4/22/2019 492 R.

Dhavan, The wealth of nations revisited

The wealth of nations revisited

RAJEEV DHAVAN

INDIAN law has always been more concerned with property rights than
the environment, the exploitation of natural resources than their
conservation, and the ruthless appropriation of natural spoils than with
evolving a common understanding of the totality of the inheritance of
nature. Perhaps this indictment is over-written and does disservice to the
many slokas of ancient wisdom which revere nature, or the sastric and
other invocations which placed many common resources within the
custody of community and state.

In the year 1900 India had a human population of 238 odd million,
distributed over some of the greenest valleys, the most enchanting forests,
the most exotic mountains and glaciers, the most impressive cycle of
seasons and climates, and the most diverse and exciting biodiversity and
flora and fauna to be found in the world. Over the millennia, agriculture
had made its dent but without the rapacious onslaught of technology –
leaving nature’s capacity for renewal intact for a people who lived with,
and not against, nature. The task of preservation amongst plenitude was
relatively simpler, even amidst complex land systems and the ravages of
time, war and circumstance.

If British laws in India initiated protective – albeit malleable – legal

regimes for forests, they did so for their own mixed purposes, with a
shrewd sense of the needs of Empire. The 19th century was the ‘century of
progress’, just as the 20th century became ‘the century of change and
development’. Nineteenth century laws were geared to facilitate ‘progress’;
the laws of the 20th century surrendered the earth and all its resources to
development, and mercilessly ignored the multiple impact of such
exploitation on nature.

The instrumental vision of law and development designated to transform

India into a modern society can be traced to Nehru’s schemes for planned
development to change India. The schemes of agrarian reform were
concerned with redistributing land (inequitably amongst the well-off) and
not with preserving it as a natural resource. Industrialization was given
priority. Dams became the temples of a new India. Forests were a resource
for timber. Minerals were to be exploited under a new dispensation. From
1970 or so, the Union government began to take control over various
natural resource regimes, amending the Constitution in 1976 to strengthen
its command over forests and the environment, and provide a justification
for regulatory control to maldistribute nature’s resources to exploiters
whilst reserving a portion of the spoils for greedy officials and ministers.

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Even a cursory examination of a few of the cases that I have been

involved in, canvas the admixture of ineptitude and corruption which has
infiltrated environmental law and policy. In Rajasthan, the government
permitted marble and other mining in the protected forests and tiger
sanctuary in Sariska. In Gujarat, the powerful, and in my view
environmentally unscrupulous, Sanghi conglomerate was allowed to build
a cement plant and pipeline through the coastal zone, two reserved forests,
several other forest areas and a sanctuary. The Narayan Sarovar sanctuary
was especially and arbitrarily reduced to accommodate their claims. In
Uttar Pradesh, the Tehri dam is being constructed on a seismically sensitive
area with questionable hydrological tests.

Narmada tells its own story of doom. Historically and environmentally

sensitive parts of India are to be drowned so that other parts can get the
benefit of less than cost-effective power generation. In Sikkim, a 30
megawatt project was to be built in the holiest spot of Sikkimese Buddhism
over the Rathong Chu river where the sacred century old Bhumchu
ceremony is performed so that those involved in, or party to, the
construction could make a lot of money. In the Pench sanctuary case, poor
tribals were deprived of fishing rights as rival environmental groups fought
over policy. In the Nagarhole forest and sanctuary, Tatas were permitted to
start a hotel disguised as a hunting lodge. In Arunachal Pradesh and other
states, timber merchants from Calcutta and elsewhere wreaked concessions
from state governments to reduce the forest cover.

In Karnataka, factories belonging to Birla and others were permitted to

pollute waters of once ecologically sound life support streams and rivers.
The coastal zones of Kerala and Orissa were permitted development by the
sea, with the state of Andhra permitting an ammonia based fertilizer plant
close to the shining blue waters of the Bay of Bengal.

I remain baffled – and have expressed my dismay and surprise – that my

friend, the distinguished and courageous Anil Agarwal of the Centre for
Science and Environment, approved Sanghi’s jetty in the creeks leading to
the Arabian sea without examining the totality of the circumstances – even
if the limited decision concerning the head of the jetty may have been
technically correct. What persuaded the ambitious M.C. Mehta – an
environmental lawyer who has won many awards – to side with the
property owners next to the chemical industry in Bombay to pose a Bhopal
kind of threat that did not exist? Why was the Okhla industrial area of
Delhi permitted ‘H’ category polluting industries which should not have
been there in the first place? In the Yamuna case, it is clear that the river at
Delhi has become a sewer which is contaminating the aquifers leading to
the ground water supply.

After agriculture, building is the second largest economic activity in India.

Every project yields money for the contractor, the builder, the designer, the
obliging bureaucrat and politician. An abandoned project is even more
lucrative – the ill-gotten gains of money are reaped by all and sun- dry
without any obligation to show results. In one case, polluted and expensive
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zinc wastes were allowed to be imported when they should not have been.
Environmental planning is no longer possible in any city in India as
property predators destroy each scheme with impunity with the connivance
of ‘willing-to-be-bribed officials.’ Few industries follow pollution norms.
The irreplaceable losses of biodiversity are irretrievable. The towns breed
disease and rural areas suffer pollution and despoliation. All this is only the
dramatic tip of the iceberg, a small sample of some of the struggles I have
been privileged to be associated with as a lawyer.

How does one devise a framework to take preventive, precautionary and

remedial action? A vicious circle is created. Without a regulatory
framework, there is no control. An apparatus of regulatory control invites
not just compromises but also corruption. If the economic activity
generated by environmentally illegal activity is stopped, the mal-effects of
such cessation do not just directly affect commercial interests but the
economic regeneration of the area, the jobs of workers and the sustenance
of many linked activities. Workers and industry unite to support
environmental despoliation. The irreversible rapacious exploitation of
natural resources is defended in the name of poverty alleviation, progress
and development. One public interest is placed in a false polarity and pitted
against another.

How is this cycle of short sighted development to be broken so as to

preserve unrenewable natural resources and ensure that the renewable
resources of the world are part of sustainable development; and, that too,
amidst a host of biotic pressures from a demographic increase which has
quadrupled over the 20th century?

The social forces operating against the environment are strong enough to
ignore, manipulate or corrupt virtually any system of control or regulation.
Post-Independence, Indian law has proceeded on a magic wand theory of
naive instrumentalism. The theory is premised on four assumptions. First,
the ‘law’ is a ‘magic wand’ which simply has to be enacted to instrument
social change. Second, if the instrumenting magic wand of the law does not
work, a Magic Wand II will be inbuilt into the law so that regulatory
bureaucracies and frameworks will ensure oversight and compliance.
Third, Magic Wand III seeks to criminalize impermissible activities to
impose penalties, fines or imprisonment which, in the cases of corporate
polluters, hardly ever affects or troubles the real person incharge. In the
evocative phrase of an American jurist who has studied corporate
criminality, the large corporation has ‘no soul to damn, no body to kick.’

In the fourth place follows Magic Wand IV in the form of the ‘gap’ theory
which sports the dangerous and subversive defence that the laws are all
right. What is missing is the right kind of effort to cross the ‘gap’ between
the ‘law’ and social reality. These four Magic Wands, which have become
part of standard Indian thinking about inducing change, were part of an
Anglo-American ‘law and development’ package. Though treated as
outmoded elsewhere in the world, commitment to this ‘package’ has

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survived in India as it suits a political discourse which thrives on a diet of

false promises.

Diagram to Show the Staccato Approach of the Law to Environment

Regimes
of
Control

Permission
Prohibition

Activities

Target for

Regulatory

Control Protected Areas

The ‘magic wands’ of the law relating to the environment have been far
from insightful and doomed to entropic decay. Ambivalent laws (Magic
Wand I), weak regulatory frameworks and processes (Magic Wand II),
ineffective criminalization of deviation (Magic Wand III), and half-hearted
attempts to cross the ‘gap’ between ‘law’ and said reality (Magic Wand IV)
are not an aberration, but built into the law itself. A study of environmental
legislation reveals much of what we already know about the law.

Five important features of modern law are to be noted: (i) ‘Modern’ law is
overtly political. Law is an institutionalized expression of political forces.
(ii) Although the ‘form’ of law portrays it as objective and universal, all
‘laws’ disguise compromises, loopholes, empowerments and subterfuge
which, more often than not, make unconscionable concessions to the
socially, economically and politically powerful without losing their facade
of objectivity. (iii) Laws designed to facilitate and bring about change are
not a self-fulfilling prophecy, but often status quoist or even obstructive
and inimical to social change. (iv) The laws ostensibly designed to
instrument change create administrative nabobs, rajahs and maharajas
interested in pursuing their own ends and interests. Such colonial models
of regulation do not yield to democratic sensitivity. (v) However, in order
to preserve its objectivity, the law in general, and various laws in particular,
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are often indeterminate and double-edged, making at least some laws the
possible site of struggle by the socially concerned and disadvantaged.

Environmental laws and policies are riddled with loopholes. Broadly

divided to cover both ‘conservatory’ and ‘pollutionary’ effects, the strategy
of environment laws is to demarcate (a) areas and activities which require
regulation and (b) regimes of permissions and prohibitions in respect to
these areas and activities.

The Forest Act of 1927 (on which most ‘state’ forest acts are modelled)
targets the creation of ‘reserve’, ‘protected’, and ‘village’ forests. The
Forest Conservation Act of 1980 places the Union government in a
commanding position to refuse ‘permission’ for non-forest activity in all
forest areas. The Wild Life Protection Act 1971 enables creating
‘sanctuaries’ and ‘national parks’ and the protection of various species of
flora and fauna. The Water Pollution (1974)and Air Pollution (1981) Act
deal with permissible and prohibited activities. None of these really take a
holistic look at the environment. In a sense, this was attempted by the
Environment Protection Act 1986 which entrusted an overall coordination
function to the Union government. But, apart from occasions when it has
been prodded to do so by the courts, the Union government has tended to
look at environmental questions in a piecemeal way, often conceding to
powerful social and economic interests patronized by the officers and
regime in power.

These relatively ‘new’ legislative provisions, which are already outmoded

in their design and mired in bureaucratic ineptitude, run along-side
‘common law’ remedies which, amongst others, consist of the torts of
trespass, negligence, nuisance, the strict liability law of the escape of
dangerous things (known as the rule in Rylands v. Fletcher), various
statutory ‘solutions’ as well as criminal law remedies in relation to
nuisance and preventive action by the magistracy. It is well-known that tort
litigation in India has all but failed. Even after a special enactment and the
payment of money under a Supreme Court settlement in the Bhopal case,
the victims have still not received the compensation due to them. The
criminal procedures relating to the environment are hardly mobilized
despite Justice Krishna Iyer’s stirring judgment in the Ratlam case (1980).
The huge apparatus created by the new legislation has produced some good
officers and well meaning statements of policy, but few results other than
an overall failure of perspective and a disquieting lack of tenacity to deal
firmly environmental despoliation and degradation.

Around the 1980s, once the Supreme Court had developed a new public
interest litigation to tackle matters of public importance which were
otherwise neglected, it was ineluctably drawn into issues concerning the
environment. The Supreme Court had reached its nadir during the
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Emergency (1975-77) when it declined to interfere even with arbitrary,

high-handed or malafide detentions without trial. Using the vehicle of
public interest litigation to espouse virtually all or any public cause, it
restored its reputation by helping the disadvantaged and taking on
unchampioned causes.

A preparatory juristic platform to enable this judicial activism was created

by expanding the ‘life and liberty’ provisions of the Fundamental Rights
chapter of the Constitution to include a wide conspectus of rights including
education, health, welfare and the environment. Public interest law enabled
(i) any genuine public spirited citizen or body to file a petition; (ii) the
appointment of special commissions to determine facts and propose
solutions; and (iii) schematic remedies – other than the usual remedies of
damages, simple orders and positive or negative injunctions – to ensure
wider solutions, with continuing oversight by the courts.

The very first major environment case concerning mining in the Mussorie
Hills (1982) established the case for court intervention, but simultaneously
presented the confrontation of interests between industry, workers,
development, greed, virtue and the environment. This litigation, which
stretched over many years, eventually resulted in compromise solutions in
which some mining was permitted whilst at the same time giving a notion-
ally decisive edge to the environmental interest. In the many cases that
followed, the Supreme Court was persuaded to follow the regimes of per-
missions and prohibitions presented by statute, without using too much of
its imagination. Justice Jeevan Reddy’s judgments in the Sariska mining
case (1995) are a characteristic response. The court spoke strongly about
the environment but stayed within the official statutory regimes without
expanding judicial horizons in an overtly creative direction.

It was not till the advent of Justice Kuldip Singh that the court went out of
its way to evolve recognized principles of environmental jurisprudence and
ensure that schemes ordered under the aegis of court orders were
effectively implemented. Justice Kuldip Singh clearly went over the top.
He tackled a huge number of issues – the coastal zone, Taj Mahal, forestry,
pollution in Delhi, the cleansing of the Yamuna and Ganges, garbage
disposal, the relocation of industries and many others, with a brusque no-
nonsense approach to produce results – often with inadequate due process
against the patently wrong persons. Many matters decided by him are
being reconsidered by special benches of the Supreme Court years after his
retirement. Yet his enthusiasm infected his colleagues who too dealt with
environmental issues such as those concerning forests and vehicular
pollution with a dramatic but qualified ardour. The results have been
positive but clumsy – setting examples but not necessarily securing the
basis for an ongoing intervention in such matters.

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Yet it must not be thought that the courts have acted wholly in an ad hoc
manner. It is possible to discern several principles from the courts
judgments. Principle I: The precautionary principle to prevent threats to the
environment and take positive and timely steps to further its conservation.
Principle II: The polluter pays principle which serves as warning and
threat, but which must not be taken to be lexically prior to the
precautionary principle so as to give a polluter an option to pollute, pay for
the malconsequences of his actions and still retain the benefits and
consequential unjust enrichment of his ill-gotten gains. Principle III: The
trusteeship principle which creates a constitutionally ordained public trust
in the courts, government and people to conserve the environment.
Principle IV: Principle of the protection of biodiversity as a precious and
irreplaceable resource and gift of nature.

Principle V: Principle of fulfilment of international obligations as reflected

in international agreements and general principles of international law,
policy and concern and as part of the obligations owed to all peoples
throughout the world. Principle VI: The inter-generational equity principle
which requires taking a longitudinal view so that the trusteeships acquire a
temporal quality to ensure that public trust to conserve the environment is
handed over from generation to generation in good faith. Principle VII:
The principle of sustain-able development and ecological priority to
monitor the use of resources in ways that guarantee renewal and
conservation in which lexical priority is given to ecology and not its abuse.
These seven principles have to be read together and individuated for
application to facts and circumstances as they arise.

But, it is precisely the reading together of the principles which has

provided room for predatory manoeuvre and judicial reticence. For,
although the courts have blazed a constitutional trail of concern, the
‘follow through’ does not elude uncertainty. Since all the principles have to
be balanced, too much is left to chance. Confronted with claims of progress
and development, the judges either refrain from too much activism or
surrender to the views of government or experts who, in turn, look for and
propose compromises. Judges have become self conscious of the criticism
that they are taking over governance, and have devised the defensive
formula that their game plan is not to run the administration but to ensure
that the administration runs according to rule of law as manifested by the
prescribed rules and statutory regimes enacted by the legislature.

Nobody quite believes the judges when they take the defensive stand that
they are doing no more than ensuring compliance of the rule of law. Judges
have entered into certain environment issues, such as those related to
forests and vehicular pollution, with a self-declared and evangelical self-
motivation, but stepped back on other issues concerning dams and
industrial pollution. If the future of India’s environmental jurisprudence
consists of doing no more than remanding matters to the authorities or
experts to decide according to law, then little has been achieved in the last
two fertile decades of the 20th century in which the Indian Supreme Court

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tried to elevate the protection and preservation of the environment to the

status of a primary constitutional goal.

The more recent judicial trends are a retreat, a step back, a return to an
environmentally subversive status quo, and an abdication in favour of the
authorities to virtually do what they please under conditions of light
judicial supervision. As the century gives way to the millennium, this
abdicatory retreat must be arrested; clearly more exacting principles of
environmental jurisprudence need to be developed.

But, although this goes beyond the scope of this skeletal overview, there
are major issues that loom on the inter-national horizon. With the advent of
the World Trade Organisation (WTO), the unipolar appropriation of the
United Nations, the Post-Rio 1992 follow-through to the Conventions on
Biodiversity and Climate Change, the Kyoto Protocol of 1997 and the
inclusion of environmental issues as part of the global trade and other
regimes, many issues concerning the environment are going to be decided
globally. World governance by treaty is upon us. But issues of world
governance cannot be left to our rulers. Democratic participation has to be
built into global governance and treaty-making so that global
environmental decisions do not elude democracy to become a conspiracy
between powerful nations and conglomerates.

Till not too long ago, the wealth of nations was counted in terms of money,
the gross national product and some intimations of distributive justice
amongst the nation’s human beings. But, the real wealth of nations remains
the natural resources of the world. Corporate forces will seek to exploit
these natural resources and commoditize them for ‘productive’ use and
human development. But, human development cannot be independent of
nature of which we are a part. It is not government legislation or
bureaucratic interventions that will save the resources of the world.

The real custodians of the earth are those who have a continuing interest
in living in tune with nature and in replenishing its resources. Even though
such persons are pitted against powerful forces in society, it is to these real
custodians of the earth to whom we must turn to struggle for the
environment against its continuing predation.

‘Law’, legal and administrative processes and the courts cannot tilt the
balance in favour of the environment without deriving strength and
direction from the social struggle over the environment. Such struggles
cannot alter the balance of power in society but they can confront those in
power with the need for examining alternatives. The law cannot obliterate
greed or prevent the despoliation of the environment, but it can mitigate
that greed and discipline, the uses and abuses of natural resources. The law
will not necessarily fulfill even its own stated prescriptions about what
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needs to be done, but it can move some way towards to achieving their
fulfilment. It is a possible site for activists, the media and the people to
locate their struggles. It is on the results of these struggles that the natural
future of the world depends.

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