- Sir, you have been working as an environmentalist for more than a decade. What made your interest grow in this subject? And also tell us something about your organization “Initiative for Climate Action (ICA)”.
My organization “ICA” is a new non-profit organization, started about 5-6 months back and is based in Bangalore. It focuses on transformative system change and response to the climate crisis. Now coming to your first part, even when I was a school student, I was quite interested in nature. And, I sort of enjoyed being with nature. I was very imaginative; while in school, I was always thinking about the world around me, the environment, animals, insects and birds etc. Biology was one of my favorite subjects in school. I probably developed interest in environmental issues when I was in my law school; back then my interests grew in social issues in general like human rights, labour, gender equality and increasingly so in environmental issues. Around that time, Narmada Bachao Andolan was very active it was an important issue in India. As a law student, I got involved in some activism including activism carried out by NGOs in Bangalore and I really liked the scope in the field of environment even as law student and of course there was the main environmental law and policy course which I really enjoyed. Before that, we had a course called ‘Law, Poverty and Development’ and another course called ‘Natural Resource Management Law’ and these courses built up my interest in environmental issues. When I was in my final year of law school, I was quite clear that working in environmental space is something that I want to do and I was also a teaching assistant to my Professor M.K. Ramesh for his course on Environment Law and Policy, while I was in my final year of law school. My first job was in an environmental NGO then I went to US for my masters and continued my interest and research on environmental issue. While I was at my first job, the environment impact assessment law changed and I was very involved in carrying out research on that assessment.
- What do you think is the role of environment litigation and ethical business model and how would it act as a tool to lessen the gap between Economy, Environment and Society?
I think, both of them required a separate attention let me go one by one. When it comes to environment litigation, in a country like India, environment litigation really has a tremendous role to play and it has already played a significant role. A big part of India’s PIL journey has been in and through environment litigation. While the initial PIL cases were on issues such as prisoners or bonded laborer’s, the Bandhua Mukti Morcha cases are examples. By the late 1980s, the Supreme Court was considering environmental matters. Across the decade of the 90s into the early 2000s, environmental litigation was a major part of PIL in the Supreme Court to the extent that every friday was the day for green bench of the Supreme Court and later on in the 2000s on mondays and fridays, environment issues were being heard. So, most of our environmental laws have actually come from environment litigation, not from either the constitution or from statutes. The Constitution of India does not have an explicit ‘right to safe environment’ and it is only through PIL and judicial interpretation that article 21 (Right to Life) has been expanded to include the right to a healthy environment/clean environment or pollution free environment. And besides right to environment being recognized as a part of right to life, environment litigation has played very important part in development of jurisprudence of India’s environmental law, be it the precautionary principle, principle of absolute liability, polluter pays principle, principle of inter-generational equity, the sustainable development principle, the idea of prior and informed consent and public trust doctrine. Our governance system is quite broken when it comes to environmental governance. If you take the example of pollution control board- the capacity of our environment regulator is very low, their budgetary allocations are low and corruption is an endemic in the system. So, it is only the courts which have successfully stopped many disastrous projects, and protected the human rights. There is also the environmental right of the indigenous communities who have called for a greater transparency in the environmental decision-making process. And this has been actually recognized by the High Courts and the Supreme Court over the last decade from 2010 onwards. The National Green Tribunal (NGT) played a very important role in holding back disastrous projects and protecting rights. So, while courts have performed a good role, they have certainly not transformed the system. Even now, there is great potential for improvement and I think, time is really pertinent right now for climate litigation. So far, we have been very little climate litigation in India. Ridhima Pandey case in NGT had an opportunity but unfortunately, tribunal missed out on that opportunity and it was shocking. I may use the harsh word, it was a bit of shameful decision as well. But there is a lot of potential for good climate litigation. So, the overall response is environment litigation has great potential; it has performed very important role particularly during the heyday of PIL and it has also led to the evolution of very important elements of India’s environmental jurisprudence. They filled the gap left by the Statutes and the Constitution but they are not really very comprehensive. Environmental litigation has not radically transformed the system and continue to operate with the usual business model and there is long way to go. And if I may add a last comment on that, we really need a lot of good environmental judges and lawyers. We should be constantly looking for and supporting the development of environmental lawyers, Collectors and even law school has an important role to play there; and we also need to recognize judges who have delivered good environmental judgements.
(On Sustainable Business) I’m bit of a radical and also quite cautious with terms like like green growth, sustainable business, sustainable development, smart cities etc. I think these words can easily be exploited to mean everything and nothing. And for me the bottom line is we need to clearly recognize that certain things are non-negotiable and one of them is the well-being of our planet or the overall richness, stability and resilience of our environment. The main reason that we are even at environmental and climate crisis today is because of the business as usual model. It is because of the infinite hunger for growth and if I may get slightly political, it is also because of the logic of capitalism which thinks of profit making (sometime creditor profit making) as the sole goal to be pursued. I do not think some cool sustainable business model will save the world. What is really going to do so is, if we recognize that profit and creditor capitalism has destroyed the world and we rebuild our community, political system and economic system to respect our richness to nature. I do not have too much faith in some cosmetic changes in the business world. They might make some changes here or there like put some recycling stickers on their product, might send a little bit of CSR money on planting some trees. But, the core logic has not changed. I think radical changes in business practices are possible. Business really means transforming the logic of enterprises and it is not only about profits but to care for all kinds of stakeholders including non-human stakeholders; only such kind of deep sustainability embedded in business would have great potential. And of course, industrialization, business and related aspects of rapid urbanization are the major causes of environmental degradation. By fixing those practices, we will also be able to protect and preserve our environment.
- The slow transition of Government and Court from Starlite Cooper Smelter Plant case to Jallikattu case i.e., from anthropocentric approach to Eco-centric approach, will it champion the cause of environmental protection in our country?
To be honest, I don’t think either the government or court has transitioned. So, the Jallikattu case and Justice Radhakrishnan judgments are rather an exception than norms. Even now HCs and SC are continuing to condone majority of destructive environmental behavior in the name of development. On the legal sides there seems some possibilities on litigation and on court judgements. Particularly, I am a big fan of justice Radhakrishnan’s judgements including the Jallikattu judgement, also the Niyamgiri judgement and the Gir Lion Judgement. There seems some interesting side but the courts have definitely not transitioned. I think, that would be too much of an over statement but when it comes to government, I don’t think they have transitioned at all. In fact, I would say that recently the government is actually carrying out very destructive environmental practices such as auctioning coal mines in biodiverse and rich forested areas, and in parts of India where indigenous communities have been living for centuries. If anything, some regression has happened towards more environment destructive outlook including with latest EIA norms. The system of fast-tracking clearances, the absolute lack of accountability when it comes to incidence where it is clear that project proponents have flouted environmental rules and continuing lack of respect for citizens of democratic countries to have a say in environmental decisions and on many indicators we have moved backwards over the last decade and that is a cause for great alarm and worry for anyone who is interested and respectful of environmental conservation. I think, lots of Indian heritages have been lost in blind rush to increasing the GDP or making India the economic power. And what most people refuse to talk about is the fact that it is only a few people who are getting rich in this country; most people continue to be poor and struggling. The trickle-down effect of economic theory is not delivered here. It is the few people who are getting rich, they get rich by exploiting the country’s natural resources which the government makes it easier for them to exploit. We often do this by exploiting the life of Adivasis or of the indigenous communities apart from the strong biodiversity.
On the judicial side there was not a transition, only few bright moments in the last decade and as I mentioned earlier in the late 80s and 90s, some of the decisions like MC Mehta, public trust doctrine being highlighted, the Ganesh wood products case, the Vellore Citizen Forums case etc. were the highlights from late 80s and early 90s and then over the last 6 years and so some of the Justice Radhakrishnan’s judgements have been highlighted. There are few good NGT judgements especially when it comes to the importance of cumulative impact assessment and importance of transparency in environmental information, importance of public participation in environmental decision making. There have been few good SC judgments not necessarily from Justice Radhakrishnan that have reiterated that environmental regulators must carry out their duties, absence of funds etc. cannot be an excuse, and they cannot sacrifice environmental consideration. But on the whole, I would not say there is a transition even within the court. And as you know, The NGT itself is under attack from the government, lots of vacancies have not been filled, NGT orders are regularly appealed by the government and often overturned by the SC.
The final part of question which I interpret is, could this be a transition that will make a big difference? There I think yes! The minute we move away from anthropocentrism and move toward ecocentrism. In simple words, the minute we stop thinking about human beings, profit or few rich people becoming richer and begin to think more about eco-centric consideration i.e. how we are related to nature, the rights of forests, rivers and non-human life. We begin to think about community well-being, and issues often get artificially separated from environmental issue.
Environmental issue and social justice issues are very connected, the minute we think about all of these in more eco-centric, egalitarian, and respectful ways, we will actually be doings thing that are more likely to leave a better world for future generation. So, the potential is there, in practice we are not seeing the government or the present strength of SC realizing the potential. Thankfully in India’s own history there have been beautiful moments where high water marks of environmental jurisprudence have been cited across the world. There is increasing recognition of the centrality of the environment, in a few countries for example Bolivia and Ecuador; their right for nature movement is really finding an expression. So, I am hopeful but that would require a lot of courageous action from academics, activists, Judges, lawyers and politicians (for whom ethics still matter).
Link to the part II of interview: https://theblueletters.com/index.php/2020/12/15/privacy-is-a-very-constitutional-issue-and-just-making-it-a-transactional-data-protection-kind-of-issue-is-not-the-best-way-to-go-abhayraj-naik-azim-premji-university-bengaluru-part-ii/