Introduction
This report summarises the panel discussion titled “Adjudicating the Environmental Juristocracy,” which examined the trajectory of environmental and animal law jurisprudence in India, with a particular focus on recent Supreme Court decisions and the political economy that shapes them. The panel was moderated by Mr. Vivek Mukherjee, featuring presentations by Mr. Rahul Basu, Ms. Kanchi Kohli, Ms. Gauri Maulekhi, and Mr. Raj Panjwani.
Mr. Advait from SCO Observer, opened the panel by briefly cataloguing the year’s significant Supreme Court decisions on environmental matters and identifying a structural trend of judicial rollback. Mr. Rahul Basu, Research Director of Goa Foundation, drawing on his work on the Goa mining litigation, examined the principles of intergenerational equity and the rule of law in the context of mineral extraction, and called for structural mechanisms like blacklisting errant mining companies to enforce environmental orders. Ms. Kancha Kohli, a Researcher and Educator on Environmental Law, situated the environmental jurisprudence within a broader political framework, arguing that courts have increasingly become sites of legitimation for policy choices made outside the courtroom, with real consequences for the affected communities. Ms. Gauri Maulekhi, Animal Welfare Activist, reflected on the erosion of trust in courts, tracing a regression from earlier protective principles in animal and environmental law, and highlighted the problematic framing of human-animal conflicts in judicial discourse. Mr. Raj Panjwani, Senior Advocate in the Supreme Court, offered two detailed case studies to illustrate how political, cultural, and economic pressures shape the judiciary’s interpretive choices between transformative and differential approaches to environmental law.
Moderator: Mr. Vivek Mukherjee (Assistant Professor, NALSAR University of Law)
Mr. Mukherjee opened the panel by situating it within a broader intellectual concern, while the statutory and constitutional vocabulary of environmental jurisprudence remains formally available, the factual situations on the ground have, in many cases, already foreclosed remediation. He introduced the concept of the “environmental juristocracy” as a frame for understanding the growing juridical labour being demanded of the courts.
He drew attention to the Vanashakti Case, in which the Court issued a narrow recall of an earlier judgment, noting that such recall does not resolve the underlying constitutional difficulty. He observed that what remains of environmental jurisprudence in the wake of such decisions is largely anterior inherited from an earlier generation of judicial reasoning.
Mr. Mukherjee then turned to the Aravalli proceedings to illustrate the court’s power to settle and unsettle definitional questions, whether the courts merely receive expert input, or are they actively participating in the reconstruction of legal definitions of words such as “forest”? He pointed to the December decision in which the Court accepted undergrounding and re-grounding as alternatives to overhead transmission lines affecting the Great Indian Bustard, arising from MK Ranjitsinh v UOI, as an instance where the Court ceased to apply clear doctrinal analysis. The stray dogs litigation, in which the Court modified its own order on multiple occasions, further illustrated this tendency toward ad hoc adjudication in place of principled reasoning. Mr. Mukherjee emphasised that this pattern is not confined to environmental or animal law alone; it cuts to the heart of the legalities underlying Article 21 of the Constitution.
Speaker 1: Mr. Rahul Basu (Research Director, Goa Foundation)
Mr. Basu, presented a detailed analysis of the intersection of environmental law, the rule of law, and the political economy of mineral extraction. He recounted the origins of the Goa mining litigation, wherein the Shah Commission had found that all mining leases in Goa were being operated in violation of law, a situation that, he argued, could only have occurred through the collusion of politicians and industry. The Supreme Court eventually imposed a ban on mining in Goa, following a petition by the Goa Foundation. He highlighted the question of implementing intergenerational equity in the context of mining, drawing on the theoretical framework developed by scholar Edith Brown Weiss, which holds that each generation must pass on to the next at least as much wealth and resource base as it inherited.
Mr. Basu addressed the question of mineral ownership under the public trust doctrine, arguing that while the law vests mineral rights in the state, the doctrine implies that minerals are ultimately held in trust for the people. He presented figures demonstrating that the value of minerals extracted vastly exceeded the cost of extraction, with the difference representing an enormous loss to the state, the majority of which was attributable to mining alone.
He then outlined five principles of what he termed “fair mining”: (1) Belongs to all; (2) Belongs to the future loss, they belong to future generations as much as to the present; (3) Get All, any loss from mining is irrecoverable, requiring a standard of zero loss; (4) Save all, indicating that all revenues must be saved and properly accounted for; and (5) Share all meaning the income from a permanent fund must be distributed equally to all citizens as a citizen’s dividend. He drew a parallel with existing environmental law principles, the precautionary principle, the mitigation hierarchy, and the polluter pays principle arguing that these must be extended to the governance of mineral wealth.
Mr. Basu proposed a normative hierarchy for resource governance. Nature, having no voice must take precedence over the interests of future generations, which in turn must take precedence over those of the present generation; sustainability must precede development. He observed that in practice, however, the current alignment of political power produces the inverse wherein, development proceeds first, and sustainability is deferred with both the rich and the poor coming together in a different manner, to hinder the future. He addressed the economic impact of the Supreme Court Decisions, on how balancing becomes a politically expedient process leading to today’s development rather than future preservation.
Turning to the question of enforcement, provided the example of rule of law in China, wherein houses are not bulldozed in the name of development and the people are allowed to reside until they find their places. In contrast, Mr. Basu noted that five years of mining in Goa were eventually declared illegal, yet the government failed to act on multiple FIRs. He also noted that sand mining in goa has been illegal since 2018, following the Rainbow Warriors judgement, and yet enforcement remains elusive. He attributed this failure not to any deficiency in legal doctrine, but to the absence of structural enforcement mechanisms, fines are inadequate, jail terms are rarely imposed, confiscation of illegally obtained assets is not systematically pursued, the PMLA is not applied, and there is no regime for blacklisting mining companies found to have engaged in illegal extraction. He argued that the development of such a blacklisting regime should be a priority for environmental jurisprudence.
Responding to Mr. Mukherjee’s question about sunk costs and the economic dimensions of the Court’s decisions, Mr. Basu argued that the Court, in balancing economic fallout against environmental protection, risks institutionalising a certain quantum of acceptable illegality, a proposition fundamentally corrosive to the rule of law.
Speaker 2: Ms. Kanchi Kohli (Researcher, Educator and Communicator on Environmental Law and Policy)
Ms. Kohli offered a political and sociological reading of environmental jurisprudence in India, organised around three interrelated observations.
First, she noted that environmental law is inherently a highly political subject, and that courts have, over time, been called upon to provide judicial legitimacy to positions and interests that could not be achieved through legislative or executive action alone. The flashpoints of environmental jurisprudence being the definition of forests, the question of post-facto environmental clearances litigated in the Vanashakti case, the clearance of transmission lines in the Great Indian Bustard case, are not merely interpretive disputes. Rather, it becomes an exercise of setting the limits, these moments at which the outcomes of negotiations occurring outside the courtroom seek institutional endorsement from within it.
Second, Ms. Kohli observed that the degree to which judicial decisions become polarised in public discourse is directly related to the extent to which a given political regime is influenced by, depends on or is constrained by those decisions. She drew attention to the way in which the Forest Rights Act emerged, in part, as a political response to judicial interventions in forest governance, and questioned who, in practice, occupies the courtroom and shapes the threshold at which environmental limits are deemed to have been breached.
Third, Ms. Kohli argued that the most consequential effect of environmental adjudication is not the development of doctrinal principles, but its real-world implications for regulatory systems. Decisions on post-facto environmental compliance, she argued, effectively reinterpret the nature of the regulatory regime, moving from a framework that promises environmental outcomes to one that manages process requirements according to contextual pressures. The courtroom, she observed, increasingly functions as an enclosure, a space in which the most directly affected communities are often least represented, and in which the question of whose voice matters is itself a question of power.
Speaker 3: Ms. Gauri Maulekhi (Animal Welfare Activist)
Ms. Maulekhi, whose work spans public policy, governance, and animal welfare litigation, reflected on the erosion of public trust in the courts as guardians of the most defenseless. She began by observing that the Indian public places enormous faith and trust in the courts, and that this trust imposes a corresponding responsibility to be fair. That responsibility, she argued, has in recent years been inadequately discharged in the domain of environmental and animal law. The Supreme Court’s 2023 decision upholding the constitutional validity of the Tamil Nadu amendment permitting Jallikattu Animal welfare board of India vs. UOI, represented a decisive retreat from established protective principles. In particular, she noted that the principle of non-retrogression the idea that rights, once recognised, cannot be rolled back was set aside, and that the doctrine of volenti non fit injuria was invoked to justify the continuation of a practice despite documented evidence of harm to both animals and participants over the course of eight days of protest-related violence.
Ms. Maulekhi was critical of the framing of questions on animal jurisprudence, routinely characterised as human versus animal, as deeply problematic. The appropriate frame, she argued, is one centred on the dignity of individuals, a framework that does not require the subordination of animal welfare to human preferences.
She acknowledged that there have been positive developments as well, including guidelines issued under the Environment Protection Act for the regulation of dairy farms and other polluting industries but expressed concern about the inconsistency of outcomes from the same institutional source. Different judicial orders from the same courts, she observed, creates uncertainty and ambiguity with respect to what is then operational and valued. Notwithstanding these concerns, she expressed a cautious hope that principled environmental and animal jurisprudence remains possible.
Speaker 4: Mr. Raj Panjwani (Senior Advocate, Supreme Court)
Mr. Panjwani, a senior advocate practising in environmental and animal welfare law, offered a conceptual framework for understanding judicial decision-making in environmental cases, illustrated through two extended case studies.
He proposed a distinction between two judicial approaches, the “transformative” approach, in which a judge steps beyond the conventional understanding of a legal provision to achieve an object, in the process of which fundamental ideals are realized; and the “differential” approach, in which the judge treats existing categories and political pressures as fixed constraints within which interpretation must remain. He argued that the dominant tendency in recent Indian environmental jurisprudence has been a shift from the former to the latter.
The first case study concerned the litigation over the relocation of the Asiatic Lion from Gujarat’s Gir National Park to a second habitat at Kuno National Park, a conservation identified to be imperative to prevent their extinction. The process required the displacement of local communities and significant preparatory work which was duly undertaken. Once the site was ready, the Gujarat government declined to transfer any lions, claiming it had never made a binding commitment. The matter when litigated which initially took a transformative approach, directing that relocation was an imperative necessity for species conservation. The Supreme Court directed that the translocation proceed within six months.
However, with a change in government at the Centre, the National Wildlife Action Plan 2017 quietly omitted any reference to the translocation of Asiatic lions. Simultaneously, the question of importing cheetahs to India gained political traction, and the entire exercise of having a second home for Asiatic lions remains in limbo. An affidavit was filed representing that the cheetah relocation was to be on an experimental basis, with the site eventually reverting to its designated purpose. Mr. Panjwani observed that the constitutional and conservation logic of the original lion relocation order has effectively been suspended, with the second home now being proposed, again, within Gujarat restoring the very political dynamic that the original litigation sought to overcome. Mr. Panjwani identified three factors that had shaped judicial outcomes in this litigation to be politics, revenue generated from ecotourism, and the cultural significance attributed to the lion as a symbol of Gujarati identity.
The second case study addressed the Jallikattu controversy. Mr. Panjwani described the practice, a bull, confined in an enclosure and subjected to physical agitation, is released into a crowd of participants. The animal’s flight response is triggered by fear and pain. The Supreme Court, in Animal welfare Board India v. A.Nagaraj, held that Jallikattu constituted cruelty and directed that it cease.
Following this judgment, the political and cultural response was immediate. The Tamil Nadu legislature enacted an amendment permitting the practice subject to regulatory conditions. The case returned to the Supreme Court, where a Constitution Bench upheld the amendment in Animal Welfare Board of India v. Union of India, holding that the state’s regulatory framework was sufficient to ensure that the practice did not amount to cruelty, and giving significant weight to the cultural value of the practice under Article 51A(g) of the Constitution, which directs citizens to protect the natural environment.
Mr. Panjwani observed that this represents a significant shift, culture has acquired greater weight in the Court’s constitutional considerations in 2023 than it had in 2014. He challenged the premise of this weighing exercise, arguing that culture must evolve and cannot serve as a static justification for practices that inflict harm. The contrast between the 2014 and 2023 decisions illustrates, in his view, the difference between transformative and differential adjudication and raises the question of whether the human being deciding in 2017 or 2023 is better.
Edited by: Aditi Bhojnagarwala and Keerthi Sathvika Tammineedi
