By Armin Rosencranz

India’s environmental laws are administered jointly by a weak and understaffed Central Pollution Control Board; State Pollution Control Boards (“SPCBs”) of varying strengths, capacities, and effectiveness; and the central government’s Ministry of Environment and Forests (“MoEF”). The MoEF has the power to issue environmental clearances—allowing a development project to go forward, for example, despite its noncompliance with environmental laws or regulations.

Article 21 of the Indian Constitution guarantees the right to life, which the courts have interpreted as including the right to a healthy environment. The constitution also enables any citizen or group to bring an interlocutory appeal directly to the High Court of each state or to the Supreme Court if a constitutional question is raised.

Most environmental cases, especially between 1980 and 2000, have been brought by a small band of public interest litigators led by Supreme Court advocate M. C. Mehta. Since 2000, however, the courts have become markedly less hospitable to public interest litigation (“PIL”). In several recent cases, judges have dismissed PIL petitions as frivolous or motivated by personal gain.

In 2010, India’s central government launched the first major overhaul of environmental governance and management since 1986. It proposed, and Parliament enacted, the National Green Tribunal Bill, creating a kind of “supreme court” of environmental law. Also in 2010, the MoEF proposed a new institution for environmental management, compliance, and enforcement, to be called the National Environment Protection Authority (“NEPA”). Among other innovations, NEPA would have instituted a civil administrative process to impose sanctions on polluters. The courts have been reluctant to punish polluters and have even denied SPCBs the power to impose penalties by finding ambiguities in the Environmental Protection Act. The draft NEPA bill, however, was withdrawn and replaced with a much milder and toothless proposed agency, the National Environment Assessment and Monitoring Agency (“NEAMA”), discussed in the Kohli-Menon article in this issue.

The Supreme Court of India is undoubtedly the most activist court in the world, which has led it to issue sweeping decisions in favor of environmental protection. In the Ganges water pollution case, a bench of the Supreme Court, while directing that several tanneries be closed down for discharging untreated effluents into the Ganges River, held that “we are conscious that closure of tanneries may bring unemployment (and) loss of revenue, but life, health and ecology have greater importance to the people.” M.C. Mehta v. Union of India (Kanpur Tanneries) 1988.

The justices appear to have exceeded their constitutional boundaries (and customary separation of powers) in at least two areas, however. In the so-called Delhi Pollution Case (2002), the Court preempted executive authority over air pollution and ordered all bus companies in the capital city of Delhi to power their buses with compressed natural gas (CNG) rather than petroleum or diesel fuel. In T. N. Godavarman Thirumulkpad v. Union of India, instituted in 1995, the Supreme Court took on the issue of forest cover and found itself issuing orders dealing with the rights of forest dwellers, employment in the wood products and timber industries, and the respective powers of federal and state forestry officials. The case is on a “continuing mandamus,” meaning that the case remains open for court orders and actions relating to it; the Court has issued new orders flowing from the case virtually every week since 1995.

The Supreme Court’s assumption of executive power in these cases contrasts with the judiciary’s invariable approval of, or deference to, the executive regarding all large infrastructure projects. Notwithstanding the occasional court defense of clean air, water, and forests, and protection of people’s access to common or protected spaces, there seems to be an inherent pro-development bias today in the High Courts and the Supreme Court.

In the cases of the Tehri (TBVSS v. Uttar Pradesh, 1992) and Narmada (Narmada Bachao Andolan v. Union of India, 2000) dams and the Dahanu Power Plant (Dahanu Taluka Environmental Protection Group v. BSES, 1991) the respective judges made clear that it is not the job of the Court to interfere in these development activities: they raised scientific and technical issues and policy matters, which are best left to the executive agencies. The views expressed by judges in all environmental litigation concerning infrastructure projects have supported the government’s assertion that it must carry out its development activities, such as dams and power plants, in the national interest.

In these cases, the judges seem complicit with the executive branch in subordinating environment to development. For example, in the Tehri Dam case, the government’s own expert committee had identified several violations of the conditions that the MoEF imposed on the project before granting an environmental clearance, but the majority judgment allowed the government to construct the dam anyway. Similarly, in the Dahanu case, the Supreme Court did not follow the MoEF’s Appraisal Committee report, which declared that Dahanu was unsuitable for the construction of a thermal power plant as it did not meet environmental guidelines. In the Narmada Dam case, the dissent urged that construction of the dam should not be allowed because it violated environmental guidelines. The government had not provided environmental impact assessments for the construction of the dam and the government’s report on rehabilitation and resettlement measures for the “oustees” were arguably insufficient.

Indian lawyers and scholars have begun to re-examine the most flagrant example of judicial activism, namely Godavarman, which has affected all forest cover, all forest dwellers, and the timber and wood product industries through India for more than 15 years. While the concern for forest conservation provided the initial justification for judicial intervention, it has led the Supreme Court to effectively take over the day-to-day governance of many aspects of Indian forests, far beyond anything that may be justified constitutionally. The outcomes for the forests have been mixed, and the jurisprudence is of questionable quality, highlighting the dangers of judicial overreach.

In this issue of India Law News, judicial activism and the government’s strong pro-development bias are explored in five of the six main articles, namely the Kohli-Menon article on NEAMA, already mentioned, arguing for a complete regulatory overhaul; the Sahu article on environmental governance through the courts; the Shroff-Jejurkar article on whether India’s environmental law lacks teeth: they conclude that it works pretty well; the Singhania-Jaimini article on the Lafarge mining case, which they believe demonstrates the Supreme Court’s wise direction of that case, as well as former environment minister Jairam Ramesh’s appropriate stand on granting or withholding environmental clearances; and the Saldanha article on the government’s implicit support for Monsanto and genetically modified foods, in spite of the provisions of the Biological Diversity Act and the apparently ineffective National Biodiversity Authority. A sixth article by Patodia explores India’s international negotiations on global climate change.

Dr. Armin Rosencranz is the guest editor for this issue of India Law News. He has published several books and numerous articles on issues relating to climate change and environmental law, particularly in South Asia, and has been affiliated with several universities in the U.S. and around the world. Dr. Rosencranz is currently a Consulting Professor of International Relations at Stanford University and may be contacted at armin@stanford.edu.