[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts indexed here discussing the public law themed articles featured in the recently released Issue 2 of the 2020 Volume of the Indian Law Review. We are grateful to Shalini Iyengar for accepting our invitation to respond to the paper by Dierdre N. Dlugoleski. One can read the short summary of the paper by Dierdre N. Dlugoleski here, and the first response by C.R. Bijoy to the same Paper here].
The Supreme Court’s environmental jurisprudence has been the subject of significant debate and discussion over the course of the past decade, not least because pathbreaking decisions often accompany everyday elisions and problematic judgments. It is difficult, thus, to be anything but polyvocal in assessing the court’s jurisprudence. Deirdre N. Dlugoleski’s article on the 2006 Forest Rights Act (FRA) is an important intervention in this debate, juxtaposing as it does two decisions of the Supreme Court that are spaced almost a decade apart – the forest eviction orders of 2002 and the Niyamgiri decision in 2013. The article raises fundamental questions about forest rights and the manner in which they have been conceived and implemented. Given the rich and generative nature of the article, I have focused my response on some key questions and areas for future enquiry that emerge from the piece.
Linkages between public protests and environmental law-making
One of the article’s most thought-provoking assertions is that the public support marshalled in favour of forest rights in 2004 was directly related to the priority accorded to it by the incoming UPA government. Even more significantly, the article argues that countering the FRA publicly poses a “political risk” and that, therefore, efforts to counter the FRA will be more likely to emerge through litigation. It is arguable that such a neat correlation between public protests and the FRA does not exist but it is far more interesting to consider some of the implications of this line of argument. What made the issue of forest rights gain such salience in 2004? Given the frequent discrepancies between Adivasi numbers and the political power they have wielded – what were the factors that made this popular mobilization successful? Moreover, the issue of forest evictions has tragically not been foreclosed by the FRA. As Dlugoleski notes, the Supreme Court’s efforts to evict forest dwellers considered to be “encroachers” led to a series of orders between 2016 and 2019. What are the similarities and differences between 2002 and 2019? Why does the word “encroacher” continue to have salience? Given that the FRA was enacted with the intention of redressing a “historical injustice”, what are the ways in which it did or did not change the discourse around forest dwellers as right-bearing citizens who had valid claims against the state? Fundamentally therefore, what are the implications of environmental law and jurisprudence for democracy in India?
Given the paper’s focus on the Supreme Court’s decision-making process, a fruitful line of future enquiry might include an engagement with the extensive judicial decision-making literature and its application to the cases discussed in the paper. For instance, it might be interesting to consider how Diana Kapiszewski’s theory of “tactical balancing” might be applicable in the Indian enviro-legal context, a question that I have explored in other research. Kapiszewski suggests that judges balance multiple factors while deciding cases; in addition to legal and jurisprudential considerations, her framework discusses the role played by ideology, institutional considerations, preferences of the elected branches of government, the potential impacts of the court’s decision, and popular opinion. The specificities of the Indian scenario lend themselves well to such an analysis and it might arguably shine greater light on the decisions themselves.
Human rights and the environment
The paper spends some time examining the Court’s effort to “read in” international human rights law (IHRL) obligations within domestic law in the Niyamgiri case. The Court’s engagement with IHRL is, of course, longstanding. Since at least the 1980s, the Supreme Court has repeatedly relied on IHRL frameworks and frameworks to bolster and even create environmental obligations for the state. How has the Court’s use of human rights principles shaped environmental outcomes? Was the Court’s invocation of these principles a necessary precondition for the rights it sought to protect? Could such a move have been amply covered by domestic rights guarantees? Did the Court’s use of such an international framework create new pathways for rights guarantees within the Indian context? The article’s reference to the seminal indigenous rights jurisprudence of the Inter-American human rights system makes this a particularly fascinating area for comparative work.
The article also raises questions on the role of religion and ethics more broadly. As K. Sivaramakrishnan notes in his review article, courts in India have increasingly begun to consider an “ethics of nature” and to examine its increasing relevance for the environmental and indigenous rights landscape in India. As such, the Niyamgiri decision is a justly celebrated inflection point. However, unpacking the implications of the religious and cultural rights discourse is an equally important enterprise. To take one example, what does the use of a liberal property rights discourse do for indigenous communities who might have very different cultural approaches towards property ownership? Moreover, even setting aside the dizzying heterogeneity of indigenous religious practices, using religious rights principles in environmental cases can be fraught. What happens, for instance, when the religious rights invoked are those of dominant communities and majority religions? Given the controversies over recent decisions regarding Jallikattu and Nag Panchami (to take just two examples), these questions deserve closer attention.
The article rightly recognizes that the 2006 FRA in many ways marked a watershed in Indian environmental and human rights law. However, Dlugoleski also shows the gaps between aspirations and reality and the manner in which the FRA has fallen short of guaranteeing rights to indigenous peoples across the country. Towards the end of the article, she highlights the underlying groundwork that is needed for the legislation’s promises to be realized and this is truly at the heart of what the piece gestures towards – for a legislation to fulfill its transformative potential, changes in legal and political consciousness must necessarily emerge as much from the rights-bearers as from those against whom the rights are sought to be asserted. However, as I have noted above, a critique of the FRA must necessarily take into account the fact that the FRA was not, arguably, a complete break from past practice. As a colleague and I have argued elsewhere, Indian environmental law and jurisprudence should be viewed via a lens that appreciates the broader patterns of change. Contextualizing the FRA against this backdrop reveals that the legislation marked as much an apotheosis as a rupture and its successes and failures are best assessed against these complex histories. Shibani Ghosh eds., Indian Environmental Law: Key Concepts and Principles (2019).