The Consultation organized by the Human Rights Law Network for two days at the Nehru Memorial Museum, New Delhi on February 23 and 24 was a rich learning experience about the current judicial trends in environmental law in India. Speakers included former Judges of the Supreme Court, Justice Kuldip Singh, Justice J.S.Verma, Senior advocates Venkatramani, Sanjay Parikh, Colin Gonsalves, Claude Alwares, Medha Patkar, Praful Bidwai and a whole lot of activists, experts, and researchers from across the country. This post aims to give just an overall account of the Consultation, (not exhaustive) for the benefit of our readers.

Before I give an indication of the subjects discussed session-wise, it may be of interest to underline the overall thrust of the Consultation, as articulated by Colin towards the end of the programme. This is the third in the series which HRLN has organized – the first on the Criminal Law which documented the dismantling of criminal law protection with the beginning of fast-track courts, chasing the goal of conviction rate of 60-70 per cent of the cases heard by them. The second was on the dismantling of the labour law protection, beginning with the landmark SAIL case in 2001 as a turning point. Colin pointed out that there were as many as 11 decisions from the Supreme Court against labour in recent times. The latest Consultation only confirmed that the dismantling of the environmental law by the Supreme Court has been in full flow.

In the first session, “Critical Review of Recent Decisions of the Supreme Court,” Sanjay Parikh pointed out that though the Supreme Court accepted the Polluter-pays-principle and the absolute liability of a polluter in the given circumstances, but in none of the cases (with few exceptions) either the polluter could be compelled to make the payment and/or to restore the ecology in its original position. The Supreme Court, he said, has failed to implement its own directions in protecting the environment in many cases; still no legal principle of liability has been developed to ensure implementation of polluter-pays-principle for recovering dmages causes to the environment, to the people and for restoration of the ecology. The result is that those who cause damage to the environment are emboldened to continue with violations. They are also now using the argument of sustainable development in their support, which is unfortunately finding acceptance in the Courts.

In several cases, he said, the Supreme Court referred to “carrying capacity” of the environment and that any exploitation of the natural resources should not exceed their carrying capacity or assimilative capacity. It is forgotten that the “carrying capacity principle” evolved in the Stockholm Declaration, 1972 was given up when it was realized that man has immense potential to irreversibly damage the environment and under the wrong notion that the nature has immense capacity to revive itself.

This notion was, therefore, rightly substituted by the Precautionary Principle to put a check on the destroying activities of the human being, namely, warning them that it is safe to err on the side of caution. It is only in one judgement, that is, M.V.Nayudu that this aspect was explained by the Supreme Court. However, in subsequent judgements till 2007, the Supreme court is still talking about the carrying capacity and in that context applying the theory ofr irreversible damage. More shocking, even where experts have found that a particular eco-system has been exploited/neglected in such a manner that it has lost its carrying capacity, still it is subjected to environmental appraisal for further exploitation under the cover of sustainable development.

The idea of the “need” in the context of sustainable development has not been fully and correctly understood, he said. The Supreme Court in the Bombay Dying and Manufacturing Co.Ltd (2006 (3) SCC 434), gave precedence to the dire need of the society over the inter-generational interests, by using the argument of balancing environment and development. The need aspect cannot be taken as insatiable desire of an individual, a society or a nation, which is another form of greed, and are thus allowed to exhaust natural resources without applying the rule of caution.

Parikh concluded that true development can never harm environment, if it is realized that without nature and its resources life has no meaning. We need a simple principle, a simple law for complete protection of natural resources; integrated efforts for their revival and rejuvenation and their use conductive to the nature of these resources, and not the application of sustainable development principle as these resources can no longer bear the onslaught of exploitation; they are in trust with us for the future. If we still ignore, be ready to lose them for ever. The choice is quite clear, he said.

There were sessions on Mining, Forest, Water, Tourism, International Financial Institution and Judicial Decisions, ship-breaking and hazardous waste cases, environment crimes and compensation including the Bhopal Gas case, Resistance and Alternatives, and Urbanisation.

The session on Resistance and Alternatives, chaired by Medha Patkar, proved to be a contentious one when Colin referred to the stagnation in our thinking politically. We are a huge, angry, unsettled population, he said, and asked whether we are thinking of an adequate political response to violence against the people. While he suggested that armed resistance as a collective self-defence option for the people of India needs to be explored, others notably, Sanjay Parikh and Medha Patkar unequivocally declared their disagreement with him, even while sharing his anguish and anger. Medha thus suggested our concern should be to change the polity from outside rather than be a part of politics.