Foreword
This important and impressive volume will fill a gap in our understanding of environmental law in India. The arguments presented here are of great legal, philosophical and practical interest. There is a particular problem that is perhaps unique to environmental law. Of all the bodies of law, environmental law is one area where the law itself is articulated in terms of abstract policy frameworks, or institutional doctrines. Ideas like ‘sustainable development’ and ‘precautionary principle’ are not legal ideas in a conventional sense. They are ways of looking at the world, or principles to be taken into account when formulating policy. They cannot easily be codified. Many laws are often vague and ambiguous. These have to be resolved by interpretive methods. But many of the ideas used in environmental law are not legal ideas in the conventional sense in that they are not precisely defined enough to be a guide for future action; it is also often not clear on whom the obligations these ideas entail devolve; it is often not clear how they can be translated into legal directives. Different judges interpret them differently, they are sometimes used rhetorically and sometimes with scientific discipline behind them, and sometimes without any settled social meaning.
Add to this a further challenge. In many areas of law, like constitutional law and criminal law, there is decades, if not centuries, of argument that has given them determinate legal shape. Or in a democratic culture many of these laws acquire constitutional status through some process of public deliberation. Our ‘environmental constitution’, our legal mediation with nature, has been much more of an act of judicial improvisation. The rise of environmental jurisprudence in India is largely a consequence of state abdication. Powers of the Judiciary have increased as a consequence of legislative and executive failure. The Supreme Court began to create special environmental benches in response to particular environmental crises; the legislature then morphed the idea into the National Green Tribunal—a Tribunal dealing especially with environmental cases. While the state has created an elaborate environmental regulatory structure, including laws and institutions of enforcement, these structures have, for the most part, failed to secure our environment. The fact is that India has the dirtiest air, the most hazardous water, and is at severe risk from the effects of climate change.
India has an impressive record of grass root environmental movements, and deep historical traditions of environmental care. And formally at least, no politician denies the importance of the environment or even the imminence of climate change. But translating these sentiments into a determinate plan for environmental action has not been easy. The gap between high rhetoric and implementation remain significant. Even in the Courts, the gap between recognising legal principle and the weakness of the remedy on offer remains astonishingly wide. Indian law has also typically blurred the boundaries between different genres of law: the expansion of rights- based litigation has often meant that ordinary tort claims are adjudicated as constitutional claims. The social bases for environmental litigation is uneven: a handful of lawyers and judges in Delhi have far-reaching impact in terms of the power they exercise, while the full promise of environmental litigation is yet to be realised across High Courts in India. The nature of environmental regulation and adjudication is such that there has to be a careful weighing of causes and consequences. But despite the fact that the National Green Tribunal has technical members, or the Courts can enlist experts, the technical quality of adjudication has been relatively weak.
This is the context in which environmental law is created in India. In order to make space for it, judges have often had to resort to higher metaphysical principles. What does it mean to make ‘sustainable development’ a principle of law? What does ‘public trust doctrine’ imply for property rights? Or even in more familiar cases like ‘polluter pays’, what are the tort yardsticks by which judges work? This important volume is the first of its kind to look at environmental law at multiple levels. Most volumes look at materials familiar to lawyers: judicial doctrine, legal precedent, enumerated rights, and so forth. Some will venture into enforcement issues. But this is unique in this respect. It looks at these two levels of analysis. But more originally, it provides the first systematic analysis of four concepts that provide the background picture against which law gets formed: sustainable development, precautionary principle, polluter pays and public trust. Sustainable development, at its most ambitious best, gives content and sets bounds to the goals of development, precautionary principle is an attitude to risk, polluter pays an instrument of liability and enforcement, and public trust a picture of the underlying sense of collective stewardship that should guide our relations to each other and nature. This book is the first account of how these four pillars of a broader environmental imagination are used in the law. There are some internal tensions amongst them: the calculus of cost-benefit, for example, does not sit easily with the idea of nature having an inherent sacrality. The public trust sensibility is not quite the same as a purely torts approach to environmental law. But there are also the tensions produced by different interpretations of these principles.
This volume is going to be an indispensable first step to untangling the beating heart of environmental jurisprudence. It does extraordinary service by uncovering the larger assumptions embedded in familiar and unfamiliar cases. The essays on offer in this excellent volume are historically rich and analytically clarifying. They have the virtue of being non-polemical. They cover a vast terrain and identify patterns in adjudication. These virtues make this volume an indispensable guide to environmental jurisprudence in India. More broadly, it is a reminder that converting concern for the environment into legal doctrine still remains the most pressing challenge of our time. We should be deeply grateful to Shibani Ghosh, for putting together a volume that combines moral urgency and legal acuity.
Pratap Bhanu Mehta December 2018