.K Sabharwal. “Human Rights and the Environment.”2006. In
http://www.supremecourtofindia.nic.in/new_links/humanrights.htm (last visited 22nd June, 2007).
M.C Mehta v. Kamal Nath 1997 1 SCC 388. M.I Builders Pvt. Limited v. Radhey Shyam Sahu AIR
1999 SC 2468.
4
The cradle of early civilizations has been on river banks, for instance the Indus valley civilization in
ancient India, or the Chinese civilization on the banks of Hwang Ho, Mesopotamian civilization etc.
5
Chhatrapati Singh. Water Rights and Principles of Water Resources Management. New Delhi:
Indian Law Institute, 1999.
6
The United Nations Development Program defines water as “the stuff of life and a basic human
right.” It recognizes its importance to life, health, livelihood and the right to an adequate standard of
living. The UN has identified that scarcity and battle for water will be the most important global
concern of the twenty-first century. Appositely, it has declared 2005-2015 as International Decade for
Action: Water for Life.
7
Dublin Statement on Water and Sustainable Development. International Conference on Water and
the Environment. Dublin 31 January,1992.
8
See Belinda U. Calaguas. “The Right to Water, Sanitation and Hygiene and the Human Rights-
Based Approach to Development.” Water Aid Briefing Paper. July,1999.
www.righttowater.org.uk/pdfs/humanrights.pdf (last accessed May 1, 2007).
9
Erik B. Bluemel. “The Implications of Formulating a Human Right to Water.” Ecology Law
Quarterly, 31. 2004, pp.960-1006.
10
See UNICEF, “Groundwater: The Invisible and Endangered Resource.”1998. Also see, Eric
Gutierrez.” WaterAid, Boiling Point: Issues and Problems in Water Scarcity and Sanitation”.1999.
available at http://www.wateraid.org/other/startdownload.asp?openType=forced&documentID=533.
(last accessed May 1 2007).
11
The legal space to human right to water is necessary to acknowledge that regular supply of safe
water is a basic human right as is access to unadulterated food. See, Salman M.A Salman, Siobhan
McInerney- Lankford. The Human Right to Water: Legal and Policy Dimensions. Washingon D.C:
World Bank, 2004.
216
12
R. Maria Saleth. “Water Rights and Entitlements.” In John Briscoe and R.P.S Malik. Oxford
Handbook of Water Resources in India: Development, Management and Strategies. New Delhi:
Oxford University Press, 2007, pp. 282-305. Saleth, while recognizing water rights also allows for
some degree of trading of water rights between urban and rural users. This arguably can sometimes
create problems as rural communities might be coerced to trade water rights for other benefits, which
can be socially discriminatory. Hence, a minimal satisfaction of need is integral to the recognition of
water rights.
13
See, Committee on Economic, Social and Cultural Rights: General Comment 4, the Right to
Adequate Housing, UN doc. E/1992/23. adopted 13 December 1991.
14
Peter Gleick.(1999). “The Human Right to Water.” Water Policy 1(5), 1999, pp. 487-503.
15
It is widely acknowledged that the burden of collecting water for domestic use is usually on women
and children. For example, see World Health Organization Report on human right to water. “Water as
a Human Right”. World Health Organization. Doc.Oms Water. 11/03/2003. The report cites examples
to show how inaccessibility of water burdens children and women. One case cites the story of a
twelve year old girl in Ghana who visits the water hole every morning at 5:30 and it takes her about 3
hours to collect the water she needs for her family. Animals also drink from the same water hole.
16
Amy Hardberger. (2005). “Life, Liberty and the Pursuit of Water: Evaluating Water as a Human
Right and the Duties and Obligations it Creates.” Northwestern University Journal of International
Human Rights. Volume 4. pp.331-362.
17
Ibid. Rights-based approach, environmental justice theory, and sustainable development proponents
all agree that water must be a right.
18
The concept of equitable use was codified in the 1997 UN Convention on the Law of Non-
Navigational Uses of International Watercourses. Article 5 – equitable and reasonable utilization and
participation. It was recalled by the International Court of Justice in the 1997 Gabikovo-Nagymaros
judgment. Gabcikovo-Nagymaros Case (Hungary-Slovakia), ICJ, Judgment, 25 September 1999
19
Supra note 15.
20
Right to life is one of the earliest rights included in the UN conventions. Originally the right did not
include basic life necessities and simply prohibited the arbitrary deprivation of life. Since the 1970’s
the right to life is read more broadly to include measures that increase life expectancy like health and
hygiene. The broad interpretation is expressed in General Comment No. 6 to the ICCPR which notes
that the right to life "cannot properly be understood in a restrictive manner" and should include
"measures to reduce infant mortality and to increase life expectancy." See, U.N. International Human
Rights Instruments. (1994). General Comments Adopted by the Human Rights Committee. General
Comment 6. Art. 6, P 5, U.N. Doc. HRI/GEN/1/Rev.1. Also see Henry J. Steiner, Philip Alston and
Ryan Goodman. International Human Rights in Context: Law, Politics and Morals. Oxford University
Press. 2000. William N. Nelson. “Human Rights and Human Obligations.” In J. Roland Pennock and
John W. Chapman. (Eds). Human Rights Nomos XXIII. 1981. pp. 288-89. G. Handl. “Human Rights
and the Environment: A Mildly Revisionist View.” In A. Cancado Trindade, Human Rights,
Sustainable Development and the Environment, San Jose, Costa Rica: Inter-American Institute of
Human Rights, 1992, pp.117-142.
21
John Scanlon etalli., (2004). “Water as a Human Right.” International Union for Conservation of
Nature and Natural Resources (IUCN). Environmental Policy and Law Paper No.51. 18-19.
217
http://www.iucn.org/themes/law/pdfdocuments/EPLP51EN.pdf. (last accessed May 2007). He argues
that the right to water is not a recognized fundamental right but is an implicit component of other
rights. Supra note 11, Salman and Mcinerney-Lankford. They explain that a human right to water
exists because it is included in other recognized rights.
22
See Supra note 15, Peter Gleick, notes that although the right to food has been recognized,
widespread famine still remains.
23
Amy Hardberger. “Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and
the Duties and Obligations it Creates.” 4 Northwestern University Journal of International Human
Rights, 2005, pp.331-362.
24
Ibid.
25
Supra note 9
26
Supra note 5. (C. Singh).
27
Upendra Baxi. “Preface”. In Chhatrapati Singh. Water Rights and Principles of Water Resources
Management. New Delhi: Indian Law Institute, 1999.
28
One good example of how legal recognition enables enforcement is the Montreal Protocol. The
Montreal Protocol is an example of a successful global sustainability effort to reduce ozone depleting
gases in the atmosphere. http://www.undp.org/seed/eap/montreal/montreal.htm (last visited April
2007).
29
See U.N. Comm. on Economic, Social, and Cultural Rights, Substantive Issues Arising in the
Implementation of the International Covenant on Economic, Social and Cultural Rights: General
Comment No. 15: The right to water: arts. 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights, P 1, U.N. Doc. E/C.12/2002/11 (Nov. 26, 2002) (stating that "depletion
and unequal distribution of water is exacerbating existing poverty") [hereinafter Comment 15]. See,
General Comment No. 15, U.N. ESCOR Comment on Economic, Social and Cultural Rights, 29th
Session. Agenda Item 3. U.N. Doc. E/C.12/2002/11 (2002). See generally, J. Martin Wagner et al.
(2003). “Human Rights and the Environment.” Earth Justice Issue Paper. Materials for the Fifty-Ninth
Session of the United Nations Commission on Human Rights. P.H Gleick and E.L. Chalecki. (1999).
“The Impacts of Climatic Changes for Water Resources of the Colorado and Sacramento-San Jaoquin
River Basins.” Journal of the American Water Resources Association 35, pp. 1429–1441.
30
In case of access to safe water this is a pertinent question as the lower socio-economic classes and
groups- women, and children are often affected by the consequences of inadequate water supply.
Water resources are also unequally distributed between rural areas and urban areas. For example,
"some 80% of those who have no access to improved sources of drinking-water are the rural poor."
Ruchi Anand. International Environmental Justice: A North-South Dimension, Ethics and Global
Politics 15, England: Ashgate Publishing, 2004.
31
For a detailed discussion of the debates about right to equality in the Indian Constitution, see, J.K
Mittal. “Right to Equality and the Indian Supreme Court.” The American Journal of Comparative
Law, 14(3), 1965, pp. 422-458.
32
The interrelation between equality and access to water has been recognized very early in Indian law
owing to 1) the prevailing caste structures that socially discriminated certain caste groups from usage
of common resources of water and 2) commitment of Post Independent India to get rid of caste based
218
inequalities. Article 15 (2) of the Constitution states that No citizen shall, on ground only of religion,
race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or
condition with regard to -(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly
out of State funds or dedicated to the use of general public.
33
C. M Jariwala. “Indian Water Pollution Law: The History and Prospects.” The Banaras Law Journal
25, 1989, pp. 21-35.
34
Se Louis Dumont. Homo Hierarchicus: The Caste System and its Implications. Translated by Mark
Sainsbury et al. Chicago: University of Chicago Press, 1980. Dumont describes Hindu society as a
hierarchy dominated and organized by the cultural principles of purity and pollution. The concept of
purity determined social relations and interactions of people with the natural world. These concepts
are not related to hygiene as in the west. Pollution referred to religious impurity.
35
Lower caste groups were sometimes allowed to access common water sources but the timings were
restricted to durations when others did not use the water, such as very early hours in the morning or
late at night.
36
Constitution Assembly debates on Article 15 of the Constitution.
37
Gopeshwar, in Uttaranchal, field visit, January 28
th
-30
th
2007. This place is home to the Chipko
movement against cutting down of trees by timber contractors.
38
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, No. 33 of 1989, 11
th
September 1989. http://www.socialjustice.nic.in/schedule/poa-act.pdf (Last Accessed 4
th
September
2007). The 2004 report on this Act identifies 180 villages in India to be “atrocity prone” and 189 as
dormant atrocity prone villages. In these villages survey is conducted to ensure availability of basic
amenities such as drinking water. See, Government of India, Ministry of Social Justice and
Empowerment, Annual Report on the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 for the Year 2004. New Delhi, 2004. http://socialjustice.nic.in/schedule/ar-
poa.pdf. See also, Upendra Baxi. “Untouchables Access to Water: Two Moralities of Law
Enforcement.” In Upendra Baxi. (Ed.) Law and Poverty. N.M Tripathi, Bombay 1988, pp. 186-191.
39
State of Karnataka v. Appa Babu Ingal 1995 4 Supp. SCC 469.
40
E.G Furubotn and S. Pejovich. “Property Rights and Economic Theory: A Survey of Recent
Literature.” Journal of Economic Literature, 10(4), pp. 1137-1162.
41
David Bromley. “The Commons, Property and Common Property Regimes.” In D. Bromley (ed.)
Making the Commons Work. San Francisco: Institute for Self Governance, 1992, pp. 3-15.
42
See, Supra note 5, Chattrapati Singh, for a discussion of Water Law. See also, C. M Jariwala.
“Indian Water Pollution Law: The History and Prospects.” The Banaras Law Journal, Volume 25,
1989, pp. 21-35. Tony George Puthucherri and Lekshmi Vijayabalan. “The Law of Water Rights in
India.” The Academy Law Review, Volume 28: 1 and 2, 2004, pp. 72-162.
43
See, Kelley D Alley. On the Banks of the Ganga: When Waste Water Meets a Sacred River. Ann
Arbor: The University of Michigan Press, 2002.
44
Secretary of State v. Sannidharan, AIR 1932 Privy Council 46, cited in C. Singh.
219
45
Ram Sewak Kazi v. Ramgir Choudhary AIR 1954 Patna 320.
46
Setharamalingam v. Anand. AIR 1934 Madras 583.
47
Warbandi and Osrabandi were systems of water sharing based on particular amounts of cess on the
water used for irrigation.
48
An alternative to these modes of sharing are local practices of water sharing, such as the pani
panchayats, which are need based systems, where every member of family gets a stipulated amount of
half acre per land.
49
For a discussion about the semantics of pollution in India see, Supra note 43, Kelly D. Alley.
50
Section 277 of the Indian Penal Code.
Section 278 of the Indian Penal Code.
51
C.M Abraham. Environmental Jurisprudence in India. The Hague: Kluwer Law International. 1999.
52
Ibid.
53
Supra note 5.
54
Ibid.
55
Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996, SC 2715. Also see, K. Sriram and
Sundip Biswas. “The Tannery Files: Tracing the Supreme Court Verdicts on India’s Polluting
Tanneries.” PL Webjour 7, 2004, pp. 1-8.
56
Natural conditions such as prevalence of sunny climate, availability of tanning material like bark
from nearby Javadi hills, labor force, availability of chlorine free water facilitated the growth of the
industry.
57
Based on field visits, March 1
st
-3
rd
, 2007. The tannery sector in India is reserved in India for small
scale industries, which is defined by the upper limit of invested capital. In practice, bigger firms have
entered this sector by breaking up into four or five smaller units. Several large groups in the valley
own 4 or 5 tanneries and coordinate among them.
58
India Year Book, Government of India, 2001.
59
India was a supplier of raw material and food grains to the British. Even in Independent India, till
about the seventies most of the exports were food grain or raw material based. See, R.P Dutt. India
Today, London, 1940.
60
Dealing with animal skin has been regarded in caste practices to be polluting and so upper castes in
India are rarely found to be engaged in the leather industry. The ancient text of Manu, which provides
the philosophical justification of caste system in India, mentions that skinning of dead animals is the
job of herdsmen. About 1200 A.D when caste became entrenched in India, the job of skinning animals
went to the untouchable castes. Other castes have taken employment in tanneries, but their jobs do not
deal with handling of raw hydes. The name Chamar itself derives from the word Chammar, which in
Hindi refers to skin. In different regions, Chamars are known by different names. As the industry
developed and became lucrative in the 19
th
century, rich Muslim traders took control of this industry.
220
See, “Environment and People’s Subsistence: A Case Study of Leather Industry Pollution and the
Story of the Dying Villages”, Report of Community Action for Development.1989.
61
This is not to support that Moslem groups and Chamars have been static. There has been social
mobility of successful tanners who occupy important social positions.
62
Traditionally occupation was dictated by caste and even in present times there are some functional
castes in which the members follow a hereditary occupation. With leather industry, even now this
remains a caste based occupation despite years of social change because of the pollution attached to
leather working. See Arthur Niehoff. “Caste and Industrial Organization in North India.”
Administrative Science Quarterly, Volume 3, No.4 March 1959 pp. 494-508. Also see, Knorringa,
who has underscored the division between producers and traders who are separated on caste and class
lines. P. Knorringa. (1996). Economics of Collaboration, Indian Shoemakers between Market and
Hierarchy. New Delhi: Sage Publications.
63
“Environment and People’s Subsistence: A Case Study of Leather Industry Pollution and the Story
of the Dying Villages”, Report of Community Action for Development.1989.
64
In 1972, in lines with the Stockholm conference, the government decided to export only finished
leather products.
65
Supra Note 63.
66
In a personal meeting, with a government official, March 1
st
-3
rd
, 2007.
67
See Supra note 5. C. Singh for a discussion of common law rights on usage of fresh water sources.
68
“The Spoilt Environment.” The Hindu, Friday April 7
th
1989.
69
Vellore Citizen’s Welfare Forum v. Union of India. Writ Petition No. 914 of 1991.
70
Ibid.
71
See, P.V.V Murthi. “Water Crisis will Stare Contestants in the Face.” The Hindu, April 09, 2004.
72
Tamil Nadu Agricultural University Research Center Report 1990.
73
Peace Trust Report, see Writ Petition No. 914 of 1991.
74
Supra note 63.
75
Ibid.
76
Gandhi Gram Rural University Report. See Writ Petition No. 914 of 1991.
77
Chromium is a highly toxic substance that causes a number of diseases- it can penetrate cells and
damage the genetic material DNA. It is therefore a mutagen and a carcinogen.
78
Supra Note 57.
79
Dharna is an Indian word for social protest.
221
80
Supra note 63.
81
Peace Trust and Gandhi Gram, see Supra note 73 and 76..
82
Writ petition was filed by R.R Pillai under Article 32 of the Constitution for issuance of a writ of
mandamus or any other writ, order or directions for the safety of the people living in North Arcot
district of Tamil Nadu. The petition was filed on behalf of the Vellore Citizen’s Welfare forum,
through its President K.A Sankarsivam. The petitioner is a registered voluntary organization. The
case was filed against the Union of India, state of Tamil Nadu and the Tamil Nadu State Pollution
Control Board for the protection of thousands of innocent lives, suffering from serious air and water
pollution caused by enormous discharge of untreated effluents by the tanneries into agricultural fields,
roadsides, water ways and open lands in North district of Tamil Nadu.
83
Interestingly water pollution debates in India are not specific to industrial use alone. Certain cultural
practices such as throwing of ashes of the cremated and unidentified carcasses (even those of
untouchables and barren women) and social habits such as bathing in the river are rarely identified as
polluting. For an account of socially discriminatory practices against untouchables see, Ghanshyam
Shah etalli. Untouchability in Rural India. New Delhi: Sage Publications Inc.2006.
84
In my discussions with lawyers etc I learnt that since the 90’s every Friday afternoon was allotted to
the green bench of the Supreme Court for hearing about environmental matters. The green bench is an
administrative division of the Court; it only suggests the importance given to environmental matters
by the Court so as to be allotted a separate bench.
85
Personal meetings with some concerned citizens of Vellore, March 2
nd
, 2007.
86
This has been well covered in literature in law and society that lack of resource is one important
reason why very few groups litigate in India. See, Charles Epp. The Rights Revolution: Lawyers,
Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago
Press.1998. Jayanth Krishnan. New Politics, Public Interest Groups and Legal Strategies in the United
States and Beyond. PHD Dissertation. University of Wisconsin-Madison, 2001.
87
Priorly, the Vellore Citizen’s had approached the provincial courts but the case was never taken up.
In my personal discussions with some members of the leather tanners association, I was told that the
Vellore case had been influenced by the Ganga pollution case. The writ petition was even drafted by
the same lawyer, Mr. M. C Mehta, even though the case was filed by a different lawyer. The petition
was admitted as a public interest litigation by a bench which had a pro environment character being
represented by Justice Kuldip Singh, known for his support to the environment.
88
Speaking in the context of the Ganga Pollution case Mr. Mehta also pointed that litigations take a
long time. Personal Meeting with Mr. M. C Mehta, January 21
st
, 2007, 10:30 a.m
89
The writ petition was drafted with the assistance of Mr. M.C Mehta, the lawyer in the Ganga
Pollution case.
90
Supra note 69.
91
For a discussion of common law norms on pollution, see C. M Abraham. Environmental
Jurisprudence in India. The Hague: Kluwer Law International.1999.
92
See, M.C Mehta v. Union of India, 1987 1 SCC 395 at 420.
222
93
Supra note 69
94
Supra note 69
95
Supra note 69
96
See Supra note 69. Their interpretation of human right to development took the literal meaning of
the people’s right to development debate vis a vis the conventional use of the provision by states.
97
Supra note 69.
98
Supra note 69.
99
Mr. Rafiq Ahmed, Personal Meeting, Vellore, March 3
rd
2007.
100
Supra note 69.
101
Vellore Citizen’s Welfare Forum v. Union of India and ors. (1996) 5 SCC 647.
102
Supra note 93.
103
Supra note 102.
104
Ibid
105
Ibid. See also Sr. William Blackstone. “Of Nusiance.” Commentaries on the Laws of England.
Vol. III, Chapter XIII, 4th Edtion 1876.
106
Ibid
107
Maarten A. Hajer. The Politics of Environmental Discourse Ecological Modernization and the
Policy Process. Oxford: Oxford University Press,1995.
108
Supra note 100.
109
The Court even defined the context of the precautionary principle for municipal law means-
environmental measures by the state must anticipate, prevent and attack the causes of environmental
degradation. 2) where there are threats of irreparable damage, lack of scientific certainty should not be
a reason for postponing measures to prevent environmental degradation. The onus of proof is on the
actor or the developer to show that the action is environmentally benign. In an earlier case, the
Council for Enviro- Legal Action v. Union of India the court held that-we are of the opinion that any
principle evolved in this behalf should be simple, practical and suited.
110
Supra note 93.
111
Supra note 102. Additional District Magistrate Jabalpur v. Shivkant Shukla AIR 1976 SC 1207,
Jolly George Varghese’s case AIR 1980 SC 470 and Gramophone Company’s Case, AIR 1984 SC
667
112
Personal Meeting with former Chief Justice G.K Pattnaik, March 26
th
2007, 11:30 a.m.
223
Chapter 6
Conservation of Greenscapes and Human rights:
The Godavarman Case in India.
This chapter examines the right to conservation of natural resources in India, through
an analysis of law and society discourse about forests in the Godavarman case.
1
It is
an ongoing lawsuit in the Indian Supreme Court that began in 1995 as a public
interest litigation to protect forest resources. The case was initiated by a letter written
to the Court by Mr. T. N Godavarman, complaining about timber felling operations
in forests near his home area. It was subsequently taken up by the Court as a writ
petition to protect the forest resources of the entire country and to define people’s
rights and limits to usage of forests. The case is noteworthy in the history of
conservation law in India for its integration of environmental and human rights
perspectives to policies and practices of conservation.
2
Although the case is yet to
reach finality, the legal recognition of the right to conservation and the consequent
changes in legislation reflect that the forest laws have significantly departed from
colonial definitions of natural resource law to integrate environmental and human
rights perspectives.
3
The litigation has evolved in two phases- the first stage began with the 1996
Court decision which redefined the greenscapes of India from a ecological
perspective incorporating international environmental standards to interpret Indian
forest law. The Court ordered a ban on all non forest activities in forest areas and
resorted to a dictionary meaning of forests. The second stage of the case is marked
by the proceedings thereafter by social groups contesting the definition of forests
224
from local normative and constitutional perspectives and the Court orders based on
these contestations. In this phase, the legal debates emphasized accommodation and
adaptation of international laws to the local context, expressing important aspects of
interaction between different sources of law and social relations with the law. The
framework that has emerged as a result reflects departures from positive law
tradition to a plural legal model based on the interplay between international
environmental standards, law of human rights, constitutional principles and local
practices.
This I argue is a distinctly post colonial adaptation to cosmopolitan norms based
on interaction of different sources of law facilitated by the public interest litigation
movement in law. The shift from common law adjudication to PIL reinstated some
of the values of Indian legal culture, as discussed earlier in chapter 3, that are typical
to this mode of pluralism. In particular is the syncretic tradition in Indian law that
incorporated customary practices and values from different sources, and the Dharmic
sense of justice towards the environment. In this the law expresses itself in relation to
society and context. While the colonial pattern of law was based on coexistence of
different legal orders such as the common law and certain versions of indigenous
law, the present model adapts the official law to versions of international and local
norms and social perceptions. This attention to legal interaction and social relations
has enabled internalization of cosmopolitan standards.
This is clearly demonstrated in the Godavarman case, where the integration of
global norms of conservation has been carried through a process of negotiation and
225
contestation between law and society, deliberating the different aspects of laws and
social relationship with the natural world. For instance the right to conservation of
forests was challenged by the customary rights of adivasi communities and the right
to life and livelihood of many others who rely on forest resources for basic
sustenance. The usage of global standards to interpret national laws has been
contingent on the diverse meanings that people attribute to forests, customary
practices based on cultural and livelihood linkages and the emerging ecological
consciousness to protect natural resources. It underscores that conservation rights
cannot be independent of the local, cultural and social contexts, as they influence the
process of internalization of international norms in the domestic context.
In this chapter I will examine the emerging framework of conservation rights
in India in relation to forest laws. Through an analysis of the theoretical approaches
to conservation rights, I will compare how these frameworks are integrated in the
law as demonstrated in the Godavarman case. I will scrutinize the various claims
made in the Godavarman proceedings and discuss how law departed from
conventional common law approaches to legalize normative principles of human
rights law. The following sections will demonstrate the complex ways in which
natural resources rights are constructed and defended in Indian law that draw from
multiple sources of international commitments, local cultures, spatiality, economic
and political interests. It underlines the importance of developing a plural framework
of environmental rights protection that will balance rights claim with customary
practices and livelihood needs.
226
Perspectives on Conservation:
In environmental law, conservation is approached from two vantage points- the right
to natural resources and the right of natural resources. The right of natural resources
is an ethical construction that claims protection of the environment for itself and
even includes legal status for non human beings.
4
This moral grounding celebrates
the intrinsic worth of nature independent of human relations. It shares the deep
ecology perspective of protecting the environment and is foundational to
international environmental legislations. The origin of this perspective is traced to
Western environmentalism of the nineteenth century such as the preservationist
movement in America to protect wilderness through creation of reserves independent
of human interactions.
5
Although the ideological underpinnings of this movement
were guided by altruistic motives of nature recreation, it also generated concern for
preserving the greens against urban initiatives.
6
Under imperialism the model of
exclusionary celebration of nature has been transplanted to the colonies especially in
Asia and Africa. The colonial baggage of forest policies are a case in point of
preservation of ecological resources in isolationist frameworks wherein niches were
carved out for protection devoid of any human interference.
7
In legal vocabulary,
nature protection gained legitimacy through the doctrine of eminent domain and
public trust.
8
For most of the twentieth century, the Western debates of preservation
of the wild remained the prevailing model for nature preservation worldwide. This is
still a popular model of preservation and has been popularized through ecotourism
models in various places.
9
227
The right to natural resources concerns the right to own and use resources-
ownership and property rights to local natural resources such as water, land and
forests and a right to resource use.
10
Conventionally, the right has been framed as a
function of property rights and subsequent individual social obligations to the
maintenance of the resource.
11
The history of conservation law shows that the
concept of conservation in civil and criminal law evolved as limitations to the
exercise of private entitlement to property.
12
Sean Coyle and Karen Marrow argue
that modern environmental regulations derive from property and tort laws in western
political theory.
13
The fundamental values of conservationism, which is protection of
nature for its own worth, its importance to human kind, the right of access to
resources and responsibility to not misuse resource, are important philosophical
questions of the liberal tradition that regulated user rights over natural resources.
14
Even early judicial interpretation of property rights, in common law systems, reads
limits on human ability to expropriate from nature and commitment to community
directed responsibilities to protect resources. Kevin and S.F Gray have pointed that
that by the nineteenth century, property jurisprudence had shifted from a rights based
notion of property to one based on responsibility.
15
However, the crucial variable, as
they argue, was the degree to which courts held limits to proprietary utilities
available to a landholder as inherently curtailed by community directed obligations
to conserve and promote the environment. The modern notion of responsibility in
environmental law, to some extent, revives these old discussions about property
rights and the need to conserve property to enable user rights to all, across
228
generation. It not only limits the abuse of resource but also defends resource use
through limits to private accumulation of wealth.
While the common law approach to the right to natural resources is based on
property and responsibility towards its protection (as dealt in civil and tort law), the
focus of human rights law has been prioritization of various entitlements to develop a
balanced approach to environmental rights.
16
In the law of human rights,
conservation of natural resource was conventionally claimed on grounds of
individuals/peoples right to resource use and ownership. However, some scholars
such as Prudence E Taylor observe that ecological rights are foundational to the
enjoyment of all other fundamental freedoms and hence it is much more expansive
than a right to resource use alone.
17
She argues that there are ecological and social
limits to the enjoyment of all rights, the objective being to impose responsibilities
upon humankind to take intrinsic values and interests of the natural community into
account when exercising their human rights. For example, individuals and
communities can enjoy the property rights only on conditions of wholesome
environment.
Jan Hancock holds that the right is socially and culturally constituted as
ownership and user rights are not driven by norms of private property and economic
incentives alone but also by community ownership and cultures of people.
18
This
justification forms the basis of the emerging debate about human right to natural
resources that makes a case for conservation through recognition of human and
community needs of the present and future generations. Drawing from practices in
229
various cultural contexts such as the Australian aborigines, Penans of Malaysia he
has noted that land use practice in these systems bind them in a duty to protect
resources for future generations. This ensures sustainability unlike the profit motive
in case of private ownership of property.
19
This formulation of environmental protection lays the foundation for the right to
protection of natural resources. The human right to conservation concerns with
importance of nature to human welfare and calls on protecting the environment for a
life of dignity and well being.
20
The right to natural resource is interpreted as a
precondition to right to life, health, livelihood, culture and economic rights.
21
Minimally it protects individual longevity and bodily health and maximally it
protects cultures and biodiversity. Unlike other aspects of environmental human
rights, this right extends the frontier of standards beyond claims to bodily
harm/injury to a holistic natural environment to all across generations.
22
The right
not only recognizes human right to resource but also protects the resource as a
caretaker for the future generations.
23
The cross spatial and cross generational
approach of conservation right bridges the ethical and rights based approaches of
environmental law. It prioritizes nature protection as it needs to be protected for
future generations and also ensures individual’s and people’s right to resource.
24
It is
based on views of human relationship with the natural world and hence reflects the
substantive aspect of environmental human rights.
However as some scholars have pointed out, in the absence of an independent
right to environment, the right is severely limited in addressing what environment
230
includes, how jurisdictions would protect a right that has a general approach and who
would claim for the respect of the right. Dinah Shelton agues that in the absence of a
right to a safe and ecologically balanced environment, the case for nature
conservation is difficult to address within human rights rubric because of challenges
to proving immediate bodily harm.
25
At the local level, the implementation has
tensions with cultural and social issues since nature has different evocative status in
different geographical and cultural contexts.
26
It is claimed that universalizing
environmental norm and the norm to conserve creates tensions between rights as
sometimes cultural and contextual particularities justify a different moral standpoint.
For instance, in some cases conservation right of some may conflict with rights to
life and livelihood of others dependent on the resource.
This makes the right to conservation controversial as perceptions of nature and
natural world are culturally constituted. For example, while forests signify aesthetic
and ecological value in the urban context, for indigenous communities forests refer
to source of life, livelihood, habitat and culture. Social perceptions about relationship
with the natural world are therefore disparate and culturally constituted. In literature
these various aspects are projected in dualisms, of conservation versus livelihood or
conservation versus development or global versus local.
27
For instance, whaling is
equivocally disputed by those claiming protection of the species and supporters of
the cultural practice of whaling for subsistence of indigenous groups such as Inuits.
28
Some other examples are of forest movements in developing countries that represent
tensions between the rules mandating exclusion of people from national parks and
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sanctuaries and the needs of forest fringe villages, the everyday confrontation
between head loaders and forest guards etc.
The portrayal of environmental struggle in dualisms shields the many
complexities of conservation in local realms. Rather groups differ in their definition
of a better environment and how they incorporate human rights principles to claim
redress for violations. The diversity of relations with the resources and cultures
therefore subverts attempts to use uniform solutions to conservation rights. Local
practices and oral traditions are also equally important to conservation issues. For
instance in India collection of forest products from community lands are governed by
local relations of access and use of products of forest and these are independent of
state laws.
29
In my field visit to Rasgovindpur forest in Orissa, a province of South
East Asia, I found that access to village forests and collection of forest products were
governed by customary norms than state laws. In fact, state forests officials did not
have entry rights to these forests, whose norms and regulations were decided by the
women folk who guarded the forest.
30
Anthropological literature on indigenous
peoples has many examples of how forests and its resources depict the cultural life of
people such as sacred groves inside forests which are strictly guarded sacred sites of
communities.
31
The challenge to the emerging discourse on conservation right is to
balance the interests of various stakeholders to the resources in the present and future
generations. This necessitates a nuanced perspective on environmental rights that
builds on pluralism in law and practices.
232
Although conservation rights are not explicitly guaranteed in human rights
documents, numerous soft international legal provisions substantiate the need for
providing a holistic environment for the present and future generations such as
Convention on Biological diversity, Stockholm and Rio declarations etc.
32
Legal
developments aside, transnational activism such as by the World Wild Life Fund,
CIEL also canvass on issues of environment and have enabled social and legal
debates on promoting green values through a human rights framework.
33
Paul
Greenough and Anna Lowenhaupt Tsing argue that mobilization by non-
governmental organizations and transnational activisms constitute the core of the
environmental action in national settings.
34
For instance, in Malaysia, the indigenous
movement of the Penan against loggers in Sarawak forests, was successful only
because of the support from international groups.
35
The Indian Discourse on Conservation
In India, conservation is a deeply ingrained concept in local practices of communities
and religious texts.
36
The Hindu concept of Dharma defines human and state
responsibility towards the environment. Folklores of adivasi communities are replete
with accounts of relationship with nature and veneration of the natural world.
Subaltern historiography accounts numerous social conflicts between local practices
of conservation and the state.
Legal commentaries have however been remiss of concerns of conserving
resources for the sake of environment.
37
The protection of natural reserves received
attention as a property rights issue to regulate appropriation of natural spoils than
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evolving an ecological understanding of the inheritance of nature. The focus of laws
was on preserving natural wealth for economic and aesthetic needs; oblivious to
human welfare as a component of conservation.
The legal recognition of conservation of the environment evolved only after
the Stockholm and Rio conferences. It led to the enactment of many environmental
laws and redrafting of the forest law in 1980 and again in 1988 to replace the
colonial forest policy of 1927. The principles evolved in the new forest policy
integrated India’s commitments to the environment with the social debates about
environmental protection. However, vestiges with colonial interest remained and the
focus was on management of resources for revenue to the state than the environment.
Forests in Indian social landscape
The social meanings attributed to forests have been diverse owing to its
cultural, social and economic importance to communities. Forests are life support
systems of many communities in India and are integral to their customary practices.
Early view, as found in ancient scriptures such as Ramayana, Mahabharata and the
shastras, dichotomized forests and settlement in terms of aranya and grama or as
vana and kshetra respectively. Yet this dichotomy did not seclude people from
nature as cultural, social and economic interests integrated people’s lives with
forests. Historian Romilla Thapar says that forests have a rich symbolic importance
in Indian culture. Forest Gods, such as the popular deity Jagannath, are part of
mainstream Hindu traditions. Hindu mythology and the two great epics of Indian
culture- Ramayana and Mahabharata, have given centrality to forest landscape as
234
heroic battles were fought in its precincts. Adivasi cultures also have rich reference
to forests in their folklores and their practice of sacred groves show the sanctity of
nature in their worldview.
The segregation of human and nature’s interest in India is not a feasible task
also because of the economic dependence of people for livelihood and their identity
which is defined by their relation to the locale.
38
Ramachandra Guha argues that
India is a complex ecological society it contains many constituents who differ greatly
in their access to resources of the earth.
39
The many economic groups are classified
broadly to represent the stone age hunter gatherers, shifting cultivators, settled
agriculturalists, timber loggers, the white collar babus, nomadic shepherds, pavement
dwellers, artisans, fisher folks, sugar barons and textile mill owners, software
exporters, fuel wood head loaders, engineers etc. He estimates that almost half of the
population of India depends on the natural environment of their locality for most of
their material and social needs.
The Anthropological Survey of Indian society, in the Peoples of India project,
has shown that groups and communities identity and relationship with others is based
on their relationship with resources.
40
Groups in India, according to the survey report
derive their identity from the environment, resource endowments and physical space.
Some communities are even named on the basis of their immediate geographic space
such as some land tilling communities are called bhumiyars, bhumij etc meaning
land in local language.
41
This social worldview that revolves around forests is best
explicated in an anthropological study of the Bhil Communities in India that showed
235
the failure of government policy to rehabilitate the Bhil community in modern
houses in the 1950’s as the communities abandoned these houses to live in the
forests.
42
Even social networks are based on the ability to control and exploit such
resources. In many forest areas in India, there exists a symbiotic relationship
between adivasi communities living in forests and caste villages on the exterior of
the forests. Adivasis exchange products they collect from forests such as leaves,
fuelwood etc with caste villages for milk and other products. However, this depiction
of adivasi’s relationship with the natural world is only one segment of the story-
there are examples of adivasis settled in urban areas and are part of the urban cities.
Many have taken jobs in public and private sectors. But the difference is not between
development and non development, but it is a question of choice. Some communities
are more integrated with modern societies, while some retain their relative isolation
and closeness to the natural world. The degree of relationship has been relative. Even
other rural communities, especially the hill people display a close relationship with
natural resource. For instance, in Uttaranchal, a hilly province in Northern India
which is also known ecologically for the Chipko movement, conservation of
resource is integrally linked to how women perceive their role of nurturers. Women
guard and nurture the forests as they are a source of food, fuel wood and fodder.
43
Many believe that the non acceptance of this integrated relationship of
peoples with nature in forest policies is one of the most important factors for the
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failure of conservation efforts, environmental degradation and violation of human
rights.
44
Indian Forest Policy
Indian forest policy has a long history that dates to pre-colonial and colonial times.
Pre-colonial forest policies were mostly local and were governed by customary
norms. Colonial rule is believed to have introduced the first integrated policy with
regards to forest rights in India as the British centralized their control and became the
sole proprietor of forests in India.
45
They used many legal and extra legal means to
gain control over the natural world, they took over land as reserved forests and used
it for the supply of cheap timber to build teak ships, lay down railway lines, to put up
British cantonments and to provide for the two world wars. Human relationships
with forests encountered many transformations during colonial rule owing to
changes in usufructuary rights and ownership over forest resources. Gadgil and Guha
define this as the political, social and ecological watershed as it represented
enormous expansion of state power and corresponding diminution in the rights of the
ecosystem people.
46
Property rights to land were settled on the basis of individual
ownership and the concept of common property and customary laws were not
incorporated in the law.
In their work on colonial forestry, Gadgil and Guha have observed three
positions on forest demarcation during colonial times, which they classify as
annexationist, pragmatist and populist respectively.
47
The annexationist position
claimed that all land that was not actually under cultivation belonged to the state and
237
rights to land had to be proved in writing. The second is the populist position that
denied the legitimacy of state intervention. According to this view all instances of
forest use by the people should be taken as presumptive evidence of their communal
property. This was practiced in the Madras province. The third position was an
intermediate one, propagated by Brandies, the inspector general of forests; he
recognized the user rights of village communities to forest land and state control of
forests. However, the contingency of empire expansion favored the annexationist
position, and it was the bedrock of colonial forest policy.
After the establishment of the crown’s control over the India colony in 1858,
the British enacted legislation through which they were able to establish legal control
over and domination of natural resources in the country (such as the Land
Acquisition Act 1894, The Northern India Canal and Drainage Act 1973 and
Societies Registration Act 1860). One such legislation was the Indian Forests Act of
1878. The provisions of the 1878 forest act established a virtual monopoly of the
state over the woods in the legal sense and affirmed that the customary use of forests
by the villagers was not a right but a privilege that could be withdrawn at will.
Traditional forest practices such as ‘slash and burn’ cultivation, rotational
agriculture, grazing and gathering of forest resources were rejected as a basis for
private property rights. This Act violated customary practices of communities and
right holders were granted only restricted access to forests. Subsequent forest
policies, such as the Indian Forest Act of 1927 that replaced 1878 Act, also did not
make any changes with regards to user rights in forests. Even the definitional notion
238
of forests reflected the revenue yielding aspects of forestry. To sum up, colonial
forestry policies reduced the customary rights of peoples over forest land to
concessions to be enjoyed by people.
Forest policies of post independent India maintained their continuity with
colonial laws. This is clearly reflected in the first two Forest Acts of independent
India- the 1952 Forest Policy and the Forest Conservation Act 1980. The 1952 forest
Act reinforced state domination over forests and use of forests for commercial
purposes. It alienated many rights of adivasi communities that lived in or in the
fringes of forests over the natural resources. The enactment of the Forest
Conservation Act 1980, gave autonomy to forests officers in forest areas. The
dissonance between the forest conservation and rights of adivasis continued in the
1988 Indian Forest Policy, although it for the first time acknowledged the symbiotic
relation between adivasis and forests. This was converted into a set of guidelines and
rights of adivasis that recognized payment of wages to forest workers, compensation
for loss of life due to predation of wild animals, orders for regularization of
encroachments predating the Forest Conservation Act 1980.
48
This however resolved
only disputed claims over reserved forests where the settlement of rights has not
been done.
The FCA of 1988 along with numerous other laws of the states and wildlife
protection acts (which was formulated after the 1972 conference) governs people’s
rights in forests and conservation of forests on issues such as extraction and trade in
non-timber forest produce, exercise of usufructary rights over forest lands,
239
demarcation of jurisdictional boundaries between different departments as well as
the role of Panchayati institutions. Further the rights over forests are also governed
by the Wildlife Act and the Panchayati Act. All these various legislations have
created many rights, duties and boundaries in the guaranteeing of rights. In this
context, the redefinition of forests by the Supreme Court, poses many questions for
those dependent on forests for their livelihood.
The Legal Context of Godavarman:
The Indian Courts and social groups have engendered a discourse on substantive
protection of the environment. Various judgments have expanded the scope of
environmental protection to norms of sustainability and protection of biodiversity.
For instance, in the State of Tripura versus Sudhir Kumar Ranjan Nath,
49
the Court
departed from the approach of seeing the Indian Forest Act as revenue oriented
legislation to one based on the preservation, protection and promotion of the forest
wealth in the interest of the nation. In another case the Court upheld the Madhya
Pradesh government decision to grant fishing permits to displaced tribal
communities.
50
Forest Conservation Law is also being reviewed in two ongoing
cases, Centre for Environmental Law WWF-India v. Union of India and Naveen
Raheja v. Union of India case.
51
The legal reasoning has made clear that the
government was not the owner of forest resources but was responsible for its
management- despite provisions in the Indian forest act that allows the court to
declare a forest area-which is the property of the government or the government has
proprietary- as reserved, Section 3, 1927 IFA.
240
In the following section I will analyze, the Godavarman case, on forest rights in
India.
T.N Godavarman Thirumulkpad v the Union of India
The Scripts of the Case:
T.N Godavarman Thirumulkpad v. the Union of India is a landmark case on
conservation in India that redefined forests through its reading of forest laws from a
green perspective and in sync with global conceptualizations of conservation rights.
52
This is noteworthy as earlier readings of forest conservation laws focused on revenue
generation, property rights and restrictions on access rights to forest resource.
Further, the challenge to the forest ruling by social advocacy groups underlined the
integral link between forests and competing issues of development, culture, land and
livelihood rights. In the process, the legal proceedings in this case have integrated
cosmopolitan norms of environment and human rights to conservation laws in India.
The litigation shows that customary norms of relations with nature and the interplay
of global and local laws are critical to the understanding of Indian environmental
jurisprudence on conservation.
This is in stark contrast to colonial law model, where different legal orders
were stacked one against the other in the administration of forest rights. Customary
rights of locals existed as long as they did not conflict with colonial laws. The
proceedings of Godavarman, evolved a framework of legal pluralism that balanced
various laws to recognize both environmental and human rights to forest resources.
Unlike colonial times when disputes over forest rights were approached as a tort case
241
or criminal case, Godavarman is a public interest litigation filed by citizens against
failure of state responsibility to protect forests. Through its support to public interest
litigation movement and engagement with social groups, the Court reflects a
commitment to make law respond to social perspectives and social change. It
resurrected the dharmic elements of Indian law and integrated rights with duties
towards the environment. The social campaign in the case also raised critical points
of law that reflected the internalization of cosmopolitan standards as social advocates
used human rights standards to contest the rights.
The Story
The proceeding, popularly called the Godavarman case, originated from two public
interest litigations on forest conservation. The first petition was a letter addressed to
the Supreme Court by Mr. T. N Godavarman, a land owner of South India, against
illicit felling of timber in the forests of Gudalur, in the Nilgiri hills of South India,
which was converted as a writ petition by the Court. The petitioner filed the case out
of concern over the depletion of forest in Gudalur, which was the property of his
family (Nilambur Kovilakam) prior to land reforms when the government placed a
ceiling on land ownership.
53
The petitioner claimed that the timber felling operations
harmed the ecology of the region, thereby violating various pieces of forest
legislations and other policies.
54
The second petition was filed by a local
organization called the Environmental Awareness Forum for the protection of the
forests in Jammu and Kashmir, northernmost province of India. The Court combined
the writ petitions- T. N Godavarman Thirumulkpad v Union of India
55
and
242
Environmental Awareness Forum, Jammu and Kashmir v State of Jammu and
Kashmir
56
- in an unprecedented manner as its own lawsuit and used them as a basis
to adjudicate on the issue of deforestation in the entire country.
The legal proceedings began with the Indian Supreme Court’s initial rulings
on forest issues during 1995-1996, and the hearings on the matter have continued
since then through intermediate applications by various stakeholders such as
industrialists, timber contractors, miners, policy makers, adivasi groups, wildlife
supporters etc.
57
For a change, the extended temporal framework of the case is not
due to inaction of the Court but because of the numerous applications by various
groups claiming protection of their rights.
58
From 1996 to 2007, over a thousand
interlocutory applications have been filed and the Court has already issued over a
hundred orders in the case. This itself suggests the complicated nature of the debate
on forest rights and the multiple issues that are engaged with the case. The case is
now regularly heard by the green bench of the Court and by the Centrally
Empowered Committee constituted by the Court.
59
In addition, although the
litigation was filed by Mr. T.N Godavarman and the Environmental Awareness
Forum, both the parties have no direct involvement with the developments of the
lawsuit.
60
The case has been was taken up by the Court as its own matter and the
respondents to the case are the Ministry of Environment and Forest, provincial
governments, industrialists, miners and social advocates.
Given the complicated nature of claims, the Court has appointed an amicus to
apprise the Court on various aspects of law, developments in international realms,
243
social perspectives etc. The case has extensively relied on the amicus curiae and
applications of concerned citizens and groups impacted by the case.
61
Some of the
most important Intermediate Applications in the case have been filed by the amicus.
The lawsuit has also added new dimension to environmental litigation in India by
providing a forum to NGO’s, local communities, forest officers to express their
concerns by filing of interlocutory applications and facilitated public hearing on the
issue.
Further more, the Court has defined its role in the case not only as an
adjudicator but also as an administrator of justice, unlike other common law courts.
It took on the task of monitoring compliance with its orders and established new
authorities such as the high powered committees to administer its orders in the North
East states,
62
the 2001 state empowered committees for Chattisgarh and Madhya
Pradesh,
63
Central Empowered Committee (CEC) at the national level,
64
the
Compensatory Afforestation Management and Planning Agency to advise and
monitor the Court’s ruling on the conservation issue, take up complaints of the
stakeholders in the conservation case, and review affidavits and petitions in the
case.
65
Of the various committees’ set up, the CEC was the crucial advisory body to
the Court and was represented by three members from the ministry of environment
and forests and two members from NGO’s. The CEC’s activities included field
visits, public hearing and meetings with NGO’s and thus provided a forum to
NGO’s, communities, dedicated forest officers and the forests and its inhabitants to
address a range of environmental issues.
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Godavarman case in the Court:
The development of the case through the law can be divided into three phases,
marked by how law negotiated through the various realms of law. The first phase is
from 1995-1996, when the Court redefined forests of India from an ecological
perspective incorporating environmental standards to interpret Indian forest law. It
gave due recognition to soft law environmental declarations and called for
fulfillment of commitments made to the international community. The second phase
is marked by complaints by contenders of the rights and the Court progressed by
accommodating other rights issues such as rights of adivasis to resources of forests,
customary practices of land use, constitutional provisions etc. The third phase
concerns the legal changes that were stimulated by the case.
STAGE I
In 1995 in an unprecedented manner the Court converted the two writ petitions as a
public interest litigation to govern forest conservation in the entire country. The
initial rulings on the case drew attention to the problem of deforestation and the
import of natural assets to the nation. The orders issued by the Court dealt with
administrative aspects of forest management in Jammu Kashmir and Tamil Nadu, the
provinces from where the Public Interest Litigations’ originated. In these initial
orders, the Court framed the substantive issue of nature protection as a human and
state responsibility. Justice Sabharwal said in a 1995 order that:
Natural resources are an asset of the entire nation. It is the obligation of all
concerned including Union government and State governments to conserve
and not waste these resources.
66
245
Further pointing to the felling operations in forests Justice Sabharwal held that
economic pursuits should be sustainable.
When forest land is used for non forest purpose, what measures are required
to be taken to compensate for loss of forest land and to compensate effect on
ecology, is the main question under consideration….Any program, policy or
vision for overall development has to evolve a systemic approach so as to
balance economic development and environmental protection. Both have to
go hand in hand in ultimate analysis, economic development at the cost of
degradation of environments and depletion of forest cover would not be long
lasting. Such development would be counterproductive. Therefore, there is an
absolute need to take all precautionary measures when forest lands are sought
to be directed for non forest use.
67
The Court used environmental law measures as precautionary principles to curtail
environmental damage and also used constitutional principles to make it obligatory
for all to work for the environment. The Court affirmed the principles of
intergeneration equity and sustainable development that was raised by the amicus in
defense of ban on non forest activities and valuation of forests from the perspective
of preservation of bio- diversity. The Court even cited the recognition of
environmental decisions in earlier cases-
After the consideration of opinion of various renowned authors and decisions
by other countries as well on environment and ecology, this Court held that
the notion that the pubic has a right to except certain lands and natural areas
to retain their natural characteristics. It is findings its way into the law of the
land. The Court accepted the applicability of Public trust doctrine and held
that it was founded on the ideas that certain properties such as rivers, sea
shore, forests and the air were held by the government in trusteeship for free
and unimpeded use of the general public….held that our legal system based
on English common law- includes the public trust doctrine as part of its
jurisprudence. The state as a trustee is under a legal duty to protect these
natural resources.
68
In these rulings the Court showed its openness to environmental measures
developing elsewhere and to the emerging concepts of environmental law. It made it
246
clear in no uncertain measures that environmental needs had to be given priority for
the well being of all.
Developing on these few initial orders banning wood based industrial
activities, the Court in a drastic move, used the two PIL’s to rule on forest
conservation in the entire country in 1996. In an order dated December 12, 1996 the
Court issued sweeping directions on the meaning of forests, forest land and produce
and people’s rights to forests. It provided a new interpretation to the forest laws by
reading it from an environmental perspective. While it was acknowledged that the
several points raised in the hearing required further study, the Court preferred to
come up with interim directions on some issues- most importantly it sought to clarify
the meaning of forests.
The Supreme Court cited that during the last few years forest cover in India
had declined and urgent steps had to be taken to preserve the remaining forests. It
reinterpreted the Forest (Conservation) Act, 1980 to include within its scope not only
“forests” as mentioned in government record but all areas that are forests in the
dictionary meaning of the term irrespective of the nature of ownership and
classification thereof.
69
Justice Kirpal, reading the judgment said-
The word forest must be understood according to its dictionary meaning. This
description covers all statutorily recognized forests, whether designated as
reserved, protected or otherwise for the purpose of section 2 (i) of the forest
conservation act. The term forest land, occurring in section 2 will not only
include forests as understood in the dictionary sense, but any area recorded as
forest in the Government record irrespective of the ownership. This is how it
is to be understood for the purpose of section 2 of the Act. The provisions
enacted in the Forest Conservation Act, 1980 for the conservation of forests
and the matters therewith must apply clearly to all forests so understood
irrespective of the ownership or classification thereof.
70
247
This rewrote the law on forests in India and brought into the ambit of forest
laws, areas of forests not under the forest department but had some kind of tree
cover. This meant that lands with some physical cover were to be given legal status
of forests. Second, the Supreme Court ordered a ban on all kinds of felling and non
forest activities in the precincts of the forest in all states throughout the country
without permission from the union government.
71
Each state was required to form an
expert committee to identify areas that are forests and take measures to protect it.
The intention was to curtail cutting of forests for all purposes other than defense
related needs.
In this interpretation, weight was given to international environmental
commitments, as expressed in Rio and Stockholm, and domestic environmental laws.
At the first instant, the Court ruling was an attempt to create a universal definition of
forests and forest rights in India so as to protect the green reserves. The rule
underscored the importance of conserving forests to restore ecological balance and
curtailment of further deforestation.
This definition included protection of “historically occupied forest lands”
such as notified forests customarily under settled or shifting cultivation for centuries
and forest villages created since the British times but without any legal status.
72
Recognition of settlement was only extended to those who held legal titles or pattas
and hence in the process, the ruling excluded thousands of adivasis who did not have
legal titles but lived in and around forests. The ruling was also extended to the
forests in the North East hills in India, which are governed by the Tribal
248
Autonomous Councils and have been out of purview of the Forest laws. As a result
the law created many tensions with constitutionally granted rights and customary
practices of to adivasi groups to land and livelihood. The fifth and sixth schedules of
the Indian Constitution guarantee rights to adivasis to their land and culture.
While adivasi communities with legal title to community land benefited, as
the ruling prevented encroachment by outsiders of their land such as in Andaman and
Nicobar islands, those without legal title to land lost their customary rights to forests.
In redefining the meaning of forests the Supreme Court has overlooked the unsound
premises of identification of forest lands that had been practiced. The re-demarcation
of forests as required by the Courts gave a lot of power to forest officers in
demarcating boundaries of forests and assumed forest areas to be independent of
socio economic and cultural contexts. This has led to many discrepancies. For
example, it has been reported that revenue land settlements in hilly provinces did not
survey hilly lands steeper than 10 degrees because of the expenses involved. As a
result these lands have been declared as forest. Yet these hilly lands are inhabited by
about 7 million adivasis who have practiced shifting cultivation. In the North east,
adivasi groups who traditionally used their private lands for timber production, could
not continue the practice without approval of the forest department. This has resulted
in groups clearing their land to grow alternative crops.
The Court’s attempted clarification of the kinds of land that can be notified as
forests and the activities that could be allowed in forests by creating uniformity in
law was challenged from various fronts for the constitutional, environmental, social
249
and economic implications of the ruling. Immediately after the judgment there were
protests from many adivasi groups in North East India, and in Central India claiming
violation of their customary rights and Constitutional guarantees in the fifth and sixth
schedule. Some groups also used the right to life claim in the Constitution to claim
protection from eviction from forest areas. Some others claimed that the Court order
violated many international standards and called for an understanding of forests
based on social relationship of people with the natural world. For instance, Principle
22 of Rio declaration on environment and development which states that
Indigenous peoples
73
and their communities and other local
communities have a vital role in environmental management and
development because of their knowledge and traditional practices. States
should recognize and duly support their identity, culture and interests and
enable their effective participation in the achievement of sustainable
development. Indigenous people worlds over have sought to protect their way
of life asserting the indivisibility between indigenous culture and the land on
which they live, in national and international forums.
74
Security of tenure has been expressly mentioned at the International Conference on
Population and Development in 1994. They made the case for protection of land
tenure not solely on the basis of property interests but on the presumed capacity of
local communities to contribute to sustainability. Indigenous peoples have also
linked the diversity of their cultures, values and interests with the protection of
biodiversity. This contestation laid the groundwork for the next phase of the legal
proceedings in the Godavarman Case.
250
Phase II
In the process of giving primacy to the environment the ruling overlooked the
complex interrelationship between rights, duties and boundaries. As discussed
earlier, forests have a great social importance in the cultural life of many
communities. This fact is recognized in the Indian Constitution in the fifth and sixth
schedules and also in forest and wildlife laws.
Socially, the ruling has had divergent impact on forests rights in India, while
it protected forest resources from private and industrial interests, it denied access
rights to communities that lived inside or on the fringes of forests and depended on
collection of forest produce to meet their livelihood needs. To the forest dwellers the
Court ruling negated their customary and legal rights to forest land and management
of the resources. Even as the Court sought to balance and redefine interests in forests
with the necessity of biodiversity conservation, development and human rights issues
of those dependent on forests remain critical.
75
Locals complained of the restrictions it created in the collection of minor
forest produce such as bamboo, sal leaves.
76
Since colonial times, forest policy in
India made two categories of forest produce, major forest produce such as timber, in
which the state had complete control and minor forest produce, which included
bamboo, sal leaves, mahua flowers.
77
Initially minor forest produce meant everything
else apart from timber that locals used and since it was believed that these products
did not have much economic value there was no controversy over it. Gradually by
the twentieth century, forest policies have constructed the usage of collection of
251
minor forest produce in a regime of rights and concessions and this has restricted
rights of locals.
78
Vasundhara, a local non governmental organization that works on
conservation issues mentions in one of the writ petitions that minor forest produce
comprises 50% of household income.
79
Economically the ruling effected communities’ livelihood as many depended
on timber felling, on a smaller scale, and collection of minor forest produce. It also
impacted many industries that derived resources or were located in forests
particularly mining and timber industry. Third it impacted a number of traders who
had shops inside forests and supplied essential needs to foresters. Fourth group is the
contractors and middle men who traded forest products. State governments held that
the ban created a loss of revenue to the government on account of the restrictions
placed by the order and a large number of people were deprived of employment.
80
From the environmental perspective, the litigation has been critical as it
recognized the importance of forests to the health and life of nation and for that
purpose redefined human nature relation to determine the different access of people’s
to forest resources. However, as commented by a forest official in my meeting with
him about the implications of Godavarman, the most important challenge of the case
is that it does not allow space to contextual factors. In fact he pointed that the order’s
ban on cutting grass etc was an impediment to conservation as in cases it could be a
cause of forest fire.
81
From the human rights perspective, this case has meant relocation and
displacement of many indigenous groups who lived in the fringes of forests and
252
relied on collection of minor forest produce for their livelihood needs. Yet in some
sections, this order is celebrated as it recognized rights of indigenous groups/adivasis
who had legal rights to forest lands and stopped illegal encroachment by outsiders as
in the islands of Andaman and Nicobar. In the Union Territory of Andaman and
Nicobar, the ban order on non forest activities was interpreted as a relief where
intensive felling by contractors impacted the lifestyles of some recognized forest
communities such as the Jarawas who were facing decimation following mining and
felling activities in their forests.
At the same time, the Court’s openness to take up Intermediate Applications
from various parties in the different states has led to debates on each and every
aspect of forest policy in India and has resulted in the Court incorporating customary
and constitutional norms on rights of adivasis into conservation rights. The position
has been countered since then by industrialists, timber fellers, adivasi communities,
non governmental organizations, transnational conservation groups, villagers and
city dwellers to incorporate their position in law. As the case has developed, it has
enabled a forum of engaged dialogue on rights of communities and individuals to
forests in different contexts. True to the spirit of Indian dialogue, as Nobel Laureate
Amartya Sen argues in “The Argumentative Indian”, the case in the second phase
evolved through masses of arguments, counterarguments in multiple legal and social
forums.
82
The judgments sweep led to a number of reactions from people from
varied corners- small growers, planters, factory owners and adivasi groups, who
came up with petitions against the stay order on non forest operations. The
253
arguments that have been floated against the Court orders have been of two kinds-
one economic needs of the country and the other has been the rights of adivasi
communities.
The intensity of the debate on conservation is palpable in visits to Court
hearings on the case. In my visit to the Court room in one of the hearings in the case
I.A 1485, in the Chief Justice Court, I experienced an extremely crowded and tense
scenario.
83
The audience for the hearing had estate owners, miners, individual
petitioners, non governmental activists etc and the centre stage was flooded with
standing counsels, advocates and assistants representing the case. Incidentally, since
this was the first sitting of the Chief Justice in the green bench of the Court and on
the Godavarman case,
84
the hearing was led by the amicus Mr. Salve who provided a
conspectus of the case and two other parties- one by Mr. Rajeev Dhavan who
questioned the overriding power of the Courts to administer on environmental issues
and the second was represented by the attorney for the government. The main points
that were reiterated in the hearing by the amicus, who gave an extensive oratory on
the case for over an hour, focused on the need of conservation to protect and
preserve the depleting gene pool and maintain ecological balance. Mr. Salve in his
speech recalled India’s commitment to Stockholm and Rio, the string of legislations
on forests and environmental protection in India to make a case for preservation for
the future. In a step further, he argued that the resources of the present are borrowed
from the future and consequently it is the imperative of the Court to protect the
forests. Mr. Salve also cited examples of the American Endangered Species Act that
254
mandated creation of critical habitats, Tennesse Valley Authority case on cost benefit
analysis on diversion of forests for other purposes to develop a broad argument on
environmental conservation. The case proceedings borrowed from global
developments, national and colonial laws, and local concerns to make a case for
forest conservation incorporating the various frameworks.
Further, even so customary laws of locals have not been cited, protest by
local groups, NGO’s have brought to the attention of the Court how local rights were
affected by the ruling. The accommodation of local issues in the hearings on user
access etc gave effect to customary norms as well and to social understanding of
forests.
The approach of the Court in forest cases, as Justice Passayat mentioned in
my personal meeting with him, has been varied from a conservation centered
exclusionist approach on the one to a development centered perspective to the
inclusion of social needs.
85
According to Justice Passayat, the Court’s rulings on
conservation and likewise on environment are decided on a case to case basis that
evaluates the various needs of development and conservation. Referring to his
judgment in a hearing of the intermediary application in the case, on mining in
Kudremukh forests, Justice Passayat mentioned that the seminal issue of
environment remains to balance a dollar friendly approach with the environment.
86
He said that the story of environment is similar to the Red Indian fable, where the
Chief denied the sale of trees on grounds of its sacredness. He was of the view that
environment was a multifaceted and polycentric problem affecting human existence.
255
This sentiment is reflected in his judgment on the Godavarman ruling, where he has
cited Stockholm and Rio commitments, the Constitutional law and the dharma of
environment and society to make a case for hygienic environment. While
international and constitutional law were the basis of the ruling, ancient political
treatise of Manu and Kautilya were cited to emphasize how ancient law dealt with
cases of cutting down of trees.
The social interest in natural resource is not homogenic and is subject to multiple
claims. The main respondents identified are the state, donor agencies, industry, rural
development practitioners, environmentalists, social activists and politicians and the
various people who live on the geographic space of the resource in question.
87
Although heuristically each of these categories are differentiated, their roles overlap
as interests in resources are socially constructed.
88
The spatial location of each of
these interests in the geographic space and their social position condition their
interests over forest rights. For example, the conflict over forest resources can be
seen from the economic value of forest resource for profit. Colonial forest laws
reflect this trend to control and manage forest revenues and maximize profits. They
are also situated within the logic of sovereignty where the landlord state issues the
right to use resources and exercise control to that end. They are also situated within
the field of power in which experts in and out of the state machinery attempt to
enhance the quality of the population- rearrange landscape, livelihood, and identities
according to techno-scientific criteria.
89
In the present context, the claims to nature
protection also mirror the urban debates on nature conservation. Lastly, it represents
256
the varied social groups whose livelihood and worldviews are defined by their
dependence on these resources which again is not a homogeneous category, stratified
by caste, class, ethnicity gender with interest that may conflict or converge.
90
Social Campaign
Since the first Court order on the Godavarman case there has been a lot of
mobilization and debate on the issue of forest rights and issues of livelihood of those
dependent on forests for livelihood. The Court has come out with interim directions
on these PIL's that deal with various aspects of forest dwellers rights in the adivasi
areas. The amicus curiae Harish salve on request by the Court, screen all
applications for intervention and it has been further directed that only he and the
counsel for the Central and State governments would be heard in the matter.
91
Social
campaign in both the legal terrain
92
and extra legal terrain
93
is heuristic; has quarried
a range of issues involving people’s interests in forest and protection of the
environment. It is split between nature conservators and supporters of coexistence
model, who have drawn a formula based on coexistence of wildlife and forest
dwellers.
94
In my research I identified a number of social groups that have actively
campaigned in the Godavarman case- by filing Intermediate applications or actively
campaigning at the grassroots level. Some organizations such as Vasundhara,
Kshetkari Sanghatan etc filed interventions before the court, while many others filed
applications before the centrally empowered committee. They have campaigned
from many different platforms in the extrajudicial arena such as holding training
257
sessions to build awareness on the issue at the local level as well as educating the
local leaders on the issue, built networks with local NGO’s all over the country and
working on a common platform. Their main focus has been to create awareness on
the case law. They made themselves visible through resistance on the ground through
protest demonstrations, jail bharo andolans and written counter replies to the eviction
notices issued by the forest department. Their main plea was –“there are no adivasis
without forests, and no forests without adivasis. We are one. We will not give up our
rights. Try and evict us.” Social groups in various parts of the country also
networked to organize public hearings or Jan sunwai on the issue. The motive was to
build awareness on why adivasis in India have a right to reside in forest habitats and
second, to evolve an understanding that ensures both conversation of the forests as
well as a life with dignity for adivasi communities in their forest habitat. The active
social participation demonstrates that the agenda of protecting the environment is
engineered by social needs and the historical context through which forest rights
have been defined. Each of these groups focus on campaign in specific areas within a
state and are involved at resolving local level issues. Local participation has been
mostly through larger NGO’s. In fact in my site visits to some local areas I found
that very few were informed of the Godavarman case and even some forest guards
did not have much information on the case. In my discussion with a conservation
group, Vasundhara, I learnt that most of the information to locals is dispersed
through the local NGO’s campaign letters.
258
These grassroots level organizations have 1) used law to claim rights and 2)
networked with organizations to canvass for survival of local groups and protection
of nature depending on the ideology of the NGO. Their activities are mostly in the
extra legal domain to create awareness, and disperse information. Following the
Godavarman ruling, the various organizations opposing the decision in Godavarman
organized public hearing, termed in local vocabulary as Jan Sunwai,
95
for violations
of the right to life of people’s interest. Their main concerns were the ban on
regularization of encroachments.
96
The campaign for protection of forests is also
steered by nature conservationist groups like the Bombay Natural History Society,
Valmik Thapar.
My visits to various organizations and telephonic conversations suggested
that the campaign for rights of adivasis and forest rights were contextualized within
the framework of the Indian constitution and customary practices of adivasis. But
each of these interpretations of rights was informed on the basis of international
developments. Further all the organization had international linkages or relied on
international funding. For instance, both at Vasundhara and RCDC, I found that there
was considerable international linkages as they networked and sought funding from
transnational organizations, attended conferences and networked with them to
campaign for rights to people.
97
Media reporting on the Godavarman case in national newspapers were scanty
in the early years. Most reports were in the form of information capsule on the
judgment. However, since 2000, there has been some footage on plight of adivasis,
259
miners interests etc. These reports drew some linkage to international environmental
law.
Briefly the case can be summed up as-
• This case is a public interest litigation to protect the forest resources
of the country. There are different categories of stakeholders in the
case- the urban middle class, Industrialists and Miners, Timber
loggers, Adivasis who live in the forests and still practice simple
economic practices of hunting and gathering, Shifting cultivators and
pastoralists, Adivasis and lower caste groups who live n the fringe of
forest and collect minor forest produce to meet their livelihood needs.
• The central concern in the judgment was to protect India’s forests
from encroachment. It interpreted forests policies and laws in India
from an environmental perspective. The intent of the law seemed to
be a move from minimal protections of clean environment through the
right to life to a holistic interpretation of environment to protect and
preserve the landscape.
• The law sought to protect forests by keeping the growing international
concern for forest conservation. Its rulings were also developed in
broad consultations with scientists, and social activists. International
environmental laws, growing international developments played an
important role.
STAGE III: Impact of the Case:
The Godavarman case law has led to initiatives to change the law to recognize the
rights of adivasis to their customary land and redefines forests statutorily, in light of
customary and international norms on conservation.
Following the campaign against Godavarman ruling, the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was passed
by the Indian Parliament in 2006. This act was formulated to recognize the rights of
adivasi communities to forest lands. The purport of this act is to strengthen
conservation regime of forests while ensuring livelihood and security of forest
dwelling Scheduled Tribes and other traditional forest dwellers. The Act has clarified
260
the nature of forest rights of communities by recognizing their customary access to
forest lands and the products. It includes all communities who have at least for three
generations, prior to the 13th day of December 2005, primarily resided in and relied
on the forests or forest land for bona fide livelihood needs. The group includes those
who had been dwelling on forest resources but did not have recorded rights. It
guarantees the right of settlement and conversion of all forest villages, old habitation,
unsurveyed villages and other villages whether recorded as notified or not into
revenue villages. It gives communities the right to conserve protect or manage
resources which they have been traditionally protecting and conserving for
sustainable use. The law also grants rights of limited nature to the state to clear
forests for purpose of welfare such as establishment of schools, hospitals, shops of
basic needs, water supply lines, roads, telecoms and community centers. The
recording of these rights in the law delineates the legitimate holders of rights in
forests. It has recognized the historical injustices towards adivasis by non
recognition of their traditional rights to forest in the forest laws during the colonial
period as well as in independent India.
For the purpose of law the Act defines community forest resource- it means
customary common forest land within the traditional or customary boundaries of the
village or seasonal use of landscape in the case of pastoral communities. It includes
reserved forests, protected forests and protected areas such as sanctuaries and
national parks to which the community has total access. The Act also balances the
rights of the communities to forests with sustainable use, conservation of
261
biodiversity, and maintenance of ecological harmony. The law defines a critical
wildlife habitat that is to be maintained and limits this to scientific and objective
criterion as necessary for wildlife conservation. The act emphasizes on sustainability
as per the Biological Diversity Act 2002. The rights guaranteed by the new law are
expected to balance between adivasi demands of livelihood, welfare measures for the
groups and environmental need to conserve forests.
Conclusion
The Godavarman Case is significant as it highlights how conservation rights are
teased out in the legal and social domain in India. This debate has particularly
developed after the Godavarman litigation in India
that introduced change in law
towards recognition of responsibility of environmental protection, definition of
forests and rights to forest resources. It demonstrates that legal space to conservation
is contingent on the social and historical understanding of human relationship with
the natural world. The nature of the legal contests shows a unique dimension of
Indian law that has departed from common law traditions and built a plural legal and
participatory approach to protection of environmental rights in India. It proves that in
India, conservation rights center on forests and its resources and therefore the legal
recognition of conservation draws from multiple sources such as oral traditions, pre-
colonial norms, colonial and post colonial laws and the international environmental
laws. However, while the formal basis of the law draws lineage from common law
notions of public trust and constitutional duties of protecting the environment,
98
it
262
also incorporates global international environmental standards on conservation and
customary law of peoples.
This I argue is different from colonial patterns of legal pluralism, where within
the colonial state system adivasi rights had authority in some matters as long as it did
not conflict with the state law. The present model of pluralism is different from the
colonial because it is not based on presence of many legal orders alone but on the
interplay between the various notions of law and social perceptions to evolve a
syncretic tradition, which is a characteristic feature of Indian legal culture. From a
law and society perspective it is interesting to see how law and social groups
developed an understanding based on various laws and the social context.
263
Chapter 6 Endnotes
1
T. N Godavarman Thirumulkpad V. Union of India. W.P. No.171/96, 202/95)
2
Reading of forest laws in India till the Godavarman interpretation primarily focused on regulating
the use of natural resources and was revenue centered. Godavarman case for the first time read the
forest conservation act from an environmental perspective.
3
I define environmental perspectives in an inclusive manner here to include both international
standards and also the different social perceptions on the environment.
4
This view accords legal status to the non-human world. See, Christopher D Stone. Should Trees
Have Standing? Wm. Kaufmann, Inc. Publisher, 1974. Also, Christopher D. Stone. Earth and Other
Ethics. The Case for Moral Pluralism. Milton Keynes: Harper and Row, 1987.The moral claim has
been criticized by others who argue the non admissibility of rights to non humans because of
uncertainties in determining rights entities should have and the difficulties in determining the extent
and scope of the rights. See Ludwig Kramer. “Public Interest Litigation in Environmental Matters
Before European Courts.” Journal of Environmental Law. Volume 8, No.1, 1996, pp. 1-18. M.
Warren. “The Rights of the Non-Human World.” In R. Elliot and A. Gare (eds.). Environmental
Philosophy: A Collection of Readings. New York, NY: Open University Press, 1983.
5
The Yellow Stone national park was the first such initiative to protect certain areas as national parks,
in an exclusionary manner. William H Rollins. (1999). Imperial Shades of Green: Conservation and
Environmental Chauvinism in the German Colonial Project. German Studies Review. Volume 22,
No.2, pp. 187-213. Muir is one of the main supporters of this theory. According to Muir, it was wrong
to view wilderness as simply resources for human consumption; rather, wilderness had an
independent value as a “fountain of life.” This preservationists’ vision of nature was romanticized by
the poems of William Wordsworth and Henry David Thoreau. They analogized wilderness with
religious sacredness. Many environmental organizations like the Sierra club, National Audubon
Society, Boone and Crockett Club were formed during the late 1800s, by conservationists and
preservationists who desired to protect the natural environment and conserve wildlife. Members of
these groups were generally wealthy, white, Anglo-Saxon males who enjoyed outdoor activities, such
as hunting, fishing, and camping. The dominant environmental debates were primarily “disputes
among elites—between those who wished to leave the natural environment in a pristine state and
those who viewed it as a place for recreation and pleasure.
6
See, K. Ghimire and M. Pimbert (Ed.) Social Change and Conservation, London: Earthscan
Publications Limited, 1997. Paul Jepson and Robert J. Whittaker. “Histories of Protected Areas:
Internationalisation of Conservationist Values and their Adoption in the Netherlands Indies
(Indonesia)”. Environment and History 8 (2). 2002, pp. 129-172.
7
There are countless examples of how these ecological niches were used by colonizers for hunting
and timber extraction for economic motives.
8
Daniel Bodansky, Jutta Brunnée, and Ellen Hey. Oxford Handbook of International Environmental
Law. Oxford, 2007
264
9
In China and Taiwan, ecotourism models are very popular. See, Robert P. Weller. Discovering
Nature: Globalization and Environmental Culture in China and Taiwan. Cambridge: Cambridge
University Press, 2006.
10
E. Ostrom and E. Schlager. “The Formation of Property Rights.” In Hanna SS, Folke C. and Maler
K. Rights of Nature. Ecological, Economic, Cultural and Political Principles of Institutions for the
Environment. Island Press. Washington D.C, 1996, pp. 127-156. They define ownership rights to
natural resources as enforceable authority to undertake particular actions related to a specific domain.
11
Jan Hancock. “The Human Right to Natural Resources.” Environmental Human Rights: Power,
Ethics and Law. Ashgate, 2003, pp. 137-156.
12
See, P. Birks. (1998). “Five Keys to Land Law.” In S. Bright and J. Dewar. (eds.).Land Law:
Themes and Perspectives. Oxford: Oxford University Press, 1998, pp.457-460.
13
Sean Coyle and Karren Morrow. The Philosophical Foundations of Environmental Law: Property,
Rights and Nature. Oxford and Portland, Oregon: Hart Publishing, 2004.
14
Ibid. In liberal tradition, resource rights are traced to Roman jurist perception of linkages between
property, rights and autonomy, the natural rights tradition’s defense of inalienable rights to resource,
the natural law theorists defense of commerce right and the eighteenth century developments of tort
law. Natural rights theorists from Grotius to Locke expanded the definition of property to regulate
user rights on the basis of human relationship with the natural world and interpersonal relations. For
instance Locke defended property rights as (hu)man’s privilege to use the world and appropriate the
resources with the caveat that resource will be used, not abused, for preservation and enjoyment.
However, in practice the right to private property legitimized appropriation of resources and proved
inefficacious in allocating resources in a justifiable manner. Political theorist, C. B Macpherson
argued that the right of access to resources remained the privilege of a few, “the possessive
individuals”. The primacy to property rights furthermore delimited the scope of legal concern on
usage of property in ways harmful to the environment. By the seventeenth century property rights
were redefined to include conceptions of social justice and care for the environment. The right to
property was argued to be integral to human relation with the natural world. However the linkage
between property and nature could not evolve into an environmental theory due to lack of support
from natural law theorists such as Rousseau, Kant, Bentham etc who gave importance to the demands
of commerce. The 18th century industrial age evaluated property on the basis of its import to
commerce and hence environment remained outside the domain of law. Environment got legal
attention only in tort law that delved on natural and non natural uses of property and set limits on use
of property to protect collective interests from exercise of private rights. Property rights were reduced
to a set of rules about interpersonal relations defined through a vocabulary of rights and justice. The
rise of legal positivism encouraged concern with rules than rights and demarcated property rights
from social good. It demarcated rules under which property rights were to be exercised and that in
turn was outlined as entitlements defining owner’s rights and duties in the use of a particular resource.
In fact distributive projects of the state were resisted because of interference with free exercise of
property rights. The only exception remained in public and private distinctions in law to delineate the
limits to property. See, J Tully. A Discourse on Property: John Locke and his Adversaries.
Cambridge: Cambridge University Press, 1983. Also see, C.B Macpherson. The Political Theory of
Possessive Individualism: From Hobbes to Locke. Oxford : Clarendon Press, 1962.
15
Kevin Gray and S.F Gray. “The idea of Property in Land.” In S.Bright and J. Dewar (eds.). Land
Law: Themes and Perspectives. Oxford: Oxford University Press, 1998, pp. 15-23.
265
16
For example, various analysis of environmental human rights show how these rights conflict with
other rights such as say the right to economic development, right to culture etc. See, Jan Hancock.
Environmental Human Rights: Power, Ethics and Law. England: Ashgate, 2003.
17
Prudence E Taylor “From Environmental to Ecological Human Rights: A New Dynamic in
International Law.” George Town International Environmental Law Review 10, 1998, pp.309-397.
18
Jan Hancock has argued that ownership rights to natural resources are socially constructed. A
choice therefore exists about the system of ownership rights adopted by polity. In general, there are
about six systems of ownership, of which the rights to private property and common property
resources are of import to environmental human rights. See, Jan Hancock. (2003). Supra Note 16.
19
Ibid.
20
This is significantly different from earlier conceptualization of right to natural resource that was
defined by property and material rights of individuals and communities. Article 1 of the ICESCR
states that “All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation, based upon
the principle of mutual benefit, and international law. In no case may a people be deprived of its own
means of subsistence.” The human centered perspective marks a change from earlier models of
protection of forests that were based on preservation exclusive of humans.
21
Natural resource represents land, forests, minerals, water. I will focus on rights to forest in this
chapter.
22
An important environmental victory of the right to natural resources was in the Yanomami case
where the Inter-American Court recognized the right of Yanomami’s to their land. In this case,
indigenous people challenged the construction of development projects inside the Amazon forests,
arguing that harm to the environment will undermine their way of life. The right to natural resource
was claimed in relation to various other environmental harms like health, life, culture etc. The Inter-
American Commission held that the Brazilian government failed in protecting the Yanomami way of
life. Yanomami case. Inter-American Commission on Human Rights. OAS Case No. 7615 (Mar. 5,
1985).
23
Many concepts such as “intergenerational equity”, “environment held in trust”, “common heritage”,
“borrowed environment”, are used to defend the environment for future generations. See, Minors
Oposa v. Factoran. 224 SCRA 792 (1993). Also see Edith Brown Weiss. In Fairess to Future
Generations: International Law, Common Patrimony and Intergenerational Equity. Transnational:
United Nations University, 1989. Edith Brown Weiss. “Our Rights and Obligations to Future
Generations for the Environment.” American Journal of International Law 84, 1990, pp.198-207.
Edith Brown Weiss. “The Planetary Trust: Conservation and Intergenerational Equity”, 11 Ecology
Law Quarterly 11 (495), 1984, pp. 540-563.
24
As mentioned earlier in Chapter 1, the most important divide in environmental rights is the division
between the deep and shallow ecologists. In practice this divide is seen in the difference in perspective
of practitioners of environmental law and human rights.
25
Dinah Shelton “The Environmental Jurisprudence of International Human Rights Tribunals.” In
Romina Picolotti and Jorge Daniel Taillant (Ed.). Linking Human Rights and the Environment.
Tuscon: The University of Arizona Press. 2003. pp.1-30.
266
26
For construction of forests and jungle in Malaysia and India see M. Sioh. “Authorizing the
Malaysian Rainforest: Configuring Space, Contesting Claims and Conquering Imaginaries.” Ecumene
5, 1998, pp. 144-166. P. Robbins. “Paper Forests: Imagining and Developing Exogenous Ecologies in
Arid India.” Geoforum 29, 1998, pp. 69-86.
27
For instance political ecology theories distinguish northern and southern environmentalism,
arguing that a Northern style environmentalism is inept for the developing countries as people’s
livelihood needs are intricately tied to environment. See Ramachandra Guha and Juan Martinez-
Alier. Varieties of Environmentalism: Essays North and South. London: Earthscan, 1997.
28
For a discussion of environmental and cultural conflicts see, Alison D. Renteln. “Environmental
Rights vs. Cultural Rights.” Human Rights Dialogue. 2 (11), 2004, pp.17-18.
29
Roger Jefferey and Nandini Sundar. A New Moral Economy For India’s Forests? Discourses of
Community and Participation. New Delhi: Sage, 1999.
30
Field Visit Rasgovindpur. March 12
th
, 2007.
31
For a discussion of indigenous people’s attitudes to the environment in India, see, Geeti Sen. (Ed.).
Indigenous Vision: Peoples of India Attitude to the Environment. New Delhi: Sage Publications and
India International Center, 1992. See also, Ramachandra Guha. Savaging the Civilized: Verrier Elwin,
His Tribals, and India. New Delhi:Oxford University Press, 1999.
32
Declaration of the United Nations Conference on the Human Environment .
http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503. (last
visited May 1
st
, 2007). Rio Declaration on Environment and Development.
http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163. (last
accessed May15th, 2007). Johannesburg Declaration on Sustainable Development.
http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POI_PD.htm (last accessed
May15th, 2007)
33
Examples of some organizations working on promoting environmental rights are WWF, IUCN,
Earth Justice, Green Peace, CIEL.
34
Ole Brunn and Arne Kalland. (Ed.). Asian Perceptions of Nature: A Critical Approach. London,
UK: Curzon Press, 1995. J. Baird Callicott and Roger T. Ames. (Eds.). Nature in Asian Traditions of
Thought: Essays in Environmental Philosophy. Albany, NY: State University of New York
Press.1989. E. Ehlers and C.F Gethmann. (Eds.). Environment Across Cultures. New York, NY:
Spring-Verlag, 2003. Ramachandra Guha. Environmentalism: A Global History. New York, NY:
Longman, 2000. Helaine Selin. (Ed.). Nature Across Cultures: Views of Nature and the Environment
in Non-Western Cultures. Boston, MA: Kluwer Academic Publishers, 2003.
35
Arne Kalland and Gerard Persoon. Environmental Movements in Asia. Surrey: Curzon, 1998.
36
See Christopher Key Chapple and Mary Evelyn Tucker. (Ed.) Hinduism and Ecology: The
Intersection of Earth, Sky, and Water. Harvard University Press for the Center for the Study of World
Religions, Harvard Divinity School. Also see Geeti Sen (ed) Indigenous Vision: Peoples of India
Attitude to the Environment. New Delhi: London, Sage Publications and New Delhi: India
International Center, 1992. Marta Vannucci. “Tradition and Change.” In Geeti Sen (ed) Indigenous
Vision: Peoples of India attitude to the Environment. New Delhi: London, Sage Publications and New
Delhi: India International Center 1992, pp. 25-33. Krishna Chaitanya. “The Earth as Sacred
Environs.” In Geeti Sen (ed) Indigenous Vision: Peoples of India attitude to the Environment. New
267
Delhi: London, Sage Publications and New Delhi: India International Center 1992, pp. 35-48. Calicott
Baird and Roger T Arnes (ed) Nature in Asian Traditions of Thought: Essays in Environmental
Philosophy. Delhi: Indian Books Center, 1991. G.K Ghosh. Environment: A Spiritual Dimension.
New Delhi: Ashish Publishing House 1991. J. Banhyopdhaya, N.D Jayal, U Schoettli and Chattrapati
Singh (eds) India’s Environment: Crises and Responses. Dehradun: Nataraj Publishers, 1985.
37
As can be derived from Kautilya's Arthasasatra, forests were a resource from which the state
derived revenue. The two values of forests that have been described in these texts, products of the
forest such as timber, gemstones and elephants, and the clearing of forest for cultivation, contributed
to revenue.
38
India has a considerable rural population. Further, many communities live inside forests and depend
on forest resources for their basic subsistence.
39
See, Madhav Gadgil and Ramachandra Guha. Ecology and Equity: The use and abuse of Nature in
Contemporary India. New Delhi: Penguin, 1995.
40
This is a major anthropological project that begun during the British rule to study the least known
communities of India. In continuation with that policy, in 1985, the anthropological survey of India,
carried out in 1985 the People of India project under the guidance of Professor K.S Singh to survey
the different communities in India. This is the first such project carried out after independence. K. S
Singh. People of India: An Introduction (People of India National Series). New Delhi: Oxford
University Press, 1992.
41
Ibid. Some communities are even named on the basis of their immediate geographic space such as
some land tilling communities are called the bhumiyars, bhumij etc meaning land in local language.
42
, B.K. Roy Burman. “Homage to Earth”. In Geeti Sen. Indigenous Vision: Peoples of India
Attitudes to the Environment. New Delhi: Sage Publications and India International Center, 1992, pp.
1-12.
43
Gopeshwar, Fieldvisit January 28th-30th, 2007.
44
An overwhelming opinion that I found in my discussions with some NGO”s working on forest
issues, namely Vasundhara, RCDC and Srusti in Orissa.
45
The first forest act, Indian forest Act of 1878, centralized all power in the forests in the nation state.
46
Supra note 39.
47
Supra note 39.
48
See, B.D Sharma. Forest Lands: Tribals Struggle for Survival. Sahyog Pustak Kuteer, 2003.
49
State of Tripura versus Sudhir Kumar Ranjan Nath.
50
Animal and Environmental Legal Defense Fund vs. Union of India, AIR 1997 SC 1071.
51
W.P 337 of 1995.
268
52
This judgment was passed on the 12
th
of December, 1996 and since then it has been an ongoing
matter in the Court. T. N Godavarman Thirumulkpad vs. Union of India. W.P No.202/95 and W.P
No.171/96. Also, T. N Godavarman Thirumulkpad vs. Union of India. 1997 2 SCC 267.
53
Land reforms were introduced in India in the 1950’s to ensure equitable land distribution and to
change feudal system in agriculture. As a result, land ceiling laws were enacted that placed an upper
limit on land that could be owned.
See, Surendranath C. Interview with T.N Godavarman. “I was Surprised at the Sweep of the
Judgment.” Down to Earth. 31
st
August 2002.
http://www.doccentre.net/docsweb/adivasis_&_forests/interview.pdf (last visited 15th June 2007).
54
Ibid. The petitioner and his family are known conservationists and are believed to have contributed
to the ecological history of the Nilgiri hills. Earlier Mr. Godavarman had filed cases in the provincial
high court on protection of forests in the region that was threatened by the Pandiar Punnapuzha
Project- a small dam project.
55
W.P 202 of 1995.
56
W.P 171 of 1995.
57
Even by 2008 January, the Court has not come to any definite date on which the case will be
concluded.
58
Popular conceptions of Indian Court system is that it is heavily logged and marked by delays.
59
The green bench of the Court is an administrative division within the Court, to hear environmental
cases. This bench sits every Friday of the week to take up green cases. This started in the mid 1980’s.
Earlier administrative divisions were only on family matters, constitutional law etc. The creation of
green bench shows increasing importance of environment in the Courts.
60
An interview report in the Down to Earth said that Mr. T. N Godavarman himself was amazed at
the expanse of the case. “I was surprised at the sweep of the judgment.” Down to Earth. Volume 11,
No.7, Tuesday, August 20
th
, 2002.
61
There are three amicus curiae appointed by the Court led by three senior Supreme Court advocates-
Harish Salve, UU Lalit and Sidharth Chaudhary.
62
Order dated 4-3-97
63
Order dated 17-9-98
64
Order dated 05.09/2002
65
Ibid.
66
2005 AIR SCW 5110.
67
Ibid.
68
Ibid.
69
TN Godavarman Thirumulkad Vs. Union of India 1997(2) SCC 267.
269
70
Ibid.
71
Subsequent IA’s have changed the case- as the Court through the Intermediate Applications has
looked into many aspects of conservation and made changes accordingly. Non-forest activities refers
to Section 2 of the Forest Conservation Act, 1980 and amended in 1988. This section clarifies non
forest purpose as the breaking up or clearing of any forest land or portion thereof for-a) The
cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal
plants. b) any purpose other than re-afforestation. But it does not include work relating or ancillary to
conservation, development and management of wildlife, namely, the establishment of check posts,
fire lines, wireless communications and construction of fencing, bridges and culverts, dams,
waterholes, trench marks, boundary marks, pipelines or other like purposes.
72
Sharachchandra Lele argues that there are large tracts of forests that have been either under settled
and shifting cultivation in Central India. See, Sharachchandra Lele. “A Defining Moment for
Forests?” Economic and Political Weekly. June 23
rd
, 2007.
73
The legal concept of indigenous peoples emerged in the League of Nations period. Generally it
applies to groups that base their claims on distinctive territoriality of their cultures and are regarded as
inhabitants of non self governing territories. Governments have allowed internal self determination
with regards to indigenous communities. Since the 1980’s indigenous peoples have used human rights
to address their collective and community rights, the important role of property rights, including land
tenure and intellectual property, human rights and environmental sustainability and participation in
policy making. These principles have been advanced in UNCED, where indigenous groups are part of
a broader platform. For a detailed discussion of indigenous peoples status in international law see-
Russel Lawrence Barsh. “Indigenous Peoples”. In Daniel Bodansky, Jutta Brunnée, and Ellen Hey.
Oxford Handbook of International Environmental Law. Oxford, 2007, pp. 830-851. In India while the
concept of indigenous people is not accepted there are certain constitutional protections recognizing
the rights of scheduled tribes. See, Virginius Xaxa, “Tribes as Indigenous People of India”, Economic
and Political Weekly, December 18, 1999 pp.3589-3596.
74
The argument of indigenous people’s right to land goes beyond the right to equal treatment by the
state with regards to property as mentioned in CERD (article 5), implying that states must recognize
some form of collective land ownership based on traditions or customary laws of people.
Ibid. Russel Lawrence Barsh.
75
In the direction to saw mills in the North Eastern states, (order dated 15-1-98) largely occupied by
indigenous groups/adivasis, the Court observed that “although the proliferation of wood based
industries have been the major cause for the depletion of forests in the north east, yet considering the
dependence of the people it is neither practical nor feasible to ban completely the trade in timber.”
The north eastern states in India also enjoy special constitutional status in India with regards to the
land rights. Unlike other places, the state recognizes legal autonomy of the communities with regards
to their land, culture and forests. See,Sixth Schedule of the Indian Constitution.
76
Writ petitions filed by NGO’s. See T. N Godavarman Thirumulkpad vs. Union of India. T. N
Godavarman v. Union of India and ors. I.A No.1126 of 2004, I.A no. 703 of 2000.
77
See, Roger Jefferey and Nandini Sundar, with Abha Mishra, Neeraj Peter and Pradeep J. Tharakan.
“A Move from Minor to Major: Competing Discourses of Non-Timber Forest Products in India.” In
Paul Grenough and Anna Lowenhaupt Tsing. (Ed.). Nature in the Global South: Environmental
Projects in South and Southeast Asia. Durham and London: Duke University Press, 2003.
270
78
Ibid.
79
In their writ petition they cite that the curtailment of rights of forest inhabitants to the resources of
the environment has resulted in many rights violations such as of livelihood, life and food security of
tribals in the Sunabeda sanctuary and Similipal sanctuary in India.
80
T. N Godavarman Thirumuklpad vs. Union of India. WP (C) No. 897/96. Decided on 04/03/1997.
81
Chief Wildlife conservator of Forests, Mr. Pattnaik, Orissa, Personal Meeting, 15
th
March, 2007,
4:30 p.m.
82
For an exposition of the tradition of dialogue and diversity in India see, Amartya Sen. The
Argumentative Indian. New Delhi: Penguin Books, 2005.
83
February 23
rd
2007. 2:00 p.m, Chief Justice’s Court. Supreme Court of India.
84
This is an administrative division of the Court’s functions that accorded primacy to environmental
issues by setting up green benches in the court. Although an internal organizational issue it reflects the
importance ascribed to green issues.
85
Justice Arijit Passayat is a sitting justice of the Supreme Court of India. He is one of the judges of
the green bench of the Court and has presided on the Godavarman hearings. Personal Meeting on
February 22
nd
, 2007.
86
In the matter of K.M Chinnappa. In T. N Godavarman Thirumulkpad vs. Union of India and Ors.,
Interlocutory Application No.670 of 2001.
87
Madhav Gadgil and Ramachandra Guha. (1995). Ecology and Equity: The Use and Abuse of
Nature in contemporary India, Penguin: Delhi.
88
Amita Baviskar. (2001). “Forest Management as Political Practice: Indian Experiences with the
accommodation of Multiple Interests.” International Journal of Agricultural Resources, Governance
and Ecology, Vol.1, Nos. ¾, pp.243-263.
89
Foucault, Gordon 1991.
90
Shomona Khanna and Naveen T.K. Contested Terrain: Forest Cases in the Supreme Court of India.
New Delhi: Sruti, 2005
91
In T.N Godavarman Thirumulkpad v Union of India (1997) 2SCC 267.
92
In the court through the filing of intermediate applications
93
Outside the frontiers of the court, representations in CEC and to various other state authorities.
94
Forest dwellers here refers to not only those indigenous/adivasi groups that live within the precincts
of forests but also those who are dependent on forest resource like collection of minor forests produce
for their livelihood and have been customarily adapted to this way of living.
95
Jan Sunwai, held on July 19-20, 2003. See, Endangered Symbiosis: Evictions and India’s Forest
Communities, Report of the Jan Sunwai (Public Hearing), The Delhi Forum, New Delhi, 2006.
271
96
Letter to the chief secretaries of state by the Inspector General of Police( Jan sunwai report
annexure 7)
97
My meetings at Vasundhara, on February 9
th
2007, Srusti on phone, February 9
th
, 2007 and RCDC
on March, 6
th
, 2007.
98
It was neither centered on ethical constructions of human- nature relation nor based on rights to
resources- rather revenue and nature recreation were important concerns. The right of people to
resources was insignificant to the law and consequently remained undefined. See, Vasant Saberwal
and Mahesh Rangarajan.(2003) “Introduction.” In Battles Over Nature: Science and the Politics of
Conservation. New Delhi: Permanent Black.
272
Chapter 7
Right to Clean and Healthy Air:
The CNG Alternative for Delhi’s Polluted Sky
The Delhi CNG case offers another example of how law and society addressed the
issue of environmental pollution through public interest litigation, incorporating
international standards into Indian laws. Like the Water rights and Conservation
litigation, the developments of this case reverberate with cosmopolitan debates on
the environment and reflect middle class’s global aspirations. This lawsuit was filed
by the environmental lawyer Mr. M.C Mehta in 1985 to draw the attention of the
Court to the spiraling air pollution in Delhi caused by hazardous industries and
vehicles.
1
The public interest litigation was filed in the Supreme Court under Article
32 of the Indian Constitution, asking the Court to issue directions- 1) for closing
down of hazardous industries located in densely populated areas in the city and 2) for
regulation of air pollution caused by automobiles and the thermal units generating
power for the Delhi Electric Supply Undertaking.
2
The main complaint of the petitioner was failure of state responsibility to
address the issue of air pollution in the city which impacted citizen’s enjoyment of
right to health and life, guaranteed in the Constitution.
3
From 1986 onwards, the
Court passed many separate orders to enforce measures for clean air in Delhi, with
regards to industries and automobile pollution respectively. The automobile pollution
proceedings reached finality in April 2002, when the Court introduced Compressed
Natural Gas as a single mode of fuel for public transport in Delhi, in the midst of
political and social contestations. There were deep divisions in the technocracy about
273
the CNG alternative as clean fuel, transporters were concerned about the costs of
conversion, commuters complained of viability of converting to CNG, most of which
were pointed to the immediate problems during conversion process due to lack of
infrastructural support. As an offset the outcome of the cases denied livelihood rights
to the poorer segment of automobile owners who found the conversion to CNG
unaffordable.
The Delhi CNG case, as it is popularly called, is a key environmental case for
reasons of setting environmental standards of metropolitan development. Steered by
middle class mobilization for cosmopolitan values of urbanity, the proceedings
labored through ecological and human rights standards maintained in the west and
fixed similar targets for the city of Delhi. As in a pollution case, the legal lines are
drawn on scientific analysis of harm caused by pollution and social debates on
cleaning the metros. The jurisprudence in this case clearly departed from common
law positions on nuisance and evolved a framework based on Constitutional rights to
health and life that corresponds to environmental human rights standards. More
significantly, from an environmental view point the law also went beyond common
law notions of harm to comment on the adverse impact of deteriorating air quality on
the health of citizens. It broadened the definition of danger caused by pollutants to all
those gases which are harmful but may not necessarily be toxic. The Court went
beyond common law constructions of nuisance to see how harm is produced and
reaffirmed standards of absolute liability over strict liability and Precautionary
274
Principle. The case articulated the transnational debates on curtailing emissions from
vehicles and adopted scientific techniques to determine pollution checks.
The proceedings in this case although seemingly appear to adapt western
legal standards in India, there are many differences as well. The most critical of it is
that while the law was cosmopolitan the process was derived from Indian legal
cultural values of Dharma and public interest. The claim to clean air was not framed
so much in a discourse of rights and compensation but was interlaced with duties and
responsibilities of the state. In its focus on public good and state responsibility the
lawsuit articulates aspects of Indian legal culture. Hence, this case also signifies a
plural model of legal interpretation to create rights of citizens to clean air by
incorporating international standards into the Indian notion of holistic justice. Unlike
the Godavarman and Vellore case which reflected specific aspects of social
relationship with the natural world, in this case customary practices did not influence
legal decision making as air is a common resource and not a property entitlement.
However it poses limits on usage of property which has been noted most in relation
to industry and private enterprises. So the regulation of air has evolved in the context
of restrictions on usage of private property.
In this chapter I will discuss how the Supreme Court in India addressed the
issue of air pollution, incorporating scientific and global debates into Indian
Constitutional law. I will initially discuss common law and human rights framework
in dealing with air pollution. I will then focus on how air pollution was treated by
law in India in the past and the changes introduced by the public interest litigation
275
movement in law. Finally, I will discuss the Delhi CNG case to illustrate the
emerging cosmopolitan jurisprudence in India based on interplay of different laws
and social context. I will show how even in the case of the metropolitan issue, the
law reflects certain traditional aspects of Indian law while adapting to cosmopolitan
standards. It reaffirms the central argument of my thesis on the emerging
cosmopolitan model of environmental jurisprudence through a pluralist model of
law. In this chapter my focus will remain on the issue of automobile pollution and
will not refer as much to the air pollution caused by hazardous industries and
government’s efforts in shifting them out of congested areas of Delhi.
4
Conceptual Issues on Regulating Air
The concept of rights against air pollution is a product of modern history, associated
with conceptions of public health that arose with industrialization and urbanization.
Political theorist, Jan Hancock differentiates between the two kinds of political
debates on air pollution: 1) in political philosophy and 2) law.
5
He argues that the
two important tenets of liberal political theory, capitalism and liberalism have
divergent interests in pollution.
6
Capitalism, which is concerned with efficient
allocations, is oblivious to routine production of pollution and liberalism, which is
based on the autonomy of the agent, must oppose pollution because harm is central
to its philosophical tenets. Accordingly, liberalism views that a person exposed to
toxins due to activity of others is harmed. Toxic pollution therefore violates human
right to life, security and health.
276
The doctrinal basis of protection from air pollution is founded on the law of
nuisance in common law.
7
The ideological basis of the law of nuisance was based on
the principle of “sic utere tuo ut alienum non laedas” implying the use of one’s
property so as not to cause inconvenience or injury to another.
8
Hence the protection
against environmentally offensive activities was based on protection of property
rights
9
and legal redress was sought through tort and criminal laws, depending on
whether it is a public or private nuisance. Jancock argues that legal treatment to the
problem is fraught with limitations because the law treats toxic pollution as a public
nuisance and risk than harm.
10
As a result, law accommodates degradation of
environment to achieve economic growth as only those activities considered as harm
are protected by law.
11
His discussion raises a critical question in law- how can law
accommodate air pollution which cannot be classified as harm but affects human life
due to the deterioration in quality of air? There are different kinds of pollutants that
affect air quality- 1) Non toxic pollutants such as carbon dioxide that risks human
life, but do not have a direct health impact. This has been a largely ignored category
of air pollution, until the recent shift in the twenty-first century, to include impact of
green house gases in policies, due to the debate on climate change and global
warming. It requires provision of legal space to a substantive definition of right to
environment to include clean environment and the well being of biodiversity. 2)
Toxics that affect human health when a threshold level is reached. Exposure to
amounts within the limit is not harmful. 3) Toxics, not safe to any level of
exposure.
12
By virtue of their ontological properties these toxics cause damage.
277
There are protections against this in criminal and tort law by the liberal principle of
harm and non- interference. For instance, the Bhopal incident, where emissions of
harmful gases from the Union Carbide caused immense immediate health hazards is
classified as a case of public injury. This classification based on injury and
immediate harm demonstrates that law is not adequately equipped to deal with air
pollution of various kinds.
An alternative that is posed to the prevailing common law approach on
pollution is the human rights perspective, where claims to human right to health, life
and environment can be used to redress harms caused by air pollution. This right
protects humankind from harm caused by air pollution. Unlike common law
positions on harm and nuisance, which guarantee tort based compensation in case of
exposure to dangerous toxic gases, the human right to environment renders
protection against all kinds of effects which may degrade environmental quality.
Substantively, it is based on the vital need of clean air for the spiritual, physical and
mental well-being of humans and in cases even survival of human beings.
13
At a
secondary level it links the right against pollution as a necessary criterion to the
exercise of other human rights such as the rights of vulnerable groups for example
children, and women who are most susceptible to ill health. Procedurally, the right to
information and right to participation are important instruments for protection of
environmental rights. Control and prevention of air pollution requires responsible
development and a multi-sectoral perspective, through engagement with health,
transport, housing, energy production and industry.
14
278
Air is a common resource and contrasts other components of environment
such as water and forests which are property based claims. However, it poses limits
to property rights through limitations on user’s use of property so as not to harm
others.
15
Further, the nature of the right to clean air is not confined to a given
geographic space as the effect of action in one region may spread to other areas as
well. For example, the Inuit’s case against the U.S in the Inter American Court
against global warming describes the potential of harm caused by air pollution in the
U.S to livelihoods in the Arctic.
16
Hari Osofsky in her essay on Climate Change
litigation by the Inuits against the US has described the multi-spatial petition of the
Inuits against global warming.
17
This case is filed by the Inter Circumpolar
Conference (ICC), an organization representing Inuits of Alaska, Canada, Greenland
and Russia, in the Inter-American Commission of Human Rights against the United
States for its contribution to global warming and failure to take any action to curtail
GHG (Green House Gas) emissions. It demonstrates an important aspect of
environmental rights, which is harm caused to the environment is not restricted to a
particular geographic domain.
The legal basis of the right to clean air derives from Universal Declaration of
Human Rights, UN Charter, and the International Covenants of Civil and Political
Rights that push for the recognition of the right to clean environment. In the absence
of a legally defined human right to environment, the right to clean air is a derivative
of human rights to health, life and habitat. The scope of the right to clean air has
expanded since the 1990’s reports on climate change that proves the negative impact
279
of green house gas emissions. The right no longer entails protection from negative
harm alone but also includes positive obligation by the State to provide citizen’s with
quality environment. In a recent case in the US Supreme Court in 2007,
Massachusetts et al v. EPA (Environment Protection Agency), the Court ruled that
gases that cause global warming are pollutants under the Clean Air Act.
18
The Court
held that greenhouse gases are a pollutant and EPA has the authority to regulate
them. The Court also said that EPA can avoid action, only if it determines that
greenhouse gases do not contribute to climate change, or provides some reasonable
explanation as to why it cannot exercise its discretion to determine whether they do.
This ruling is significant in drawing the attention to capping carbon pollution and in
effect cleaning the air. It redefined the EPA’s stance, as earlier in 2003 the EPA had
concluded that green house gas did not constitute "air pollutant" within the meaning
of the federal Clean Air Act.
The framework of human rights enables balancing of interests in contesting
claims over the environment. It enables incorporation of social interest in giving
legal space to environmental rights and balances rights of individuals with
community’s interest. This is especially important in non- western and post colonial
settings where protection of the environment cannot be isolated from social
perceptions and livelihood interests.
The Clean Air Campaign in India
As discussed in chapter 5, social norms on pollution have been in relation to the
caste order in India. While the norms of sharing water were defined clearly on caste
280
basis, air being a non property based resource social norms evolved only in regard to
residential planning.
19
For instance, residential spaces in rural areas are so designed
that the prevailing wind blows from upper caste to lower caste residential areas and
never otherwise. However with colonialism and industrialization, air pollution norms
changed with regards to regulating private enterprise. In legal terms, environmental
pollution matters were covered by common law principles of nuisance to regulate
user rights to property.
20
The law of nuisance recognized two kinds of nuisance,
private nuisance in case of civil wrongs and public nuisance, is a common nuisance
generally considered as criminal offence. However, in practice these laws have
favored commercial interests and have not been effective in curtailing environmental
pollution.
Criminal action for nuisance was carried through the Indian Penal Code (IPC)
of 1860, which contained detailed provisions defining the crime of nuisance. For
example Section 278 of the IPC specifies penalty for making air noxious as:
Section 278: Making air noxious to health. Whoever voluntarily vitiates the
atmosphere in any place so as to make noxious to the health of persons in
general dwelling or carrying on business in the neighborhood or passing
along a public way, shall be punished with fine which may extend to five
hundred rupees.
But the effective application was rarely attained due to the complexities of satisfying
all the required conditions, such as proof of voluntary corruption essential for any
penalty provided a burden for the prosecution to establish. Abraham argues that a
number of other inhibiting factors prevailed that prevented the usage of specific
provisions of penal code such as technical requirements. For instance in a case, in
281
1959, Puran Chand v. State of U.P, the Supreme Court of India held that chimneys
of mills within prescribed height were not punishable under the penal act for
emitting smoke.
21
In another case, it was invoked that the principal is not continually
liable for the acts of his agents. In Bibuti Bhusan Biswas v. Bhuban Ram, in a
complaint that the working of the mill was a continuous nuisance, the Calcutta High
Court held that the principal is not criminally answerable for acts of his agents.
22
However this changed in a 1973 provincial case in Andhra Pradesh where the Court
said that the municipality was liable for offense of public nuisance committed by its
agents.
23
Andersson argues that the legal rationale of criminal law during colonial
rule and until the 1980’s favored private purpose.
24
This changed after the 1980’s
Ratlam decision of the Indian Supreme Court, which I will discuss later, that evolved
new techniques to protect environment through liberal interpretations of
constitutional rights and duties.
25
Civil action for pubic nuisance, was governed by the Civil Procedure Code of
1908, which permitted cases based on direct injury of litigant and those filed by the
advocate general claiming public nuisance to the community.
26
The 1976 amendment
in Civil Procedure Code allowed institution of the claim with special leave from the
Court, by two or more persons, even though no special damage had been caused to
such person. Another important feature of civil litigation strategies is reliance on
injunction- temporary and permanent- to abate pollution. The issue of injunction is to
be based on balance of convenience and reasonableness.
27
In Ram Baj Singh v
Babulal hazardous air from a brick grinding factory polluted the air of a neighboring
282
medical practitioner’s consulting room.
28
The Allahabad High Court recognized a
private right of action against a public nuisance. Here injunction was issued without
balancing convenience. Many aspects of the law of tort remained vague in India
because the application of law of torts was completely unsuitable in many fields.
29
Hence what has developed is a case to case approach of dealing with the claims.
Judicial action with regards to nuisance was also biased towards protecting property
interests as in common law traditions. In 1962 in a case called Ram Avatar v State of
UP,
30
it was held by the Supreme Court(on appeal) held that the legislature could not
stop such trades merely because of the discomfort carried by the noise created by the
trade.
31
Judicial activism of the 1980’s lowered many of the standards in civil and
criminal law and in instances departed from common law assumptions on nuisance
to favor an environmental perspective. The beginnings of shift towards recognition
of environmental and health impact was first noted in a bakery case, Gobind Singh v
Shanti Swarup.
32
In this case, while allowing the bakery to function, the Court
ordered that the oven and chimney of the bakery was to be demolished because it
adversely impacted people’s health. The Supreme Court affirming orders of the
lower court said that the matter not only involves the right of a private individual but
also the health of the public at large.
This position of the Court was later exemplified in another case of pollution,
the Municipal Council, Ratlam V. Vardichand and others, where the Court made a
283
marked departure from criminal and civil laws on nuisance towards accepting
Constitutional values of social justice.
Although these two codes are of ancient vintage, the social justice orientation
imparted to them by the Constitution of India makes them a remedial weapon
of versatile use.
33
In this case the magistrate ordered the appellant municipality to remove the nuisance
in a locality mainly caused by open drains and effluents from an alcohol plant.
34
The
Court categorically asserted the primary concern of public health and stated that
industries cannot profit at the expense of pubic health.
Public nuisance, because of pollution being discharged by big factories to the
detriment of poorer sections, is a challenge to the social justice component of
the rule of law.
35
The Court also made the relevant authorities obliged to carry on their duties. In this
case and thereafter there is a clear realization of importance of public health and
environment which has given rise to new legal strategies based on Constitutional law
and public interest. This case law has set a precedent on environmental pollution, and
the reasoning of the Courts established public interest over private law approach of
common law. In law, the recognition of environmental standards was carried through
means that were unique to the Indian legal culture. This was done primarily through
incorporation of specific provisions of Constitutional law and through departure
from adversarial to public interest proceedings. Further more, after the Bhopal gas
disaster, with regards to air pollution, the Courts adopted stricter regulations to
prevent disasters and also to compensate the victims.
284
The leakage of gas from the Union Carbide factory in Bhopal, in 1984, and
inability to get adequate compensation for the victims, steered many changes in law
and society to prevent a repeat of the story.
36
After 1984, the injunctions on
environment became stricter and the rulings were not only in the form of
adjudication but also mandatory. The Judiciary remanded the State on a number of
occasions for failure of responsibility to curtail pollution. It introduced new
frameworks in legal conceptualizations such as it went beyond the Rylands v
Fletcher rule of Strict Liability to establish Absolute Liability, it gave meaning to
sustainable development, as seen in the Vellore case discussed in chapter 5. For
instance in one 1985 case, filed by Mr. M.C Mehta, against leakage of toxic gases
from Sri Ram Food and Fertilizer Corporation,
37
the Court held that the factory could
be reopened under the strict supervision of the Court. Further, in a separate order on
compensation in this case, the Court laid down the principle of Absolute Liability.
38
It ruled that where an enterprise is engaged in a hazardous or an inherently
dangerous activity and causes harm on account of an accident in operation of such
hazardous activity, for example, in escape of toxic gas, the enterprise is strictly and
absolutely liable to compensate all those who are affected by the accident and such
liability is not subject to any of the exceptions which operate in relation to the
tortuous principle of strict liability under the rule in Rylands v. Fletcher.
39
In
establishing this principle Chief Justice Bhagwati ruled that
the law need(s) to evolve new principles and lay down new norms which
would adequately deal with the new problems which arise in highly
industrialized societies. He emphasized that the law cannot be constricted by
reference to the law as it prevails in England or for that matter any other
285
foreign country. We are certainly prepared to receive light from whatever
source it comes but we have to build our own jurisprudence.
40
With these few cases, the Court in the subsequent Delhi pollution cases
advanced on common law procedures to legalize the right to a wholesome
environment through protection of right to life and laid down state responsibility to
protect the environment. The law has recognized clean air as a fundamental
component of the right to life guaranteed by the Constitution, based on the vital link
of environment to health of the present and future generations. In one M.C Mehta
case on industrial pollution in Delhi the Court held that: “every citizen has a right to
fresh air and to live in a pollution free environment and the state was obligated to
provide the citizens a clean environment.”
41
The protection to right to clean air
stipulates many ways through which state and industry are responsible towards
promoting the environment. It balances human requirements with industrial,
developmental and livelihood needs. It allowed a plural model of legal interpretation
to create rights of citizens to clean air by incorporating international standards into
the Indian notion of holistic justice.
M.C Mehta v.Union of India: The Story
The City of Delhi
In the early nineties, Delhi the national capital of India was declared to be the fourth
most polluted city in the world by the World Health Organization in terms of
suspended particulate matter.
42
As the city grew in the twentieth century, pollution
levels increased beyond the carrying capacity of the urban area. This was quite in
286
disjunction with the planning of the city, which was architecturally designed with
wide roads and greenery and meant to be the centre of India’s political power.
43
A
number of social and political factors are attributed to the pollution problem such as
the colonial planning, policy and institutional failure to attend to pollution crisis,
high migration levels to the city and rising middle class aspirations.
In public discourse the city’s history is chartered through debates on health
and environment that is mapped by creating divisions in residential space between
British and the natives, urban and the rural residents. In the colonial period, this has
been managed through policy negotiation on issues of disease control, congestion
and nuisance, each of which worked to create two Delhi’s- one for the British and
the second for the natives. In post independence India, the law created divisions of
urban and rural Delhi and sought to develop Delhi on metropolitan lines. And in
1990’s when the Court examined pollution in Delhi, it reaffirmed the scientific and
urban definitions of Delhi.
City Planning During Colonial Time
The planning of Delhi as a city began during the colonial period, after the 1857
revolt, when the British realized that the city had to be sanitized to establish order
and contain uprisings.
44
The city got its first municipal committee in 1863 but unlike
the English municipalities, they had less power and resources to effect
transformation with regards to infrastructural improvement. The primary intent of the
municipality was to separate the residential spaces of the British and the natives, and
to maintain order. The municipality worked to control disease, nuisance, congestion
287
and disaffection through widened roads and public spaces that separated European
residents from the natives.
45
Diseases which until the 19
th
was considered due to
climatic factors was now attributed to the habits of the natives.
46
For instance some
reports from the Delhi municipality say:
Ghoshis living in Gali Shahtra are a source of great nuisance as their cattle
collect and roam about in the streets, and their womenfolk collect cow-dung
cakes within the railway boundaries—these dung cakes are stuck to the walls
and the roofs of houses, are as unsanitary as unsightly.
Over 66% of deaths from respiratory disease occurred in Delhi city….The
larger percentage of deaths amongst females is no doubt due to the purdah
system and to the unsanitary and congested housing conditions.
47
Through the laws of nuisance, the colonial rulers created distinct categories of public
and private, sacred and profane, appropriate and inappropriate behaviors and
managed the health of residents of Delhi. In Delhi, some frequently used nuisances
were against encroachment of public lands, protruding walls endangering the life of
occupants or paaserbys, cremation grounds etc. Andersson argues that these
regulations created intense conflicts with those who used common resources.
48
Many
trade and activities such as lime kilns, slaughter houses etc were moved to the
outskirts of the city. The burden of proof for other industries was much higher than
traditional industries such as pottery, leather and so they remained within the
precincts of the city. Another important feature of the colonial management of the
cityscape is congestion. For instance since 1912, the Municipal committee under
Colonel Beadon, attempted to plan the city through roads, streets and space for
building keeping in mind the development of the city.
49
But eventually this created
further divisions in the city between the European and natives.
288
Post Independence Planning
After independence, policy makers wanted to develop the city in a planned and
scientific manner.
50
To be able to manage the challenges of governance, a
metropolitan regional plan was adopted which highlighted two important
development plans- for the slum and industrial location. It recognized the two
important needs of the city: as a provider of goods and accommodation of refugees
and migrants.
51
As Sharan demonstrates there were two important views about the
development of the city, one view was that the city be divided into zones, based on
difference in standards and amenities so that all residents had a place to stay.
52
The
second view contested the differentiation and argued that similar environmental
amenities be made available to all. The master plan for Delhi which was designed in
1962 adopted both the views and accepted only a partial differentiation while
providing adequate standards to all.
In practice many loopholes remained and the Master Plan could not really be
translated. The slums despite modern housing remained congested. What was not
realized perhaps was that slums were not just physical surroundings but represented
a way of life. As some reports say lack of adequate training in sanitary habits and the
desire to maintain social ties made slums congested.
53
The task therefore involved
not only physical planning but also providing civic education. This play between the
social and the physical, between land use and environment, Sharan argues found
fuller expressions in consideration of industry and pollution. The planners favored a
strong policy of zoning to protect residential areas from the harmful invasions of
289
commercial and industrial uses but also promoting business and industry through
planned and orderly development.
54
Hence it provided space to environmental and
health concerns and also allowed growth of industry by providing adequate space for
industry. Industries were moved out for reasons that they were in residential areas,
they intensified slum conditions and were not required in the urban core.
A second step was to relieve urban Delhi of those members of its population
whose occupations- and consequently ways of living- were primarily rural and
resettle them in the villages.
Tannery, pottery, weaving… are all occupations which belong not to the city
but village…..Too many people now settled in Delhi .…are by their very
nature and instincts rural dwellers…if Delhi is to be planned as a well
integrative city, and to be maintained as such, it needs inhabitants with a
primarily urban psychology.
55
This sums up the spirit of planning of Delhi in the modern age, where the focus was
on urban identity, public health and creation of public space through urban
dialogues. This was further accentuated during the national emergency, when large
slums were cleared out to beautify the city.
56
The urban focus of Delhi’s planning also introduced many social changes;
most importantly the composition of the city has been steered by the urban middle
class. Delhi in the eighties showed a great deal of material prosperity and also
competition for the limited resources. Consequently short term interests such as
permits to industries in residential areas, in-migration to the city, prevailed over the
scientifically conceived plans.
57
With economic growth and material prosperity,
consumer culture emerged in the city. In the automobile sector, this was visible in
290
the rapid increase in number of vehicles on the streets, especially giving in to the low
priced vehicles manufactured by Maruti and Bajaj. Vehicle makers were single
mindedly focused on profits and did not bother about fuel quality. Very few motor
vehicles in the city adhered to pollution norms. Subsequently, pollution levels of the
city became inscribed in the imagery of the city and it went beyond levels that could
not be ignored.
58
As Delhi’s growth sprawled in the 1980’s and 1990’s beyond its capacity,
outdoor pollution levels increased due to the increase in both human and vehicular
population, and industrial activity. A report mentioned that the annual average
maximum, levels of suspended particulate matter in Delhi's air increased from 7.6
times the permissible limit in 1987 to 16.7 time in 1995.
Table 7.1: Average annual emissions compared to national and international
standards (ug/m3)
SO
2
NO
2
SPM
Delhi
NAAQ for
33 46.0 543
Residential Area 60 60 140
Industrial areas 80 80 360
Sensitive areas 15 15 70
WHO std 50 100(US EPS Std) 75
SO
2
: Sulphur Dioxide, NO
2
: Nitrogen Dioxide, SPM: Suspended Particulate Matter
Ug/m
3
: Microgrammes per cubic meters, NAAQS: National Ambient Air Quality
Standards,
WHO: World Health Organization, Sensitive Areas: Hospitals, national heritage sites
like the Taj Mahal
Of all the kinds of pollution, emissions of pollutants by vehicles was measured to be
the highest followed by industrial waste. In the absence of a mass rapid transport
291
system, the number of vehicles in the city increased as road transport was the only
mode of public commutation.
59
Table 7.2: Pollution by sector of origin
60
1970-1971 1980-1981 1990-1991 1999-2000 2000-2001
Industrial
(incl. thermal)
56% 40% 29% 25% 20%
Vehicular 23% 42% 63% 70% 72%
Domestic 21% 18% 8% 5% 8%
Consequently, health problems surfaced in the city. A widely conducted study in the
city by the Centre for Science and Environment (CSE) estimated that 10,000 people
die in the city every year due to complications of air pollution, which meant more
than one death every hour.
61
School absent rate was high and many children suffered
from respiratory disorders.
The Social Petition:
Equally, as Emma Mawdsley has demonstrated the middle class also campaigned for
the environment. Since the 1980’s there has also been a sharp rise in middle class
environmentalism in the city and they have steered the “Clean and Green City”
campaign. Unlike resource based environmental movements in India the struggle for
cleaning Delhi’s sky was targeted around health and was led by non governmental
organizations. The Centre for Science and Environment, a leading non-governmental
organization in Delhi, published “The State of India's Environment, 1982: A
Citizen's Report and “The State of India's Environment, 1984-85: The Second
Citizen's Report”, to provide an overview of the environment in India. The two
292
volume study in the eighties raised awareness on issues such as air pollution, water
pollution, and sustainable development.
CSE has launched many campaigns in the city against the environmental
pollution. “Right to Clean Air Campaign” is one among those. Although not directly
involved in the petition process, the CSE petitioned through many extra judicial
efforts to sensitize people on the issue of air pollution. The CNG campaign started
with the release of the book “Slow murder- the Deadly Story of Vehicular Pollution
in India” on November 1, 1995 by CSE.
62
The book was the result of a two-year
extensive research carried out by researchers at CSE. The research focused on the
vehicular pollution in major Indian cities and the environmental health consequences
arising out of that. This campaign has identified non performance of the state in the
following areas
63
-
1) Lack of comprehensive set up to monitor urban air quality to set
emission standards.
2) Outdated vehicle technology arising from vehicle manufacturers’
unwillingness to keep abreast of clean technologies.
3) Poor quality air standards by public sector refineries.
4) Non existent traffic planning and increased dependence on
vehicular transport.
5) Poor vehicle maintenance by indifferent consumers.
These actions were also supported by the media and middle class urban citizens.
64
Leading Metropolitan News channels Star TV and NDTV, since 1996, regularly
featured a pollution watch news capsule to follow the weather report. It surveyed the
pollution levels recorded in four of India’s big cities. It is in this context that social
advocates approached the Court through Mr. M.C Mehta to bring attention to the
rising pollution in the city.
293
The Court Cleans Delhi
A transformation in environmental law in India began in 1985 when an Indian
lawyer, M.C. Mehta, persuaded India's Supreme Court to rule that Article 21 of the
Indian Constitution, which guarantees each citizen the "right to life," necessarily
includes the "right to a healthy environment." The case grew out of a public interest
litigation filed by an environmental lawyer Mr. M.C Mehta in his capacity as
chairman of a non governmental organization, Environmental Protection Cell of the
Hindustani Andolan. His main complaint was that the existing environmental laws
obligated the government to take steps to reduce Delhi’s air pollution in the interests
of public health.
65
The campaign for clean air highlighted how a right to clean air
which is a fundamental right has become a rare commodity. “We must make
environmental consciousness a part of our religious beliefs," said Mr. M.C.Mehta.
66
He filed a petition under article 32 of the Constitution in the interests of the
public to curtail vehicular pollution in the city.
67
The writ petition, as originally filed
sought directions to close down hazardous industries located in the densely
populated areas in Delhi, to regulate air pollution caused by automobiles operating in
the capital and to reduce pollution from thermal power stations in Delhi.
68
But the
legal proceedings that developed differentiated the two issues through specific orders
dealing with industrial pollution and vehicular pollution respectively.
THE CNG STORY
The Supreme Court’s engagement with the Delhi air pollution problem originated
over concerns that the city’s polluted air was slowly poisoning its citizens. Following
294
the writ petition the Court passed various orders to enforce measures for clean air
and also ensured that its orders are implemented. The Judiciary developed strategies
to activate the Central Government and state administration towards recognizing
their Constitutional obligation under Article 21. In September 1986, the Supreme
Court directed Delhi administration to file an affidavit specifying steps taken to
implement laws concerned with control and prevention of water and air pollution in
Delhi. The Court directed the City government to list the various initiatives taken to
curtail pollution and to place before it the list of prosecutions launched against
defaulting vehicles. The Court identified that heavy vehicles contributed to pollution
immensely and therefore adequate attention was required to be given to this issue.
After four years of the initial Court orders, the Union Government responded
on 14 November 1990, acknowledging that air pollution in Delhi was caused by
vehicular emissions. On 1991 the Association of Indian Automobile manufacturers
was allowed to intervene in the proceedings. The Court also set up a committee to
study the air pollution in the city, under Justice Saikia. The terms of reference was-
to make an assessment of the technologies available for controlling vehicular air
pollution, assess the current state of technology in India for controlling air pollution
and low cost alternatives for operating vehicles. Mounds of reports were produced by
the committee on the issue of state responsibility and on how environmental
regulations were carried out in other places. For instance, the sixth bimonthly report
had a section on absolute liability principle.
69
The reports also spoke of recycling in
Germany
70
, traffic and transport structure in Netherlands,
71
Mexico’s treatment of
295
pollution,
72
energy tax in US
73
etc. The Supreme Court evolved a time bound action
plan to get the attention of the Ministry of Environment and Forests. For instance,
the Court specifically directed the Government to prepare a table, stating the number
of interim reports, the recommendations made by the Saikia committee, the response
of the government and the petitioners’ comment. The process of apprising by the
Court ensured executive commitment towards implementation of Court orders.
Although the Saikia committee reports did not directly guide the Court’s directions,
it reflected the leanings of the Court to compare the situation in Delhi with
developments elsewhere in the world and also bound the government to respond to
the Judiciary.
74
It reconfirmed the visionary ideals of metrropolitian development in
the City.
In 1991, the Court came out with its first important order on the case asking
the government to, convert all public buses to CNG, ensure that new vehicles are
fitted with catalytic converters and provide lead free petrol by 1995 in the four
metros of India- Delhi, Calcutta, Chennai and Mumbai.
75
The Court also ordered the
central government to convert its vehicles to CNG “The basic idea is that the
Government of India should be a model user of vehicles so that others may follow
suit”.
76
The Court in its rulings also sought technical solutions to reduce harmful
emissions from two and three wheelers, buses and trucks. In 1998 the Court endorsed
Central government decision to set up an Environmental Pollution Prevention and
Control Authority (EPPCA), also called the Bhurelal committee. It was constituted
on 29 Jan 1998, and had scientists, automobile manufacturers and bureaucrats as
296
members; Anil Agarwaal of CSE was one of the members of the committee. The
main question to the committee was to explore all options of reducing the level of
vehicular pollution in Delhi-
it was contended before us that low sulphur diesel should be regarded as a
clean fuel and buses be permitted to run on that. It was submitted that in
some other countries ultra low sulphur diesel which has sulphur content of
not more than 0.001 per cent is now available. We direct the Bhure Lal
Committee to examine this question and permit the parties to submit their
written representations to the Committee in that behalf.
77
The recommendations of the committee were that vehicles that run on gas switch to
unleaded fuel, public transportation gases switch to CNG, public and private vehicles
more than 10 years old be taken off the road and vehicles undergo an emission check
every three years. Vehicles that fail the test would not be allowed to ply. These
provisions were meant for Delhi alone.
The Supreme Court accepted the recommendations and gave the government
three years to implement them with March 2001 as the deadline. On 28th July, 1998,
the Court issued directions stating that the health of citizens could not be ignored any
longer. It fixed a time schedule after taking note of the recommendations made by
the Bhure Lal Committee. Important directions issued were
• was to the effect that the entire city bus fleet was to be steadily
converted to a single fuel mode of CNG by 31-3-2001.
• ‘no eight year old buses were to ply except on CNG or other clean
fuel after 1st April, 2000’.
• failure to comply with the aforesaid directions could render the
concerned punishable for committing Contempt of Court.
Justice B.N Kirpal delivered the landmark judgment on the CNG case in 2002. He
ordered the Delhi government to ensure the conversion of diesel engines into those
297
using compressed natural gas, so as to improve the quality of air breathed in by
Delhi’s citizens. The Court in the CNG case stated that “statistics show that the
continuing air pollution in Delhi had a more devastating effect on people than what
was caused by the Bhopal gas tragedy. The Court order taking refuge of
Constitutional principles of Article 39 (e), 47 and 48, stated that it was a duty of the
state to secure and improve public health and the environment. It reaffirmed the
recognition given to right to life by the Court in earlier litigations. In Francis Coralie
Mullin v. The Administrator, Union Territory of Delhi, Justice Bhagwati speaking for
the Supreme Court stated that:
We think that the right to life includes the right to live with human dignity
and all that goes along with it, namely, the bare necessaries of life such as
adequate nutrition, clothing, shelter over the head and facilities for reading,
writing and expressing oneself in diverse forms, freely moving about and
mixing and commingling with fellow human beings.
78
In Subhash Kumar v. State of Bihar, the Court observed that:
The right to live is a fundamental right under Article 21 of the Constitution,
and it includes the right of enjoyment of pollution-free water and air for full
enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has the right to have recourse to Article 32 of the
Constitution…
79
It voiced concerns about protecting the health of the people of Delhi and in that it
moved on to scientific debates on emissions and its correlation with health. All
private operators, who operated their buses in Delhi were bound by these orders
made to safeguard the health of the citizens, being a facet of Art. 21 and had been
publicized from time to time both in the electronic as well as print media. The
Justices held that because environmental protection ultimately stems from the right
298
to life, the Indian Constitution is the primary reference point. However as Justice
Pattnaik mentioned in his personal meeting, the judicial interpretation of the right to
life has been influenced by legal interpretations of right to life provision in the
ICCPR.
80
During the course of the arguments, literature was filed in the Court giving
data from cities all over the worlds which correlates increased pollution with
increase in cardio vascular diseases. The Court said that scientific evidence shows
that air pollution leads to increased levels of morbidity and mortality.
The Court used international law principles to support sustainable
development of the metropolitan region
If there is short supply of an essential commodity, then the priority must be of
public health, as oppose to the health of the balance sheet of a private
company. To enable industries to cut their losses, or make profit at the cost of
public heath, is not a sign of good governance, and this is contrary to the
Constitutional mandate of Articles 39 e, 47 and 48 a.
81
In addition, it made clear that it was the lack of effort of the enforcement agencies
that forced the Court to take initiative to control air pollution in the capital city. The
Court said that it is clear that there is desire to benefit private industries at the cost of
public health and the public exchequer.
The increase in respiratory diseases amongst the children should normally be
a cause of concern for any responsible government. The precautionary
principle enshrined in the concept of sustainable development would have
expected the governed to take appropriate action and arrest the air pollution.
It was by reason of the failure to discharge constitutional obligations, and
with a view to protect the health of the present and future generations, that
this court for the first time on 23 September 1986 directed the Delhi
administration to file an affidavit specifying steps taken by it for controlling
pollution emission of smoke, noise etc from vehicles plying in Delhi.
82
299
While making clear that the health of citizens is the prime concern, the Court put
aside all criticism from the government on viability of CNG. The Justices concluded
that alternative fuel of CNG, LPG and electricity are preferred technologies which
critically polluted cities like Delhi need as a leapfrogging technological option. The
Justices said that the directions in the lawsuit were not in any adversarial litigation.
The ultimate step was the directive to introduce Compressed Natural Gas as a single
mode of fuel for public transport in April 2002.
Reactions:
The adoption of CNG as an alternative fuel and the mandatory conversion of public
transportation vehicles were contested at policy and societal level. Technocrats were
divided on the choice of fuel and commuters were more concerned with efficiency
and economy than fuel choice. Among the technocrats two views prevailed on the
reduction of automobile pollution. One opinion was that the switch to CNG was not
a full proof method as there were some inherent dangers concerning safety of gas
cylinders, and hence other alternatives such as low lead diesel should be explored.
This view was presented by the Mashelkar committee established by the Ministry of
Environment and Forests to counter the Court’s decision of switching to CNG. The
opinion has also found support among some environmentalists as well such as the
leading think tank TERI (Tata Environmental Research Institute). The second
opinion was that of conversion to CNG, given by the Bhure lal Committee and also
strengthened by research by CSE (Center for Science and Environment), another
300
leading NGO in Delhi. The third view as projected by some government officers was
the conventional bureaucratic alternative of waiting for better alternatives.
In the social sector, among some sections of the public this has been a great
relief. The response as seen from newspaper reports however shows that this is a
delayed response that came around only after the switch to CNG was implemented.
News reporting’s during the conversion process reflected social disappointment
among certain sections because of the difficulties of commuting.
Another segment that has showed deep dissatisfaction with the rulings are the
transporters. This has primarily come from the weakest section of transporter
community, the auto rickshaw drivers, who had to invest money to buy the CNG kit
and also had to spend a lot of time to refuel their gas tank due to the long queues.
There were very few CNG gas stations at the time of mandatory switch over to CNG,
in Delhi. Subsequently automobile owners had to wait for 7 to 8 hours to refuel their
gas tanks. This affected the daily livelihood of some transporters, as the time spent
resulted in a cut on their daily wages. In my conversation with some auto-rickshaw
drivers in Delhi, during my field visit, I found that this opinion had considerably
changed as in the last four years, from 2002-2007, a number of CNG gas stations had
been set up.
83
Since the fuel was cheap, it had offset some of the costs of investment.
Some of them were apprehensive of the dangers of cylinder bursting. Overall, the
common perception seemed to be that Delhi’s air had become much cleaner with the
introduction of CNG.
301
The participation of the urban milieu in the litigation struggle demonstrates
the broadened social basis of environmental movement in India which for a long
time was dominated by struggle to use natural resource. The struggle was centered
on common property resource and revolved around issues of equity and justice. This
participation introduced technological orientation to environmental issues and
solutions were science driven. The policy problem identified was of implementation
of the various statues on pollution.
Conclusion
The observation of the Court in the Mehta case shows that the Court is emphatic on
public responsibility and the duty of the state towards society. Where issues of
environmental pollution were raised, the Court made it clear that they were failures
of the state in protecting the rights of residents to life and liberty as guaranteed under
Article 21 of the Constitution. The observations of the Court not only recognize a
fundamental right to the environment but also entrust on the state a responsibility to
protect rights. It emphasizes public accountability which forms the apotheosis of the
new public law rationale.
Second, the Court departed from common law procedures in many ways. It
did not require roof of immediate harm for the adjudication of the case. Neither did it
require standing or establishment of public nuisance. The Court did not resolve the
litigations but used a rolling technique to supervise its implementation. The
reasoning of the Court suggests that in order to maintain social order, the emphasis
must be on responsibility of society. The case also developed through engagement
302
with advocacy groups, as the legal battle was contested, many tensions with right
issues emerged which required balancing by the law. The judgment establishes the
fact that the law needs to be adapted to Indian social context- the need to deviate
from common law principles of the earlier regime and yet accept the values of other
countries and this legal regime. This judicial thinking is reflective of the Indian
belief in syncretism with its openness and readiness for legal osmosis.
84
Further the Court shifted the basis of environmental claims made in Courts
from civil compensation to Constitutional claims based on violation of fundamental
Right, as in Article 32 of the Indian Constitution that guarantees a Right to
Constitutional Remedies. Shifting from mere philosophic exercises, the Court
through series of mandamus orders has focused on implementation of the law.
85
The
fact of entertaining the case as a PIL, the Judiciary took the view that the petitioner
was entitled to move the case in order to enforce the statutory provisions which
imposed duties on the municipal authorities. Further the regulation of the regulator
is to be carried out by emphasizing the duties and also by mentioning the duties as
desirable to the community.
303
Chapter 7 Endnotes
1
Mr. M.C Mehta is a well known environmental lawyer in India, known to have steered many
changes in environmental law through his public interests litigations.
2
Writ Petition 13029 of 1985. Like in all other public interest litigations, this also is a third party case
where the petitioner has no direct involvement and did not have to prove injury.
3
Article 21 of the Indian Constitution guarantees all citizens a right to life. Article 21 Protection of
life and personal liberty. No person shall be deprived of his life or personal liberty except according to
procedure established by law. Further Directive Principles of the Constitution require the state to
protect citizen’s health. Article 47 Duty of the State to raise the level of nutrition and the standard of
living and to improve public health. The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its primary duties and,
in particular, the State shall endeavor to bring about prohibition of the consumption except for
medicinal purpose of intoxicating drinks and of drugs which are injurious to health. This is a non-
implementable part of the Constitution but is meant to be directives to the state which it needs to
implement.
4
Although the petition addressed both the issue, the Court has addressed the two issues separately.
Vehicular air pollution is pertinent to this analysis because it advances common law understandings of
harm to pollutants considered less toxic.
5
Jan Hancock. Environmental Human Rights: Power, Ethics and Law. Critical Security Series,
England: Ashgate Publishing, 2003.
6
Ibid.
7
The law on nuisance is of two kinds-public and private nuisance, private nuisance is a civil wrong
and public nuisance is a criminal offense. Conor Gearty. “The Place of Private Nuisance in a Modern
Law of Torts.” Cambridge Law Journal 48, 1989, pp. 214-242. J.R Spencer. “Public Nusiance-a
Critical Examination”. Cambridge Law Journal 48, 1989, pp. 55-84.
8
J.C Smith and Brian Hogan. Criminal Law. 7
th
Edition, London and Edinburgh: Butterworths, 1992.
They argue that the definition of public nuisance in Blackstonian law was so wide as an “annoyance
to all the Kings’ subjects” that could ever be established. (at p. 764). This area of common law has
changed in Britain through introduction of statutes; when a statute authorizes an activity, liability
under common law is excluded.
9
In the colonies this was accentuated all the more by the principle of non interference.
10
Supra note 5.
11
Ibid.
12
Ibid.
13
The essential linkage between survival and human rights is well explicated in the recent debate on
Global warming and the loss of habitat of the Inuits. See, Marguerite E. Middaugh. (2006). “Linking
Global Warming to Inuit Human Rights.” San Diego International Law Journal 8, pp. 179-207. Hari
M. Osofsky. “The Geography of Climate Change Litigation: Implications for Transnational
Regulatory Governance.” Washington University Law Review 83, 2005, pp.-1789-1855.
304
14
WHO Guidelines on Air Pollution, 2005.
http://whqlibdoc.who.int/hq/2006/WHO_SDE_PHE_OEH_06.02_eng.pdf (Last visited June 30th,
2007)
15
In human rights instruments there are several provisions that contain substantive and procedural
rights relevant to environmental claims. Of the substantive rights that are interpreted to claim
individuals or groups right to environment are the Right to Life, as provided in Article 6 of the
International Covenant of Civil and Political Rights, the Right to Freedom from Interference with
One’s Home and Property, used commonly by the European Court to defend environmental rights,
Right of Indigenous Peoples etc. Procedural rights such as participatory rights, right to freedom of
information and the economic and social right to equitable allocation of resources define the minimal
standards of environmental quality and legal safeguard to protection from environmental harm.
16
The essential linkage between survival and human rights is well explicated in the recent debate on
Global warming and the loss of habitat of the Inuits. See, Marguerite E. Middaugh. (2006). Linking
Global Warming to Inuit Human Rights. 8 San Diego International Law Journal pp. 179-207. Also
see, Hari M. Osofsky. “The Geography of Climate Change Litigation: Implications for Transnational
Regulatory Governance.” 83 Washington University Law Review, 2005, pp.-1789-1855.
17
Ibid. Hari M. Osofsky.
18
Massachusetts et al v. EPA et al. Decided April 2
nd
, 2007.
http://www.supremecourtus.gov/opinions/06pdf/05–1120.pdf (last accessed July 1st, 2007.) The
lawsuit centered on a section of the Clean Air Act that provides that the administrator of the U.S.
Environmental Protection Agency "shall" set emission standards for "any air pollutant" from new
motor vehicles or new motor vehicle engines "which in his judgment cause, or contribute to, air
pollution which may reasonably be anticipated to endanger public health or welfare."
19
Even so law does not recognize residential segregation, customarily this has been practiced in many
parts of India. Residential spaces in rural areas are so designed that the prevailing wind blows from
upper caste to lower caste residential areas. Noted in my visits to certain villages in North India.
20
These laws continued even after independence, until the 1980’s. This was not changed in the
Constitution as well, which clearly states in Article 372 that all laws in force immediately before the
promulgation will continue unless specified otherwise.
21
Puran Chand v. State of U.P, Cr. App. 166 of 1959 dt 31-7-1962. In Daulat Ram Prem. References
of Unreported decisions in the Supreme Court of India 1950-1965. (Bombay, Tripathi, 1965). It is to
be noted that the Indian Supreme Court is not a good recorder of many cases. Many Court decisions
have gone unreported.
22
Bibuti Bhusan Biswas v. Bhuban Ram, 1918 ILR 48 Cal 515.
23
Kurnool municipality v. Civic Assocaition Kurnool 1973 Cr LJ 1227.
24
Michael R. Anderson. “Public Nuisance and Private Purpose: Policed Environments in British
India, 1860 - 1947’ SOAS Law Department Working Paper No. 1, London: School of
Oriental and African Studies, 1992.
25
Municipal Council, Ratlam v Shri Vardichan 1980 4 SCC 162 at 163.
305
26
Civil Procedure Code 1908
27
The grant or refusal of temporary injunction in India is governed by three principle of common law-
1) existence of a prima facie case. 2) irreparable injury, that cannot be adequately compensated if
injunction is refused and 3) balance of convenience, the damage defendant would suffer should
outweigh the damage the plaintiff would suffer if the injunction is refused.
28
AIR 1982 ALL 285.
29
R Ramamoorthy. “Difficulties of Tort Litigants in India.” 12 Journal of the Indian Law Institute,
1970, pp. 313-321. Also see, Joseph Minattur (ed.) The Indian Legal System. New York, Oceana
Publications, and New Delhi, Indian Law Institute, 1978.
30
Ram Avatar v State of UP AIR 1962 SC 1794.
31
In this case, the appellants carried on the trade of auctioning vegetables. They used to park the carts
in which they auctioned vegetables in front of residential space. This caused inconvenience to the
users of the road.
32
AIR 1979 SC 143.
33
Municipal Council, Ratlam V. Vardichand and others, AIR 1980 SC 1622.
34
Ibid.
35
Ibid.
36
Jamie Cassells. “Public Interest Litigation in India.” American Journal of Comparative Law,
Volume 37, 1989, pp. 495-519. C. M Abraham and Susila Abraham. “The Bhopal Case and the
Development of Environmental Law in India.” The International and Comparative Law Quarterly,
40(2), 1991, pp. 334-365.
37
M.C Mehta and another v.Union of India and others, (1986) 2SCC 176. There were three orders
passed in this case. February order was modified in March 1986. See also, M.C Mehta and another v.
Union of India and others, (1986)2SCC 325.
38
M.C Mehta and another v.Union of India, 1987 1 SCC 395.
39
Ibid at 421.
40
Ibid at 420
41
M.C Mehta v. Union of India and others, (1992) 3 SCC 256 at 257.
42
Supra note 14. World Health Organization Report on Air Pollution.
43
Awadhendhra Sharan. “In the City, Out of Place.” Economic and Political Weekly. 41(47), 2006.
44
1857 revolt is known as the first war of Indian independence. Hence in the years after 1857,
colonial policy in India has been extremely cautious of public uprisings and disorder.
45
Supra note 43
306
46
For a historical discussion of public health and environment see, Mark Harrison. Climates and
Constitutions: Health, Race, Environment and British Imperialism in India, 1600-1850, OUP, Delhi,
1999. Narayani Gupta. Delhi Between Two Empires: Society, Government and Urban Growth, 1809-
1931, Oxford University Press, 1998, pp. 83-168.
47
Supra note, 43.
48
Supra note 24, Andersson.
49
See Supra note, 43.
50
In 1956, Rajkumari Amrit Kaur, Minister of Health and Local Government invited the Ford
Foundation to assist the planning of Delhi. Albert Mayer a US based planner was appointed for this
purpose.
51
After the partition of India in 1947, the city harbored refugees from Pakistan.
52
It was made clear that the intent of zoning was for promotion of health and safety, moral and social
welfare and could not be used for segregation of the communities.
53
Jagmohan: “I have always believed in the destiny of this city, in its historic role, in its being a
spiritual workshop of the nation, in its capacity to impart urbanity and civility to the rural
migrant…The real problem of the slums is not taking people out of slums but slums out of people.”
See, Jagmohan. Island of Truth. New Delhi: Vikas Publishing House, 1978.
54
Master Plan of Delhi 1962. Delhi Government.
55
Supra note, 43.
56
The first indication of effort to clean the city came at the most authoritarian moment of politics- the
emergency period. Sanjay Gandhi, the architect of this plan had ordered the clearing up of a number
of slum areas in the city. See, Sunil Khilnani. The Idea of India. London: Hamish Hamilton, 1977.
57
Awadhendhra Sharan. “In the City, Out of Place.” Economic and Political Weekly. 41(47), 2006.
58
Anil Agarwal. Slow Murder: The Deadly Story of Delhi Vehicular Pollution. New Delhi: Center for
Science and Environment, 1996. Anumita Roychowdhury etalli. The Leapfrog Factor: Clearing the
Air in Asian Cities. New Delhi: Center for Science and Environment, 2004. The Second Citizens'
Report of 1985, which concluded with his essay on 'The Politics of the Environment'
59
NCT Fact Sheet Delhi, 1999
60
Taranjot Kaur Gadhok. Risks in Delhi: Environmental concerns. The Geospatial Resource Portal.
http://www.gisdevelopment.net/application/natural_hazards/overview/nho0019.htm
61
Anil Agarwal. Slow Murder: The Deadly Story of Delhi Vehicular Pollution. New Delhi: Center for
Science and Environment, 1996.
62
Ibid
63
Ibid at p. 45.
307
64
Emma Mawdsley “Indian Middle Classes and the Environment.” Development and Change 35,
no.1, 2004, pp. 79-103. Amita Baviskar “The Politics of the City.” Seminar 516.
http://www.india-seminar.com/2002/516/516%20amita%20baviskar.htm (last visited 22nd June
2006).
65
Writ Petition Civil, M.C Mehta v Union of India 1985, No. 13029/1985.
66
M.C Mehta in Elaw, Talk with John Bonnie
http://www.elaw.org/news/advocate/default.asp?article=1202
67
Writ Petition (Civil) No. 13029 of 1985.
68
M.C Mehta V. Union of India (Vehicular Pollution Case) 1991 2 SCC 353.
69
Saikia Committee, sixth bimonthly report, paras 4.61-4.67, pp.487-530.
70
Saikia Committee, Ninth bi- monthly report para 8.12, pp. 779-782)
71
Saikia Committee, Ninth bi- monthly report para 8.23, pp. 790-791)
72
Saikia Committee, Eigth bimonthly report,para 7.33, pp. 685-689.
73
Saikia Committee 15
th
bimonthly report , para 15.45, pp. 1048-1049.
74
For a discussion of Judicial strategies to implement its orders in the Vehicular pollution case, see V.
Kumar. “Precipitant Role of the Supreme Court.” In Journal of the Indian Law Institute 44, 2002, pp.
37-61.
75
M.C Mehta v. Union of India (Vehicular Pollution Case) Orders dated 12 August 1994, 21 October
1994 and 28 March 1995 reported at 1997 4 SCALE 4, 1997 4 SCALE 5 (SP) and 1997 4 SCALE 6
(SP).
76
M.C Mehta V. Union of India (Vehicular Pollution Case) Order dated 26.4.1996
77
Ibid.
78
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi 1981 2 SCR 516
79
Subhash Kumar v. State of Bihar 1991 1 SCC 598.
80
Personal meeting with Justice Pattnaik. 26
th
March, 2007, 11:00am
81
M. C. Mehta vs Union of India and Others Writ Petition (C) No. 13029 of 1985 ( B.N. Kirpal, V.V.
Khare JJ. ) 05.05.2002 O R D E R.
82
Ibid
83
Personal conversations with auto rickshaw driver, Mr. Inder Singh, and Mr. Ratan Kapur on the 27
th
of March, 1:30, 2007. Personal conversation with workers at Indraprastha CNG Gas Station, Okhla
mode, New Delhi.
308
84
C. M Abraham. Environmental Jurisprudence in India. The Hague: Kluwer Law International.
1999.
85
This is a main reason why environmental campaign has become law and court centric.
309
Conclusion
This chapter brings together the characteristic features of the emerging cosmopolitan
jurisprudence on environmental human rights in India. This is based on the analysis
of the previous chapters that discussed how environmental rights were framed in
three different issues- water, conservation of forests and air pollution- based on the
interplay of different laws international, national and customary practices. I have
shown through my case studies that with the institution of public interest law in
India, legal construction of environmental rights has made significant shifts from
conventional frameworks based on common law to incorporation of cosmopolitan
standards by adopting a plural legal model. In each of the three areas of the
environment that I discussed, there is noticeable progress in the legal and social
landscape towards considering environment in lines of the cosmopolitan debates
about rights and justice. This I argue is unique to how India adapted to global
contexts and has been sufficiently facilitated by its legal culture. The most important
characteristic of the legal culture has been its ability to incorporate international
standards into Indian law through a plural approach to law.
While it has been common place to assume that all states have integrated
environmental norms into their law, there has not been much discussion about the
process of incorporation. Some recent works in the twentieth century, notably that of
Werner Menski, William Twinning and Alison D Renteln, have argued that
international laws are not easily transportable categories and hence its application in
domestic context is contingent on inter-legal interaction in a pluralistic global
310
context.
1
Literature in different fields of human rights has explored socio cultural
diversity to demonstrate how local notions of justice interact with international
norms. Sally Engle Merry in her discussion about human rights and gender violence
has observed that there are discrepancies between human rights formulations and
daily experiences of women in different local contexts. Merry has contended that
human rights law must be framed in local terms to be accepted and effective in
altering social hierarchies.
2
Shahreen Sardar Ali, Savitri Goonsekere, Emi Garcia
Mendez and Rebecca Rois- Kohn in their study of the Convention of Children’s
rights have discussed the variance in acceptance of children’s rights standards in
diverse legal traditions.
3
These studies highlight that domestic acceptance of
international law, particularly human rights law, is influenced by the legal traditions
and local norms. Anthropological literature about environmental rights state that
local culture is important to understand and resolve environmental problems.
4
The key to understanding environmental human rights is to acknowledge that
environment cannot be defined precisely. The question of defining environmental
norms and creating standards for protection has been a major issue in environmental
human rights law. New scholarship such as of Dan Bodansky maps the various
developments in international law of environment and explored various facets of
environmental issues, but these debates have failed to highlight local interpretations
of environment.
5
In my work, I have extended this debate about global-local
interaction to analyze the acceptance of environmental human rights in India. This is
particularly pertinent to the study of environmental rights because the definition of
311
environment and human relationship with the natural world is shaped by social
perceptions. While it is widely accepted that environment is a normative category
that has almost universal acceptance in societies, I see that people’s definition of
environment is largely shaped by their relationship with the natural world which
varies in societies. Hence pluralism is an important tool to understand how
environmentalism is forged in local contexts, which has been largely ignored in legal
debates about the environment. The realization of plural understandings of
environment has allowed for different ways through which states can balance rights
claims and integrate environmental rights.
Even the literature on legal pluralism has not stepped beyond traditional
boundaries of exploring pluralism in personal matters of religious or customary right
such as property rights, women’s and children’s rights. My review of environmental
laws shows that environment is a culturally constructed term and therefore
construction of environmental claims rests on the social and cultural contexts. In my
study of environmental rights in India, I have shown that the greening of laws has
been enabled by the interplay of different kinds of laws international laws,
constitutional principles and customary practices, contingent on the social context.
The acceptance of plurality of law has helped incorporate cosmopolitan standards as
interpretation of laws does not loose sight of Indian laws and legal postulates. This I
argue has been facilitated by the development of public interest law, which revived
traditional notions of justice. I show this to be starkly different from common law
assumptions from two standpoints- 1) recognition of the fundamental responsibility
312
of the state to protect the environment and the rights to environment 2) its acceptance
of plurality of law. Hence the internalization of cosmopolitan standards is not based
on transplantation of international law into domestic law, but rather is enabled by
means that are unique to Indian legal culture. The values of organic law, holistic
justice, integration of rights and duties, pluralism are unique to Indian legal
postulates. Unlike the transplant of common law which affected a plural legal system
based on two legal systems, the engagement with human rights law is based on the
acceptance of law as a plural and organic entity. Although the rights justice
framework has its roots in the western legal tradition, its overriding presence in the
Hindu value system has facilitated its acceptance in the domestic law in India.
In the examination of environmental jurisprudence in India, scholars have
expressed that Indian judiciary has evolved new strategies to green laws.
6
Abraham
argues that the law has instituted new dimensions to common law provisions of
nuisance and has created a fundamental right to environment through interpretation
of Article 21 of the Constitution. This departure from common law, as Abraham
observes, has been by reinstating Indian legal cultural values of Dharma, which is
based on responsibility towards protecting public interest and the environment.
7
In
judicial interpretations of the environment, a factor that has emerged eminent has
been the focus on right to wholesome environment as part of the fundamental right to
life. Where issues of environmental pollution were raised, the Court made it clear
that they were failures of the state in protecting the rights of residents to life and
liberty as guaranteed under Article 21 of the constitution. The observations of the
313
Court not only recognize a fundamental right to the environment but also entrust on
the state a responsibility to protect rights. It emphasizes public accountability which
forms the apotheosis of the new public law rationale.
My research showed that the Court through the interpretation of the right to
life as provided in the Constitution facilitated the emergence of environmental
jurisprudence in India. This interpretation by the Court took note of interpretation of
Article 6 of the ICCPR and used it in the Indian context. As a result in environmental
matters the Court departed from common law positions to develop rights based
argument to protect rights. Justice Dharamadhikari has pointed that Article 21 in the
Indian Constitution is the “one single article which by interpretation has been
expanded to progressively deduce a whole lot of human rights from it, such as right
to means of livelihood, right to dignity and privacy, right to health and pollution free
environment.”
8
It includes all aspects of human life important to make it meaningful,
complete and worth living. Further, since the rights focuses on duties of the state and
private actors towards society, the rights in essence were based on the core of Indian
legal culture of public responsibility. Even in the highly urban case of automobile
pollution in Delhi, the Court, while recognizing the right to life and health laid down
the responsibilities of the state and private actors. The legal contests in each of the
environmental cases- Vellore Welfare Forum, Godavarman and Delhi CNG- reflect
that the law advances by balancing of interest among the various stakeholders of
rights.
314
Procedurally, the Court has also departed from common law procedures in
many ways. It did not require proof of immediate harm for the adjudication of the
cases. Neither did it require standing or establishment of public nuisance. The
judicial process of adversarial proceedings was modified to accommodate public
concerns and social participation. Justice Krishna Iyer has observed in the Mumbai
Kamgar Sabha case-
Test litigation, representative actions, pro bono publico, and broadened forms
of legal proceedings, are in keeping with the current imperative on justice to
the common man, and a necessary disincentive to those who wish to bypass
the real issues on merit, by suspect reliance on peripheral, procedural
shortcomings.
9
In the Fertilizer corporation case, Justice Iyer further clarified the role of law
in modern times. He said-
Law as I conceive it, is a social auditor and this audit function can be put into
action only when someone with real public interest ignites the jurisdiction of
the Court.
10
These two quotes from the pioneering Justices exemplify the new directions in law
towards recognizing human rights and reviving the traditional norms of Justice. In
subsequent environmental matters, the Court shifted the basis of environmental
claims made in courts from civil compensation to Constitutional claims based on
violation of fundamental Right, as in Article 32 of the Indian Constitution that
guarantees a Right to Constitutional Remedies. Shifting from mere philosophic
exercises, the Court through series of mandamus orders has focused on
implementation of the law as well. From all the three cases discussed in this
dissertation, it is very clear that the Court not only performed the role of the
315
adjudicator, but through intermittent orders and contempt notices to the government
it kept an appraisal of the implementation process as well.
The judgments establish the fact that the law needs to deviate from common
law principles of the earlier regime to accept the values of other countries and the
Indian legal regime. This judicial thinking is reflective of the Indian belief in
syncretism with its openness and readiness for legal osmosis. Unlike the US which
is strictly dualist, in India the law has been open to global standards. Legal
interpretations by the Court have relied on judicial developments in other countries
to substantiate the law. For instance the doctrine of public trust, which constitutes an
important feature of environmental jurisprudence in India, has its basis in both
international law and domestic legal culture. State initiative to promote
environmental action is promoted through the doctrine of public trust which requires
affirmative action by the state to ensure a wholesome environment of all and
empowers citizens to question failure of state responsibility. Justice Saberwal has
pointed out that when the Supreme Court has used public trust doctrine, it has
considered it as an international law concept and also one which is well established
in Indian legal system. In M.I Builders Private Limited v. Radhey Shyam Sahu the
Court held that public trust doctrine developed from Article 21 of the constitution
and was part of the Indian legal system.
11
This has been primarily facilitated by the growth of public interest law, which
has revived traditions of Indian justice that are based on state responsibility towards
protection of public interest and are oriented towards the community. In addition, the
316
Court has also stepped beyond the positivist boundaries to interpret laws in a liberal
manner, incorporate global developments and on occasions, even administer justice.
One could say that the post 1980’s Court shed many of the attachments to common
law systems and became a people oriented Court.
This model of legal interpretation is also a distinct evolution from colonial
plural orders which was based on the presence of colonial and native laws. However,
as Upendra Baxi said, the native laws were primarily textual based and did not
reflect the spirit of people’s laws.
12
Moreover, the presence of different legal orders
was restricted to specific fields in civil law that were governed by religious codes
such as marriage, adoption, divorce etc. Until now, these are the main areas in which
the law explicitly recognizes the presence of customs and plural legal orders. In my
questions to judges and lawyers on legal pluralism, in my personnel meetings, I did
not get even one response that mentioned the example of environment as an arena of
legal pluralism. However interpretations in law clearly demonstrate that law has
integrated international, customary and social practices into constitutional
interpretations of green law. In the process, the development of Indian law has been
in sync with the global context, taking historical and social relationships into
account. In the words of Justice Saberwaal, “the principles of Indian environmental
law are resident in the judicial interpretation of laws and the Constitution, and
encompass several internationally recognized principles, thereby providing some
semblance of consistency between domestic and global environmental standards.”
13
317
My study of the three cases- on water rights, air pollution and conservation of
forests further advances this thesis to show that the framework of environmentalism
builds on a plural legal model of law that takes both cosmopolitan and local social
dynamics into account. It depicts both a human rights framework to protect the
environment and also distinct cultural attitudes towards law, meaning of environment
and quality of life.
The Vellore proceedings, clearly demonstrate how law and society used
environmental law principles and human rights norms to make a case for human
right to water. The conceptualization of water, from an environmental and human
need perspective has signaled change from common law of nuisance which provides
only limited protection from environmental harm. This position contrasts with
common law principles of nuisance, which were specifically tied in to property
interests. In interpreting the right to life and health, the Judges borrowed many
international law principles such as sustainable development, polluter pays principle,
precautionary principle and intergenerational equity to regulate and distribute water
on equal terms across generations. Also, they employed local standards to see how
water distribution is socially demarcated by power relations and the economic,
cultural and symbolic importance of the river. It stipulated many ways through which
the different users of water -state, communities, individuals, industry- can balance
human requirements with industrial, developmental, cultural and livelihood needs.
While international standards provided the ideational basis for construction of human
right claim to water, legal reasoning has been in accordance with how cultural and
318
livelihood interests interplayed with international norms to shape the domestic
definition of water rights. This legal integration of different laws is a characteristic
feature of Indian legal culture, through which legal traditions have interacted with
the law of human rights and worked on promoting the public’s interest.
Another distinctive aspect of the Vellore case law is that it draws on doctrines
of public trust and responsibility which have a basis in the Indian cultural norm of
Dharma and cosmopolitan standards;
14
the Dharmic belief, as mentioned earlier in is
that human relationship to nature is based on a holistic idea where human beings are
part of nature and therefore bear a duty towards protection. In the process, the legal
framing of water rights made significant departures from the Blackstonian positive
law tradition to a plural legal model based on a syncretic interaction between the
global rights debate, environmental law, common law principles, Constitutional laws
and local social practices.
The Godavarman case highlights yet another facet of the interplay of laws in
creating a right to protection of natural resources. Unlike water and air debates, the
legal debates in the case focus on the presence of multiple legal orders, the state law,
and provincial law on forests and customary laws of adivasi groups. In the case of
conservation, while the law recognized the need to protect the environment, it
balanced it with perspectives on how different groups relate to the forests and so
recognized customary norms on use of forests. It demonstrates that legal space to
conservation is contingent on the social and historical understanding of human
relationship with the natural world. The nature of the legal contests shows a unique
319
dimension of Indian law that has departed from common law traditions and built a
plural legal and participatory approach to protection of environmental rights in India.
It proves that in India, conservation rights center on forests and its resources and
therefore the legal recognition of conservation draws from multiple sources such as
oral traditions, pre-colonial norms, colonial and post colonial laws and the
international environmental laws. However, while the formal basis of the law draws
lineage from common law notions of public trust and constitutional duties of
protecting the environment,
15
it also incorporates global international environmental
standards on conservation and customary law of peoples. This I argue is different
from colonial patterns of legal pluralism, where within the colonial state system
adivasi rights had authority in some matters as long as it did not conflict with the
state law. The present model of pluralism is different from the colonial because it is
not based on presence of many legal orders alone but on the interplay between the
various notions of law and social perceptions to evolve a syncretic tradition, which is
a characteristic feature of Indian legal culture.
The Delhi CNG case also demonstrates the interaction between global
standards and local notions of law and responsibility of the state. The legal lines, in
the CNG litigation were drawn on scientific analysis of harm caused by pollution and
social debates on cleaning the metros. The jurisprudence departed from common law
positions on nuisance and evolved a framework based on Constitutional rights to
health and life that corresponds to environmental human rights standards. However,
while the law integrated scientific and global standards on pollution, substantively
320
the reasoning of the Courts reflected Indian legal cultural values of Dharma and
public interest. The claim to clean air was not framed so much in a discourse of
rights and compensation but was interlaced with duties and responsibilities of the
state. In its focus on public good and state responsibility the lawsuit articulates
aspects of Indian legal culture. Hence in this case also signifies a plural model of
legal interpretation to create rights of citizens to clean air by incorporating
international standards into the Indian notion of holistic justice.
This has placed the Indian legal system and its sense of justice, built on legal
pluralism, very uniquely among common law countries, although the exact nature of
pluralism is contextually contingent. While I have shown in my work that
environmental human rights have been protected through legal pluralism, I have not
adequately established the nature of legal pluralism. While I did demonstrate that the
present model of pluralism is different from colonial times, as the present from of
global local interaction have made the law itself plural, but I have not concretely
established the inter-linkages between the various laws. This is something that I
would like to study in future by interviewing legal practitioners.
Another question that has risen from my present work is the question of
geographic linkages, especially the rural urban divide. Even though my case studies
show some division in terms of how urban and rural issues, it has not really focused
on how differently they framed the environmental challenges. Since most of the
evidence in my work has been based on the petitions filed, media reports, and
campaigns by non governmental organizations the question of local values has been
321
overlooked. This I feel will be a valuable addition to future research in this field. I
was also not able to make adequate study of all the groups who participated in the
process, particularly in the forest case. Given the scope of the case that covered
forests in all parts of the country, this went beyond the scope of the present study.
Nonetheless, I feel it would be an interesting exercise to see how the locals interacted
with the law since they were the affected people. What I think will be interesting to
pursue would be an examination of how urban rural divide effect the acceptance of
global standards.
Although I claim that environmental jurisprudence since the 1980’s is
emerging towards a cosmopolitan legal order, which is markedly different from
common law traditions, the scope of my work did not allow space for a comparative
study of jurisprudence to examine change, which I plan to take up in future.
My present study demonstrates certain trends towards a cosmopolitan
framework of environment as evidenced in legal reasoning and social petitions. The
new framework underlines the legal and social evaluation of competing claims
against the environment wherein value conflicts over environment are resolved
through an approach of balancing environmental and livelihood interests. My
present work raises questions about how laws in the national context interact with
global norms. While it has been standard to see in the emerging literature the
evolution of new standards and state adaptation to the standards, the literature has
failed to see the process of interaction. One of the intriguing observations in the
course of my work has been that the adaptation of international laws in domestic
322
systems is not based simply on monist dualist thesis. Rather the process is much
more nuanced and is based on the social and cultural assumptions about relationship
with the natural world. This dissertation is a small step towards understanding these
complexities.
323
Conclusion Endnotes
1
Werner Menski. Comparative Law in a Global Context: The Legal Systems of Asia and Africa.
Cambridge: Cambridge University Press, 2006. William Twining. Globalization and Legal Theory.
London: Butterworths, 2000. Alison D. Renteln. International Human Rights: Universalism Versus
Relativism. London: Sage, 1990.
2
Sally Engle Merry. Human Rights and Gender Violence: Translating International Law into Local
Justice. Chicago Series in Law and Society, Chicago: University of Chicago Press, 2005.
3
Shahreen Sardar Ali, Savitri Goonsekere, Emi Garcia Mendez and Rebecca Rois- Kohn. Protecting
the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems.
UNICEF, Cambridge and New York: Cambridge University Press, 2007.
4
See, Kay Milton. Environmentalism: The view from Anthropology. London and New York:
Routledge, 1989.
5
Daniel Bodansky, Jutta Brunnée, and Ellen Hey. Oxford Handbook of International Environmental
Law. Oxford, 2007.
6
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Abstract (if available)
Abstract
In this dissertation, I examine how India has addressed the question of environmental human rights in the context of three green issues on water rights, forest conservation and air pollution. The dominant disciplinary frameworks on environmental human rights focus on effective compliance with international norms in domestic legal order. They see the internalization of human rights through the adaptation of a set of parallel global standards. Law and Society scholarship argues that acceptance of uniform application of rights masks the interrelationship between international human rights law and local normative orders. I study the process through which environmental human rights claims are incorporated in domestic legal cultures. Taking a socio-legal approach to the historical development of environmental rights in India, I offer some insights about the nature of legal pluralism in a postcolonial context.
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