By Lovish Gidwani:
When our very own Pradhan Mantri ji considers the country’s green laws to be a new form of ‘license raj’ impeding development, one needs to look no further to understand where his commitments lie. The environment versus development debate has been played so many times in front of us that we now know the script by heart. On one side of the aisle is the pro-environmental lobby, highlighting the discrepancies in the clearances awarded for development projects. And on the other side there is the corporate lobby, talking about its development agenda while never truly explaining why it failed in following the environmental norms of the land in the first place. The third party to this debate is the government proclaiming that ‘saving of the environment could not be at the cost of development’.
What differentiates our country though, from scores of other developing nations, where a similar story unfolds, is the role played by the judiciary. The Indian experience is one where public interest litigation and judicial activism have played a larger role in the development and implementation of the environmental laws. With the failure of the Executive and the Legislative wings of the governance, the judiciary has assumed unprecedented powers and has undertaken the uphill task of bringing the focus back to the environment and the concept of sustainable development.
Basically, there are three kinds of clearances that are required to set up new development projects: environment, forest and wildlife. The environmental clearances are granted under the provisions of Environment (Protection) Act, 1986; forest clearances, under the provisions of the Forest Conservation (Amendment) Act, 1998; and the guiding law for wildlife clearances is the Wildlife Protection (Amendment) Act, 2006. These laws, in theory, are sufficient enough to strike a balance between the environmental concerns and development needs. But, by and large, these laws have remained unenforced, mal-administered and mismanaged. So much so, that the method of clearances for environment and forest is believed to be ‘arbitrary, non scientific and non transparent’ by many.
On the other hand, the Indian Judiciary has taken a very active stance in protecting the environment. It has gone to the extent of declaring right to healthy environment as a fundamental right guaranteed under article 21 of the Indian constitution. The Judiciary, through its various judgments, has directed the guilty corporations to not only compensate the victims of pollution but also the cost of restoring the ecological degradation (Polluter Pays Principle). It has also held statutory authorities and local bodies liable to discharge their legal obligation to the people in making the surroundings pollution free even if there are budgetary constraints. The ‘Green Bench’ of the Supreme Court, in particular, has delivered some tough yet landmark judgments, where the economic impacts were large (as in cases on Vehicular Pollution, Ganga Pollution and Taj Trapezium). In hind sight, it is safe to say that the wide reaching environmental benefits of these judgments out run the short term economic gains.
But there is still a segment of society that is wary of the idea of judicial activism. And they do have some very sound arguments up their sleeves, cautioning us about the irreversible impacts that this practice of such unrestrained judicial power can have. Autocracy of the judges should be more feared, then that of politicians, as there is no appeal or remedy against it. Plus the very concept of judicial activism goes against the doctrine of Separation of Powers among the three wings of governance. However, there can be no denying the fact that judicial activism has made both, the corporations and the government alike sit up and take notice of our ecological concerns. The greatest asset of the judiciary is the confidence it commands and the faith it inspires in the minds of the people. This is its real source of strength. Strength, which even our very own Pradhan Mantri Ji would envy.