The Trajectory of Environmental Justice in India

Kirit Patel and Kathryn Dey 2013. The Trajectory of Environmental Justice in India: Prospects and Challenges for the National Green Tribunal, in Tim, M, Trivedi N and D Vajpeyi (eds), Perspectives on Governance and Society: Essays in Honour of Professor O.P. Dwivedi. New Delhi: Rawat Publications, pp. 160-174. 10 The Trajectory of Environmental Justice in India Prospects and Challenges for the National Green Tribunal KIRIT PATEL AND KATHRYN DEY The Indian judiciary entered a new era of environmental jurisprudence with the official notification of the National Green Tribunal (NGT) on October 18, 2010. The NGT is a specialized environmental court with a mandate to provide effective and expeditious disposal of cases relating to environment, to enforce any legal right relating to environment, provide relief and compensation for damages caused to person and property and for dealing in matters connected therewith or incidental thereto (Government of India, 2010: 1). The creation of the NGT has come at a time of accelerated economic growth in India marked by an average GDP increase per year of 7.2 per cent between 1994 and 2010 (World Bank, 2011). The economic surge has, however, been clouded by widespread environmental degradation, income inequality, and rising poverty. In spite of profound ecological consciousness and values rooted in its ancient culture (Dwivedi, 1997: 224), massive deforestation, soil erosion, overgrazing, loss of It is a privilege to contribute a chapter to this felicitation volume to honour Dr O.P. Dwivedi. I have known Dr Dwivedi for over a decade and this paper draws inspiration from his pioneering research on India s environmental policy, governance, justice and ethics for four decades. As a graduate student at Guelph, I had the opportunity to work with Dr Dwivedi in his various research projects and assisted him in teaching his most popular course at Guelph on Environmental Policy Formulation and Administration. Dr Dwivedi is an exemplary scholar, teacher, mentor, philanthropist, and human being of a stature beyond my ability to express in words.

The Trajectory of Environmental Justice in India 161 biodiversity and pollution from industrial effluents and vehicular emissions are growing at an alarming pace. Approximately half of India s population continues to live in multidimensional poverty (UNDP, 2011). The majority of the rural poor rely directly on the already degraded natural resources for their livelihood while their counterparts in overpopulated cities experience unprecedented risk to their health due to rampant pollution in places where they work and live. In this context, the proclamation of the NGT brings high hopes for mitigating the complexities of the environment versus development debate with the help of specialized judges and environmental experts. The year 1972 marked a defining era in the history of environmental policy making in India (Dwivedi, 1997: 54). It was the year when India established the National Committee for Environmental Policy and Coordination (NCEPC) that eventually became the Ministry of Environment and Forests (MoEF) in 1985. Further, it was in 1972 at the United Nations Stockholm Conference on Human Environment that Prime Minister Indira Gandhi alerted the global leadership to the fact that issues pertaining to the natural environment could not be separated from the grim poverty confronting large numbers of people in the developing world. This essay presents a trajectory of environmental justice in India over three periods: (i) post-un Stockholm Conference (1972 1992); (ii) post-rio Conference (1992 2009); and (iii) the creation of the National Green Tribunal (NGT) (2010 2011). The paper then discusses the important features of the NGT from the following perspectives: (i) structure and appointment process; (ii) jurisdiction and access for the poor; and (iii) compensation for environmental externality. In the last section, the paper examines challenges faced by the NGT under the neo-liberal policy environment and growing marginalization of the poor. Post-Stockholm Conference (1972 1992): Beginning of Green Justice There was no mention of the natural environment and environment-related rights in the original Constitution of India endorsed by the parliament in 1950. Until the establishment of the NCEPC in February 1972, the environment did not receive significant attention from Indian policy makers, administrators or the judiciary. Then, as a signatory to the Stockholm Declaration in 1972, India s legislative and executive branches responded with an array of environmental legislations. A series of legislative foundations for environmental protection were enacted during this period beginning with the Wildlife

162 Kirit Patel and Kathryn Dey Protection Act of 1972 and the Water (Prevention and Control of Pollution) Act of 1974. Through the 1980s to early 1990s, the Indian government enacted the Forest Conservation Act (1981), the Air (Prevention and Control of Pollution) Act (1986), the National Forest Policy (1988), the Environmental Protection Act (1986), the Public Liability Insurance Act (1991) and the Wildlife Protection Amendment Act (1991) to initiate a wide range of regulatory instruments. Despite having several important environmental Acts in place within a decade of the Stockholm Conference, the executive branches lacked the resources, capacity and the political will to enforce them (Dwivedi, 1997). The Stockholm Declaration expected signatory nations to include environmental rights within the fundamental human rights embraced by their highest constitutional authority. This became a challenge for India as it was in political turmoil leading up, in March 1975, to the declaration of a National Emergency under Article 352 of the Constitution.1 Though most of the constitutional amendments introduced just before or during the Emergency period were strongly criticized as anti-democratic, some amendments made positive contributions towards environmental protection. The 42nd amendment, for example, enacted by the captive parliament in 1976, included several important provisions for environmental protection in the sections on Directive Principles for State Policy (Article 48A) and fundamental duties of citizen [Article 51A(g)]. The amended Article 48A of the Constitution directed provincial governments to protect and improve the environment and to safeguard the forests and wildlife of the country. Similarly, the amended Article 51A(g) expects every citizen, as a part of their constitutional duty, to protect and improve the natural environment, including forests, lakes, rivers and wildlife. Irrespective of strong nationwide protest and democratic backlash toward the overall 42nd amendment to the Constitution, it earned distinct international honour for India in the environmental policy arena. India became the first country in the world to amend its Constitution to include environmental protection in accordance to the Stockholm Declaration. On the other hand, constitutional and legal experts described the 42nd amendment as one of the most draconian Acts of independent India because it established the supremacy of parliament and curtailed the powers of the judiciary, especially the Supreme Court and High Courts. The new government that came into power after the end of Emergency period in 1977 introduced several amendments to remove most of the provisions of the 42nd amendment and restored the status quo ante to revive the power and independence of the judiciary.

The Trajectory of Environmental Justice in India 163 The courts became important actors in the protection of the environment in India because institutions overseeing the enforcement of various environment-related laws were weak and because constitutional provisions related to citizens rights, in lieu of their duties stipulated in Article 51A(g), to healthy or wholesome environment were ambiguous. The constitutional and political challenges created in the mid-1970s provided several opportunities for the judiciary to assert its independence from legislative wings and its power to introduce legal innovations for protecting parliamentary democracy and the fundamental rights of citizens (Baar, 1990). At the end of the Emergency, these legal innovations played a critical role in addressing socio-economic inequality and environmental degradation. The judiciary entered a creative phase of constitutional interpretation throughout the 1980s in an effort to protect the environment and provide access to the courts for the poor. In a series of unprecedented rulings, the Supreme Court institutionalized the expansion of basic human rights by its broad interpretation of the right to life and liberty provisions made under Article 21 of the Constitution. The apex court s initial motivation for the interpretation of the right to life provision was in protecting basic human or socio-economic rights of prisoners, bonded labourers, child labourers and pavement dwellers.2 The Supreme Court, in a landmark judgment, in Subhash Kumar v. State of Bihar [AIR (1991) 420], held that the right to life guaranteed under Article 21 of the Constitution includes the right to the enjoyment of pollution-free water. Though the court dismissed the appeal for recourse on another grounds, the judgment became a crucial case law for seeking court intervention to protect the environment and seek redress for any violation of individual citizen s right to a wholesome environment, including the right to air and water free of pollution. In the post-stockholm Conference era, the cause of environmental justice made significant progress as a result of the Supreme Court s innovative interpretation of the Constitution to relax requirements for locus standi.3 After the landmark ruling of Justice P. N. Bhagwati describing significance of public interest litigation (PIL) in S.P. Gupta v. Union of India (1982 SC 149), the courts faced a huge influx of cases with environment-related issues. Further, the apex court relaxed the rules of filing PILs and introduced epistolary jurisdiction where a simple letter or postcard to the court constitutes a writ petition for PIL. These decisions created the legal space for any citizen, acting in good faith on behalf of another disadvantaged, to petition the court without paying any fees for court proceedings. It brought a new era of

164 Kirit Patel and Kathryn Dey activism in India by providing a legal instrument and legitimacy for non-governmental organizations (NGOs) and activists to seek the court s intervention for protecting the environment and socio-economic rights of the poor. In summary, the innovative role played by the judiciary through the provision of PIL and creative interpretations of the Constitution during the two decades after the Stockholm Conference made significant contributions to environment, democracy, and the realization of socio-economic rights of citizens. Post-Rio Conference (1992 2009): National Environmental Tribunal, Appellate Authority and Green Benches The UN Conference on Environment and Development held in Rio de Janeiro in 1992 called upon nation-states to provide effective access to judicial proceedings and to enact national laws regarding liability and compensation for the victims of environmental degradation. India s second phase of environmental jurisprudence grew out of response to the commitment made in the Rio Declaration. The government responded by legislating two specialized institutions to alleviate the pressure of the increasing number of environmental petitions and the complexities involved in their adjudication. In 1995, the government enacted the National Environmental Tribunal (NET) Act to provide effective and expeditious relief, restitution and compensation for damages to human property and the environment arising out of accidents caused from the handling of hazardous substances (Dwivedi, 1997: 101). The Tribunal was to consist of judicial and technical members who would be recommended by a selection committee representing various government ministries. The qualifications of members stipulated in the Act posed serious issues to the Tribunal as it did not emphasize sufficiently the recruitment of experienced judges from High Court or Supreme Court ranks. In fact, the NET Act provided enough leverage to recruit retired administrative bureaucrats to all positions, including that of chairperson of the Tribunal. The NET s jurisdiction prevailed over civil courts in environmental matters but it faced a challenge in gaining recognition in the judicial ranks due to the underrepresentation of judicial members in the Tribunal. Further, the NET had a very narrow environmental mandate which focused only on cases involving hazardous chemicals. In spite of some promising features, the NET never became functional and existed merely as a document. In 1997, the government established the National Environmental Appellate Authority (NEAA) as a mechanism for any aggrieved person

The Trajectory of Environmental Justice in India 165 to appeal environmental clearances granted to industrial and infrastructure projects by the MoEF. The NEAA was based in Delhi and was to be constituted of a chairperson, vice-chairperson, and a maximum of three expert members. The NEAA Act (Article 5) stipulates that only retired or current judges from the Supreme Court or High Courts could qualify for the post of chairperson. A legal background or experience was however not emphasized for vice-chairperson and expert members. The NEAA s jurisdiction was inherently narrow as it could only adjudicate environmental appeals that were linked with the clearance process stipulated under the Environment Protection Act and granted by the MoEF. It had no expertise or jurisdiction to hear cases related to harmful impacts on health, property damage, compensation, and infringement of rights under Article 21 of the Constitution. The NEAA had a fully functional bench from 1997 to 2000 under the chairmanship of Justice (Retired) N. Venkatachala, but it heard and adjudicated few cases (Kohli, 2011). Since the year 2000, no judicial member was appointed to the NEAA (LCI, 2003: 6) due to the lack of recognition of the NEAA within the judicial hierarchy and downgraded remuneration package as compared to the Supreme Court or High Courts (The Access Initiative, 2010). The NEAA failed, in part, because it was predominantly made up of retired bureaucrats who had been earlier involved in granting environmental clearance and who had little experience in law or the environmental impact assessment process. Both the NET and the NEAA became merely cosmetic institutional structures. The potential success of both of these specialized courts was plagued by a lack of political will for creating independent institutions that could attain the confidence of people and the mainstream judiciary. That citizens lacked confidence in these tribunals was evident from the small number of cases received by the appellate authority during its entire lifespan. The failure of the tribunals increased the influx of environment-related PILs and private cases in mainstream courts. Consequently, in the post-rio era, the judiciary was left again to find its ways in dealing with the increased volume and complexity of environmental cases. Realizing the importance of technical expertise and consistency in jurisprudence, the Supreme Court established an informal bench of select judges in 1995 that would be assigned to environmental cases. The bench set aside all Friday afternoons to screen environmental PILs to be heard in the Supreme Court. It was this informal bench that inspired the creation of provincial level green benches. Under the directive issued by the Supreme Court in 1996 as a result of a writ

166 Kirit Patel and Kathryn Dey petition filed before the court (Writ Petition No. 385 (W) of 1995), the High Court of West Bengal constituted India s first specialized provincial level green bench to hear all environment-related cases in its jurisdiction with the highest degree of environmental sensitivity and objectivity. Subsequently, eight other green benches were set up in the High Courts of Tamil Nadu, Gujarat, Maharashtra, Punjab and Haryana, Karnataka, Kerala, Madhya Pradesh and Himachal Pradesh. Unlike the Supreme Court green bench, the High Court Green benches were permanent; however, their structure varies at great deal across provinces. In spite of their disparity in structure, context of origin, availability of institutional resources, and provincial environmental policies, the High Court green benches, along with Supreme Court s green bench, contributed tremendously to environmental jurisprudence in India. Many judgments4 passed by these green benches embraced international principles laid out in the 1992 Rio Declaration such as the principle of polluter pays, precautionary action, sustainable development and absolute liability (Sahu, 2008). These innovations have brought positive change to the traditional function of courts in interpreting environmental law and resolving litigation and have instilled a sense of societal responsibility on the judiciary. However, the legislative and executive branches expressed displeasure, at times, towards the green benches and sought ways to restrain their power. Because the green benches exist within the mainstream judiciary where the government has very little role in assigning judges to a particular bench, defining jurisdiction and the process of adjudication, limiting power of the green benches was a difficult task for the state. On the other hand, state controlled NET and NEAA proved ineffective in protecting government interests, linked with neo-liberal agenda in post-rio era, as they utterly failed to enforce their jurisdiction over green benches. The National Green Tribunal (2010 11): Beginning of a New Era The Supreme Court of India highlighted the need for an effective environmental court in its several different rulings since mid-1980s. The NGT owes its inception, at least in part, to declarations made by the Supreme Court in three different cases.5 In each of these cases, the court clearly advocated for the creation of a specialized environmental court to deal with the complexities in examining environmental issues with multidisciplinary perspectives in a timely and efficient manner. Following these observations and in recognition that the functioning of the existing environmental quasi-judicial bodies was inadequate, the

The Trajectory of Environmental Justice in India 167 Law Commission of India (LCI) initiated a detailed study on the topic. In its 186th report of 2003, the LCI recommended the establishment of a specialized environmental court with both original and appellate jurisdiction for the purpose of reducing the pressure of environmental cases on both the Supreme Court and High Courts (LCI, 2003). In pursuance to the report, the MoEF presented the National Green Tribunal Bill to the lower house of parliament in July of 2009. The bill was stalled in parliament for an extended period of time because of the competing interests but was passed after incorporating several changes in June 2010. The NGT Act marked the beginning of new era for environmental jurisprudence in India, with a clear mandate to provide effective access to judicial and administrative proceedings as envisioned by world leaders at the Rio Conference in 1992. With the passing of the NGT Act, India joined a group of 41 nation-states that have created specialized courts or tribunals for adjudicating environmental cases. The first chairperson of the NGT was appointed on October 18, 2010 and the principal bench of the NGT located in Delhi began hearing cases from July 4, 2011. The subsequent appointment of judges and technical experts for four regional benches of the NGT is still in process. Pring and Pring (2009), in their comparative study of environmental courts across countries, have identified best practices in relation to access rights, structure of courts, process of appointing judges, role of technical experts, jurisdiction, and case management. Notably, the NGT Act meets several best practices in important areas, including its legislated trial and appellate jurisdiction, open rule of standing and the directed application of the precautionary principle, polluter pays and the principle of sustainable development in any decision, order or award. While it is too early to speculate the future success or failure of the NGT, the following sections examine the potential implications of the NGT Act on environmental jurisprudence and on the poor. An Overview of the NGT: Structure and Appointment Process India s NGT resembles with the best models of freestanding specialized environmental courts set up by Australia and New Zealand. The composition of the NGT will consist of a full-time chairperson and no less than 10, but no more than 20 full-time judicial members who have been members of the Supreme Court or High Courts of India. While the appointment process for the chairperson meets international expectations stipulated by Pring and Pring (2009), the NGT Act is vague in who will constitute the selection committee responsible for the

168 Kirit Patel and Kathryn Dey remaining appointments. The heavy reliance on the Union Government for appointment of the crucial selection committee raises concerns considering past experience of either inaction or what Nambiar (2010) calls post-retirement rehabilitation. The NGT Act includes equivalent representation of technical experts who can bring expertise in various environment-related fields. The technical expert shall hold minimum master s degree either in physical sciences, life sciences, engineering or technology and should have no less than 15 years of professional experience. The NGT Act makes no provisions for a social scientist, human ecologist, development professional working with small NGOs or civil society groups who have been active in the realm of environmental protection. This could prove to be an important omission given the most recent attitude of the court and the government s drive for large infrastructure and development projects involving the displacement of communities. Having social scientists or development professionals on the NGT bench could impart important perspectives for balancing environmental and socio-economic concerns. Further, technical experts in the NGT must have at least five years of work experience related to environmental issues from a reputable institution. The interpretation of the term reputable in the NGT Act and subsequent rules lends a strong bias towards candidates who have worked within the administrative bureaucracy or state-run technical institutions. This would imply that the bureaucratic officers responsible for environmental clearances and/or enforcement can, at some point of time, be responsible for deciding its validity (Nambiar, 2010: 17). Gill (2010) suggests that the appointment of bureaucrats in the NGT could become a system of rewarding inefficiency as the inadequate performance of regulatory institutions run by the same cadre of bureaucrats led to the backlog of cases and the emergence of the NGT. Access and Jurisdiction of the NGT The NGT (Article 14: 3) will only entertain grievances filed within six months from the date on which the action for such dispute arose. There are provisions to increase this time limit for a period not to exceed 60 days where the Tribunal finds sufficient cause for extension. The full extent of ecological and human damage caused by any specific activity, however, is unlikely to be realized in six months. The poor need a much longer period to detect the detrimental impacts of a specific pollutant, such as chemical pesticides or asbestos, on their health due to lack of effective public healthcare programmes in the

The Trajectory of Environmental Justice in India 169 country. Thus, the limit of six to eight months to approach the court for seeking environmental grievances warrants careful reconsideration. Of serious concern in relation to access for India s rural poor is that the NGT will serve in only five locations throughout the country with the main branch in Delhi and circuit branches in Kolkata, Pune, Bhopal and Chennai. Civil courts, located at each block level, are undoubtedly the first venue of action for many local communities to seek environmental redress, as they are within travelling distance to rural villages. Under the NGT, civil courts will no longer have jurisdiction in matters relating to the environment (Article 29: 1, 2). Further, civil courts conduct their business in local language and lawyer s fees in those local courts are relatively low. Transferring all pending and future environmental cases to circuit branches of the NGT will be disadvantageous for the poor considering cost of travel, language barriers, and higher legal fees of English-speaking environmental lawyers. The supporters of specialized courts may argue that allowing civil courts to adjudicate environmental cases will defeat the purpose of specialized court and may create unnecessary confusion over jurisdiction. Unless there is unswerving support from external agencies like NGOs or individual activists, poor communities are unlikely to approach the NGT. Civil court judges or benches may not have the best expertise in determining causal factors, environmental assessment, and social costs estimation, but they are sufficiently equipped to enforce precautionary principles and oversee compliance of orders issued by the regulatory agencies. The inclusion of technical experts is a defining feature of the NGT, but this also implies that the bench will expect concerned parties in all cases to present irrefutable evidences generated by scientific methods. The NGT Act is silent on the issue of burden of proof. This implies poor communities or small NGOs supporting public interest petitions may have to pay costs for producing scientific evidences indicating harmful impacts on their health and environment. The track record of public sector research and development institutions to furnish competent evidences for marginalized communities is dismal in India. While adjudicating some of the public interest litigations, several courts in recent years have made it clear that if a development project is stayed on account of a public interest petition which is subsequently dismissed, the petitioner could be made liable to pay for the damages occasioned by the delay in the project (Gonsalves and Sahu, 2011: 19). The NGT Act (Article 23: 2) enforces this trend by allowing the court to assign any penalty, if it sees fit, in cases that are found not

170 Kirit Patel and Kathryn Dey maintainable by the court. This clause may be justifiable as a stick to deter parties who bring false or malicious public interest petition to the court. However, most environmental litigations in India are found to be genuine and brought with sincere concerns for the environment (Access Initiative, 2010: 24). The notion that the court, at its discretion, is able to find a claim not maintainable and thus impose some penalty, could cause apprehension about the NGT among poor and NGOs. These individuals and NGOs may not approach the NGT as the fear of losing a legitimate claim becomes overwhelming due to possibility of attracting penalty. This issue necessitates serious attention because, as Gauri (2010) observes, the number of PILs filed in support of causes representing the poor is declining. Compensation under the NGT Article 15:1 of the NGT Act empowers the Tribunal to order relief or compensation for victims of pollution or persons who are aggrieved by the environmental damage arising from decisions or order made under the Water (Prevention and Control of Pollution) Act (1974), Forest Conservation Act (1980), Air (Prevention and Control Pollution) Act (1981), Environment Protection Act (1986) and Biological Diversity Act (2002). The relief or compensation order may include cost of restitution of damaged property or environmental degradation resulting from the activities under dispute. Compensation may be awarded to any person who has sustained injury, an owner whose property has suffered damage or a legal representative of a diseased person where death has resulted from environmental damage. Many tribal and socially disadvantaged communities living in forests and hilly regions do not have private property rights over land, forest or other natural resources. Their livelihood is primarily dependent on usufructs rights to harvest forest products and farm common property or de facto open access land. This is of a particular concern because a large portion of India s most vulnerable or disfranchised citizens continue their struggle in mainstream courts claiming fair compensation for resources that they historically used and managed under the non-private property rights regimes. Though the NGT Act ambiguously claims to apply principle of sustainable development, it has not made any explicit provision to recognize the right to livelihood and socio-cultural lifestyle based on usufruct rights over land and other natural resources. Based on the evidences presented, the NGT Act sticks to a conventional theory of justice and does not make any explicit provision for alternative dispute resolution methods such as mediation,

The Trajectory of Environmental Justice in India 171 conciliation, restorative justice, ombudsman programme, and collaborative decision-making. These alternative methods of conflict resolution create institutional space for embracing concepts of sustainable development, environmental ethics, and indigenous values in adjudication. They also reduce the cost of litigation and expedite the process of adjudication (Pring and Pring, 2009: 72) The NGT Act has made provisions under Article 26(1) to impose steep financial penalty6 and imprisonment for any party that fails to comply with any order or award of the Green Tribunal. Though these upper limits are substantial, they fail to reflect even a fraction of the irreparable damage caused to human life for cases such as Bhopal gas leak. Neither does it reflect the scale of profits that Union Carbide, the company responsible for Bhopal tragedy, made for years. In order to deter parties from potential non-compliance of the NGT order or award, the upper limits set for financial penalty and imprisonment term should be left to the court s discretion. In the circumstance of non-compliance, the NGT Act does not clearly assign any power to the court to summon the state, being a regulatory and enforcement authority for the environment, to provide fair compensation to victims and restore the degraded environment on priority. Challenges Faced by the NGT: Environmentalism of Elites versus Environmentalism of Poor The establishment of specialized environmental courts is commonly justified by lack of expertise in existing civil courts to infuse environmental sensitivity, technical objectivity, and consistency into adjudication of inherently complex environmental cases. However, the concern for protecting the environment in developing countries such as India is not merely an issue of scientific and legal expertise. In the post-rio era, India has become perfect example of Kuznet s inverted-u curve where income inequality and ecological degradation increase as a result of negative externality of high economic growth. The ramifications of ecological degradation are particularly harsh for the poor who are directly exposed to environmentally hazardous living and working conditions. The efficacy of environmental jurisprudence should be measured on how it protects the constitutional rights and the needs of poor and marginalized sections of society. The creation of PIL is undoubtedly a credible indicator of judiciary s intention to address poverty, social exclusion, income inequality, and power imbalance. The courts delivered important verdicts on several PILs until early 1990s which were instrumental in bringing to light many issues of

172 Kirit Patel and Kathryn Dey government apathy for ecological damage and for the impacts of that damage on the lives and livelihood of the poor. Thus, the judiciary developed its identity as defenders of the environment and the rights of the poor. This pro-poor reputation of judiciary has come under question in the post-rio era. In his recent study examining PILs filed in the Delhi Supreme Court, Gauri (2010) found win-rates for PILs seeking the protection of fundamental rights was significantly higher in recent decades when the claimants were from advantaged social groups. This trend indicates social reversal, both from the original objective of PIL and from the relative win-rates of PILs filed by poor claimants in the 1980s. Political ecologists argue that the environment is not a neutral entity; it represents different material and cultural significances for the people, depending on their socio-economic class, ethnicity, and gender (Veron, 2006). PIL cases filed by environmental organizations and activists primarily reflect the priorities and values of the urban middle class (Bhan, 2009). For instance, a series of judicial orders by the Supreme Court for closure of small polluting factories and removal of squatter settlements from public spaces in Delhi had profound negative impacts on the livelihoods of more than two million urban poor. Baviskar (2003) labelled such processes of filing PILs and their adjudication by the Supreme Court dominated by English-speaking, urban middle class activists, journalists and judges as bourgeois environmentalism. In the context of environmental justice, the poor have become victims of the same legal instruments, in particularly PIL and judiciary activism, which were originally introduced to liberate them from poverty, pollution, and a skewed power structure. Bhushan (2004) cautioned that the judiciary is influenced by the ideology of the neo-liberalism that promotes the privatization of natural resources and social services. The courts are becoming increasingly reluctant to admit public interest petitions against state-led development projects that have potential adverse environmental and social impacts. Sharma (2008) and several other scholars illustrated examples of court verdicts, such as Deepak Nitrate Ltd. v. State of Gujarat (6, SSC, 402), Essar Oil Ltd v. Halar Utkarsh Samiti & Others (2 SCC 392,408) and Karnataka Industrial Area Development Board v. Sri. C. Kenchappa & Others (6 SCC 371) where courts ignored expert panel s advice, precautionary principles, and the polluter pays principle and delivered patently pro-industry verdicts. Bhushan (2009) argues that whenever environmental protection comes into conflict with private sector interests, interpreted as development in societal interests,

The Trajectory of Environmental Justice in India 173 courts subordinate the environmental cause and side with the private sector. However, the same courts are reluctant to compromise with environmental causes when they are pitted against socio-economic rights and the livelihood of the poor. For instance, in Almitra Patel v. the Union of India (2000 2 SC 341), Justice B.N. Kirpal ruled that slum dwellers are encroachers on public space and rewarding them with free alternate site, at the taxpayers cost, is like giving a reward to a pickpocket. Further, legislative branches in India conveniently seek intervention from the judicial branch to make unpopular or anti-poor decisions that may backfire in the next election. For instance, if slum dwellers had to be removed to build residential apartments for the middle class or commercial property, the government may hesitate in making such a decision in fear of democratic backlash from the poor. The courts, being an authority of law and indirect supporter of the government s neo-liberal values and development agenda, are viewed as the best instrument to reinforce interests of higher and middle classes. Gauri (2010: 13) attributes the urban middle class bias of courts to class structure which is ingrained in Indian judiciary. Judges in higher courts in India almost invariably come from the elite section of the society and have become a self-perpetuating oligarchy (Bhushan, 2009). Defying these trends in the Indian judiciary will be a herculean task for the NGT. Further, the NGT has to remember that the court is not an instrument for denying poor s chance of bargaining, sometimes based on their sheer votes, in the legislature or other democratic institutions where they have reasonable chance to prevail in India. The process of enforcing the rule of law and protecting the environment, under the authority of NGT, should not become an instrument of reinforcing existing socio-economic inequality. This will undermine the principles of participatory democracy, sustainable development and environmental stewardship. Notes 1. Under Article 352 of the Indian Constitution, a state of Emergency was declared in India from 1975 1977 suspending elections and civil liberties and giving the executive extraordinary power. 2. For example, see Francis Coralie Mullin v. Union Territory of Delhi & Others, AIR (1981) 746., Bandhua Mukti Morcha v. Union of India, AIR (1984) 802 and Olga Tellis & Others v. Bombay Municipal Corporation & Others, AIR (1986) 180.

174 Kirit Patel and Kathryn Dey 3. Prior to the court relaxing the rule of standing, as in nearly every other country in the world, petitioners of the court were required to prove they were directly affected by the action involved in the claim. 4. For example, see Vellore Citizens Welfare Forum v. Union of India,1996 (5) SC 647, Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212 and State of Himachal Pradesh v. Ganesh Wood Products, (1995) SCC 6 363. 5. M.C. Mehta v. Union of India (1986) 2 SCC 176, Council for Environmental Legal Action v. Union of India, (1996) 3 SCC 212 and A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718. 6. The penalty for individuals may extend up to ` 100 million. If a company fails to comply, the fine is extended to ` 250 million. References Baar, C. (1990). Social Action Litigation in India: The Operation and Limitations of the World s Most Active Judiciary. Policy Studies Journal, 19(1): 140 50. Baviskar, A. (2003). Between Violence and Desire: Space, Power, and Identity in the Making of Metropolitan Delhi. International Social Science Journal, 55: 89 98. Bhan, G. (2009). This is No Longer the City I Once New: Evictions, the Urban Poor and the Right to the City in Millennial Delhi. Environment and Urbanization, 21 (1): 127 42. Bhushan, P. (2004). Supreme Court and PIL: Changing Perspectives Under Liberalization. Economic and Political Weekly, 39 (18): 1770 74.. (2009). Misplaced Priorities and Class Bias of the Judiciary. Economic and Political Weekly, 44(14): 32 37 Dwivedi, O.P. (1997). Green Justice: An Overview of Environmental Laws and Regulations, in India s Environmental Policies, Programs and Stewardship, New York: St. Martin s Press, pp.79 110. Gauri, V. (2009). Public Interest Litigation in India: Overreaching or Underachieving? Selected Works of Varun Guari. Available at: http://works.bepress.com/varun_gauri/3 Gill, G.N. (2010). A Green Tribunal for India. Journal of Environmental Law, 22:3: 461 74. Gonslaves, C. and Sahu, G. (2010). Litigating Against Corporations for Human Rights, Economic and Political Weekly, 46 (14): 18 21. Government of India (2010). National Green Tribunal Act, of 2010. The Gazette of India, June 2, 2010, New Delhi: The Controller of Publication, pp. 1 18.

The Trajectory of Environmental Justice in India 175 Kohli, K. (2011). A Functional Green Tribunal. July 06, 2011. Available at: http://mylawu.net/article/a_functional_green_tribunal/ Law Commission of India (2003). One Hundred Eighty Sixth Report: Proposal to Constitute Environment Courts, A Report Submitted to the Government of India on September 23, 2003. New Delhi: Law Commission of India. Nambiar, S. (2010). Paradigm of Green Adjudication: Developing Principles for Indian Environmental Decision-Making in Disputes Involving Scientific Uncertainty. ILI Law Review, 1 (1): 1 24. Pring G. and C. Pring (2009). Greening Justice: Creating and Improving Environmental Courts and Tribunals, Washington: The Access Initiative, World Resource Institute. Sahu, G. (2008). Implications of Indian Supreme Court s Innovations for Environmental Jurisprudence, Law, Environment and Development Journal, 4 (1): 1 19. Sharma, R. (2008). Green Courts in India: Strengthening Environmental Governance? Law, Environment and Development Journal, 4 (1): 50 71. The Access Initiative-India (2010). How Green Will be the Green Tribunal? Concerns and Suggestions on the National Green Tribunal Bill, 2009. New Delhi: Environics Trust. The World Bank (2011). Data: GDP Growth Rate, India, 2011. Available at http://data.worldbank.org/indicator/ny.gdp.mktp.kd.zg United Nations Development Programme (2011). The 2011 Global Human Development Report: Inequalities and Environmental Challenges Threaten Progress in Asia, Pacific. New York: Palgrave Macmillan. Veron, R. (2006). Remaking Urban Environments: The Political Ecology of Air Pollution in Delhi, Environment and Planning, 38: 2093 2109.