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Explained Books | The scope and limits of green laws: a casebook

The book is candid about the risks of over-dependence on judiciary even as it notes that the role of our constitutional courts in spurring the evolution of Indian environmental laws since the 1980s has been a journey unparalleled in the world.

Shyam Divan, Armin Rosencranz are authors of Environmental Law and Policy in India: Cases and Materials.

On paper, India’s environmental regulations are extensive. In practice, they are often ineffective, largely due to patchy enforcement. This leaves the citizen to frequent the courts for judicial directions which are mostly ad hoc. The result is a regulatory stew — a state of perpetual uncertainty that helps neither environment nor economic development.

Acknowledging that our inability to build institutions for regulating natural resources has led to this mess, senior Supreme Court advocate Shyam Divan and veteran professor of environmental policies Armin Rosencranz attempt to untangle the strands by profiling the regulations and exploring regulatory “problems and needs with the comprehensiveness and rigour of an American law casebook” in the third edition of Environmental Law and Policy in India: Cases and Materials.

A valuable resource for the students of environmental law and green activists, the book is candid about the risks of over-dependence on judiciary even as it notes that the role of our constitutional courts in spurring the evolution of Indian environmental laws since the 1980s has been a journey unparalleled in the world.

The proactive spirit in the post-Emergency period and the urgency triggered by the 1984 Bhopal disaster have dissipated since. While assuring that “there is no immediate danger of the judges dropping the ball”, the authors concede that judicial “fatigue” or “restraint” has replaced the reformist zeal that once characterised the higher judiciary’s approach in many PILs.

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“The court continues to expound lofty principals but seldom apply them with a rigour that would tangibly benefit the affected,” the book observes, likening the outcome to “a hedge trimming exercise, snipping off a few stray vines here and there, whilst preserving intact the project clearance.”

Cautioning that this ‘hands off’ approach is likely to strengthen, the authors record that “the unwritten premise of judicial balancing dressed up as ‘sustainable development’ is that economic growth must continue unimpeded.”

The signs of this shift are unmistakable. In the early 1980s, the apex court’s willingness to expand the concept of ‘person aggrieved’ — through liberal ideas of representative and citizen standing — was the most significant factor that spurred the growth of PIL and transformed the environmental litigation landscape in India.

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Today, courts and tribunals seem to be less accommodating of petitioners who are not aligned with the development agenda. In 2020, for example, the National Green Tribunal (NGT) dismissed 22 appeals against green clearances issued to 20 projects. Half of these dismissals were on the technical ground that appellants did not approach the NGT in time.

In any case, courts are not meant to be the panacea for all environmental woes. The book quotes professor Charles E Corker of the University of Washington School of Law: “We are in some danger of leaving the most pressing environmental problems unresolved — or even made worse — because the commotion of litigation has persuaded us that something has been accomplished.”

It is for elected governments, and not the judiciary, to decide how to allocate natural resources through transparent, responsive and participatory decision-making. For effective environmental governance, the book underlines the need for a robust institutional framework that inspires public trust and fulfils the promise of its laws.

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Title | Environmental Law and Policy in India: Cases and Materials
Author: Shyam Divan & Armin Rosencranz
Publisher: Oxford University Press
Pages: 1008
Price: Rs 950

Explained Books appears every Saturday. It summarises the core content of an important work of non-fiction.

First published on: 03-12-2022 at 06:45 IST
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