Making the right choice

14/11/1992

A MAJOR leap in Indian jurisprudence occurred when Chief Justice P N Bhagwati interpreted the Indian Constitution to mean that Indian citizens have a Right to a clean and healthy environment because without this, the expressly stated Right to Life is meaningless.

However, little effort has been made to define this Right to Environment. Even a cursory study would show this right can have several meanings and, therefore, implications for the country's governance. One interpretation of this right would be that all citizens have the right to challenge a misuse of their environment. In other words, should an individual or a socially concerned group believe the environment is being adversely affected by the actions of a human agency -- whether state or private -- it has the right to take that agency to a court of law. And, the court would then have to rule whether the action is permissible under the law.

But a totally different interpretation of the Right to Environment would be the right of all citizens, expressing their will through clearly defined institutions, to use their environment in a manner that is both socially just and environmentally sound. In fact, it is this interpretation that the women of Reni village had in mind in 1973, when they launched their now world famous Chipko Movement. Hugging state property -- in this case, trees -- is clearly an illegal act, if it's meant to prevent the state from carrying out an action that is rightfully within its domain. But as the women were dependent on that forest for their survival, they felt their use of the forest had far greater moral authority than the use ordained by the state. Over the years, as the Chipko campaign grew, the country gave full support to the right of the women taking precedence over that of the state, and environmentalists throughout the country began to talk of community rights over forests and their management.

The impact on society of the two interpretations of the Right to Environment will be dramatically different. The first interpretation does not challenge the present order of resource management, which is dominated by state agencies and the private sector and leaves out community institutions from any meaningful role. But it does allow for an explosive increase in public interest litigation, even though conflict resolution must take place in courts that are overloaded and, as Justice Bhagwati pointed out in one of his judgements, that find it difficult to comprehend the technical intricacies at stake. Litigants in these courts face powerful opponents and must raise substantial resources of time and finance to present their case. A solution proposed by environmental lawyer Rajeev Dhavan is to build powerful institutions that would take up environmental litigation as this would relatively equalise the strength and resources of the petitioner and the respondent. There can be no doubt that such institutions need to be built as urgently as possible in India.

The second interpretation of the Right to Environment, on the other hand, pushes conflict resolution down to the level of local communities and local authorities. This would result in such conflicts emerging not in courts of law, but mohalla councils and gram sabhas, depending on the institutional forms created to manage the environment.

Both interpretations of the Right to Environment are valid, but they unleash widely different societal processes. The first interpretation is very similar to what has happened in USA, where powerful institutions such as the Natural Resources Defence Council and the Environment Defence Fund were established because of the growth in environmental concerns and public interest litigation becoming a key strategy for resolving ecological conflicts. An American expert on conflict resolution told a recent meeting in Rome that each of the USA's 140 forest working plans has been appealed against. The second interpretation would be more along the lines of what exists in several European countries, where public interest litigation is not the key technique for conflict resolution. While most environmental laws in Europe have led to the setting of standards being more and more centralised, their implementation has been left to local authorities and local democratic institutions. Environmental campaigns, therefore have aimed at local agencies to effect changes in environmental behaviour.

It is time developing countries began thinking about the legal framework in which they want their environmental conflicts to be resolved for there are serious choices to be made.

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