CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

OPINION


Environmental Rule of Law in India


The rule of law holds great relevance in determining the administrative performance of a government. Environmental issues have not commanded much attention when it comes to evaluating the rule of law, especially in poorer countries like India.

The rule of law is a concept which aims to restrict the arbitrary exercise of power by a controlling authority. As defined by the United Nations it has three core components: the law should be consistent with fundamental rights, it must be inclusively developed and fairly effectuated, and it should bring forth accountability, not just on paper but in practice.

Environmental rule of law thus implies a framework which embodies these principles in the environmental context. Embodying environmental rule of law as a principle of governance would help build an accountable system of governance vis-a-vis issues of environmental importance.

In other words, the concept of rule of law strives to achieve adherence to law, by all actors, including the state. It is worth emphasising that, in a number of situations, it is not just the state which is guilty of non-compliance with rule of law.

A lack of responsibility on individual states is a major impediment in the global effort to address contemporary environmental problems. In an ideal setup, where the rule of law reigns supreme, individual states would perform their obligations effectively. In such a scenario, the contributions of individual states would aid in cementing the rule of law in their territories, and would also act as valuable inputs in the collective effort to achieve international goals on environmental issues.

With the accountability of states being a core element of the rule of law, the issues which arise in the absence of an international monitoring and punitive framework could be addressed to an extent.

Creating a robust domestic legal framework which factors in intended concerns, is arguably the most important stimulator in directing a state's conduct on environmental issues.

Major Operational Problems

A key operational issue which has held back the furtherance of constructive environmental policy is the underinvestment of state bodies, agencies or departments responsible for conserving the environment. The allocation of resources to such agencies is often scant in relation to the responsibilities they are entrusted with. It is largely down to the negligence and ignorance exhibited by ruling regimes around the world in relation to environmental issues.

Issues such as climate change, biodiversity destruction, deforestation often find themselves way down the priority list of policymakers, despite their great effects on the lives of the vast majority of people and life, and the large chunks of funds set aside for other ministries or departments leave environment agencies starved of the necessary resources.

To take an example, last February the government of India cut its pollution control budget by half, in a move criticised from many quarters. It earmarked a sum of ₹10 crore under pollution control for the 2019-20 fiscal, compared to the ₹20 crore allocated in 2018-19.

The dip in budgetary allocation came at a time when doubts loomed large about the effectiveness and meaningfulness of the absurdly low allocation even in 2018-19. Pollution control is one of the most urgent health and environmental issues confronting Indians right now, as an estimated three-quarters of the country's people live in areas where pollution levels exceed the national safety standards.

With rising pollution levels being linked to reduced life expectancy, increased risk of critical illnesses, rising medical costs and much more, a neglect of public funding and attention in such critical sectors could propel us to a point of no return.

The private sector's engagement is at this stage far from the required levels, and the private sector is much more extensively involved in polluting activities, making the state's role even more important.

Besides encouraging ongoing pollution, the absence of significant public funding, legislation and other institutions might further disincentivise private investors, for example, who would weigh their bets carefully before embarking on credible investments in pollution control, renewable energy, afforestation, etc.

The lack of a holistic framework, coupled with a conspicuous lack of political will to implement the same, are testament to the Indian state's inability to tackle a growing hazard.

Preserving and Furthering the Concept

In India the judiciary will play a determinant role in guiding the government's conduct while enforcing the rule of law in environmental matters. Although the judiciary is not supposed to stray into the domains policy formulation and implementation, it could certainly pull up the executive for its acts of omission and commission, its failure of duty in providing a clean and healthy environment to its citizens. In other words, a proactive judiciary could contribute to strengthening the environmental rule of law in India by ensuring that the state doesn't deviate from its commitments under the constitution.

The Supreme Court's decisions in environmental matters will be keenly watched, as these judgments will shed light on the legal position on a number of contentious issues. The top court often directs governments of the union and the states to take corrective steps to ensure consistency with the concerned legislation or law. Similarly, government actions in matters of public policy too can be scrutinised.

In the past the Supreme Court had devised and utilised a mechanism wherein the union government would update the top court about developments on a regular basis, by placing records before it of the minutes of meetings, operational developments, etc.

Similar arrangements could be put in place again, one among which could see the Court seeking updates from the government about progress at fixed intervals, status reports on intended policy objectives which would aid in effective monitoring.

The framework of accountability is not restricted to guiding government policy alone: state inaction on determined commitments might invite court intervention as well, which might be brought to its notice by public spirited individuals.

In 1998 the Supreme Court came up with guidelines to be followed while entertaining public interest litigations or PILs. The 1998 guidelines, which are still referred to by the Court, identified matters pertaining to environmental pollution and a disturbing of ecological balance as one of the classes of petitions which could be brought before it in public interest. This signifies the importance the Supreme Court assigned to environmental issues about two decades back, identifying them explicitly as a matter which affects 'the public interest'.

The highest echelons of the Indian judiciary have done their bit to improve environmental governance in the country. Certain elements of the rule of law so far as it relates to the environment were incorporated into the legal framework long ago. A vigilant judiciary will only strengthen the application of the rule of law, in accordance with today's requirements. The consistent supervision of the top court will not only ensure that the centre doesn't shy away from its responsibilities, but will also lay down standards for environmental governance in India.

Members of civil society and academia too could play a constructive role in bringing forth the benefits of advancing the rule of law. Such organisations could help in identifying specific as well as general benefits which seem credible to different stakeholders. They could also assist the government in devolving a longterm strategy to integrate environmental rule of law in the country's governance architecture.

The citizenry too could make a valuable contribution in addressing some of the more pressing environmental concerns. In order to trigger concern among citizens, particularly the rich, national governments must elucidate the serious consequences which are more apparent to the people, raising the key concerns for citizens to generate mass support for such causes. The recent water crisis in Chennai and Bangalore serves as a fitting example which should direct awareness campaigns.

The acute water crisis faced by a number of Indian cities and villages, is slowly descending into a more permanent peril. People have to be apprised of the legal protections available in lieu of their right to live in a healthy environment.

The state in India is under a constitutional obligation to provide a clean environment to its citizens, after the right to a clean and healthy environment was included in the right to life guaranteed by Article 21 of the Constitution.

The rule of law is concerned with addressing contemporary environmental challenges, but it also aims to achieve a wider set of objectives. Developing a sustainable model of governance and creating a more livable world, promoting well-being without the cost of ecological destruction, would hopefully provide the impetus to drive the growth of environmental rule of law.

For more, see this report published last January by UN Environment.

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