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Environmental Governance in India: Adventures and misadventures

“I could tell you my adventures—beginning from this morning,” said Alice a little timidly; “but it’s no use going back to yesterday, because I was a different person then.”

― Lewis Carroll, Alice's Adventures in Wonderland / Through the Looking Glass


Change is the only constant not just in life but in the spheres of environment and climate too. The direction and pace of such change are vital while applying this theory by Heraclitus to environment and ecology. The evolving nature of environmental problems call for a dynamic approach to addressing them. However, dynamism should not become a tool for diluting environmental rights and safeguards. Striking a balance between competing interests and claims needs environmental governance frameworks that are built on the foundation of strong institutions and democratic processes.

It gives me immense pleasure to prepare a foreword for this very timely and valuable dossier on environmental laws in India. The last few years have witnessed a number of changes in laws and policies with a direct and indirect bearing on the environment and communities. Unfortunately, while the pandemic gave an opportunity to revisit the relationship between human activities and the environment, the developments have further divided the gap between the economy and environment.

India’s tryst with environmental law is not new and has had various phases with a focus on pollution control or conservation or forest communities, etc., at different times. The current regime lays focus on, amongst other things, climate change mitigation and reduced environmental hurdles in economic development. The recent developments in the landscape of environmental governance in India bring some issues to the forefront.

First and foremost, institutions are the pillars that hold environmental laws and policies in place. India has had a variety of institutions across nature, size, jurisdiction, and composition. While many of these central and state institutions are statutory in nature, their exercise of powers and discharge of functions has not been smooth. A vast body of literature has found environmental institutions in India to be suffering from problems of weak capacity, fragmentation, lack of coordination, lack of resources, and autonomy. India has had several extra-constitutional institutions in the past that have assumed a significant role in environmental decision-making and oversight, for example, Central Empowered Committee. The trend continues, albeit with other institutions taking up these roles in environmental governance, with many designated institutions taking a backseat. This is particularly evident in the realm of climate change, where the institutional structure is characterised by top-down decisions being implemented by institutions across sectors.

Second, democratic processes in environmental decision-making have been diminishing, especially in the last few years. The amendments in various laws have been proposed with little consultation with stakeholders and debate in the Parliament. In a bid to foster ease of business, there is a lot of emphasis on reducing the time and resources spent on approvals. The use of executive action has been an important feature of environmental regulation in India, especially in the context of environmental impact assessment and approvals. While this may be argued for on the grounds of efficiency, it skips the safeguards and scrutiny of a parliamentary debate. Overall, environmental decision-making has over the years become more and more centralised, executive dependent, and less democratic. Recent developments, as elucidated in the articles in this dossier, have only bolstered this trend.

A third and related issue is that of trust deficit accompanied by little accountability in environmental governance in the country. The rushed and near secretive manner in which many decisions are taken reduces the confidence in institutions and places conservation and communities on opposite ends of the spectrum. A recent report commissioned by NITI Aayog has highlighted how five environmental judgments between 2018 and 2021 cost a loss of revenue of Rs 8,000 crore and a loss of livelihood to 16000 workers. The media attention on the loss of revenue and jobs further widens the gap in this environment versus development narrative. A part of this problem can be addressed by allaying concerns of the various stakeholders and making them partners to obtain the social licence to operate and gain trust. However, trust and confidence are further diminished in an ecosystem where public accountability is weak. As discussed in this dossier, and highlighted in court orders over the years, accountability of public institutions and processes has been an issue in effective discharge of functions mandated by several laws.

Fourth, the role of the judiciary in protecting environmental and community rights has been somewhat piecemeal in recent times. Indian judiciary has been famous for its environmental jurisprudence since the 1980s. The judicial interventions have been responsible for the introduction of many environmental laws and the establishment of institutions. In the absence of weak implementation of laws and suboptimal discharge of functions by regulatory agencies, the judiciary has often stepped in to fill the void left by executive and legislature. This has led to accusations of judicial overreach and enabling environmental hurdles in economic development. Some of the recent National Green Tribunal (NGT) orders, such as those on sand mining and RO water purification, have not found favour with the government and have not been adopted. Some of these have even been challenged at higher courts. Besides regular challenges and reversal of orders at the Supreme Court, NGT faces challenges arising out of understaffing due to vacant positions in several of its benches. This has implications for the quantity and quality of orders and judgments that come out of NGT.

Finally, in these times when all international environmental discourse tends to be worded in the language of climate change, internationalization of environmental protection can prove to be a mixed bag. Government of India has often relied on International Agreements and Conventions to expand its jurisdiction on environment and natural resources by way of introducing laws to give effect to international decisions. India does not have a specific climate change or renewable energy law, but that has not stopped the government from announcing various plans and targets for meeting climate change goals announced at the international fora. However, these climate measures communicated globally need a strong and decentralised institutional framework domestically to be able to yield results.

by Nidhi Srivastava


*This piece appeared originally as a foreword to the Compendium titled, 'Environmental Laws in India: In the age of a Global Climate Crisis' prepared by The Research Collective, at https://static1.squarespace.com/static/559b6c31e4b02802c8b26ce9/t/636241dce85dca4ac083c451/1667383847375/Environmental+Laws+02-Nov-2022-compressed.pdf


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